1 - See e.g., Prosecution exhibit
(hereafter “P”) 30, Report of the Secretary-General Pursuant to General Assembly
Resolution 53/35: The fall of Srebrenica, UN Doc. A/54/549, 15 November 1999
(hereafter “Secretary-General’s Report”).
2 - See Mr. Nesib Mandzic, Transcript
at page (hereafter “T.”) 963 (testifying that some 25,000 Bosnian Muslim refugees
had gathered in Potocari); P 404/88 (Report of Karremans dated 12 July 1995
stating that, as of that date, 17,500 people had gathered in and around Potocari);
P 77/26 (UNMO fax dated 13 July 1995 reporting that 10,000 refugees had been
already transported with a further 20,000-25,000 to follow).
3 - Throughout this Judgement,
the term “military aged” is used to describe the group of men who were captured
and executed following the take-over of Srebrenica. It is a misnomer to the
extent that some boys who were several years younger and some men who were several
years older than would generally be considered “military aged” were included
within this group. Consequently, the term should be understood in its broadest,
non-technical sense as including the men and boys who were broadly defined by
the Bosnian Serb authorities as being within the vicinity of military age.
4 - See e.g., Prosecution v. Tadic , Case
No.: IT-94-1-T, (hereafter “The Tadic Judgement”) paras. 53-126.
5 - Tadic , paras. 56-57; Secretary-General’s
Report, paras. 17-18.
6 - Secretary-General’s Report,
para. 33. The term “municipality” is an expression used to describe the larger
area around a town and is equivalent to a “county” or a “canton”.
7 - See e.g., Witness S, Transcript,
pages (hereafter “T.”) 3282-3283.
8 - General Radovan Radinovic (hereafter
“Radinovic”), T. 8108.
9 - Radinovic, T.7812-7813.
10 - General Sefer Halilovic (hereafter
“Halilovic”), T. 9459-9451.
11 - Secretary-General’s Report,
paras. 33-38. The Trial Chamber has relied upon the Secretary-General’s Report
as an accurate recounting of the events leading up to the take-over of Srebrenica,
at least on matters where no contrary evidence has been presented at trial.
12 - Ibid, para. 37.
13 - Ibid.
14 - Ibid. para. 38.
15 - Ibid. para. 39.
16 - Ibid. para. 54.
17 - UN Doc. S/RES/ 819 (1993).
18 - UN Doc. S/RES/ 824 (1993).
19 - Secretary-General’s Report,
paras. 59-65. A preliminary agreement was signed on 18 April 1993, followed
by a more comprehensive agreement on 8 May 1993. See id. See also Halilovic,
T. 9445, 9448.
20 - Halilovic, T. 9465.
21 - Secretary-General’s Report,
para. 60.
22 - See Secretary-General’s Report,
para. 226.
23 - See Secretary-General’s Report,
para. 230.
24 - See Secretary-General’s Report,
para. 230.
25 - See e.g., Secretary-General’s
Report, para. 230; Colonel Joseph Kingori (hereafter “Kingori”), T. 1813-1814;
Major Robert Franken (hereafter “Franken”), T. 2008-2009; Captain Vincentius
Egbers (hereafter “Egbers”), T. 2207; Witness C, T. 1150-1151; and General Enver
Hadzihasanovic (hereafter “Hadzihasanovic”), T. 9509.
26 - See, e.g., Kingori, T. 1813-1814;
Franken, T. 2007; Egbers, T. 2206-22094; and Witness C, T. 1150-1151. See also
Hadzihasanovic, T. 9513-9516 and Court Witness Exhibit (hereafter “C”) 2, and
C 3.
27 - General Radislav Krstic (hereafter
“Krstic”) T. 6054.
28 - The Trial Chamber heard varying
estimates of the number of men in the 28th Division. The military expert called
by the Defence, General Radinovic, made several estimates: Radinovic, T. 7913
(10,000 men (including about 8,000 armed men); Defence Exhibit (hereafter “D”)
160, (hereafter “Radinovic Report”), para. 2.9, (stating that the 28th Division
consisted of between 10,000 and 12,000 men); and Radinovic, T. 8188-8189 (referring
to intelligence information from the Milici Brigade suggesting there were between
5,000 and 7,500 men in the 28th Division). . General Enver Hadzihasanovic, who
in July 1995 was the Chief of Staff of the Main Staff of the ABiH, testified
that the 28th Division in Srebrenica had 5,803 men, which was 102 % of the actual
requirement according to military doctrine. See Hadzihasanovic, T. 9513; and
C 1.
29 - See e.g. Defence Witness
DF, T. 8507, and T. 8507-8508; and D 30, D 33, D 34, D 35, D 37, D 51, D 54,
D 60, D 59, D 62, D 93, and D 94 See also Krstic, T. 7557 (regarding the ABiH’s
Operation Skakavac (“grasshopper”), involving sabotage activities within a broader
area of Bosnia under the control of the VRS, and including the Srebrenica and
Zepa “ safe areas ”).
30 - See eg. P 122, p. 63, (testimony
of Colonel Thomas Karremans (hereafter “Karremans”) at the Rule 61 Hearing,
stating that after 26 April no convoy came at all); Karremans, T. 3299-3306,
3322-3325; and Captain Johannes Rutten (hereafter Rutten), T. 2104-2107.
31 - Karremans, T. 3301-3302.
32 - See, e.g.,, Kingori, T. 1811-1812.
33 - Halilovic, T. 9467.
34 - Halilovic, T. 9466. See also
Secretary-General’s Report, para. 61.
35 - Halilovic, T. 9466 and Secretary-General’s
Report, para. 61.
36 - Halilovic, T. 9466-9467.
37 - See generally, Krstic, T.
6033 and Radinovic, T. 7836 ff.
38 - Radinovic, T. 7840-7842.
See also D 123, D 124, D 125, and D 126 (regarding helicopter flights, and landings
in the “safe areas” by the ABiH). Mr. Butler, accepted that Bosnian Muslim military
units continued to operate out of the safe area ” after its establishment. Butler,
T. 5374. See also Hadzihasanovic, T. 9518.
39 - Defence Witness DA, T. 6874-6875,
6877; and Krstic, T. 6088-6089.
40 - Krstic, T. 5984. See also:
D 27, D 47, D 49, D 48, D 74, and D 52 (regarding the procurement of weapons
and materiel by the ABiH in the “safe areas”); D 70 (regarding the arrival of
soldiers from the 28th Division in Zepa); D 44, and D 45 (regarding the use
of helicopters to bring in arms to the “safe areas”); and Krstic, T.6008-6013
and D 39, (regarding the ABiH plan to disarm UNPROFOR and take their weapons).
41 - Krstic, T. 5993-5994. See
also D 55, and D 33.
42 - Radinovic, T. 7840-7842.
43 - Halilovic, T. 9467-9468.
44 - P 122, pp. 62-66, 67 (testimony
of Colonel Karremans).
45 - Captain Leendert van Duijn
(hereafter “van Duijn”), T. 1772-1773.
46 - Van Duijn, T.1774.
47 - P 425.
48 - P 425, p. 10.
49 - Ibid., p. 14.
50 - P 898 (Requesting that constant
efforts be made to deblock the humanitarian corridor); P 899 (dated 6 July 1995,
reporting that “The situation continues to be exceptionally difficult. The food
convoy announced for today has not arrived. The first people to die of hunger
in the area of Srebrenica after the demilitarisation were registered today.”);
P 900 (dated 7 July 1995, reporting that “The humanitarian situation is worrying.
Today more civilians have been registered as having died from hunger…”); P 901
(dated 8 July 1995 reporting that “This situation is also dramatic and practically
hopeless. The civilian population is dying of hunger…we will very soon be forced
to abandon this area because of a lack of food.”; P 902 (dated 9 July 1995,
reporting that the “ humanitarian situation is catastrophic…”).
51 - P 426.
52 - Secretary-General’s Report,
para. 225.
53 - P 428.
54 - P 428, and Radinovic, T.
7916.
55 - Witness B, T. 844-847.
56 - Witness B, T. 854.
57 - P 432.
58 - P 77/18 (UNMO report-containing the threat made by the
Bosnian Serbs that, if NATO action continued, everything inside the enclave would
be bombed); and P 403, Mr. R. Butler, Srebrenica Military Narrative-Operation
“Krivaja 95”, 15 May 2000, (hereafter “ Butler Report ”), para. 3.17.
59 - Halilovic, T. 9495.
60 - Halilovic, T. 9453, 9492.
61 - The Trial Chamber viewed
a film made by Dutch television about the circumstances surrounding the take-over
of Srebrenica suggesting such an agreement. See T. 9479 ff.
62 - P 145.
63 - Van Duijn, T. 1741; P 127,
pp. 34-35; Witness G, T. 1643.
64 - Franken, T. 2048, 2085.
65 - See, e.g., Captain Eelco
Koster (hereafter “Koster”), P 127/A, p. 35-36; Vaasen, T. 1397; Kingori, T.
1833; Karremans, T. 3330-3331.
66 - Van Duijn”, T. 1748.
67 - Ms. Camila Omanovic (hereafter
“Omanovic’’), T. 1090-911093.
68 - Witnesses testified that
once the television cameras were switched off, the sweets were taken away from
the children. See Vaasen, T. 1414; Rutten, T. 2125; Witness F, T. 1521.
69 - Rutten, T. 2115; Mandzic,
T.994; Omanovic, T. 1091-93; van Duijn, T. 1779-1780; Witness G, T. 1638-1642;
Ms. Hava Hajdarevic (hereafter “Hajdarevic”), T. 2581.
70 - Mr. Nesib Mandzic (hereafter
“Mandzic”), T .994.
71 - Mr. Bego Ademovic, (hereafter
“Ademovic”) T. 1589.
72 - Witness H, T. 1683-87.
73 - Franken. T. 2052; Witness
B, T. 908; Witness G, T. 1642-1648; Witness H, T. 1688-92; Ademovic, T. 1590-97.
74 - Witness H, T. 1688-89.
75 - Ademovic, T. 1590-1591, 1593-96.
76 - See, e.g. Mandzic, T. 995;
Omanovic, T. 1109-1110; Ms. Mirsada Malagic (hereafter “Malagic”) T. 1957-1958;
Witness H, T. 1692-95, Hajdarevic, T .2585-2586.
77 - Mandzic, T. 994; Ademovic,
T. 1598-99; Malagic T. 1954-1955; Witness H, T. 1692-1695.
78 - Witness T, T. 3432-3434.
79 - Lance Corporal David Vaasen
(then-Private First Class) (hereafter “Vaasen”), T. 1429-30.
80 - Vaasen, T. 1431.
81 - Omanovic, T. 1132; Ademovic,
T. 1588.
82 - Malagic T. 1959-1960; Omanovic,
T. 1113, 1117-1119; Witness B, T. 914-915.
83 - Omanovic, T. 1113; Mandzic,T.
997.
84 - Omanovic, T. 1114; Witness
E, T. 1349; Rutten, T. 2139-2140; See also Franken, T. 2052; Koster, P 127,
p.44.
85 - Witness B, T. 894-98.
86 - Omanovic, T. 1129-30; See
also, e.g., Ademovic, T. 1603 (expellees were not given a choice about whether
to stay or where to go).
87 - Witness G, T. 1643-1648;
See also Kingori, T. 1881-85 (it was forced transport with the destination determined
by the Bosnian Serbs).
88 - One witness testified about
unconfirmed information that suggests approximately 1,000 women, most of them
young, did not arrive in Kladanj from Potocari. See Malagic, T. 1991. Fragments
of the Trial Record suggest that, at various points throughout the journey,
women, particularly young attractive women, were pulled off the buses by Bosnian
Serb forces, their ultimate fate unknown. e.g. Witness D, T. 1279-1280. However,
the Prosecution did not pursue this matter and did not Seek to include this
in the criminal conduct for which the defendant was alleged to be responsible.
89 - Malagic, T. 1981-82.
90 - Witness C, T. 1187.
91 - Franken, T. 2031 (testifying
that Dutch Bat lost about 15-16 jeeps); Rutten, T. 2130, 2131, 2154; Witness
G, T. 1650-59.
92 - Franken, T. 2031.
93 - P 459 (Report prepared by
Colonel Jankovic of the VRS Main Staff, dated 13 July 1995).
94 - Vaasen, T. 1478.
95 - Witness H, T. 1685, 1695,
1716-1717; Omanovic, T. 1130-1131.
96 - Van Duijn, T. 1761-1762.
97 - Vaasen, T. 1418-1419; Franken,
T. 2038-2039; Witness C, T. 1182; Witness F, T. 1511; Witness G, T. 1643-1644;
Omanovic, T. 1105-1106; Witness E, T. 1350; Malagic, T. 1966; and Mandzic, T.
992, 1005-1006. Witness B recalled that the separation process may not have
begun until after the first few buses had already been filled up. Witness B,
T. 898.
98 - See, e.g., Witness B, T.
898; Kingori, T. 1844-1849, 1857.
99 - Witness I, T. 2371.
100 - Witness DD, T. 5754-55.
101 - Witness D, T. 1261.
102 - Franken, T. 2046-2047.
103 - Vaasen, T. 1438.
104 - Corporal Groenewegen testimony,
P 32, .62. See also Kingori, T. 1852; Franken, T. 2052; and Witness G, T. 1642-48.
105 - The role of UNMOs was to
monitor violations of cease-fire agreements and also to provide humanitarian
support. Unlike UNPROFOR, the UNMOs were unarmed. See Kingori, T. 1799-1800.
106 - Kingori, T. 1850-51; See
also Franken, T. 2040 (UN soldiers not allowed to investigate sounds emanating
from the White House).
107 - See the further discussion
on the transportation of the Bosnian Muslim men from Potocari Infra paras. 156-161.
108 - Hadzihasanovic, T. 9527-9528.
109 - Witness L, T. 2654; Mr.
Enver Husic (hereafter “ Husic ”), T.2640. See also Hadzihasanovic, T. 9594-9595.
110 - Hadzihasanovic, T. 9528
(putting the number of men in the column at between 12,000 and 15,000 people
and the length of the column at between 12 and 15 kilometres).
111 - See, e.g., Butler, T. 5318
(one-third were soldiers, but only 1,000 had weapons);. Cf. Witness P, T. 2944
(one-third of the men were armed); Witness S, T. 3240 (about one third of the
men were armed with hunting rifles and similar weapons).
112 - Hadzihasanovic, T. 9528.
113 - Witness K, T. 2503, 2509.
114 - Hadzihasanovic, T. 9528-9529.
115 - Hadzihasanovic, T. 9530.
116 - Butler, T. 5453-5454.
117 - See, e.g., Witness J, T.
2450.
118 - Witness P, T. 2946.
119 - Witness K, T. 2504; Egbers,
T. 2224-2225.
120 - Witness M, T. 2766; Witness
P, T. 2292-93.
121 - Witness Q, T. 3018; Witness
R, T. 3198; Witness O, T. 2866; Witness S, T. 3246-3247.
122 - Witness R, T. 3192-3193,
3198-3202; Witness P, T. 2957; Husic, T. 2634-2635. See also Mr. Andere Stoelinga,
T. 2299-2300.
123 - See, e.g., Witness J, T.
2439-2497; Witness K, T. 2497-2571; Witness L, T. 2647-2731; Witness O, T. 2860-2938;
Husic, T. 2598-2646; Witness P, T. 2940-3014; Witness Q, T. 3015-3051.
124 - See, e.g., Ademovic, T.
1607 (1,000 men at the Nova Kasaba football field); Malagic, T. 1974-75 (long
column of prisoners between Sandici and Kravica, and a large group in a meadow,
with their belongings heaped by the road); Hajdarevic, T. 2587-2588 (many prisoners
with their hands behind their heads near Kravica and Sandici); Egbers, T. 2226
(football field at Nova Kasaba was entirely filled with men, sitting on their
knees with their hands behind their heads, surrounded by soldiers); Witness
Q, T. 3025 (saw crowd of prisoners in Sandici from bus); Witness E, T. 1354,
1356 (a total of approximately 300-400 prisoners at Kravica and in a meadow
between Konjevic Polje and Nova Kasaba).
125 - P 12/2; P 12/4; Butler,
T. 4925-4928; P 490; P 491; P 492; P 493; P 494; P 495; P 496; P 497; and P
498.
126 - Hadzihasanovic, T. 9529.
127 - Hadzihasanovic, T. 9529-9530.
128 - Witness N, T. 2801.
129 - Witness I, T. 2374.
130 - Witness N, T. 2802; Witness
I, T. 2374 (old school).
131 - Witness L, T. 2668; Witness
N, T. 2804; Witness Q, T.2957; Witness I, T. 2377.
132 - See, e.g., Witness Q, T.
3033, 3035-3036 ; Witness L, T. 2690 (when a wounded man at the Orahovac site
asked to be finished off, the Serb soldier replied “slowly, slowly”).
133 - See generally the discussion
Infra paras. 195-253.
134 - See P 140 D. Manning, Srebvenica
Investigation: Summary of Forensic Evidence-Execution Points and Mass Graves,
16 May 2000 (hereafter “Manning Report”) p. 00950906
135 - This gravesite is part
of the Lazete 2 site exhumed in 1996, but is treated as a separate site for
present purposes.
136 - Manning Report, p. 00950925
and D. Manning, Srebrenica Investigation: Summary of Forensic Evidence-Mass
Graves Exhumed in 2000, February 2001(hereafter “Additional Manning Report”)
p 7601. The Additional Manning Report was filed as part of the “Motion to Reopen
the Prosecutor’s Case for the Limited Purpose of Introducing Four Expert Reports
and a Summary Report of Fresh Exhumations Evidence” dated 15 March 2001. The
Trial Chamber issued an oral order that these four expert’s reports be admitted
into evidence on 4 April 2001. See T. 9423. The Report was subsequently tendered
as P 897.
137 - Additional Manning Report,
p. 7601.
138 - See P 144 (Laboratory Report
on Automated Ballistic Comparison, prepared by United States Bureau of Alcohol,
Tobacco and Firearms, Forensic Science Laboratory, 24 February 2000); P 179
(Statement of Antony G. Brown, Palynologist 6 January 1998); P 180 (Statement
of Antony G Brown, Palynologist 26 February 1999); P 143 (Report on Textile
Investigation, prepared by Ing. S.E. Maljaars, Ministy of Justice, Netherlands
Forensic Institute, 11 February 2000). See also Mr. Dean Manning (hereafter
“Manning”), T. 3593.
139 - Professor Jose Baraybar
(hereafter “Baraybar”) T. 3781-3895; Professor Helge Brunborg, (hereafter “Brunborg”)
T. 4036-4100; Dr. John Clark, (hereafter “Clark”) T. 3896-3972; Professor William
Haglund, (hereafter “Haglund”) T. 3723-3780; Dr. Christopher Lawrence, (hereafter
“Lawrence”) T. 3974-4034 ; Manning, T. 3542-3626, 4141-4150; Mr. Jean-Rene Ruez,
(hereafter “Ruez”) T. 3465-3541; and Professor Richard Wright, (hereafter “Wright”),
T. 3632-3721.
140 - D 172 (Forensic Opinion
dated 17 October 2000, by Doc. Dr. sc. Med. Zoran Stankovic, Specialist in Forensic
Medicine, permanent Expert for the area of Forensic Medicine pursuant to Ruling
No. 740/0373/98 of the Ministry of Justice of Serbia, Institute of Forensic
Medicine-VMA (hereafter “ Stankovic Report”) and D 172 (Forensic Opinion dated
18 April 2001 by Doc. Dr. sc. Med. Zoran Stankovic, Specialist in Forensic Medicine,
permanent Expert for the area of Forensic Medicine pursuant to Ruling No. 740/0373/98
of the Ministry of Justice of Serbia, Institute of Forensic Medicine-VMA, (hereafter
“Additional Stankovic Report”).
141 - Additional Manning Report
p. 7614.
142 - Manning, T. 3579-3580,
3588-3592. Identification items uncovered during the exhumations conducted in
2000 further revealed the presence of individuals listed as missing by the ICRC
list cross-referenced with other sources. See Additional Manning Report, p.
7600-7597.
143 - P 132/95, and P 132/95A.
See also Manning T. 3580-3582.
144 - P 132/93, and P 132/93A.
See also Manning, T. 3583-3584.
145 - P 132/1, and P 132/18.
See also Manning, T. 3589-3590, and 3592.
146 - P 132/110. See also Manning,
T. 3588-3589. Artefacts demonstrating Muslim religious affiliation were also
identified in three of the gravesites exhumed in 2000. Additional Manning Report
pp. 7600-7597.
147 - Brunborg, T. 4071.
148 - Brunborg, T. 4070.
149 - Baraybar, T. 3811-3812.
Additional Manning Report, p. 7613.
150 - P 276 (H. Brunborg and
H. Urdal, The Report on the Number of Missing and Dead from Srebrenica), p.
00926384, Figure 3. This figure only includes exhumations conducted up to the
year 2000.
151 - The sites were: the primary
grave at Branjevo Military Farm and the related secondary grave of Cancari Road
12; the primary grave at Orahovac (known as Lazete 2), and the three connected
secondary graves at Hodzici Road 3, Hodzici Road 4 and Hodzici Road 5 ; and
the Kozluk grave and the associated secondary grave at Cancari Road 3. Manning
T.3569-3570. In addition, during the exhumations conducted in 2000, blindfolds
were found at Lazete 2C and Lazete 1. Additional Manning Report, p. 7601.
152 - The sites were: the primary
grave at Cerska; the primary grave of Nova Kasaba exhumed in 1996; the primary
grave of Orahovac (Lazete 2) and its related secondary site of Hodzici Road
5; the primary grave of Branjevo Military Farm, and the related secondary grave
at Cancari Road 12; the primary site of Petkovci Dam and its related site of
Liplje 2; the primary grave of Kozluk and its associated secondary grave of
Cancari Road 3; and the secondary site of Zeleni Jadar 5. Manning, T. 3579-3576.
In addition, during the exhumations conducted in 2000, ligatures were found
at Lazete 2 C, and Glogova 1. Additional Manning Report, p 7601.
153 - Manning, T. 3576.
154 - Manning, T. 3565. The results
of the additional exhumations conducted in 2000 continued to reflect this pattern.
See Additional Manning Report.
155 - See e.g. P 219 (an individual
with a prosthetic leg and his hands tied behind his back). See generally, Lawrence,
T. 3987-3989; and Clark, T. 3912-3913, 3939-3940.
156 - Stankovic Report, p 13.
See also Additional Stankovic Report, p 8174.
157 - Stankovic Report, p 10-11.
158 - Clark, T. 3958.
159 - Manning Report, T. p. 00950924.
See also the Additional Manning Report p. 7606 (regarding the Ravnice primary
grave, which is also located close to the Konjevic Polje to Bratunac Road, and
in which no ligatures or blindfolds were uncovered. In addition, this is an
undisturbed primary gravesite, which further suggests that the victims may have
been combat casualties. See the discussion Infra para. 78).
160 - Stankovic Report, at p.
11.
161 - The statistics relating
to the forensic examinations conducted at these individual gravesites will be
considered more closely in the Part IIB.
162 - Ruez, T. 3534.
163 - Manning, T. 3614-3615 and
See also Additional Manning Report p. 7601.
164 - Krstic, T. 6489.
165 - As Baraybar (a Prosecution
forensic expert) pointed out, the minimum number of individuals within the grave
is a very conservative estimate. Baraybar, T. 3811.
166 - Baraybar, T. 3844. Four
additional gravesites were exhumed in 2,000, reducing the number of unexhumed
sites from 22 to 18. Prosecution experts estimate that a minimum of 2,571 further
bodies are located in probed, but as yet, unexhumed gravesites. On the basis
of their investigations to date, the Prosecution estimates that the total number
of bodies detected in the mass graves is 4,805. See Additional Manning Report,
p. 7614. This estimate was, however, contested by the Defence. See Additional
Stankovic Report, p. 8179.
167 - Brunborg, T. 4067. The
final list prepared by the OTP refers to 7,481. This discrepancy is explained
by the fact that information from the International Committee of the Red Cross
revealed that six people on the list have been found alive, but the ICRC was
not at liberty to disclose the names.
168 - Brunborg, T. 4078-4079.
169 - P 523.
170 - Franken, T. 2050.
171 - P 478 (A conversation intercepted
at 1000 hours in which Colonel Beara stated he still had 3,500 “parcels” to
distribute.); P 675 (Interim Combat Report dated 18 July 1995, sent by the Commander
of the Zvornik Brigade stating that “someone brought in 3,000 Turks of military
age and placed them in schools in the municipality”).
172 - P 684.
173 - Butler, T. 5205.
174 - Butler, T. 5105, 5128-5120,
5520-5522.
175 - Butler, T. 5513.
176 - Final Submissions of the
Accused, 21 June 2001 (hereafter “Defence Final Brief”), para. 140.
177 - P 459. Colonel Jankovic
further noted “I think if we want to take over the enclaves of Zepa and Gorazde
in the same way, it will be necessary to present the operation in Srebrenica
in the media, so as to show that we had rendered adequate treatment to the civilians,
and even to soldiers who surrendered their weapons.” There is evidence that,
following the period of the mass-executions, wounded Bosnian Muslim men, who
were in VRS custody, were properly treated. In a communication on 17 July 1995,
the Commander of the Zvornik Brigade sought assistance from the Drina Corps
Command to arrange for the removal of wounded Bosnian Muslim prisoners from
the Bratunac health centre to Bijeljina. See P 370. Mr. Butler also testified
that, by 22 July 1995, the policy of executing the Muslim prisoners had been
abandoned. See Butler, T. 5233-5234, 5340, 5525-5526. Such a policy change is
not surprising. By this time, word that the Bosnian Serbs had orchestrated mass
executions of Bosnian Muslim men following the take-over of Srebrenica had been
widely publicised.
178 - See for example, the discussion
Infra para. 216 about the capture of Bosnian Muslim men from buses at Tisca.
179 - See e.g. P 113-3, dated
14 July 1995 (story from China); P 114/1, dated 17 July 1995 (story from Banja
Luka entitled “Zametica Denies Maltreatment of Srebrenica Muslims”); P 113/5,
dated 24 July 1995, (story entitled “Mazowiecki on Serb Human Rights Abuses
re Srebrenica Missing”; P 113/6 dated 27 July 1995 (story regarding Mazowiecki’s
resignation as UN envoy on the grounds that he could no longer take part in
the “fictional” defence of human rights in the former Yugoslavia).
180 - Defence Witness DE, T.
7736.
181 - Secretary-General’s Report,
para. 390.
182 - Secretary-General’s Report,
para. 416.
183 - Secretary-General’s Report,
para. 400.
184 - Malagic, T. 1983-84.
185 - Witness DD, T. 5778 (testifying
that her husband was the head of the household and was responsible for decision
making on most matters, including the financial affairs of the family. Witness
DD also testified that this system was typical of all families living in her
community); Ms. Jasna Zecevic, (hereafter “Zecevic”), T.5776, 5778-5779. (The
witness, the director of Vive Zene (a non-governmental organisation that provides
psychosocial support for many Bosnian Muslim women and children who survived
the take-over of Srebrenica) described the pre-war Srebrenica community as having
a traditional patriarchal structure.)
186 - Witness DD, T. 5759-5760;
Zecevic, T. 5779-5784.
187 - Witness DD, T. 5761. See
also Zecevic, T. 5791-5793.
188 - Zecevic, T. 5783-5784
189 - Zecevic, T. 5787.
190 - Zecevic, T. 5791.
191 - Zecevic, T. 5797.
192 - Ms. Teufika Ibrahimefendic
(hereafter “Ibrahimefendic”), (co-ordinator of the Vive Zene multidisciplinary
team), T. 5820-5826.
193 - Zecevic, T. 5797.
194 - Ibrahimefendic, T. 5817-5818.
195 - Zecevic, T. 5785-5786.
196 - Zecevic, T. 5792.
197 - Zecevic, T. 5793; Ibrahimefendic,
T. 5841.
198 - Teufika Ibrahimefendic,
T. 5814-5815.
199 - Witness DD, T. 5769.
200 - Halilovic, T. 9500.
201 - Cf. however, the comments
of the Defence military expert, General Radinovic, “Mass casualties on the Muslim
side are a result of actions which should be classified as combat activities,
and not violence against civilians” D 160 (Prof. Dr. Radovan Radinovic, Military
Expert Testimony of Srebrenica, 17 October 2000. (hereafter “Radinovic Report”),
para. 5.9.
202 - Trials of War Criminals
before the Nuernberg Military Tribunals under Control Council Law No. 10, Nuernberg,
October 1946-April 1949, Volume I, p. 27.
203 - Radinovic Report, para.
2.3.
204 - Butler Report, para. 1.
205 - Butler T. 4746.
206 - Radinovic, T. 7830, 7854.
207 - Butler Report para. 2.3.
208 - D 149.
209 - Radinovic, T. 7858-7859.
210 - Radinovic, T. 7827.
211 - D 147.
212 - Krstic, T. 6668.
213 - Krstic, T. 6841.
214 - Defence Witness DB, T.
7108.
215 - P 472.
216 - P 478.
217 - P 680.
218 - Witness U, T. 4159 and
Defence Witness DC, T7518-7519.
219 - Butler, T. 5190-5192. Krstic,
T. 6673, P 750 (VRS document from 1992 referring to security problems caused
by frequent use of Motorolas); P 825 (also referring to problems caused by the
use of Motorolas within the VRS); Defence Witness DB, T. 7202-7203 (agreeing
that lack of attention to security concerns in communications was a problem
within the VRS).
220 - Ms. Stephanie Frease (hereafter
“Frease”), T. 8925-8927.
221 - Frease, T. 8926.
222 - Witness U, T. 4154-4206;
Witness V, T. 4206-4253; Witness W, T. 4254-4324; Witness X, T. 4325-4383; Witness
Y, T. 4394-4447; Witness Z, T. 4447-4484, 8755-8774; Witness AA, T. 4487-4560;
Witness BB, T. 4573-4670, 8710-8748; Witness CC, T. 4689-4713.
223 - Witness U, T. 4169; Witness
V, T. 4210-4212; Witness W, T. 4261; Witness Y, T. 4398-4399; Witness Z, T.
4455; Witness AA, T. 4494-4495; Witness BB, T. 4576.
224 - Witness AA, T. 4499-4505.
225 - Witness U, T. 4169-4170.
See also Witness X, T. 4333; Witness Y, T. 4400; Witness AA, T. 4496-4497.
226 - Witness W, T. 4270.
227 - Witness AA, T. 4550.
228 - Witness W, T. 4269.
229 - Witness Z, T. 4472.
230 - Witness Y, T. 4400; Witness
Z, T. 4456; Witness AA, T. 4495.
231 - Witness Y, T. 4442.
232 - Witness Z, T. 4466. See
also Witness BB, T. 4577-4578.
233 - Witness Z, T. 4470.
234 - Defence Witness DB, T.
7113-7114
235 - Witness Y, T. 4435
236 - Radinovic, T. 8485, T.
9369.
237 - P 750 (Analysis of combat
readiness of RS Army in 1992). See also P 827 (dated 23 July 1995, intelligence
report on electronic surveillance.)
238 - P 548
239 - P 750, 1992. Also P 825.
240 - Defence Witness DB, T.
7201-7203.
241 - Defence Witness DC, T.
7519-7520.
242 - Radinovic, T. 9339-9341.
243 - Frease, T. 8931-8932, T.
8938-8939.
244 - Frease, T. 8939.
245 - Frease, T. 8993.
246 - Frease, T. 8939-8944, T.
8947.
247 - Butler, T. 5207.
248 - P 620.
249 - P 619.
250 - Butler, T. 4811.
251 - Radinovic, T. 8467-8468,
Radinovic Report, para. 2.7.
252 - Krstic, T. 6124-6125, and
Defence Witness DC, T. 7436. A “Spring Offensive”, the aim of which was to militarily
defeat the VRS, was planned and implemented by the ABiH prior to the takeover
of Srebrenica, See Krstic, T 6049, 6054, Radinovic, T. 7844-7846, and D 66,
D 67, D 88, D 89, D 90. Operation Skakavac (“ grasshopper ”) was implemented
by the ABiH in the lead up to the Spring Offensive, and involved planning and
executing sabotage activities within the broader area of Bosnia under the control
of the VRS, including eastern Bosnia. Krstic, T. 7557, and 6013.
253 - Butler, T. 4804-18; and
Dannatt, T. 5576-5577, 5614. In its Final Brief, the Defence appears to have
accepted that this was in fact the goal of Krivaja 95. See Defence Final Brief,
para. 149.
254 - P 428.
255 - P 428.
256 - Krstic, T. 6394 and Radinovic,
T. 7896-7897.
257 - P 425
258 - Kingori, T. 1914-1916;
Egbers, T. 2214; Witness B, T. 852; Witness C, T. 1152-53. See also P 77/1,
P 77/3, P 77/6, P 77/8, P 77/12, Secretary-General’s Report, para. 283.
259 - Witness B, T. 841; Kingori,
T. 1826-1829; Karremans, T. 3317, 3327-3328.
260 - Mandzic, T. 949-950.
261 - Egbers, T. 2215. See also
van Duijn, T. 173101733.
262 - See P 77/12, (UNMO report
from 10 July 1995) ; Secretary-General’s Report para. 283.
263 - Kingori, T.1827, P 77,
989-903.
264 - Witness B, T. 855-857 ;
Mandzic, T. 958-960; Witness C, T. 1159-61.
265 - Witness B, T. 858; Mandzi,
T. 980; Omanovic, T. 1082; Vaasen, T. 1392; Egbers, T. 2220; Witness C, T. 1161.
266 - Witness B, T. 854-855;
Mandzic, T. 949, 957.
267 - P 899 (report dated 6 July
1995 stating that “hundreds of shells have fallen on the lines of defence and
civilian targets”); P 900 (report dated 7 July 1995, stating that “the aggressor
has subjected the line of defence…to strong sniping and fire… and had frequently
engaged in random tank artillery fire against both the line of defence and civilian
targets…”); P 901 (report dated 8 July 1995 stating that “An enemy tank from
the Kula is destroying the centre of Srebrenica on a daily basis and at 1300
hours the enemy fired three guided missiles from that position on the town centre,
causing enormous material damage.”); P 902 (report dated 9 July 1995 stating
that “the aggressor is conducting an infantry attack…and the whole “safe area”
came under fierce fire from all calibre. The town centre itself is being constantly
shelled.”); P 903 (report dated 10 July 1995, stating that civilian targets
in the area were being attacked and that “the centre of town is being continually
ravaged by artillery fire…”).
268 - Krstic, T. 6462-6464 (denying
that Srebrenica was shelled on 11 July 1995).
269 - Radinovic, T. 821, T. 8232-8234,
8237-8238; Defence Witness Mr. Zeljko Borovcanin, (hereafter “Borovcanin”) T.
7011-7022, T. 7028-7029; Defence Witness DB, T. 7080; Defence Witness DC, T.
7441- 7442.
270 - Defence Witness DC, T.
7441-744.
271 - Butler, T. 5318.
272 - Butler, T. 5480-5481.
273 - Butler, T. 5317.
274 - Witness B, T. 860, 881.
275 - Butler Report, para. 4.3.
276 - P 39 (transcript of Hotel
Fontana meeting on 11July 1995 at 2030 hours).
277 - Witness B, T. 884-885;
Mandzic, T. 973-974.
278 - Mandzic, T. 964-966.
279 - Witness B, T. 885; Witness
C, T. 1169; Mandzic, T. 976.
280 - Mandzic, T. 975-976. See
also Witness C, T. 1169-1170.
281 - P 40 (transcript of the
Hotel Fontana Meeting on 11 July 1995 at 2300 hours).
282 - Witness B, T. 887.
283 - P 40.
284 - P 40.
285 - Witness B, T. 887; Mandzic,
T. 970, Krstic, T. 6295.
286 - Mandzic, T. 987-989.
287 - See the discussion supra
para. 162.
288 - P 49 (transcript of Hotel
Fontana meeting on 12 July 1995 at 10.00 hours).
289 - Ibid.
290 - Mandzic, T.1043; Omanovic,
T. 1129-1130, 1135.
291 - Mandzic, T.899; Witness
C, T. 1174-1175; Karremans, P 122, p. 13.
292 - Witness B, T. 894-895.
293 - P 436 (which is stamped
as having been received by the command of the Zvornik Brigade at 0835 hours
on the morning of 12 July 1995).
294 - P 404/126, P 404/127, P
404/128.
295 - P 435 (intercepted communication
from 0735 hours on 12 July 1995 relating to the procurement of buses); P 440
(intercept at 12.10 hours on 12 July 1995 in which General Krstic ordered Colonel
Krsmanovic to start the buses moving.); P 441 (intercept dated 12 July 1995
at 12.12 hours in which Colonel Krsmanovic is involved with trailer trucks);
P 452 (intercepted conversation at 11.10 hours on 13 July 1995, showing Colonel
Krsmanovic monitoring the movement of the bus fleet out of Potocari).
296 - P 450, Butler, T. 4849-4851.
297 - P 404/159; P 404/160.
298 - Butler, T. 5396.
299 - P 459.
300 - Witness B, T. 901 (presence
of General Mladic and Colonel Jankovic, an intelligence officer from the VRS
Main Staff); Mandzic, T. 990 (presence of General Mladic on 12 July 1995); Omanovic,
T. 1104 (presence of General Mladic on 12 July 1995); Witness C (presence of
General Mladic on 12 July 1995); Witness E (presence of General Mladic on 13
July 1995); Vaasen T. 1417, 1437, 1465 (presence of General Mladic on 12 July
1995 and presence of Colonel Jankovic on 12 and 13 July 1995); Witness F, T.
1520, 1540 (presence of General Mladic on “first” and “second” days); Witness
H, T. 1708 (presence of General Mladic on 12 July 1995); van Duijn, T. 1749-1750
(presence of General Mladic and Colonel Jankovic on 12 July 1995); Kingori,
T. 1841 (presence of General Mladic on 12 July 1995); Malagic, T. 1964, (presence
of General Mladic on 12 July 1995); Franken, T. 2049 (presence of Colonel Jankovic
on 13 July 1995); Karremans, T. 3355-3356 (presence of General Mladic in Potocari
on 12 and 13 July 1995 along with Colonel Jankovic).
301 - Karremans, T. 3372-3373.
302 - Van Duijn, T. 1749-1750
(General Zivanovic was with General Mladic in Potocari on 12 July 1995); Kingori,
T. 1846-1847 (presence of General Zivanovic in Potocari with a group of other
officers); Rutten, T .2128, 2161 (presence of General Zivanovic in one of the
cars accompanying General Mladic near the compound and presence of General Zivanovic
in front of the compound on 13 July 1995.)
303 - Kingori, T. 1880; Rutten,
T. 2152. P 58 (a still photograph taken from the footage of an interview filmed
by a television crew in Potocari on 12 July 1995) also confirms the presence
of Colonel Popovic.
304 - Franken, T. 2028, 2084
(presence of Colonel Acamovic outside the gate of the compound on 12 July 1995,
his involved in the co-ordination and logistics of the transportation, and his
presence in the company of General Krstic around 2-3pm on 12 July 1995); Witness
B, T. 911-914 and Kingori, T. 1875-1876 (presence of Colonel Acamovic on 13
July 1995).
305 - Witness C, T. 1187. P 136
(video of an interview given by Zoran Kovacevic, the Commander of one of the
companies in the Bratunac Brigade, in Potocari on 12 July 1995), shows Colonel
Kosoric in the background. See also Butler, T. 4845-4846.
306 - Witness C, T. 1187.
307 - The individuals are: Steten
Petrovic, Captain Nikolic, Sergeant Zoran Milosavljevic, Slavoljub Grujicic,
Goran Rakic, and Zoran Spajic. See P 454 and Butler, T. 4861-4865.
308 - Kingori, T. 1804; Franken,
T. 2012.
309 - Witness F, T. 1525 (presence
of Major Nikolic on “the day that Serb soldiers came in” to Potocari); Kingori,
T.1836-1837, 1883; and Rutten, T. 2119-2121 (presence of Major Nikolic in Potocari
on 12 July 1995, as the buses were coming in); Koster, T. 3403.
310 - Kingori, T. 1874; Karremans,
T. 3356.
311 - See also the further discussion
of the activities of these officers in Potocari, Infra paras. 352-353.
312 - Radinovic, T. 7962-7963.
313 - Radinovic, T. 7962-7963.
314 - Butler, T. 5507-5508.
315 - P 39, p. 11.
316 - P 445 (conversation intercepted
by the ABiH between General Mladic and an unidentified person).
317 - Kingori, T. 1886-1887.
318 - P 113 (press release from
Security Council). See also P 113/1 (statement by UNHCR referring to the wholesale
removal of Srebrenica residents as “one of the most blatant examples of ethnically
motivated forced displacement Seen yet in the war.”)
319 - P 47, Franken, T. 2054-2056,
2059-2062, Mandzic, T. 1007-1016.
320 - Franken, T. 2062.
321 - Franken, T. 2062.
322 - Franken, T. 2060.
323 - P 399, p. 32. During his
testimony before the Trial Chamber, however, General Krstic maintained that
the movement of the Bosnian Muslim women, children and elderly from Potocari
was an “evacuation”. Krstic, T. 6217 and 6295-6296.
324 - See supra paras. 41-47.
325 - See supra paras. 143-144.
326 - See generally Butler, T.
4855-4866.
327 - P 460 (still photo from
the video) and Butler, T. 4856.
328 - See supra para. 143 (regarding
the activities of Major Jankovic from the VRS Main Staff).
329 - Vaasen, T.140-5-06; Kingori,
T.1918-19.
330 - Franken, T. 2030, 2034,
2064 (both regular and irregular troops); Witness F, T. 1562 (separate group
of disorganised soldiers arrived later and were smoking, drinking, and looting);
Rutten, T. 2116 (the first Serb soldiers who entered the compound were “Rambo
types”).
331 - Witness F, T. 1505; Kingori,
T.1836,
332 - Van Duijn, T. 1742-1744.
“Stalin” was identified as a person known as Jevic from the MUP Reserve Battalion.
See P 73 and van Duijn T. 1764. See also Rutten, T. 2123.
333 - Witness F, T. 1544; Witness
H, T. 1684, Kingori, T. 1836. Kingori speculated that the soldiers in black
were from “Arkan’s brigade”. Kingori, T. 1919.
334 - Witness H, T. 1689; Franken,
T. 2036. See also Egbers, T. 2263 (testifying about the presence of a unit with
German Shepherd dogs at a school where he was detained by Bosnian Serbs after
being stopped at a road block south of Nova Kasaba on 13 July 1995; and Corporal
Martin Van der Zwan (hereafter “Van der Zwan”), T. 2327, 2336-2338 (who was
also detained by a special purpose unit with German Shepherd dogs following
the capture of OP Uniform. One of the dog handlers came from Sarajevo.)
335 - Van Duijn, T. 1739.
336 - See, e.g., Mandzic, T.1006;
Omanovic, T.1103-05, 1127; Rutten, T.2149; Egbers, T.2150; Witness N, T.2787;
Ademovic, Malagic, T.1966-67, T.1957; Hajdarevic, T.2575; Witness H, T.1683-87.
337 - Vaasen, T. 1407.
338 - Witness D, T. 1263 (soldiers
spoke with the usual accent from the region); Witness E, T. 1346, 1372 (recognised
a policeman he knew prior to the war); Ademovic, T. 1586-7 (recognised a former
colleague and an acquaintance); Witness H, T. 1684 (recognised an acquaintance);
Malagic, T. 1953, 1963, 1969 (recognised several people she knew from the area,
including a former policeman and soldiers dressed in camouflage.)
339 - Mandzic, T. 1013 (many
young soldiers he had not Seen in the area before); Witness D, T. 1250 (the
soldiers dressed differently from soldiers around Srebrenica, and spoke with
an accent similar to Montenegrins. See also Egbers, T. 2263 (who, while being
detained by Bosnian Serbs near Nova Kasaba on 13 July 1995, spoke to a person
named Milanic who said he had been deployed to Srebrenica from Sarajevo with
his unit); and Van der Zwan, T. 2319-2320 (who, during the time the OP Uniform
was taken over, identified four soldiers wearing the badge of the Krajina Serbs,
one of whom said he was from Knin).
340 - Karremans, T. 3378-3379.
341 - Mandzic, T. 995; Omanovic,
T. 1104, 1117, 1125; Witness C, T. 1183; Vaasen, T. 1433.
342 - Rutten, T. 2116-2117. See
also Witness F, T. 1499 (soldiers in black were “cleansing” all the houses very
thoroughly.)
343 - Vaasen, T. 1407.
344 - Vaasen, T. 1408 ff.
345 - Vaasen, T. 1457.
346 - Vaasen, T. 1470.
347 - Kingori, T. 1839; Franken,
T. 2064-2065.
348 - Witness F, T. 1503 (soldiers
in camouflage uniforms were looting houses); Ademovic, T. 1589 (soldiers wearing
camouflage (but without insignia) threatening to slaughter the Bosnian Muslim
refugees and a soldier wearing camouflage killed a baby with a knife); Witness
G, T. 1647-1648 (soldiers in green camouflage kicking Bosnian Muslim men who
were boarding buses); Rutten, T. 2137-2138, (as the witness, a Dutch Bat soldier,
tried to enter a room where Bosnian Muslim men were being interrogated, he had
a weapon put to his face by a Serb soldier wearing green camouflage), T. 2152
(saw soldiers in green camouflage taking Deutsche marks from Bosnian Muslims),
T. 2196-2197 (saw a Serb soldier in camouflage uniform chasing a woman who had
run out of a house).
349 - Indeed, one witness encountered
Serb soldiers in green camouflage uniform near Nova Kasaba on 13 July 1995 and
was told by their commander (Major Zoran Malinic) that he and his unit had been
deployed from Sarajevo. Egbers, T. 2241.
350 - Witness F, T. 1513.
351 - Vaasen, T. 148.
352 - Witness F, T. 1564.
353 - Witness F, T. 1912-1913.
354 - See the discussion supra
para. 134.
355 - Butler, T. 5397-5398.
356 - Butler Report para. 5.19.
357 - Dannatt, T. 5616-5617;
Butler, T. 5389.
358 - Kingori, T. 1854; Rutten,
T. 2195-2196; Franken, T. 2051; van Duijn, T. 1769-70, 1780, 1786.
359 - Kingori, T. 1850-53; Witness
F, T. 1511-1512; Malagic, T. 1974; Franken, T. 2039.
360 - See the discussion supra
para. 58.
361 - Kingori, T. 1844.
362 - Witness T. 3437, and Defence
Final Brief, para. 292.
363 - Witness C, T. 1183.
364 - Witness C, T. 1183.
365 - Rutten, T. 2153; Witness
N, T. 2797.
366 - Kingori, T. 1846-1849 (identifying
Major Nikolic, Colonel Popovic, and General Zivanovic as present at the White
House) and Rutten, T. 2152 (identifying General Zivanovic as present at the
White House). The presence of General Krstic at the White House is considered
Infra paras. 365-367.
367 - Franken, T. 2096-2097
368 - Rutten, T. 2149-2150.
369 - Witness G, T. 1646; Kingori,
T. 1855; Egbers, T. 2233.
370 - Kingori, T. 1855
371 - Kingori, T. 1856-1857.
372 - Vaasen, T. 1439-1440; Witness
L, T. 2662; Witness P, T. 2956.
373 - Rutten, T. 2136; Witness
F, T. 1541-1542; van Duijn, T. 1786.
374 - Rutten, T. 2195; Franken,
T.2051; van Duijn, T. 1769-70, 1780, 1786.
375 - Radinovic, T. 7951-7952.
376 - Radinovic Report, paras.
4.17-4.18.
377 - Butler, T. 4929-4930; P
500; P 501; P 502; and P 503.
378 - Radinovic Report, para.
3.26.
379 - D 98, P 830, P 507, P 503,
P 404/2/114, P 878, P 502, P 404/2/115, D 165, P 508, P 487, P 404/61, P 504,
P 507; also P 511, and generally Butler, T. 4871-4872. See also Radinovic Report,
para. 3.26.
380 - P 507 (intercepted conversation
on 12 July 1995 involving an officer at the Drina Corps Headquarters and discussing
MUP involvement in the operations relating to the column). See also Butler T.
4944-4945; P 508 (intercept dated 12 July 1995 at 11.56 hours involving officers
from the 1st Bratunac Light Infantry Brigade, and the Drina Corps Command and
discussing the movement of the column); P 509 (intercept on 12 July 1995 at
13.45 hours involving an officer at the Drina Corps Command and discussing complications
in the area where the 4th Battalion was deployed); and P 511 (intercepted conversation
on 12 July 1995 at 16.40 hours involving Major Obrenovic, the Chief of Staff
of the Zvornik Brigade, discussing the movement of the column and the police
ambushes that had been set along the Konjevic Polje-Hrncici stretch.).
381 - P 500 (intercept between
unidentified subscribers at 0603 hours on 12 July 1995); P 502 (intercept between
unidentified subscribers at 06.56 hours on 12 July 1995); P 506 (intercept on
12 July 1995 discussing the location of the column); P 515 (intercepted conversation
on 13 July 1995 at 09.10 hours involving Colonel Beara, Security Chief of the
Main Staff, and discussing Bosnian Muslim prisoners in Konjevic Polje)
382 - See supra para. 61.
383 - Radinovic Report, para.
3.25; and Butler, T. 4921.
384 - P 488.
385 - Butler, T. 4993.
386 - P 511; Butler, T. 4949-4951.
387 - P 542.
388 - P 540, (Zvornik Brigade
Daily Combat Report 13 July 1995).
389 - P 548 (Zvornik Brigade
Daily Combat Report, 14 July 1995). See also P 555 (intercepted conversation
at 09.10 hours on 14 July 1995 in which the duty officer of the Zvornik Brigade
informs General Zivanovic about the size of the column and the threat posed
by it.); P 556 (intercepted conversation at 20.38 hours on 14 July 1995 between
the duty officer of the Zvornik Brigade and General Zivanovic about the column).
390 - P 550 (Zvornik Brigade
Interim Combat Report, 14 July 1995).
391 - P 607 (Intercept between
Colonel Pandurevic and a person named “Mijatovic”, 15 July 1995)
392 - P 597.
393 - P 609; Butler, T. 5115.
394 - P 614 (Zvornik Brigade
Interim Combat Report, 16 July 1995).
395 - P 641 (Zvornik Brigade
Combat Report for 17 July 1995, sent to the Command of the Drina Corps); P 675
(Zvornik Brigade Interim Combat Report for 18 July 1995, sent to the Command
of the Drina Corps); and P 676 (Zvornik Brigade Combat Report for 18 July 1995
sent to the Command of the Drina Corps); P 694 (intercepted conversation on
19 July 1995 at 08.12 hours in which Colonel Pandurevic speaks of chasing 150
Muslims remaining within his zone of responsibility.) See also Butler Report,
para. 7.74.
396 - Butler T. 5453.
397 - P 878.
398 - P 739.
399 - This date was identified
by Butler, T.4 968.
400 - P 532.
401 - P 462.
402 - P 523.
403 - Compare Witness K, T. 2503,
2508 (originally 1,000 people, increasing to 3,500 or 4,000 in a few hours);
Witness L, T. 2659 (2,000 to 2,500 people); Husic, T. 2619 (1,000 people); Witness
J, T. 2451 (2,000 people); Witness O, T. 2874 (1,000 to 2,000 people).
404 - Witness J, T. 2459; Witness
K, T. 2509; Witness L, T. 2660-2661.
405 - Witness K, T. 2510; Witness
J, T. 2461.
406 - Witness O, T. 2871.
407 - Witness P, T. 2950-2951;
Witness Q, T. 3022.
408 - Witness P, T. 2950.
409 - Witness P, T. 2953-2954.
See also Witness Q, T. 3013-15.
410 - Witness P, T. 2955-2956
411 - In addition to the video
showing the presence of the MUP along this stretch of road on 13 July and discussed
Infra para. 173, an intercepted conversation on 12 July 1995 at 16.40 hours
reveals that the civilian police were involved in setting up an ambush in Konjevic
Polje. See P 512. An order issued by the Main Staff in the late evening of 12
July 1995 also noted that organs of the MUP had been assigned to “secure the
communication Bratunac-Konjevic Polje.” See D 165. General Krstic agreed that
the MUP were present in this area. Krstic, T. 6416.
412 - P 3.
413 - Butler, T. 4925-4931.
414 - P 493, and Butler T. 4926-4927.
415 - Butler, T. 9181.
416 - P 3 video still number
491.
417 - Stipulation 890, T. 9186.
418 - Butler, T. 9201.
419 - Butler, T. 9182.
420 - Hadzihasanovic, T. 9604.
421 - Hadzihasanovic, T. 9605.
422 - Witness K, T. 2506-2507;
Witness L, T. 2657; Witness O, T. 2867.
423 - Witness P, T. 2948-2949;
Witness S, T. 3247.
424 - Witness O, T. 2868.
425 - Witness L, T. 2658.
426 - Husic, T. 2609-2613; Witness
K, T.2517.
427 - Egbers, T. 2237.
428 - P 504 (intercepted conversation on 12 July 1995 at
0740 hours in which one participant stated “…the police in Konjevic Polje have
been told to Ssicc the same as the Engineering Battalion are doing, and that
he can give orders to them through the commander of the Engineering Battalion.”);
P 505 (intercepted conversation on 12 July at 07.48 hours during which one participant
refers to a person from the MUP and states “One of his companies is up there
next to our man with the bulldozers, over there in [Konjevic Polje] and has the
task of doing whatever he does. So you can give orders what to do through the
commander.”
429 - See the further discussion
Infra para. 287.
430 - P 529.
431 - P 530.
432 - Butler, para. 6.11.
433 - P 404 /2 (tab 61) (Military
Police log for 14 and 15 July 1995).
434 - Butler, Report para. 6.33
& fn. 206.
435 - Witness G, T. 1653-1658.
436 - Butler, T. 5408.
437 - The Defence argued that,
even if subordinate Brigades of the Drina Corps had knowledge, of, or were involved
in the executions, this information was not transmitted to the Corps Command,
because there was a parallel chain of command involving the VRS Main Staff in
operation. The issue of how the Drina Corps chain of command was operating during
July 1995 is considered Infra paras. 262-276.
438 - See the discussion supra
para. 159.
439 - Malagic, T. 1992.
440 - Mandzic, T. 1000. Other
witnesses said some of the buses came from companies in Serbia. See Malagic,
T. 1992.
441 - See Infra paras. 239.
442 - Butler Report, para. 6.34.
443 - P 543.
444 - See the discussion Infra
paras. 220-225.
445 - Butler, T. 5029.
446 - See the discussion Infra
paras. 233-248.
447 - Defence Final Brief, para.
312
448 - P 543, Butler Report para.
6.34, Butler, T. 5027.
449 - P 559. See also P 561 (intercepted conversation
on 14 July 1995 at 2227 hours in which the Zvornik Brigade duty officer stated
“This packet has done most to ruin us and since this morning we have been reporting
on the numbers of people” at which point the other participant in the conversation
cuts him off.)
450 - Butler, T. 5056.
451 - P 609 (Interim Combat Report
of the Zvornik Brigade, 15 July 1995).
452 - P 463.
453 - P 537.
454 - Krstic, T. 6700-6701.
455 - P 539.
456 - Butler, T. 5369.
457 - Krstic, T. 7360.
458 - Witness S, T. 3245-3250.
P 177 ( a photograph of the hut).
459 - Witness S, T. 3255-3256.
460 - Witness S, T. 3261.
461 - Witness S, T. 3258.
462 - Witness S, T. 3262.
463 - Witness S, T. 3264, 3274.
464 - Witness S, T. 3271.
465 - Witness S, T. 3275.
466 - Witness S, T. 3276-3277.
467 - Witness S, T. 3277-3281.
468 - Witness S, T. 3286.
469 - Witness S testified that
a man he knew previously was amongst the executioners at Jadar River. Witness
S, T. 3267. The Prosecution has interviewed this person, who revealed that he
was a part of the 2nd Police company, an intervention unit formed out of the
Zvornik CSB (municipal police).
470 - Witness S, T. 3251, 3254,
3272-3273
471 - Witness S, T. 3259-3260.
472 - Witness S, T. 3260.
473 - Defence Witness DE, T.
7683-7684.
474 - P 502, P 503, P 504, P
505.
475 - P 517; P 521; Butler, T.
4775.
476 - See the discussion regarding
the presence of such units in Potocari, supra para. 151.
477 - Witness M, T. 2737-39.
478 - Witness M, T. 2746.
479 - Witness M, T. 2752.
480 - Ruez, T. 689, P 16/2.
481 - Manning Report, p. 00950937.
482 - P 206/1 (W. Haglund, Forensic
Investigation of the Cerska Grave Site), pp. vii-viii.
483 - Manning Report, p. 00950938.
484 - Butler, T. 5003; Butler
Report para. 6.14.
485 - P 517; P 521; and Butler
Report, para. 6.15 & fn. 186 & 187.
486 - The paucity of evidence
implicating the Drina Corps in the commission of the mass executions on 13 July
stands in contrast to the substantial evidence implicating the Drina Corps in
the commission of the mass executions from 14 July onwards as discussed Infra.
487 - Witness K, T. 2520.
488 - Witness J, T. 2464.
489 - Witness K, T. 2524.
490 - Witness K, T. 2530, 2532.
491 - Witness J, T. 2469.
492 - Witness K, T. 2526.
493 - Witness J, T. 2464-65;
Witness K, T. 2535.
494 - Witness K, T. 2536.
495 - See also Witness Q, T.
3026 (testifying that he saw bodies outside the Kravica Warehouse as he was
being transported by bus from Nova Kasaba to Bratunac).
496 - P 8/1; Witness K, T. 2514-2515.
497 - Manning, T. 3616
498 - P 181/1; P 181/2; P 181/3;
P 181/4; P 150; and P 97. See also Manning, T. 3616-3625.
499 - Manning, T. 3597; Manning
Report, p. 00950916.
500 - Manning Report, p. 00950983.
501 - Manning Report, p. 00950980.
502 - Manning Report, p. 00950984.
503 - Manning Report, p. 00950984-5.
504 - Additional Manning Report,
p 7604.
505 - Additional Manning Report,
p 7604-7603.
506 - Additional Manning Report,
p 7602.
507 - Witness K, T. 2517.
508 - This individual was subpoenaed
to appear as a witness for the Prosecution but was unable to appear for medical
reasons. However, the Trial Chamber permitted the Prosecution to call one of
its investigators, Mr. Jan Kruszewski (hereafter “Kruszewski”), who was present
when “OA” was interviewed by the OTP. The Chamber also admitted into evidence
the contemporaneous notes of Kruszewski (P 887), and the transcript of the interview
given by “OA” (P 886).
509 - Butler, T. 5001-03.
510 - P 404/2 tab 61; and Butler,
para. 6.27 & fn.204.
511 - Butler, T. 5000-5001.
512 - Witness D, T. 1259; Witness
E, T. 1354-1355. See also Malagic, T. 1976.
513 - Witness D, T. 1291.
514 - Witness D, T. 1293.
515 - Witness D, T. 1295.
516 - Witness D, T. 1297-1299
517 - Witness C, T. 1190-1196.
518 - Witness C, T. 1193.
519 - Witness C, T. 1229.
520 - Witness L, T. 2665, T.
2674.
521 - Witness N, T. 2820 (arrived
from Bratunac in the early morning of 14 July 1995).
522 - Witness N, T. 2822 (estimating
there were about 2,500 men in the gym). Cf. Witness L, T. 2676-2677 (estimating
there were at least 700 or 800 men) and Prosecution Closing Arguments, T. 9851.
523 - Witness L, T. 2683; Witness
N, T. 2823.
524 - Witness N, T .2822.
525 - Witness L, T. 2685-86;
Witness N, T. 2824.
526 - Witness N, T. 2824-25.
527 - Witness L, T. 2698, 2703-2705.
528 - Witness L, T. 2697-99;
Witness N, T. 2825.
529 - Witness N, T. 2825.
530 - Ruez, T. 3476--50; P 162/2.
531 - Ruez, T. 3477; P 162/4
and 5.
532 - Additional Manning Report,
p. 7601.
533 - Additional Manning Report,
p. 7600.
534 - Additional Manning Report,
p. 7608.
535 - Manning Report, p. 00950952
and Additional Manning Report p. 7607.
536 - Manning Report, p. 00950953.
537 - Additional Manning Report,
p. 7598.
538 - Manning Report, p. 00950952.
539 - Manning Report, p. 00950951,
and Additional Manning Report, p. 7611.
540 - P 167/1, P 167/4, P 167/5,
P 167/6, and P167/7, Ruez, T. 3502-3503. Ruez also discussed the likely disturbance
dates for additional, but as yet unexhumed, secondary burial sites along the
Hodzici Road. See T. 3499-3506.
541 - Manning Report, p. 00950950.
542 - Manning Report, p. 00950955-6,
00950959, 00950962-3.
543 - Manning Report, p. 00950960.
(This ligature was found at Hodzici Road 5)
544 - Manning Report, p. 00950956,
00950960, 00950963.
545 - P 567, Butler Report, para.
7.8; 7.16, Butler, T. 5067-5068.
546 - P 568, Butler, T. 5069-5073,
P 569.
547 - Witness L, T.2694.
548 - Butler, T. 5066, 5074-5081.
549 - Witness L, T. 2698.
550 - Butler, T. 5085.
551 - P 582, P 643, 580; Butler,
T. 5082-5086; and Butler Report para. 7.20.
552 - P 645
553 - P 584; Butler, T. 5082-5083,
5087; and Butler Report, para. 7.22, 7.25, 7.27.
554 - P 589, P 582; Butler, T.
5085-5090; and Butler Report, para. 7.23.
555 - P 645; Butler Report, para.
7.27; P 643, P 582.
556 - Witness L, T. 2699-2700;
Witness N, T. 2828.
557 - Witness P, T.2960-2961;
Witness O, T. 2902-2903
558 - Witness O, T. 2905.
559 - Witness O, T. 2904; Witness
P, T. 2968-69.
560 - Witness O, T. 2911-12.
561 - Witness O, T. 2912-14.
562 - Witness O, T. 2914; See
also Witness P, T. 2977
563 - Witness O, T. 2914-16;
Witness P, T. 2976.
564 - Witness O, T. 2916.
565 - Witness O, T. 2917-18.
566 - Witness P, T. 2983
567 - Witness O, T. 2925; Witness
P, T. 2981.
568 - P 163/2, and P 163/3. Manning
Report, p. 00950965. Ruez, T.3480-3482.
569 - Manning Report, p. 00950966.
570 - Wright, T. 3653-3659.
571 - Manning Report, p. 00950966.
572 - Manning Report, p. 00950967.
573 - Manning Report, p. 00950965.
574 - P 168/2 and P 168/3, Ruez,
T. 3508-3509. Ruez also discussed possible disturbance dates for other, as yet
unexhumed, gravesites in this location. See T. 3506-3511.
575 - Manning Report, p. 00950970.
576 - Manning Report, p. 00950970-0090971.
577 - Manning Report, p. 00950971.
578 - P 2, P 590, Butler, T.
5101.
579 - P584, Butler T. 5086-5087,
Butler Report, para. 7.33-7.34.
580 - P 591, P 594, P 592, P
593, Butler, T. 5093-5103, Butler Report, para. 7.35.
581 - Witness Q, T. 3036.
582 - Witness Q, T. 3039.
583 - Witness Q, T. 3040.
584 - Witness I, T. 2390-92.
585 - Mr. Erdemovic was indicted for one count of
crimes against humanity or alternatively a violation of the laws and customs
of war. He entered a guilty plea to the count of crimes against humanity and
was convicted for his role in the executions at Branjevo Military Farm. The Trial
Chamber sentenced him to 10 years imprisonment. Following an appeal, this sentence
was subsequently revised to five years for violations of the laws or customs
of war. See Prosecutor v Erdemovic, Case No.: IT-96-22-Tbis,
Sentencing Judgement, 5 March 1998.
586 - Erdemovic, T. 3126.
587 - Erdemovic, T. 3138.
588 - Erdemovic, T. 3135.
589 - Erdemovic, T. 3128.
590 - Witness Q, T. 3041-42.
591 - Erdemovic, T. 3130, 3132;
See also Witness I, T. 2392 (1,000 to 1,500 dead).
592 - Witness Q, T. 3045.
593 - P 24/2, P 24/4; Ruez, T.
3486.
594 - Manning Report, p. 00950943.
595 - Manning Report, p. 00950944.
596 - Manning Report, p. 00950944.
597 - Manning Report, p. 00950942,
T. 3605 (ligatures and blindfolds from the Branjevo Military Farm were matched
to items found in Cancari Road 3 and 12.).
598 - P 169/25, P 169/26 and
P169/27; Ruez, T. 3523-3524; Manning Report, p. 00950943. Ruez also discussed
possible disturbance dates for other, as yet unexhumed gravesites along the
Cancari road. See T. 3511-3525.
599 - Manning Report, p. 00950947-8.
600 - Manning Report, p. 00950948.
601 - Manning Report, p. 00950949.
602 - Erdemovic, T. 3116-3123.
603 - Erdemovic, T. 3121.
604 - Krstic, T. 6330, 6333.;
Defence Final Brief, para. 312.
605 - Prosecutor’s Final Trial
Brief, 21 June 2001 (hereafter “Prosecution Final Brief”), para. 347.
606 - Erdemovic, T. 3122-3124.
607 - Erdemovic T. 3127.
608 - P 435 (radio intercept
at 07.35 hours on 12 July 1995 in which General Krstic ordered Lieutenant Colonel
Krsmanovic, the Drina Corps Transport Officer, to procure 50 buses from Pale,
Visegrad, Rogatica, Sokolac, Han Pijesak, Vlasenica, Milici, Bratunac and Zvornik.)
609 - Erdemovic, T. 3129.
610 - Erdemovic, T. 3129-3130.
611 - Erdemovic, T. 3130.
612 - Erdemovic, T. 3132, T.
3141.
613 - Erdemovic, T. 31330-3134.
614 - Butler, T. 9194.
615 - Erdemovic, T. 3138-3139.
616 - P 614; Butler, T. 5342-5345.
617 - P 616; Butler, T.5133 and
Butler Report, para. 7.46.
618 - P 646.
619 - P645; Butler, T. 5169 and
Butler Report, para. 7.43.
620 - P 642; Butler, T. 5168
and Butler Report, para. 7.44.
621 - Butler, T. 5169; Butler
Report, para. 7.45 & fn.268; P 24/2 and 24/3.
622 - P 620.
623 - Prosecution Final Brief
para. 354; Butler, T 5139 and Butler Report, para. 9.20.
624 - P 619. Although the English
translation on this document actually refers to “Drina Corps Commander”, the
B/C/S abbreviation “KDK” has consistently been translated as Drina Corps Command
in other documents in the case, and so the Trial Chamber adopts that interpretation
in relation to this document also. The Prosecution expressly accepted that the
translation on the document was incorrect to this extent. See Prosecution Closing
Statement, T. 9954.
625 - P 619.
626 - Butler, T. 5139.
627 - See also the discussion
Infra paras 380-387 regarding the deployment of members from the Bratunac Brigade
to assist in the executions on 16 July 1995.
628 - Erdemovic, T. 3140.
629 - Erdemovic, T. 3143-3144.
630 - Erdemovic, T. 3148-3149.
631 - Manning, T. 3619.
632 - P 181/1; P 181/2; P 182/3;
P 182/4; P 150; and P 97. See also Manning, T. 3616-25
633 - Butler, T. 5132-5136.
634 - Erdemovic, T. 3140-3141.
635 - P 614; Butler, T. 5342-5345;
Butler Report, para. 7.49 & fn. 272.
636 - P 618 (extract from the
daily orders book of the military police platoon of the Bratunac Brigade for
17 July 1995, recording events that took place on 16 July 1995).
637 - Butler, T. 5136-5137.
638 - P 627.
639 - Krstic, T. 6754.
640 - Butler, T. 5357-5378.
641 - Defence Final Brief, para.
158.
642 - Ruez, T. 500, 783-788.
643 - Manning Report, p. 00950973.
644 - Manning Report, p. 00950974.
645 - P 164/1; Ruez, T. 3482;
Manning Report, p. 00950975.
646 - P 164/3; Ruez, T. 3434-3484;
and Manning, T. 3603-3608.
647 - Manning Report, p. 00950976.
648 - Manning Report, p. 00950975.
649 - Manning T. 3609-3614.
650 - Manning Report, p. 00950976-00950977
651 - Manning Report, p. 00950977.
652 - P 2; Butler Report, para.
7.53. Kozluk is the garrison area of the “Podrinje Detachment” (Drina Wolves).
653 - P 580; Butler, T. 5082-5083.
654 - P 582; Butler, T. 5085-5086.
655 - P 404/tab 281.
656 - P 404/4 (tab 214); Butler
Report, para. 7.58 & fn.282.
657 - See generally Witness R,
T 3196-3206.The Prosecution also relied upon documents seised from the Zvornik
Brigade which indicated that Muslim men were in their custody who are now on
the ICRC missing persons list to demonstrate that the Zvornik Brigade killed
captured Bosnian Muslim prisoners fleeing from Srebrenica following the mass
executions. See P 707, P 706, Butler, T. 5227-5233. However, the Trial Chamber
is unable to make any specific finding on the basis of the evidence presented.
658 - Witness R, T. 3200-3202,
Butler, T. 5227.
659 - Witness R, T. 3205-3206,
3229-3230.
660 - P 693.
661 - P 404 (tab 430 and tab
432); Butler Report para. 10.10.
662 - Ruez, T. 3470.
663 - Butler, T. 5235.
664 - P 709.
665 - Butler, T. 5236.
666 - P 710.
667 - Butler, T. 5236.
668 - Butler, T. 5237.
669 - Butler, T. 5242.
670 - P 374.
671 - Butler, T. 5121; P 611.
672 - Ruez, T. 3535-3536.
673 - Another key aspect of this
argument was the General Krstic was engaged as the Commander of the Zepa operation
and so knew nothing about events occurring back in Srebrenica.
674 - On 11 July 1995 the President
of Republika Srpska appointed a civilian commissioner for the Serbian municipality
of Srebrenica. See P 404, fn 90. The President gave the civilian commissioner
a very high level of responsibility, including responsibility for the treatment
of prisoners of war, as well as ensuring that the civilian population chose
freely whether to stay or to leave. See Radinovic, T.8064.
675 - P 649; Radinovic, T. 8461-8463.
See also Krstic; T. 7365, 7381.
676 - Krstic, T. 6203.
677 - Radinovic, T. 8057
678 - e.g. P 532 (Order from
Main Staff to Drina Corps on 13 July 1995 directing that measures be taken to
block and capture the men from the column); and Krstic, T. 6300.
679 - P 525.
680 - P 463.
681 - P 464 (order issued by
the Commander of the Bratunac Brigade on 14 July 1995 which General Krstic testified
demonstrated that areas being searched by that Brigade deviated from the order
he issued). Krstic; T. 7351-735.
682 - P 536 and P 537, and Defence
Witness DB, T. 7333-7335.
683 - P 675.
684 - P 627.
685 - P 470.
686 - The intercept refers to
the failure of “Furtula” (who the Prosecution argued was Major Radomir Furtula,
the Commander of the 5th Podrinje Brigade (also known as the Visegrad Brigade)
to follow the “boss’s” orders. The Prosecution argued that, in the context of
this conversation, the “boss” must have been General Mladic. See Prosecution
Final Brief, para. 366. See the further discussion of this conversation and
a related conversation involving General Krstic, Infra paras. 380-387.
687 - P 364/2, tab 14/2.
688 - Although it was not clear
from the intercept that the unidentified participant was from the Drina Corps,
the Defence argued this was implicit from the reference he made to the Potocari
area, which is within the zone of the Drina Corps. T. 5445.
689 - See the discussion of the
relationship between these units and the Drina Corps Infra paras. 277-289.
690 - Radinovic, T. 8471-8472.
691 - Radinovic, T. 8472.
692 - Krstic T. 6494-6495.
693 - Krstic, T. 7399-7400.
694 - Butler, T. 5447.
695 - Defence Witness DE, T.
7620.
696 - Butler, T. 4837, 5254.
697 - See the discussion supra
paras. 135-142.
698 - P 459; and Butler, T. 4868.
699 - P 532. See the discussion
supra para. 169.
700 - Butler, T. 4970.
701 - P 478.
702 - Butler, T. 4913-4914.
703 - P 609.
704 - P 614.
705 - Butler, T. 5250-5251. These
exhibits are listed in P 378.
706 - Radinovic, T. 8071.
707 - Radinovic, T. 8052, 8067,
and 8068.
708 - Radinovic, T. 8069-8070,
D 158/P 402 fn 34, (Rules of Service of Security Organs in the Armed Forces
of the Socialist Federative Republic of Yugoslavia, 1984. Para. 49 states that
a security officer “may pass on information that constitutes an official secret
to other authorised security organ officers or other persons only with the authorisation
of his superior officer in the security organ.”)
709 - Krstic, T. 7367-7368.
710 - Krstic, T. 7366-7367.
711 - Radinovic, T. 8079.
712 - P 402 fn 34, para. 16;
Butler, T. 5351.
713 - Butler, T. 4767.
714 - Butler, T. 5301.
715 - P 627.
716 - P 620 (intercepted conversation
at 1358 hours on 16 July 1995. See the discussion supra para. 242).
717 - P 619.
718 - Butler, T. 5277; and P
378.
719 - See the discussion supra
paras. 234, 239-240.
720 - Butler T. 4918; Butler
Report, para. 2.12-2.13. The Defence agreed that this unit was involved in the
capture of massive numbers of Bosnian Muslim prisoners. Defence Final Brief,
para. 303.
721 - Butler, T. 4856-.4859;
Van Duijn, T. 1742-1744; 1747; 1760-1771; 1778; 1780-1783 (identifying Captain
Mendeljev “Mane” Duric, MUP Battalion Commander; supervising the separation
process and identifying Dusko Jevic a.k.a. “Stalin” from the MUP). See also
P 459, (report dated 13 July 1995 from the Main Staff to the Drina Corps intelligence
department stating that the MUP had been looting from UNPROFOR and that the
MUP requested permission to participate in searching the UNPROFOR base in Potocari
after the departure of the refugees); and Butler, T. 4869.
722 - Butler Report, para. 2.13.
723 - Prosecution Final Brief,
para. 202. See also the discussion of police involvement in the Jadar River
executions, supra para. 197.
724 - Butler Report, para. 2.12
725 - P 145 ; and P 146.
726 - Erdemovic, T. 3087-3091;
Butler, T. 4825-4826.
727 - Krstic T. 6507-6508.
728 - Defence Witness DB, T.
7233.
729 - Defence Witness DB, T.
7233.
730 - Witness II, T. 9120.
731 - Defence closing argument,
T. 10105.
732 - See the discussion supra
para. 240.
733 - See the discussion Infra
para. 239.
734 - See the discussion Infra
paras. 239.
735 - Radinovic, T. 8053, 8056.
736 - Butler, T. 5381.
737 - Butler, T. 5342.
738 - Butler T. 4996; and Butler
Report, para. 2.12.
739 - Mr. Butler conceded the
Prosecution could provide no details as to how many prisoners were taken as
part of the sweep operations in which the 65th Protection Regiment were participating
with the Drina Corps from 15 July 1995. Butler, T. 5369.
740 - See the discussion of documents
referring to the joint operations of the 65th Protection Regiment and units
of the Drina Corps supra para. 162.
741 - P 428.
742 - Witness DB, T. 7134.
743 - P 420 (The Law on the Implementation
of the Law of Internal Affairs During an Imminent Threat of War or a State of
War), Butler, T. 4768.
744 - Krstic, T. 6140, 6416.
745 - Krstic, T. 6413, 6416,
6418.
746 - Butler, T. 5372-5373.
747 - Radinovic, T. 8061-8062.
748 - Defence Witness DB, T.
7149.
749 - Butler, T. 4806-4807.
750 - See the discussion supra
para. 151.
751 - See the discussion supra
para. 162.
752 - For example: P 504; P 506;
and Butler, T. 4938-4939 (regarding intercepted conversations dated 12 July
1995 at 0740 hours and 0748 hours respectively, suggesting that orders for MUP
units were being passed on through the Commander of the Drina Corps 5th Engineers
Battalion), P 507 (intercepted conversation at 0843 hours on 12 July). The Trial
Chamber notes, however, that Butler’s response to this conversation was “You
can’t read too much into this one. Clearly it is an awareness piece that the
forces are operating together.” Butler, T. 4945). Commenting on the series of
intercepts relied upon by the Prosecution to show MUP resubordination, Mr Butler
stated that they demonstrate that Drina Corps and MUP units were “co-ordinating
their activities”. Butler, T. 9206.
753 - P. 830.
754 - van Duijn, T. 1742-1743.
755 - P 502.
756 - P 446.
757 - P 527.
758 - P 529.
759 - See the discussion supra
paras. 162 and 192.
760 - P 537.
761 - P 539 (Bratunac Brigade
Daily Combat Report, 16 July 1995).
762 - P 649.
763 - P 478.
764 - Butler, T. 9204.
765 - Butler, T. 9204-9205.
766 - Butler, T. 9205.
767 - D 165, Butler, T. 9200-9203.
768 - See for example, P 445
(intercepted conversation at 1250 hours on 12 July 1995, in which General Mladic
is heard speaking of buses and trucks, and stating “We’ll evacuate them all,
those who want to and those who don’t want to.”)
769 - See generally, Butler,
T. 4853-4854.
770 - See also P 472 (an intercept
on 15 July 1995, in which Colonel Beara refers to the “Commanders” orders, which
appears to be a reference to General Mladic in the context of the executions);
and Butler T. 5512 (discussing the presence of General Mladic on the Bratunac-Konjevic
Polje Road on 13 July 1995 while bodies lined the road, and his presence at
Sandici where one individual was killed).
771 - See also the testimony
of Witness S, T. 3261, regarding the possible involvement of General Mladic
in the Jadar River executions on 13 July 1995.
772 - P 472; P 478; P 627.
773 - Butler, T. 4786-4789. See
also P 627 (in which a Main Staff officer by the name of Trkulja is mentioned
in the context of discussions relating to the prisoners).
774 - These figures have been
calculated on the basis of the map of the Drina Corps area of responsibility
annexed to the Amended Indictment against General Krstic, dated 27 October 1999.
775 - Krstic, T. 5972.
776 - Butler Report, para. 8.3
& fn. 313.
777 - Stipulations paras. 1-2;
and Krstic, T. 5980.
778 - Krstic, T .6026-6028.
779 - Agreed Facts, para. 12.
780 - P 3.
781 - Witness Z, T. 4478.
782 - See: Defence Opening Statement,
T. 5954;Krstic, T. 5973-5974, 7407, 7412-7413; Defence Witness Mr. Milenko Radulovic
(hereafter “Radulovic”) T. 7595; Defence Witness DA, T. 6890-6893, 6895-6896;
Defence Witness Borovcanin, T. 6997; Defence Witness DC T. 7451-7452, 7508-7509,
7512; Defence Witness Mr. Vlado Rudovic, T. 7535-7356, 7545; Defence Witness
DE, T. 7696. Witness II also confirmed that General Krstic always behaved in
a professional manner, both towards his own colleagues and Bosnian Muslim soldiers.
T. 9156-9157.
783 - Defence Witness DC, T.
7451-7452.
784 - Krstic, T. 7571.
785 - Krstic, T. 6123-6125.
786 - Krstic, T. 6410, Radinovic,
T.7953.
787 - P 428.
788 - Krstic, T. 6423.
789 - Krstic, T. 6185 (stating
that General Mladic arrived at the FCP on 9 July 1995); and Krstic, T. 6188,
6428-6429. (stating that after General Mladic assumed command, he and General
Zivanovic were effectively sidelined).
790 - P 432.
791 - Krstic T.6427. This was
confirmed by Defence Witness DB, T.7069-7070, T.7229.
792 - Krstic, T. 6195,
793 - Krstic, T.6196; and P 770
(Photo of General Mladic sitting down and General Krstic standing over him communicating,
which General Krstic said was taken after General Mladic gave order to continue
operation towards Potocari. Krstic T. 6509).
794 - Krstic, T. 6567. See also
Defence Witness DB, T. 7092; and Defence Final Brief, para. 266.
795 - Krstic, T. 6575.
796 - Krstic, T. 6575-6576.
797 - Krstic, T. 6233
798 - Krstic, T. 6583.
799 - Krstic, T. 6644.
800 - Krstic, T. 6642-6643.
801 - Krstic, T. 7390.
802 - Krstic, T. 7390.
803 - Krstic, T. 7392-7393.
804 - Krstic, T. 6263-6265.
805 - Krstic, T. 6585.
806 - Defence Witness DA, T.
6962.
807 - Defence Witness DC, T.
7459.
808 - Defence Witness DC, T.
7514.
809 - Defence Witness Radulovic,
T.7 599.
810 - Defence Witness DF, T.
8542.
811 - See the discussion supra
para. 78.
812 - Krstic, T. 6315, 6751-6753,
6851.
813 - Krstic, T. 6827
814 - Krstic, T. 6828, 7388.
815 - Krstic, T. 7389
816 - Krstic, T. 6309.
817 - Krstic, T. 6309-6311.
818 - Krstic T. 6263-6266.
819 - See the discussion supra
para. 78.
820 - Witness II, T. 9128, 9131.
821 - Witness II, T. 9128.
822 - Witness II, T. 9129.
823 - Witness II, T. 9171.
824 - Witness II, T. 9167.
825 - Witness II, T. 9167.
826 - P 886.
827 - P 887; and P 886.
828 - P 458.
829 - P 905.
830 - T. 9676.
831 - D 181 (Statement of Prof.
Gen. Radovan Radinovic, dated 26 May 2001, submitted in response to the Prosecutor’s
Motion to Reopen), p. 7; Radinovic, T. 9733.
832 - P 406; and Butler, T. 4752.
833 - Dannatt, T. 5703-5705.
834 - Krstic, T. 7412; Defence
Witness DE, T. 7612-7614; Defence Witness DB, T. 7337-7338.
835 - Radinovic, T. 9736-9739.
836 - Defence Witness DB, T.
7297. This witness was an officer in the Drina Corps in July 1995 and accepted
the possibility that someone may, de facto, assume command prior to the issuance
of formal documentation signed by the President.
837 - P 462.
838 - P 463.
839 - P 759 (showing both orders
side by side for the purposes of comparison).
840 - P 464. See also Butler
T.4890; and Dannatt T.5644, and Radinovic, T. 8350-8351.
841 - Krstic, T. 6248-6249; Defence
Witness DB T. 7335.
842 - Butler, T. 4888.
843 - Krstic, T. 6686.
844 - See the discussion supra
para. 303.
845 - P 555.
846 - P 556.
847 - Butler, T. 5049-5051, and
5438.
848 - P 558; Butler, T. 5439-5442;
and Butler Report, para. 8.25 & fns. 348-349; para. 8.27 & fn.351.
849 - P 558.
850 - Witness II, T. 9129.
851 - Butler Report, para. 8.21
& fn. 342, 343; P 466.
852 - P 364/1 (14 July 1995 tab
11).
853 - P 472.
854 - P 478.
855 - P 537.
856 - Krstic, T. 6695-6696.
857 - P 539.
858 - P 481. The Trial Chamber
does not accept the explanation put forward by General Krstic that, although
dated 17 July 1995, this document was signed, on about 22 or 23 July, after
his return from the Zepa operation. See Krstic, T. 6729-6730, 7361-7362.
859 - P 650
860 - P 652.
861 - P 652.
862 - P 694. See also P 677 (intercepted
conversation at 0712 hours on 18 July 1995 between General Krstic and Colonel
Veletic discussing matters outside the Corps zone); and P 680 (intercepted conversation
on 18 July 1995 at 0716 hours between General Krstic and Colonel Cerovic, in
which General Krstic directs Colonel Cerovic to go to a location that appears
to be unconnected with Zepa and orders him to assume command when he gets there.)
863 - P 467; and Butler, T. 44896-4899.
864 - D 181/5.
865 - General Krstic (Krstic,
T. 6720-6721) and General Radinovic (Radinovic, T. 8353, 8450-8451) both testified
that the term used in the original Serbian version of the document does not
mean that Zivanovic was no longer the commander of the Drina Corps. The Prosecution
obtained an official statement from the Tribunal translation service confirming
that the correct English translation for the word was “hitherto”. See T. 8356.
866 - Radinovic, T. 7993; Defence
Witness DC, T. 7450; Defence Witness Borovcanin, T. 6998; Defence Witness Radulovic,
T. 7593-7594.
867 - Witness II, T. 9152-9153,
T. 9168.
868 - Witness JJ, T. 9707.
869 - See the discussion Infra
para. 334.
870 - Witness C, T. 1240; Mandzic
T.1044.
871 - General Krstic himself
acknowledged that, in some situations, formal procedures are not complied with
and that oral orders may be sufficient. See Krstic, T. 7405, T. 7412. General
Radinovic similarly acknowledged that sometimes things have to be carried out
in an ad hoc fashion in emergency situations. See Radinovic, T. 8471-8472. The
Trial Chamber also notes that General Mladic was accustomed to over-riding rules
and procedures.
872 - Butler, T. 5361.
873 - Butler, T. 4901.
874 - Dannatt, T. 5656-5657.
875 - Krstic, T. 6374.
876 - Butler, T. 5432.
877 - Two Defence witnesses,
who were both at the Pribicevac FCP, testified that General Krstic was in command
of the operation. Defence Witness DB, T .7226 (testifying that General Zivanovic
didn’t interfere significantly and that his impression was that, up until 9
July 1995 the operation was under the command of General Krstic); and Defence
Witness DC, T. 7438, (testifying that “Krivaja 95 was under the command of General
Radislav Krstic…”).
878 - Defence Witness DC, an
officer in a Drina Corps Brigade involved in Krivaja 95, testified that the
Commander of the Brigade this witness belonged to in July 1995 received orders
from General Krstic up until 10 July 1995 and thereafter from General Mladic
directly. Defence Witness DC, T.7438-7440.
879 - P 432; and Butler Report,
para. 8.10 & fn. 325.
880 - Krstic, T. 6427-6429, 6433,
6434, 6436-6437.
881 - Defence Witness DC, T.
7440.
882 - P 145 (showing General
Krstic with General Mladic and others entering Srebrenica on 11 July 1995).
883 - P 367 (video of ceremony);
P 482 (a magazine article in Srpska Vojska on 28 December 1995 reporting the
speech given by General Mladic); and See also Butler T. 5243-5247.
884 - Krstic, T. 6446.
885 - P 756 (photo of ceremony).
886 - See P 112/1 (article dated July 20 1995 in the
Belgrade Crna where President Karadzic refers to General Krstic and General
Zivanovic as the “chief architects” of the Bosnian Serb victories in Srebrenica
and Zepa); and P 430 and P 99, (a transcript and video respectively of a speech
given by President Karadzic giving General Krstic credit for planning the attack
on Srebrenica).
887 - General Krstic explained
the comments as an attempt by President Karadzic to iscredit General Mladic.
See Krstic T. 6308, 7570-7572. Mr. Butler also acknowledged this possibility.
See Butler, T. 5468.
888 - Butler, T. 4187.
889 - See the discussion supra
paras. 122-125.
890 - P 145 (video of Srebrenica
11 July 1995).
891 - P 743.
892 - P 745.
893 - Krstic, T. 6540.-6541.
894 - P 744.
895 - P 650, (in which General
Krstic asks Trbic “have you killed the Turks up there?”).
896 - Krstic, T. 6514-6515.
897 - The Prosecution argued
that the meeting at the Bratunac Headquarters at which General Mladic first
announced his plans for the attack on Zepa actually occurred in the evening
of 12 July. This conclusion was based upon the testimony of Witness II, as well
as evidence that the road General Krstic reportedly travelled along the night
of 11 July was not open to VRS traffic until 12 July 1995. See Prosecution Final
Brief para. 241 and fn 764. The Trial Chamber finds it unnecessary to make a
specific finding on this point. Whether General Krstic received his assignment
for Zepa on 11 or 12 July does not, in the view of the Trial Chamber, make a
material difference to the outcome of the case.
898 - Radinovic Report, para.
4.1.
899 - Krstic, T. 6208-6209, 6213-6214.
900 - Mandzic, T. 974, 987-989,
1042; Witness B, T. 886, 925-926; P 40.
901 - P 40 (transcript of meeting).
902 - P 40.
903 - See the discussion supra
para. 130.
904 - Krstic, T. 6552-6554.
905 - See the discussion supra
para. 128.
906 - See the discussion supra
para. 130.
907 - Krstic T. 6579-6580.
908 - Krstic T. 6623.
909 - Krstic, T. 6621-6622. Although
witnesses testified that General Mladic had made this statement at the meeting
on the morning of 12 July 1995, General Krstic indicated this may have happened
on the evening of 11 July 1995. In any event, General Krstic accepted that he
knew General Mladic had made this statement.
910 - P 435, Butler, T. 4827-4828
911 - P 404 fn.130; and P 438.
912 - P 440.
913 - P 404 fn 132; and P 445.
914 - See the discussion supra
paras. 143.
915 - P 446; Butler, T. 4839-4840.
916 - See generally, Butler,
T. 4842.
917 - See for example, P 359,
and Butler T. 4831-4832 (showing General Krstic involved with the issue of fuel);
P 440, and P 443 (referring to fuel and stating that “Krsto” (a shortened name
for General Krstic, (See Butler T. 4834) ordered it). P 448 (intercept at 1848
hours on 12 July 1995 between two Main Staff personnel and referring to “Krle”
who the Prosecution’s military expert, Butler, believes to be a reference to
General Krstic given the context of the conversation. Butler, T. 4848).
918 - Witness II, T. 9122-9123.
919 - Witness II, T. 9123. See
also Witness II, T. 9157-9161.
920 - Witness II, T. 9123.
921 - Witness II, T. 9157-9161.
922 - Krstic, T. 6666.
923 - Witness II, T. 9113.
924 - Krstic, T. 6611.
925 - Defence Witness DB, a Drina
Corps communications officer, insisted that the communications facilities at
the Pribicevac FCP had been dismantled at about 1900 hours on 11 July 1995.
See Defence Witness DB, T. 7078-7079, 7244-7245. The testimony of Defence Witness
DB was corroborated by Defence Witness DG who was a Drina Corps signalman at
Pribicevac in July 1995. Defence Witness DG said that he left the Pribicevac
FCP on the day that the army entered Srebrenica (namely 11 July 1995), at about
1830-1930 hours, and that by the afternoon of 12 July 1995, the communications
devices had already been transferred to the new FCP at Krivace. See Defence
Witness DG, T. 9231-9232, 9320. The Prosecution argued that these witnesses
must have been mistaken about the time at which the communications facilities
at Pribicevac were dismantled. In particular, Defence Witness DB testified that,
on the same evening he dismantled the Pribicevac FCP, he passed through Potocari
and saw VRS soldiers present in the area amongst the Bosnian Muslim civilians
and UNPROFOR members. See Defence Witness DB, T. 7081-7082. The Prosecution
adduced evidence showing that there were no VRS soldiers present at Potocari
until 12 July 1995, and therefore that Defence Witness DB must be mistaken about
the date upon which the FCP had been dismantled. See Koster, T. 9040-9041.
926 - P 66; and P 67.
927 - Krstic, T. 6218.
928 - Krstic, T. 6219, 7404.
929 - Krstic, T. 6634.
930 - Krstic, T. 6634, 6638.
931 - See P 769 (on which Ruez,
an investigator from the OTP, marked with two red arrows the area that he believes
General Krstic was standing at the time of the interview).
932 - Krstic, T. 6633-6634.
933 - Krstic, T. 6220-6221.
934 - Krstic, T. 6221-6227.
935 - Krstic T. 6227.
936 - Krstic T. 6229.
937 - Krstic, T. 6229-6231.
938 - Krstic, T. 6231.
939 - Witness F, T. 1516-1519.
940 - Kingori, T. 1837-8, 1846,
T.1906.
941 - Kingori, T.1908.
942 - Kingori, T. 1839.
943 - Franken, T. 2065.
944 - Franken, T. 2084.
945 - Witness II, T. 9123.
946 - Witness II, T. 9124.
947 - Witness II, T. 9124.
948 - Witness II, T. 9165-9166.
949 - Kingori, T. 1909.
950 - Kingori, T. 1874-1876.
951 - Witness F, T. 1517-1518;
Kingori, T. 1837-8, 1846; Franken, T. 2065.
952 - Witness F, T. 1525; Kingori,
T. 1848.
953 - Kingori, T.1848, Witness
F, T. 1523-1524.
954 - Witness F, T. 1556.
955 - Witness F, T. 1906, 1910.
956 - Kingori, T. 1887.
957 - Witness F, T. 1523-1524.
See also Witness F, T. 1517.
958 - Krstic, T. 6231.
959 - Krstic, T. 6233, 6669-6670.
960 - Defence Witness DA, T.
6918-6919.
961 - Krstic T. 6233.
962 - Krstic, T. 6234-.6236.
963 - Defence Witness DA, T.
6886-6887, 6926-6927.
964 - Krstic, T. 6236, 6669.
965 - Defence Witness DA, T.
6927.
966 - Defence Witness DB, T.
7097.
967 - The witness initially referred
to the “first” day as being the day on which soldiers first came into the enclave,
(which the Prosecutor argues was 12 July 1995). However, Witness F subsequently
testified that the 12th was the “second” day. See Witness F, T. 1533. On cross-examination
the witness testified the “first” day was on the day the enclave fell, namely
11 July 1995. See Witness F, T. 1554. However, on redirect, the Witness said
that the “first” day was the day the VRS troops came into Potocari, which was
the same day that the transportation of the refugees began (i.e. 12 July 1995).
See T. 1559, and Witness F, T. 1516.
968 - Kingori, T. 1859, 1908.
969 - P 446.
970 - T. 9336.
971 - See generally, Butler,
T. 5472-5473.
972 - D 167.
973 - Prosecution Final Brief,
para. 233.
974 - See the discussion supra
para. 156.
975 - Butler, T. 5224; and Defence
Final Brief para. 32.
976 - Prosecution Final Brief,
para. 235-236.
977 - See the discussion supra
paras. 265.
978 - See the discussion supra
para. 159.
979 - Kingori, T. 1844-1846,
1848.
980 - Kingori, T. 1853
981 - Witness D T. 1260-1298
982 - P 446; and Butler T. 4838-4839.
983 - See the discussion supra
paras. 217.
984 - Butler, T. 5011.
985 - Krstic, T. 7392.
986 - Krstic, T.7392.
987 - P 508.
988 - P 509. See also P 510 (intercepted
conversation dated 12 July 1995 at 1440 hours in which two unidentified participants
discuss the movement of the column and at the end of the conversation General
Krstic came on the line looking for Krsmanovic.).
989 - P 878.
990 - P 739.
991 - P 532.
992 - Krstic, T. 6672.
993 - P 462. Krstic, T. 6672-6673.
994 - Krstic, T. 6300.
995 - P 739.
996 - Krstic, T. 6654.
997 - Defence Witness DB, T.
9293-9295.
998 - Krstic, T. 6229, stating
“If I were in General Mladic’s shoes, I would not have issued such an order
(for Zepa) because we did not know where the 28th Division was and what it could
do. It would have been much more useful and efficient for the forces that had
taken part in the operation in Srebrenica, after their entry into Srebrenica,
to go looking for the 28th Division, to pursue those units, and to get into
contact with them in order to avoid the problems that occurred later and which
had serious consequences for the 1st Zvornik Brigade and partly for the 1st
Birac Brigade.”
999 - Krstic, T. 6203, 6229
1000 - Defence Witness DA, T.
6928- 6929.
1001 - Witness II, T. 9138.
1002 - Witness II, T. 9169.
1003 - See the discussion supra
paras. 286-287.
1004 - P 463.
1005 - P 529 (intercepted conversation
at 2040 hours on 13 July 1995).
1006 - Butler, T. 4903, Butler
Report, para. 9.13.
1007 - P 472.
1008 - See the discussion supra
para. 323.
1009 - P 478.
1010 - P 474.
1011 - P 475.
1012 - Defence Witness DB testified
that Boban Indic was a member of the Visegrad Brigade (a subordinate unit of
the Drina Corps) and that Indic was present during the Zepa operation. Defence
Witness DB, T. 7274.
1013 - See the discussion Infra
paras. 388-399.
1014 - Krstic, T. 6727.
1015 - Prosecutor’s opening
statement T. 483.
1016 - P 364/1 (14 July 1995,
tab 9) (conversation dated 14 July 1995 at 2102 hours); P 364/1 (14 July 1995
tab 10) (conversation dated 14 July 1995 at 2227 hours); P 364/1 (14 July 1995
tab 12) (conversation dated 14 July 1995 at 2241 hours); P 364/2 (15 July 1995
tab 1) (conversation dated 15 July 1995 at 0818 hours); and P 364/2 (17 July
1995 tab 14) (conversation dated 17 July 1995 at 2030 hours).
1017 - P 559.
1018 - P 561. The Prosecution
was unable to explain who General Vilotic is or his role in the events. See
Butler Report, para. 7.66.
1019 - P 851. See also P 850,
being a copy of the original record of the conversation from the notebook of
interceptions) .
1020 - In fact, the Trial Chamber
heard that, as late as October 1995, the Bratunac Brigade was continuing to
capture Muslim men who were trying to remain in the area near their houses.
See P 712; and Butler, T. 5239, 5369.
1021 - Krstic, T. 6737
1022 - Butler T. 4910.
1023 - Krstic,T. 6726-6727.
1024 - Further confirmation
that men from Bratunac were sent to assist in the executions is found in P 622,
discussed Infra paras. 401-402.
1025 - See the discussion supra
paras. 240.
1026 - See the discussion supra
paras. 246-248.
1027 - See Defence Witness DC,
T. 7449.
1028 - Krstic, T. 6253,-6254.
1029 - Krstic, T. 6745-6747.
1030 - Krstic, T .6744.
1031 - Krstic, T. 6777-6778.
1032 - P 228, p. 24.
1033 - P 609.
1034 - Radinovic, T. 7988, 8390-8396.
1035 - Krstic, T. 6738-6739.
1036 - Krstic, T. 6740-6741.
See also, Radinovic, T. 8407-8408.
1037 - Butler Report, para.
7.77.
1038 - Radinovic, T. 8409-8410,
8410-8411.
1039 - Butler, T. 5339-5340.
1040 - See the discussion supra
paras. 225 and 232.
1041 - Krstic, T. 6736, 6793.
1042 - P 650 (intercepted conversation
from 17 July 1995 at 0615 hours between General Krstic and Captain Trbic of
the Zvornik Brigade during which General Krstic acknowledged having received
a report (which must have been one of the combat reports sent on 16 July 1995)
from the Zvornik Brigade. Later in the conversation, General Krstic spoke to
Colonel Pandurevic and discussed whether there were any changes to the report).
1043 - P 537, Butler, T. 4986-498.
1044 - P 537, and Krstic, T.
6771.
1045 - P 635. See also P 630
(intercepted conversation at 1355 hours on 16 July 1995 in which “Zlatar 1”
(the Drina Corps Command) called “Palma 01” (the Zvornik Brigade Command) for
a briefing on “what’s new for Zlatar 1”).
1046 - P 675.
1047 - Radinovic, T. 7989.
1048 - T.8417.
1049 - Radinovic, T. 8417.
1050 - Krstic, T. 6792-6793.
1051 - P 695.
1052 - Krstic, T. 6792-6793.
1053 - See the discussion supra
para. 242.
1054 - P 619.
1055 - The English version of
this document actually translates the BCS reference to “KDK” as “Drina Corps
Commander”. Elsewhere however, this acronym has been translated as “Drina Corps
Command” and the Prosecution did not Seek to argue the document referred to
the Drina Corps Commander specifically. See supra para. 242 and accompanying
footnote.
1056 - Butler T. 4832. See also
P 638 (intercepted conversation from 16 July 1995 showing General Krstic was
closely monitoring the Corps fuel resources.)
1057 - Butler, T. 5143.
1058 - P 622.
1059 - Butler, T. 5144.
1060 - Butler, T. 5144.
1061 - Butler, T. 5144.
1062 - Butler, T. 5145.
1063 - See the discussion supra
para. 240, 243, 246 and 248.
1064 - Butler, T. 5148.
1065 - P 661.
1066 - See also P 662 (intercept
on 17 July 1995 at 1244 hours in which an unidentified subscriber speaks to
Captain Trbic at the Zvornik Brigade and asks that Colonel Popovic be contacted
and told to leave right away for “Zlatar 01”, the code name associated with
General Krstic in the intercepts);
1067 - P 666; P 667; Butler,
T. 5186-5187.
1068 - P 886, P 01908768.
1069 - P 886, P 01908769.
1070 - P 886, P 01908764, 01908768,
01908770-1.
1071 - P 01908771.
1072 - See also the testimony
of Witness J, T. 2459; Witness K, T. 2509; and Witness L, T. 2658-2661 (that,
late in the afternoon of 13 July 1995, General Mladic visited the Sandici Meadow);
and the testimony of Witness P, T. 2953-2954; and Witness Q, T. 3024, (that
he also visited the Nova Kasaba football field in the afternoon of 13 July 1995).
1073 - Witness II, T. 9218;
Krstic, T. 6669.
1074 - See also P 458 (conversation
intercepted at 1822 hours on 13 July 1995 placing General Krstic and General
Mladic together), and the explanation given by Butler, T. 4868.
1075 - Krstic T.6262. Defence
Witness DB, T. 7101, (testifying that General Mladic occasionally came to the
FCPs at Krivace and later in Godjenje, and came two or three times during the
Zepa operation); and Krstic, T. 6255-6259, 6262 (testifying that he had contact
with General Mladic during the Zepa operations when General Mladic came to the
FCP or if a Brigade commander informed General Krstic he was in the region of
deployment of that Brigade); and Defence Witness DB, T. 7290 (testifying that
General Mladic was frequently at Zepa during the negotiations). See also P 671
(intercept dated 17 July 1995 of a conversation between General Mladic and General
Krstic discussing matters pertaining to the negotiations at Zepa).
1076 - See the discussion supra
paras. 380-387.
1077 - Defence Witness DC, T.
7503, 7513.
1078 - Witness II, T. 9134.
1079 - PP 145 A (video of the
walk through Srebrenica).
1080 - See the discussion supra
para. 131.
1081 - See the discussion supra
para. 143.
1082 - P 620 (intercept in the
afternoon of 16 July 1995 in which the duty officer at the Zvornik Brigade is
passing on Colonel Popovic’s request for diesel fuel to the Drina Corps Command);
and P 619 (confirming that 500 litres of diesel fuel was released to Colonel
Popovic). See also P 624 (intercept on 16 July 1995 at 2233 hours in which the
Duty Officer of the Zvornik Brigade confirms that Colonel Popovic had been at
the Zvornik Brigade.); and P 661 (an intercepted conversation from 1242 hours
on 17 July 1995 in which an officer at Drina Corps headquarters notes that Colonel
Popovic was still in Zvornik.) See generally Butler, T. 5345.
1083 - P 58.
1084 - See the discussion supra
paras. 401-402.
1085 - P 661; P 666; P 667;
and Butler T. 5180.
1086 - Witness II, T. 9134.
1087 - See the discussion supra
paras 388-399.
1088 - The Trial Chamber heard
evidence that the designation “01” was used to refer to indicated “commander”.
(insert details) The Prosecution conceded that, insofar as written orders were
concerned, the use of this code was not uniform, so that it could not necessarily
be concluded that a document which included the reference “01” was issued by
the Corps Commander. However, in the context of this spoken conversation, the
Chamber is satisfied that “Zlatar 01” was a reference to General Krstic given
the subsequent reference to extension 385, which the Trial Chamber has already
found was associated with General Krstic during this period.
1089 - P 635.
1090 - Butler, T. 5161.
1091 - P 650, See also Butler
T. 5175 ff.
1092 - P 688.
1093 - P 627 (intercepted conversation
on 16 July 1995 in which Colonel Cerovic states that “Triage has to be done
on the prisoners. Later in the same conversation, Colonel Cerovic spoke to Colonel
Beara and again mentioned triage and the prisoners, and Colonel Beara cut him
off saying “I don’t want to talk about it on the phone.” At this time, the two
groups of prisoners left alive were those coming from the Pilica School to the
Branjevo Military Farm and those at the Pilica Dom. See Butler T. 5156.)
1094 - Krstic, T. 6667.
1095 - Krstic, T. 6669
1096 - Witness II, T. 9133.
1097 - P 886, p. 01908770.
1098 - Prosecution stipulation
number 892, T. 9187.
1099 - Butler, T. 5241.
1100 - P 709; and P 710.
1101 - Krstic, T. 6623.
1102 - See the discussion supra
para. 303.
1103 - Krstic, T. 6196, 6510-6511;
and P 770 (Photo of General Mladic sitting down and General Krstic standing
over him communicating, which General Krstic said was taken after gave order
to continue operation towards Potocari). Krstic T. 6509..
1104 - P 364/2 (17 July tab
14).
1105 - Krstic, T. 6335.
1106 - P 743.
1107 - P 367; Butler, T. 5243-5246.
1108 - P 91.
1109 - Krstic, T. 6831-6834.
1110 - Defence Witness DA, T.6928-
6929.
1111 - Decision on the Defense
Motion for Interlocutory Appeal on Jurisdiction, IT-94-1-AR72, 2 October 1995
(Tadic Appeal I).
1112 - Judgement, The Prosecutor v. Dragoljub Kunarac,
Radomir Kovac and Zoran Vukovic, IT-96-23T and IT-96-23/1-T, 22 February
2001, para. 410.
1113 - Appeals Judgement, The Prosecutor v. Tadic ,
IT-94-1-A, 15 July 1999, para. 251.
1114 - Ibid., para. 248.
1115 - Article 5 of the Statute.
1116 - See note 1114 above,
para. 248.
1117 - Ibid.
1118 - Part II.
1119 - Different terminology
is used in the English and French versions of the Statute. The French version
specifies “meurtre” whereas the English version uses the term “killing”. The
term “killing” refers to any act causing death without specifying the perpetrator’s
degree of intention. The Akayesu Judgement observed that the notion of “meurtre”
or “murder” should be preferred to that of “killings” in accordance with the
general principles of criminal law which provide that where there are two possible
interpretations the one which is more favourable to the accused must be used
(Akayesu Judgement, par. 501). It also noted (at para. 588) that the term “murder”
is translated in French into “assassinat” (which supposes premeditation and
may involve, if proven, a higher sentence) and stated that the term “meurtre”
in French should be preferred, in keeping with customary international law.
The Chamber subscribes to the position previously adopted by the ICTR in the
Akayesu Judgement.
1120 - Prosecutor’s pre-trial brief pursuant to Rule 65
ter (E) (i), 25 February 2000, para. 104, p. 38.
1121 - See in particular the Akayesu Judgement,
para. 589; the Celebici Judgement, para. 439; the Blaskic Judgement,
paras. 153, 181, and 217; and the Jelisic Judgement, paras. 35 and 63
(in the latter case, the Trial Chamber ruled that a perpetrator of murder must
have had the intention to cause death; the forseeable consequence theory was
not upheld).
1122 - The indictment covers
a period from 12 July to 1st November 1995. The Prosecution, however, offered
no evidence of killings occurring after approximately 19 July 1995.
1123 - See in particular the
cross-examination of the accused, T. 6489.
1124 - Supra, paras. 80-84.
1125 - Supra, para. 44-45.
1126 - Supra, para. 44.
1127 - Supra, para. 45.
1128 - Supra, para. 66.
1129 - Article 6(c) of the Statute
of the Nuremberg Tribunal; Article II(c) of Control Council Law No. 10, Principle
VI of the Nuremberg Principles; Article 5(b) of the Statute of the ICTY; Article
3(b) of the Statute of the ICTR; Article 18(b) of the Draft Code of Crimes against
the Peace and Security of Mankind adopted by the ILC at its 48th session in
1996; and Articles 7(1)(b) and 7(2)(b) of the Statute of the International Criminal
Court.
1130 - See especially section
7 (3.76) of the Canadian Criminal Code and Article 212-1, paragraph 1 of the
French Penal Code (adopted by Act no. 92-1336 of 16 December 1992, amended by
Act no. 93-913 of 19 July 1993, entered into force on 1 March 1994) which uses
the term “widespread and systematic practice of summary executions”. Yet, the
definition used in French law differs from that used in the international texts
because a discriminatory element is required for all crimes against humanity.
1131 - See the District Court
of Jerusalem which found Adolf Eichmann guilty of the crime against humanity
of extermination although no definition was expressly provided. Attorney-General
of the Government of Israel v. Adolf Eichmann, Israel, District Court of Jerusalem,
12 December 1961, 36 ILR, (1968), Part IV, p. 239, See Barbie case, Cour de
Cassation, 3 June 1988, 78 ILR, pp. 332 and 336.
1132 - See the following judgements. Josef Altstötter
and others, US Military Tribunal, Nuremberg (1947), Law Reports of Trials
of War Criminals by the UN War Crimes Commission, Vol VI. The accused were found
guilty of crimes against humanity. The expression “racial extermination of the
Poles” is used in the judgement to define the programme implemented nation-wide,
p. 75; Amon Leopold Goeth (Hauptsturmführer), Supreme National Tribunal
of Poland (1946), Law Reports of Trials of War Criminals, Vol. VII. The judgement
uses the term “extermination” broadly to justify genocide. The Tribunal notes
that a policy of extermination was applied in order to destroy the Jewish and
Polish nations (unofficial translation), p. 9. I.G. Farben Trial: Carl Krauch
and 22 others, US Military Tribunal, Nuremberg (1947-1948), Law Reports of
Trials of War Criminals, Vol. X. The Krupp Case: Alfried Felix Alwyn Krupp
Von Bohlen und Halbach & 11 others, US Military Tribunal, Nuremberg, (1947-1948),
Law Reports of Trials of War Criminals, Vol. X. The High Command Case: Wilhelm
Von Leeb and 13 others, US Military Tribunal (1947-1948), Law Reports of
Trials of War Criminals, Vol. XII. The Rusha Case: Ulrich Greifelt & others,
US Military Tribunal, Nuremberg, (1947-1948), Law Reports of Trials of War Criminals,
Vol. XIII. The Tribunal notes that the programme implemented by the Nazis corresponded
to a systematic programme of genocide which involved inter alia the extermination
of national and racial groups. Gauleiter Artur Greiser, Supreme National
Tribunal of Poland (1946), Law Reports of Trials of War Criminals, Vol. XIII.
1133 - Judgement, The Prosecutor v. Jean-Paul Akayesu,
case no. ICTR-96-4-T, 2 September 1998, paras. 591-592; Judgement, The Prosecutor
v. Kambanda, case no. ICTR-97-23, 4 September 1998; Judgement, The Prosecutor
v. Kayishema/Ruzindana, case no. ICTR-95-1-T, 21 May 1999, paras. 141-147;
Judgement, The Prosecutor v. Rutaganda, case no. ICTR-96-3-T, 6 December
1999, paras. 82-84; Judgement, The Prosecutor v. Musema, case no. ICTR-96-13-T,
27 January 2000.
1134 - Akayesu Judgement, para.
592. This Judgement further refers to the conditions required for a crime against
humanity pursuant to the ICTR Statute, which also involve that the attack “be
on discriminatory grounds, namely: national, political, ethnic, racial, or religious
grounds.” There is no such requirement in Article 5 of the ICTY Statute regarding
crimes against humanity other than persecution.
1135 - Prosecutor’s pre-trial Brief pursuant to Rule 65
ter (E)(i), 25 February 2001.
1136 - Ibid., para. 129.
1137 - In accordance with the Tadic I Appeals Judgement,
paras. 273-305. Conversely, See Akayesu Judgement, para. 592, Kayishema/Ruzindana
Judgement, para. 144, Rutaganda Judgement, paras. 83-84, and Musema
Judgement, paras. 218-219.
1138 - The Prosecutor v. Radislav Krstic, case no.
IT-98-33-PT, Pre-trial Brief of the Defence pursuant to Rule 65 ter (E)(i),
29 February 2000.
1139 - Ibid., paras. 35-36.
1140 - Akayesu Judgement, para. 589; Blaskic
Judgement, para. 217; Jelisic Judgement, para. 35; Kupreskic Judgement,
paras. 560-561.
1141 - The term appeared in the Christian Latin language
in the twelfth century but was hardly used before the sixteenth. See The
Oxford English Dictionary (2nd Edition) Vol. V, p. 601. Le Nouveau Petit
Robert, French language dictionary (Dictionnaires Le Robert - Paris, 1994),
p. 871.
1142 - Ibid. Meaning which appeared
first in Vulgate and then in French.
1143 - See in particular the commentary on the ILC
Draft Code of Crimes against the Peace and Security of Mankind (hereinafter,
“ILC Draft Code”), Report of the International Law Commission on the work
of its 48th session, 6 May - 26 July 1996, Official Documents of the United
Nations General Assembly’s 51st session, Supplement no. 10 (A/51/10), Article
18, p. 118.
1144 - Cherif Bassiouni, Crimes against Humanity in International
Criminal Law (2nd edition, 1999), p. 295.
1145 - Report of the Preparatory
Commission for the International Criminal Court, Finalized draft text of the
Elements of Crimes, PCNICC/2000/1/Add.2, 2 November 2000 (footnotes omitted).
1146 - Tadic I Appeals Judgement, paras. 281-305.
1147 - See note 1143 above.
1148 - In para. 207, the Blaskic Judgement provides:
“in practice, these two criteria ?widespread and systematic attackg will often
be difficult to separate since a widespread attack targeting a large number of
victims generally relies on some form of planning or organisation. The quantitative
criterion is not objectively definable as witnessed by the fact that neither
international texts nor international and national case-law set any threshold
starting with which a crime against humanity is constituted.”.
1149 - One witness testified
about the slaughtering of a baby. Expert reports on the exhumations show that
a small number of the victims were under the age of fifteen of over sixty-five
year old. Although those victims may not legally qualify as “military aged men”,
there were obviously treated by the Bosnian Serb forces as if of military age.
1150 - Indictment, para. 21
(b).
1151 - Indictment, para. 31
(b).
1152 - Akayesu Judgement, para. 504, cited in Prosecutor’s
pre-trial brief pursuant to Rule 65 ter (E) (i), 25 February 2000, para.
105, p. 39.
1153 - The Israeli Government Prosecutor General v. Adolph
Eichmann, Jerusalem District Court, 12 December 1961 (hereinafter “the Eichmann
District Court Judgement”), in International Law Reports (ILR), vol. 36,
1968, p. 340, cited in the Prosecutor’s pre-trial Brief pursuant to Rule 65 ter
(E) (i), 25 February 2000, para. 105, p. 39.
1154 - The Prosecutor v. Radovan Karadzic and Ratko Mladic,
Review of the Indictments pursuant to Rule 61 of the Rules of Procedure and Evidence,
IT-95-5-R61 and IT-95-18-R61, 11 July 1996 (hereinafter “the Karadzic and
Mladic case”), para. 93.
1155 - Report of the Preparatory
Commission for the International Criminal Court. Finalised draft text of the
elements of crimes, UN Doc. PCNICC/2000/INF/3/Add.2, 6 July 2000, p. 6.
1156 - The Prosecutor v. Clément Kayishema and Obed Ruzindana,
ICTR-95-1-T, 21 May 1999, para. 109 (hereinafter “the Prosecutor v. Radovan
Karadzic and Ratko Mladic Judgement”).
1157 - Prosecutor v. Radovan Karadzic and Ratko Mladic
Judgement, para. 113.
1158 - Reference to serious mental harm for this purpose
was first proposed by China (UN Doc. E/AC.25/SR.5, p. 9; UN Doc. A/C.6/211; UN
Doc. A/C.6/232/Rev. 1; UN Doc. A/C.6/SR.81). Though at first rejected, the proposition
was ultimately adopted at the initiative of India (UN Doc. A/C.6/SR.81). See
also Nehemia Robinson’s The Genocide Convention; A commentary, New York,
1960, p. ix.
1159 - 132:15 CONG. REC. S1378.
See also the Genocide Convention Implementing Act of 1987, s. 1091(a)(3).
1160 - Report of the Preparatory
Committee on the Establishment of an International Criminal Court. Part 2. Jurisdiction,
Admissibility and Applicable Law, UN Doc. A/CONF. 183/2/Add.1, 14 April 1998,
p. 11.
1161 - Akayesu Judgement, para.
502.
1162 - The Prosecutor v. Zejnil Delalic, Zdravko Mucic
a/k/a “Pavo”, Hazim Delic and Esad Landzo a/k/a “Zenga”, IT-96-21-T, 16 November
1998 (hereinafter “the Celebici Judgement”), para. 511.
1163 - Blaskic Judgement, para. 243.
1164 - Akayesu Judgement, para.
502.
1165 - Eichmann Disctrict Court
Judgement, para. 199: “there is no doubt that causing serious bodily harm to
Jews was a direct and unavoidable result of the activities which were carried
out with the intention of exterminating those Jews who remained alive”.
1166 - Indictment, para. 31
(b).
1167 - Celebici Judgement, para. 552; Blaskic
Judgement, para. 186.
1168 - Witness DD.
1169 - Prosecutor’s pre-trial
Brief pursuant to Rule 65 ter (E) (i), para. 131.
1170 - Final Submissions of
the Accused, para. 375-377.
1171 - Final Submisisons of
the Accused, para. 386.
1172 - See in particular the
commentary on the ILC Draft Code, p. 122 “Whereas deportation implies expulsion
from the national territory, the forcible transfer of population could occur
wholly within the frontiers of one and the same State”.
1173 - According to Article
49 of the Fourth Geneva Convention: “Individual or mass forcible transfers,
as well as deportations of protected persons from occupied territory to the
territory of the Occupying Power or to that of any other country, occupied or
not, are prohibited [...]”. Article 85(4) of Protocol I characterises “[...] the
deportation or transfer of all or parts of the population of the occupied territory
within or outside this territory [...]” as a grave breach of the Protocol. Article
18 of the ILC Draft Code and Article 7(1)(d) of the Statute of the International
Criminal Court specify under the same heading “deportation or forcible transfer
of population” as acts liable to constitute crimes against humanity.
1174 - Kupreskic Judgement, para. 566.
1175 - Article 49 of the Fourth
Geneva Convention reads as follows: “the Occupying Power may undertake total
or partial evacuation of a given area if the security of the population or imperative
military reasons so demand. (...( Persons thus evacuated shall be transferred
back to their homes as soon as hostilities in the area in question have ceased”.
Security of the population and imperative military reasons are also listed in
Article 17 of Protocol II as the only reasons that could justify the evacuation
of the civilian population.
1176 - Wilhelm List and others, US military Tribunal,
Nuremberg (“ the Hostages Trial”), Law Reports of Trials of War Criminals, Vol.
VIII, case No. 47, p. 69 (1948): “It is our considered opinion that the conditions
as they appeared to the defendant at the time were sufficient, upon which he
could honestly conclude that urgent military necessity warranted the decision
made. This being true, the defendant may have erred in the exercise of his judgement
but he was guilty of no criminal act”.
1177 - Von Lewinski (called von Manstein), British
Military Court at Hamburg (Germany), Dec. 19, 1949, in 16 Annual Dig.
and Reports of Public International Law Cases 509, 521 (1949): “In a country
so thickly populated as the Ukraine it was necessary for the security of the
troops to remove the population from the battle or the combat zone. To do otherwise
would have been to invite espionage. The evacuation of this zone was therefore
mere military security. Further, it was necessary to deprive the enemy of labour
potential as the enemy put every able-bodied man into the army and utilised women
and even small children. They could not allow them to fall into the hands of
the enemy”.
1178 - Id. at 522-23. Indeed, the judge advocate
went so far as to suggest that deportation of civilians could never be justified
by military necessity, but only by concern for the safety of the population.
Id. at 523. This position, however, is contradicted by the text of the later
Geneva Convention IV, which does include “imperative military reasons”, and the
Geneva Convention is more authoritative than the views of one judge advocate.
1179 - The British military
tribunals did not issue reasoned opinions, so the law reports contain the submissions
of the judge advocates, who advised the court on the law after the presentation
of the prosecution and defence.
1180 - Von Lewinski (von Manstein), op. cit. p. 522-23.
1181 - Commentary to Geneva
Convention IV, at 279.
1182 - Report of the Preparatory
Commission for the International Criminal Court, Finalised Draft Text of the
Elements of the Crimes, UN Doc. PCNICC/2000/INF/3/Add.2, 6 July 2000, p. 11.
1183 - Supra, paras. 128-130.
1184 - Supra, paras. 145 to
149.
1185 - Indictment, para. 31.
1186 - Kupreskic Judgement, para. 621.
1187 - Kupreskic Judgement, para. 605
1188 - Kordic and Cerkez Judgement, para. 193.
1189 - Kupreskic Judgement, para. 619; Kordic
and Cerkez Judgement, para. 195.
1190 - Kupreskic Judgement, para. 622.
1191 - Counts 1 and 2.
1192 - Indictment, para. 21.
1193 - Articles II and III.
1194 - Entered into force on
12 January 1951.
1195 - Reservations to the Convention on the Prevention
and Punishment of Genocide, Advisory Opinion, ICJ Reports (1951), p. 23.
1196 - ILC Draft Code, in particular,
pp. 106-114.
1197 - Nicodème Ruhashyankiko, Study on the Question
of the Prevention and Punishment of the Crime of Genocide, United Nations,
Economic and Social Council, Commission on Human Rights, Sub-Commission on Prevention
of Discrimination and Protection of Minorities, E/CN. 4/Sub. 2/ 416, 4 July 1978;
Benjamin Whitaker, Revised and Updated Report on the Question of the Prevention
and Punishment of the Crime of Genocide, United Nations, Economic and Social
Council, Commission on Human Rights, Sub-Commission on Prevention of Discrimination
and Protection of Minorities, E/CN.4/Sub. 2/1985/6, 2 July 1985.
1198 - PCNICC/2000/INF/3/Add.
2, 6 July 2000.
1199 - Prosecution Opening Statement,
T. 461.
1200 - Supra, paras. 43-47,
58.
1201 - Supra, para. 59, 66.
1202 - An intercept submitted
into evidence indicates that the Bosnian Serbs were aware of the column as of
12 July at 0300 hours. supra, para. 162.
1203 - Supra, para. 62.
1204 - Supra, para. 65.
1205 - Supra, para. 65.
1206 - Supra, para. 85.
1207 - Supra, para. 83.
1208 - A list of criminals of
war was drawn upon Zivanovic’s order dated 13 July; an intercepted conversation
between Cerovic and Beara on 16 July (P335) also indicates that the prisoners
should be screened.
1209 - Supra, paras. 77, 80.
1210 - Supra, para. 171.
1211 - Supra, para. 216. The
screening of the men probably took place on 12 July and in the earlier hours
of 13 July.
1212 - para. 106.
1213 - P459, supra para. 86.
1214 - Execution in Kravica
on 13 July, Pilica cultural Dom on 16 July.
1215 - Supra, para. 68.
1216 - Orahovac, 14 July.
1217 - See esp. Witnesses J
and K’s testimony who are survivors of the execution carried out at the Kravica
warehouse. supra para. 207.
1218 - Indictment, para. 21.
1219 - Jelisic Judgement, para.
66.
1220 - Prosecutor’s Submissions
of agreed matters of law presented during the pre-trial conference of 7 March
2000, 8 March 2000, paras. 92 and 93.
1221 - UN Doc. A/ 96(I) (1946),
11 December 1946.
1222 - “Relations Between the Convention on Genocide on
the One Hand and the Formulation of the Nurnberg Principles and the Preparation
of a Draft Code of Offences Against Peace and Security on the Other”, U.N. Doc.
E/AC.25/3/Rev.1, 12 April 1948, p. 6. Nehemia Robinson set forth this essential
characteristic of genocide very explicitly in his commentary on the Convention:
“The main characteristic of Genocide is its object: the act must be directed
toward the destruction of a group. Groups consist of individuals, and therefore,
destructive action must, in the last analysis, be taken against individuals.
However, these individuals are important not per se but only as members of the
group to which they belong” (op.cit. p. 63).
1223 - Reservations to the Convention on the Prevention
and Punishment of Genocide, Advisory Opinion, ICJ Reports (1951), p. 23.
1224 - ILC Draft Code, p. 88.
1225 - Akayesu Judgement, para.
522: “The perpetration of the act charged therefore extends beyond its actual
commission, for example, the murder of a particular individual, for the realisation
of an ulterior motive, which is to destroy, in whole or in part, the group of
which the individual is just one element”.
1226 - Kayishema, Ruzindana Judgement, para. 99 :
“'Destroying’ has to be directed at the group as such, that is, qua
group”.
1227 - See in particular the Kupreskic Judgement,
para. 636 and the Jelisic Judgement, para. 79.
1228 - See in particular Article
14 of the European Convention on Human Rights: “The enjoyment of the rights
and freedoms set forth in this Convention shall be secured without discrimination
on any ground such as [...] association with a national minority [...]”. See also
the Framework Convention for the Protection of National Minorities, ETS 157,
or principle VII of the Final Act of the Conference on Security and Co-operation
in Europe (1975), point 105, para. 2.
1229 - See in particular Article 27 of the International
Covenant on Civil and Political Rights: “In those States in which ethnic,
religious or linguistic minorities exist, persons belonging to such minorities
shall not be denied the right, in community with the other members of their group,
to enjoy their own culture, to profess and practise their own religion, or to
use their own language”.
1230 - See in particular the definition suggested
by the European Commission for Democracy through Law, The Protection of Minorities,
Strasbourg: Council of Europe Press, 1994, p. 12: a national minority is “a group
which is smaller in number than the rest of a population of a State, whose members,
who are nationals of that State, have ethnical, religious or linguistic features
different from those of the rest of the population, and are guided by the will
to safeguard their culture, traditions, religion or language”.
1231 - F. Capotorti, Study on the Rights of the Persons
Belonging to Ethnic, Religious and Linguistic Minorities, UN Doc. E/CN.4/Sub.2/384/Rev.1
(1979), paras. 197, referring to the debates held on a draft resolution on the
definition of minorities (E/CN. 4/Sub. 2/103).
1232 - UNTS, vol. 660, no. 9646.
1233 - Article 1.
1234 - UN Doc. A/C.6/SR.73 (Petren,
Sweden); UN Doc. A/C.6/SR.74 (Petren, Sweden).
1235 - The Prosecutor v. Nikolic, Review of the indictment
pursuant to Rule 61, Decision of Trial Chamber I, 20 October 1995, case no. IT-94-2-R61
(hereinafter “the Nikolic Decision”), para. 27.
1236 - Jelisic Judgement, para.
70.
1237 - Prosecutor’s pre-trial brief pursuant to Rule 65
ter (E) (i), 25 February 2000, para. 12.
1238 - Prosecution Final Trial
Brief, para. 412.
1239 - Closing argument, T.
9983.
1240 - Final Submissions of
the Accused, para. 104.
1241 - Final Submissions of
the Accused, paras. 102-107.
1242 - Prosecutor’s pre-trial
brief pursuant to Rule 65 ter (E) (i), 25 February 2000, para. 92, p. 33.
1243 - ILC Draft Code, p. 109. See also Pieter Drost,
The Crime of State, Genocide, p. 124, for a commentary on the Convention:
“It is an externally perceptible quality or characteristic which the victim has
in common with the other members of the group, which makes him distinct from
the rest of society in the criminal mind of his attacker and which for that very
reason causes the attacker to commit the crime against such marked and indicated
individual”.
1244 - para. 19.
1245 - P746/a.
1246 - P743, p. 2.
1247 - Radinovic, T. 7812. supra,
para. 12.
1248 - See para. 11, referring
to the Report of the Secretary-General, para. 33.
1249 - The Report of the Secretary-General,
para. 33, lists the crimes committed by the Bosnian Serb forces against the
Bosnian Muslim population from the very outset of the conflict.
1250 - Report of the Secretary-General,
paras. 34 to 37.
1251 - Supra, para. 13-14.
1252 - Statement of General
Hadzihasanovic made on 24 January 2001, para. 4, corroborated by General Krstic’s
statement in a press article published in November 1995 (P744/c, p. 1).
1253 - Resolution 819 (1993),
16 April 1993.
1254 - P 126: Report of the
Security Council Mission set up pursuant to resolution 819 (1993), UN Doc. S/25700
(30 April 1993), para. 18.
1255 - Ibid, para. 10 and 11.
1256 - Supra, para. 15.
1257 - Supra, para. 26.
1258 - Supra, para. 28.
1259 - P 901, p. 2.
1260 - Supra, para. 120.
1261 - Supra, p ara. 24. First
agreement signed on 18 April 1993, followed by the agreement of 8 May 1993.
1262 - Report of the Secretary-General,
para. 225.
1263 - Supra, para. 33.
1264 - Prosecutor’s pre-trial
brief pursuant to Rule 65 ter (E)(i), 25 February 2000, para. 90.
1265 - Ibid, para. 91, p. 33.
1266 - Final Submissions of
the Accused, 21 June 2001, para. 94.
1267 - UN Doc. A/96 (I), 11
December 1946 (Emphasis added).
1268 - UN Doc. E/447 (1947),
p. 20 “the word genocide means a criminal act directed against any one of the
aforesaid groups of human beings, with the purpose of destroying it in whole
or in part, or of preventing its preservation or development”.
1269 - UN Doc. E/447 (1947),
p. 23. See also “Relations Between the Convention on Genocide on the One Hand
and the Formulation of the Nurnberg Principles and the Preparation of a Draft
Code of Offences Against Peace and Security on the Other”, UN Doc. E/AC.25/3/Rev.1,
12 April 1948, p. 6: “The destruction of the human group is the actual aim in
view. In the case of foreign or civil war, one side may inflict extremely heavy
losses on the other but its purpose is to impose its will on the other side
and not to destroy it.”
1270 - ILC Draft Code, p. 88
(emphasis added).
1271 - ICJ Repors (1996), p.
240.
1272 - Para. 26. The Chamber
notes however that several dissenting opinions criticised the Opinion on the
issue by holding that an act whose forseeable result was the destruction of
a group as such and which did indeed cause the destruction of the group did
constitute genocide. In particular, Judge Weeramantry observes that the use
of nuclear weapons inevitably brings about the destruction of entire populations
and constitutes, as such, genocide. He thus challenges the interpretation that
“there must be an intention to target a particular national, ethnical, racial
or religious group qua such group, and not incidentally to some other act” (Reports
p. 502). In the same vein, Judge Koroma comments on “the abhorrent shocking
consequences that a whole population could be wiped out by the use of nuclear
weapons during an armed conflict”. He claims that such a situation constitutes
genocide “if the consequences of the act could have been foreSeen” (Reports,
p. 577).
1273 - ICTR 97-23-S, 4 September 1998 (hereinafter The “Kambanda
Judgement”), para. 16.
1274 - 21 May 1999, para. 89.
1275 - Article 211-1 of the
French Criminal Code states that the crime must be committed “in the execution
of a concerted plan to destroy wholly or partially a group”.
1276 - See in particular Eric
David, Droit des conflits armés, p. 615; Alexander K.A. Greenawalt, “Rethinking
genocidal intent: the case for a knowledge-based interpretation”, Columbia Law
Review, December 1999, pp. 2259-2294; Gil Gil Derecho penal internacional, especial
consideracion del delito de genicidio, 1999.
1277 - The element of premeditation
was dismissed at the proposal of Belgium (UN Doc. A/C.6/217) on the ground that
such a provision was superfluous in light of the special intent already incorporated
into the definition of the crime (UN Doc. A/C.6/SR.72, p. 8).
1278 - Jelisic Appeal Judgement,
para. 48.
1279 - Supra, para. 85-87.
1280 - Axis Rule in Occupied Europe, p. 79, pp. 87-89.
1281 - ILC Draft Code, op. cit.,
commentary of article 17, p. 106.
1282 - USA v. Ulrich Greifelt et al, Trials of War
Criminals, vol. XIV (1948), p. 2: “The acts, conduct, plans and enterprises charged
in Paragraph 1 of this Count were carried out as part of a systematic program
of genocide, aimed at the destruction of foreign nations and ethnic groups, in
part by murderous extermination, and in part by elimination and suppression of
national characteristics”. See also the judgements rendered by the Polish
Supreme Court against Amon Leopold Goeth (Trials of War Criminals, vol. VII,
no. 37, p. 8) and Rudolf Franz Ferdinand Hoess (Trials of War Criminals, vol.
VII, no. 38, p. 24).
1283 - Violations of Human Rights in Southern Africa:
Report of the Ad Hoc Working Group of Experts, UN Doc. E/CN.4/1985/14, 28
January 1985, paras. 56 and 57.
1284 - The notion of a cultural
genocide was rejected by the General Assembly Sixth Committee by 25 votes to
6, with 4 abstentions and 13 delegations absent.
1285 - ILC Draft Code, pp. 90-91.
1286 - UN Doc. AG/Res./47/121
of 18 December 1992.
1287 - Federal Constitutional
Court, 2 BvR 1290/99, 12 December 2000, para. (III)(4)(a)(aa). Emphasis added.
1288 - Prosecutor’s pre-trial
brief pursuant to Rule 65 ter (E)(i), 25 February 2000, para. 100.
1289 - Prosecutor’s pre-trial
brief pursuant to Rule 65 ter (E)(i), 25 February 2000, para. 101.
1290 - Review of the Indictment
pursuant to Rule 61 of the Rules of Procedure and Evidence, Decision of Trial
Chamber I, 20 October 1995, IT-94-2-R61, para. 34.
1291 - Jelisic Judgement, para.
83.
1292 - Final Submissions of
the Accused, paras. 96-101.
1293 - Letter of Raphael Lemkin
published in “Executive Sessions of the U.S. Senate Foreign Relations Committee”,
Historical Series 781-805 (1976), p. 370, quoted in the Defence Final Trial
Brief, para. 97. Raphael Lemkin explained that partial destruction must target
a substantial part in such a way that it affects the group as a whole.
1294 - Senate Executive Report
No. 23, 94th Cong., 2nd Session (1976), pp. 34-35.
1295 - In this regard, See especially
the commentary of the representative of the United Kingdom, Fitzmaurice, UN
Doc. A/C.6/SR. 73. The preparatory work is unclear on the issue. It does indeed
Seem that there was confusion between the actus reus and the mens rea in this
respect.
1296 - Draft Convention for
the Prevention and Punishment of Genocide presented by the Secretary-General,
26 June 1947, UN Doc. E/447, p. 24.
1297 - Nehemia Robinson, The Genocide Convention,
p. 63: “the intent to destroy a multitude of persons of the same group must be
classified as genocide even if these persons constitute only part of a group
either within a country or within a region or within a single community,
provided the number is substantial”. The writer also noted before the Foreign
Relations Commission of the American Senate: “the intent to destroy a multitude
of persons of the same group must be classified as genocide even if these persons
constitute only part of a group either within a country or within a single community,
provided the number is substantial because the aim of the convention is to deal
with action against large numbers, not individual events if they happen to possess
the same characteristics. It will be up to the court to decide in every case
whether such intent existed” (The Genocide Convention - Its Origins and Interpretation,
reprinted in Hearings on the Genocide Convention Before a Subcomm. of the Senate
Comm. on Foreign Relations, 81st Cong., 2nd Sess., 487, 498 (1950) ).
1298 - Pieter Drost, The Crime of State, Book II, Genocide,
Sythoff, Leyden, p. 85: “Acts perpetrated with the intended purpose to destroy
various people as members of the same group are to be classified as genocidal
crimes although the victims amount to only a small part of the entire group present
within the national, regional or local community”.
1299 - Ibid., p. 89.
1300 - Prosecutor v. Radovan Karadzic and Ratko Mladic
case, para. 97: “'in part' requires the intention to destroy a considerable
number of individuals who are part of the group”.
1301 - The Prosecutor v. Ignace Bagilishema , case
no. ICTR-95-1A-T, 7 June 2001 (hereinafter “Bagilishema Judgement”) para.
64: “Although the destruction sought need not be directed at every member of
the targeted group, the Chamber considers that the intention to destroy must
target at least a substantial part of the group”.
1302 - Para. 29.
1303 - Report of the Commission
of Experts , UN Doc. S/1994/674, para. 94 (emphasis added).
1304 - Application of the Convention of the Prevention
and Punishment of the Crime of Genocide, Bosnia-Herzegovina v. Yugoslavia
(Serbia and Montenegro), Order on further Requests for the Indication of Provisional
Measures, ICJ Reports (1993), pp. 325- 795.
1305 - Separate Opinion of Judge
Lauterpacht, ICJ Reports (1993), p. 431.
1306 - There are varying estimates
as to the number of victims. The Israeli commission of inquiry put the number
of victims at 800. However, according to the ICRC, no less than 2,400 people
were massacred. The massacre was perpetrated over two days, on 16 and 17 September
1982.
1307 - UN Doc. AG/Res.37/123D
(16 December 1982), para. 2. It should however be noted that the resolution
was not adopted unanimously, notably, the paragraph characterising the massacre
as an act of genocide was approved by 98 votes to 19, with 23 abstentions. See
UN Doc. A/37/PV.108, para. 151.
1308 - Jelisic Judgement, para.
83.
1309 - Düsseldorf Supreme Court,
Nikola Jorgic case, 30 April 1999, 3StR 215/98.
1310 - Federal Constitutional
Court, 2BvR 1290/99, 12 December 2000, par. 23: “The courts also do not go beyond
the possible meaning of the text by accepting that the intent to destroy may
relate to a geographically limited part of the group. There is support for that
interpretation in the fact that STGB para. 220a ( the national law integrating
the Convention( penalises the intent to destroy partially as well as entirely”.
1311 - Bavarian Appeals Court, Novislav Djajic case,
23 May 1997, 3 St 20/96, section VI, p. 24 of the English translation.
1312 - Prosecutor’s final Trial
Brief, para. 412.
1313 - Prosecutor’s final Trial
Brief, para. 420.
1314 - Prosecutor’s final Trial
Brief, para. 423.
1315 - P425.
1316 - cited in the Prosecutor’s
final Trial Brief, para. 425.
1317 - P750, cited in the Prosecutor’s
final Trial Brief, para. 416.
1318 - Prosecutor’s final Trial
Brief, para. 438.
1319 - T. 10004-10005.
1320 - Closing arguments, T.
10009.
1321 - Final Submissions of
the Accused, para. 131.
1322 - Closing arguments, T.
10113.
1323 - Final Submissions of
the Accused, para. 133.
1324 - Closing arguments, T.
10118.
1325 - Closing arguments, T.
10118.
1326 - Closing arguments, T.
10118-10119.
1327 - Final Submissions of
the Accused, paras. 141-145.
1328 - Final Submissions of
the Accused, para. 156.
1329 - Final Submissions of
the Accused, para. 161, Closing arguments, T. 10129.
1330 - Final Submissions of
the Accused, para. 157, 166.
1331 - Closing arguments, T.
10120.
1332 - Final Submissions of
the Accused, paras. 146-147.
1333 - Closing arguments, T.
10139.
1334 - Closing arguments, T.
10140.
1335 - Supra, paras. 90-94.
1336 - Supra, paras. 41, 123,
153.
1337 - It was eventually turned
into a parking lot. P4/4 to P4/6; Ruez, T. 542-543.
1338 - See Witness Halilovic,
supra para. 94.
1339 - Para. 18 of the Indictment.
In its Final Trial Brief (para. 27), the Prosecution makes reference to each
head - except “committing” - mentioned in Article 7(1) as well as the “common
purpose doctrine” (discussed below) as a basis for General Krstic’s guilt.
1340 - Cf. Article 6(1) of the
Statute of the ICTR. In its Final Trial Brief (para. 3), the Prosecution incorporates
by reference its submissions on Article 7 in its Pre-Trial Brief (paras 13-86).
Likewise, the Defence’s submissions on Article 7 in its Pre-Trial Brief (paras
13-29) are incorporated in its Final Trial Brief (para. 2).
1341 - Akayesu Judgement, para. 480; Blaskic
Judgement, para. 279; Kordic and Cerkez Judgement, para. 386.
1342 - Akayesu Judgement, para. 482; Blaskic
Judgement, para. 280; Kordic and Cerkez Judgement, para. 387.
1343 - Akayesu Judgement, para. 483; Blaskic
Judgement, para. 281; Kordic and Cerkez Judgement, para. 388.
1344 - Tadic Appeal Judgement, para. 188; Kunarac
et al. Judgement, para. 390.
1345 - Aleksovski Appeal Judgement,
paras. 162-164.
1346 - Tadic Appeal Judgement, paras. 185-229. The
Appeals Chamber in the Tadic Appeal Judgement interchangeably used several
other terms, such as “common purpose” liability (Tadic Appeal Judgement,
para. 220), to denote the same form of participation. For reasons discussed below,
the Trial Chamber proposes to apply the label “joint criminal enterprise” throughout
this Judgement. Trial Chamber II recently discussed joint criminal enterprise
liability in detail in Prosecutor v. Radoslav Brdanin and Momir Talic ,
Decision on Form of Further Amended Indictment and Prosecution Application to
Amend, Case No. IT-99-36-PT, 26 June 2001 (the “Talic Decision”).
1347 - The Trial Chamber notes
in this regard that the Appeals Chamber held that: “Although greater specificity
in drafting indictments is desirable, failure to identify expressly the exact
mode of participation is not necessarily fatal to an indictment if it nevertheless
makes clear to the accused the ‘nature and cause of the charge against him’”.
Celebici Appeal Judgement, para. 351.
1348 - Furundzija Judgement, para. 189; Kupreskic
Judgement, para. 746; Kunarac et al. Judgement, para. 388.
1349 - Prosecutor’s Pre-trial
Brief, paras. 21-27. The Prosecution refers to joint criminal enterprise liability
as “co-perpetration”; the Appeals Chamber has in fact employed this term in
this sense (Tadic Appeal Judgement, paras. 196, 228; Furundzija Appeal Judgement,
para. 118). The Prosecution further considers “co-perpetration” to be a form
of “committing”.
1350 - Defence’s Pre-trial Brief,
paras. 18-19. See also para. 21 of the Prosecutor’s Pre-trial Brief annexed
to the Prosecutor’s Submission of Agreed Matters of Law Presented During the
Pre-trial Conference of 7 March 2000, dated 8 March 2000. On the Defence’s objection
to the joint criminal enterprise doctrine, See para. ?? supra.
1351 - See Indictment, e.g.,
paras. 6-11.
1352 - Para. 19 of the Indictment.
1353 - See, e.g., Blaskic Judgement,
para. 294; Kunarac et al. Judgement, para. 395.
1354 - Likewise, Prosecutor v. Radovan Karadzic and Ratko Mladic Judgement, para. 223; Blaskic Judgement, para. 337.
1355 - Paras. 38-51, 337.
1356 - Murder, cruel and inhumane
treatment (including terrorisation, destruction of personal property and forcible
transfer) - count 6.
1357 - Forcible transfer - count
8.
1358 - Supra paras. 340, 344.
1359 - Supra paras. 340, 354.
1360 - Tadic Appeal Judgement,
para. 227.
1361 - Tadic Appeal Judgement,
para. 227(ii). The Appeals Chamber reaffirmed this statement in the Furundzija
Appeal Judgement, para. 119.
1362 - The Prosecution submits that it is not required that
each participant fulfils different elements of the actus reus of the crime;
it suffices that each participant makes an essential contribution to the execution
of the crime (Prosecutor’s Pre-Trial Brief, para. 23). In this respect, the Defence
formulates its reservation to the joint criminal enterprise doctrine as follows:
“it is necessary (…( to specify among the actus rei each individual act
committed by each perpetrator.” (Defence’s Pre-Trial Brief, para. 18).
1363 - Talic Decision, para.
43.
1364 - Supra para. 344.
1365 - Tadic Appeal Judgement,
para. 228.
1366 - Talic Decision, para. 31 (emphasis in original).
Since members of the joint criminal enterprise may incur liability for crimes
committed by other members which fall outside the object of the common plan,
the Trial Chamber agrees that the doctrine is best referred to as “joint criminal
enterprise”, rather than “common purpose” liability (Talic Decision, para.
37). Furthermore, it is noteworthy that in regard to responsibility for a crime
falling outside the object of the joint enterprise, the Talic Decision
explains that the requirement that such a crime be a “natural and forseeable”
consequence of the execution of the enterprise, “is an objective element
of the crime, and does not depend upon the state of mind on the part of the accused”.
The requirement that the accused was aware that the commission of such a crime
was a possible consequence of the execution of the enterprise, “is the subjective
state of mind on the part of the accused which the prosecution must establish.”
Talic decision, para. 30 (emphasis in original).
1367 - Forcible transfer - count
8.
1368 - Murder, and cruel and
inhumane treatment (including terrorisation, destruction of personal property
and forcible transfer) - count 6.
1369 - Count 1 of the Indictment.
1370 - Count 2 of the Indictment.
1371 - Count 6 of the Indictment.
1372 - Count 3 of the Indictment.
1373 - Count 4 of the Indictment.
1374 - Count 5 of the Indictment.
1375 - Supra, para. 470.
1376 - Richard Butler, VRS Corps
Command Responsibility Report, Section Two, para. 2.6 (P401). In his Report,
Prosecution military expert Mr Butler refers to, amongst others, para. 66 of
the JNA Rules for Land Forces Corps (Provisional) (P402/4) and Article 11 of
the JNA Regulations on the Responsibilities of the Land Army Corps Command in
Peacetime (P402/10). On the applicability of these instruments of the former
Yugoslav National Army to the Army of Republika Srpska, See Infra. On the responsibilities
of the VRS Corps Chief of Staff, See also the testimony of Prosecution military
expert General Dannatt, T. 5578.
1377 - Supra paras. 363-379,
465-472.
1378 - Supra paras. 220-225.
1379 - Supra para. 449.
1380 - Supra para. 450.
1381 - Supra para. 451.
1382 - Supra para. 452.
1383 - Supra para. 453.
1384 - Supra para. 266.
1385 - Supra para. 330.
1386 - Butler Report; Statement
of Major General F.R. Dannatt, Military Expert (P385A).
1387 - Prof. Dr. Radovan Radinovic,
Retired General, Military
Expert Testimony of Srebrenica (D160).
1388 - The Trial Chamber accepts
that these JNA documents were the regulatory foundation of the VRS; it understands
this to be the position of General Radinovic. See Butler Report, para. 1.4;
Radinovic, T. 7997-7998.
1389 - Krstic, T. 6341.
1390 - Krstic, T. 6342.
1391 - Radinovic, T. 7809, 7999.
P402/7 contains The Instructions on How the 4th Corps Command is to Operate
When Carrying out Priority Assignments in Peacetime and Wartime.
1392 - Butler Report, para.
2.0, referring to page 14 of the Instructions on How the 4th Corps Command is
to Operate When Carrying out Priority Assignments in Peacetime and Wartime;
Radinovic, T. 8011.
1393 - P142/40.
1394 - Signed into effect by
the President of Republika Srpska on 18 August 1992. P142/24.
1395 - See Radinovic Report,
Chapter III, para. 3.7. General Radinovic testified that “the (…( Corps Commander
(…( does not share his command responsibility with anybody at all.” (T. 8019).
Mr Butler testified that “(the Commander( is legally empowered with the authorities
and the responsibilities to command and direct the activities of his, in this
case, corps.” (T. 4754-4755). See also Dannatt Report, para. 26. The evidence
does not establish that the 10th Sabotage Detachment and the MUP were re-subordinated
to the Drina Corps, however, and General Krstic’s formal powers therefore did
not extend to these troops (supra paras. 278-290).
1396 - Supra, para. 312.
1397 - Supra, para. 318.
1398 - Supra, para. 312.
1399 - Supra, para. 322.
1400 - Supra, para. 322.
1401 - Witness JJ was told by
General Zivanovic that General Mladic had informed him between 15 and 20 June
1995 that General Krstic was going to replace him as Corps Commander. General
Zivanovic also told the witness that General Krstic was anxious to be in command.
T. 9683, 9708.
1402 - Supra, para. 323.
1403 - Supra, para. 380.
1404 - Supra, paras. 386 and
401.
1405 - Prosecutor’s Pre-Trial
Brief, .06-107. During closing argument, the Prosecution submitted that General
Krstic “had the genocidal intent from the beginning, he maintained it throughout,
and that complicity for genocide would require some leaps of faith based principally
on General Krstic’s testimony. We don’t think that the interpretation should
be given to the facts in this case that he is culpable of only complicity.”
T 10020.
1406 - Defence’s Final Trial
Brief, para. 123.
1407 - Defence’s Final Trial
Brief, paras. 124-128.
1408 - In this respect, it is noteworthy that the ICC Statute
includes a single provision on individual criminal responsibility - Article
25 - which is applicable to all crimes within the jurisdiction of the ICC, including
genocide.
1409 - The Report of the Secretary-General
states that “the (Genocide( Convention is today considered part of international
customary law as evidenced by the International Court of Justice in its Advisory
Opinion on Reservations to the Convention on the Prevention and Punishment of
the Crime of Genocide, 1951.” Report of the Secretary-General, para. 45 (footnote
omitted).
1410 - The Trial Chamber notes
that in Akayesu and Musema ICTR Trial Chamber I pronounced on the elements of
“complicity in genocide”. However, the Trial Chamber interpreted “complicity”
in accordance with the Rwandan Penal Code, which is why this jurisprudence is
only of limited value to the present case. See Akayesu Judgement, paras. 537,
540; Musema Judgement, paras. 179, 183.
1411 - Tadic Appeal Judgement,
paras. 220, 223 (emphasis provided).
1412 - Prosecutor v. Radoslav Brdanin and Momir Talic
, Decision on Motion by Momir Talic for Provisional Release, Case No.
IT-99-36-PT, 28 March 2001, paras. 40-45.
1413 - According to the Appeals Chamber: “a proper construction
of the Statute requires that the ratio decidendi of its decisions is binding
on Trial Chambers”. Aleksovski Appeal Judgement, para. 113.
1414 - Celebicii Appeal Judgement, para. 338.
1415 - Kordic and Cerkez Judgement, para. 373.
1416 - The Trial Chamber notes in this respect that Article
141 of the Criminal Code of Republika Srpska (P402/98) provides with regard to
genocide that he who orders the commission of genocidal acts or commits
such acts shall be punished by imprisonment of at least five years or by the
death penalty. This supports the finding that the category of principle perpetrators
of genocide is not limited to those physically committing acts of genocide.
On 21 July 1993, the National Assembly of Republika Srpska adopted - with minor
amendments unrelated to the above provision – the Criminal Code of the Socialist
Federative Republic of Yugoslavia and renamed it the “Criminal Code of Republika
Srpska”. See Law on Amendments to the Criminal Code of the Socialist Federative
Republic of Yugoslavia (P402/58).
1417 - Since it can not be concluded
beyond reasonable doubt that Drina Corps troops - or other troops under the
effective control of General Krstic - were responsible for the terror crimes
at Potocari (FM, para. 155), the Trial Chamber can not conclude that General
Krstic incurs liability for these crimes under Article 7(3).
1418 - This is the first test under Article 7(3) (Celebici
Appeal Judgement, paras 186-198, 266). In the case in point, there is no evidence
to rebut the presumption that as Commander of the Drina Corps, General Krstic’s
de jure powers amounted to his effective control over subordinate troops
(Celebici Appeal Judgement, para. 197). To the contrary, the evidence on the
record confirms that as Corps Commander General Krstic was firmly in charge of
his troops. Conversely, it has not been established that General Krstic exercised
formal powers over the 10th Sabotage Detachment and the MUP. In the absence of
other conclusive evidence that he in reality did exercise effective control over
these troops, General Krstic can not be said to incur command responsibility
for their participation in the crimes.
1419 - P402/76
1420 - Krstic, T. 6346-6347.
1421 - Exhibit 402/68; Guidelines,
p. 8.
1422 - Radinovic, T. 8057.
1423 - Radinovic, T. 8466.
1424 - Supra, para. 477.
1425 - Krstic, T. 6350-6351,
6358, 7422.
1426 - Krstic, T. 6347.
1427 - Butler, T. 5474-5. General
Dannatt testified likewise, stating that: “I don’t believe I have come across
an incident in the Balkans whereby a general who refused to follow orders has
been shot. (…( I think there are cases of people being removed or dismissed
from their position, which is quite common in military matters.” Dannatt, T.
5685.
1428 - Supra, paras. 334, 417.
1429 - Rule 87 (B).
1430 - The Rule was last amended
at the Twenty Third Plenary Session in December 2000 and, since it may be construed
as more favourable to the accused than the previous one, is applicable in this
case.
1431 - Rule 87 (D).
1432 - Celebici Appeal Judgement,
paras. 400 et seq.
1433 - Jelisic Appeal Judgement,
para. 82.
1434 - The submissions were
filed before the Jelisic Appeals Judgement was rendered.
1435 - Prosecution Final Trial
Brief, para. 472.
1436 - The Prosecutor v Krstic, Decision on Defence
Preliminary Motion on the form of the Amended Indictment, Case No IT-98-33-PT,
28 January 2000, pp. 4-7.
1437 - Celebici Appeal Judgement,
para. 400.
1438 - The genocide is perpetrated
through the killings of the group and through serious bodily or mental harm
caused to members of the group.
1439 - The offence of persecutions
is perpetrated through the murder of thousands of Bosnian Muslim civilians,
including men, women, children and elderly persons, the cruel and inhumane treatment
(including severe beatings) of Bosnian Muslim civilians, the terrorising, the
destruction of personal property of Bosnian Muslim civilians and the deportation
or forcible transfer of Bosnian Muslims from Srebrenica.
1440 - Prosecution Final Trial
Brief, para. 473. It should be noted that the Prosecution Seems to have misread
the Celebici Test, which is detailed Infra in (ii) “the Test laid down by the
Appeals Chamber in the Celebici case”.
1441 - Final Submission of the
Accused, para. 399.
1442 - Final Submission of the
Accused, para. 400, p. 124.
1443 - Final Submission of the
Accused, para. 400, p. 124.
1444 - Final Submission of the
Accused, paras. 397, 398.
1445 - Celebici Appeal Judgement,
para. 412.
1446 - Celebici Appeal Judgement,
para. 413.
1447 - Celebici Appeal Judgement,
para. 424. Also, on the question of whether entering cumulative convictions
under Articles 2 and 3 is permissible, the Appeals Chamber in the Celebici case
stated that “It should also be borne in mind that Article 2 applies to international
conflicts, while Article 3 applies to both internal and international conflicts.
However, this potentially distinguishing element does not come into play here,
because the conflict at issue has been characterised as international as well“.
Footnote 652.
1448 - The armed conflict requirement
in Article 5’s chapeau has been characterised by the jurisprudence of the Tribunal
as not a substantive requirement for cumulative convictions purposes. It is
however a jurisdictional requirement for the application of Article 3 of the
Statute. Jelisic Appeal Judgement, para. 82. See also Tadic Jurisdiction Decision
and Tadic Appeal Judgement, para. 249.
1449 - The Trial Chamber has
found that the transfer of the Bosnian Muslim civilians from Potocari to areas
controlled by Muslim forces is to be characterised as forcible transfer and
not as deportation. See supra, para. XX (genocide part).
1450 - Tadic Judgement, para. 729 (citing the ILC
Draft Code, p. 103).
1451 - Supra, para. 670.
1452 - Jelisic Appeal Judgement,
para. 82.
1453 - Tadic Jurisdiction Decision,
para. 141: “It is by now a settled rule of customary international law that
crimes against humanity do not require a connection to international armed conflict.
Indeed, as the Prosecutor points out, customary international law may not require
a connection between crimes against humanity and armed conflict at all...”.
1454 - Prosecutor v Tadic , Decision
on Defence Motion on the Form of the Indictment, Case No IT-94-1-PT, 14 November
1995, para. 11.
1455 - The question of whether
genocide is an autonomous crime or an aspect of a crime against humanity was
discussed during the drafting of the genocide Convention. Many delegates were
firm in their views that the two concepts of genocide and crimes against humanity
should be kept separate and the Ad Hoc Committee rejected the proposition to
have the preamble describe genocide as “a crime against humanity”. The Polish
delegate expressed the view held by representatives of the Ad Hoc Committee
that while it is true that genocide is a crime against humanity, to state that
in the Genocide Convention would overreach the provisions of General Assembly
Resolution 180 (II). See, W. Schabas, Genocide in International Law, p 64. Similarly,
the ICTY in the Karadzic and Mladic case held that the genocidal “intent may
also be inferred from the perpetration of acts which violate, or which the perpetrators
themselves consider to violate the very foundation of the group- acts which
are not in themselves covered by the list in Article 4 (2) but which are committed
as part of the same pattern of conduct”. Consideration of the Indictment within
the framework of Rule 61, para. 94. The ICC Statute indicates clearly that genocide
requires that “the conduct took place in the context of a manifest pattern of
similar conduct”, repeating the requirement that crimes against humanity are
not perpetrated as isolated or random acts but are part of a pattern of similar
acts. Report of the Preparatory Commission for the ICC.
1456 - Supra, para. 498.
1457 - In the Karadjzic and
Mladic case, the Trial Chamber considered that the definition of genocide requires
“a reasonably significant number, relative to the total of the group as a whole,
or else a significant section of a group such as its leadership.”, transcript
on hearing on 27 June 1996, p. 15.
1458 - Prosecution Final Trial
Brief, para. 467.
1459 - Defence Closing Argument,
T. 10148.
1460 - Aleksovski Appeal Judgement,
para. 107.
1461 - See in particular, Kunarac
judgement, paras 836 et seq.; Kordic Judgement, para. 847.
1462 - Rule 101 defines the
weight to be placed upon the provisions of Article 24 when determining the appropriate
sentence. Rule 101 provides in full that: (A) A convicted person may be sentenced
to imprisonment for a term up to and including the remainder of the convicted
person's life. (B) In determining the sentence, the Trial Chamber shall take
into account the factors mentioned in Article 24, paragraph 2, of the Statute,
as well as such factors as: (i) any aggravating circumstances; (ii) any mitigating
circumstances including the substantial cooperation with the Prosecutor by the
convicted person before or after conviction; (iii) the general practice regarding
prison sentences in the courts of the former Yugoslavia; (iv) the extent to
which any penalty imposed by a court of any State on the convicted person for
the same act has already been served, as referred to in Article 10, paragraph
3, of the Statute. (C) The Trial Chamber shall indicate whether multiple sentences
shall be served consecutively or concurrently. (D) Credit shall be given to
the convicted person for the period, if any, during which the convicted person
was detained in custody pending surrender to the Tribunal or pending trial or
appeal.
1463 - In particular, as to the sentence to be imposed for
cumulative convictions, the Appeals Chamber in the Celebici case held
that ”…the overarching goal in sentencing must be to ensure that the final or
aggregate sentence reflects the totality of the criminal conduct and overall
culpability of the offender. […]. The decision as to how this should be achieved
lies within the discretion of the Trial Chamber”, Celebici Appeal Judgement,
para. 430.
1464 - Most of the Trial Chambers of the ICTY have rendered
judgements imposing multiple sentences, but the Jelisic, Blaskic,
Kordic, Kunarac, Kambanda and Serushago Judgements imposed
single sentences as in the cases before the Nuremberg and Tokyo Military Tribunals.
1465 - Tadic Sentencing Judgement
II, para. 12; Furudzija Judgement, para. 285; Aleksovski Judgement, para. 242;
Kordic Judgement, para. 849; Kunarac Judgement, para. 859. The ICTR adopts,
mutatis mutandis, a similar position: Kambanda Judgement, para. 23; Akayesu
Sentence, para. 12-14; Kayishema Sentence, paras. 5-7.
1466 - See Chapter XVI of the
criminal code of the former Yugoslavia "Crimes Against Humanity and International
Law: Articles 141 and 142(1) dealt with the crimes of genocide and other war
crimes committed against civilians. See also Articles 142-156 and Articles 38
"Imprisonment", 41 "Sentences", and 48 "Coincidence of several offences. " Crimes
against peace and international law, including the crime of genocide and war
crimes against a civilian population, were punishable by a sentence of 5-15
years in prison, by the death penalty or by 20 years in prison if a prison sentence
was substituted for the death penalty, or in cases of aggravated homicide.
1467 - Article 41(1) of the
criminal code of the SFRY states: " The court shall determine the sentence for
the perpetrator of a given crime within the limits prescribed by the law for
this crime, bearing in mind the purpose of the punishment and taking into account
all the circumstances that could lead to this sentence being more or less severe,
in particular: the degree of criminal responsibility, the motives of the crime,
the degree of the threat or damage to protected property, the circumstances
under which the crime was committed, the background of the perpetrator, his
personal circumstances and behaviour after the commission of the crime as well
as other circumstances which relate to the character of the perpetrator”.
1468 - Kordic Judgement, para.
849.
1469 - Tadic Sentencing Judgement
II, para. 12.
1470 - Report of the Secretary
General, paras 111-112.
1471 - Celebici Judgement, para. 1225.
1472 - Celebici Appeal Judgement,
para. 741.
1473 - Celebici Appeal Judgement,
paras. 756-758.
1474 - Prosecution Final Trial Brief, para. 468 (citing
Blaskic Judgement, para. 800, itself citing Kambanda judgement,
para. 9, 16).
1475 - Tadic Sentencing Judgement
III, para. 69 and the Separate Opinion of Judge Shahabuddeen. The Appeals Chamber,
and subsequently Trial Chambers confirmed this assertion. Furundzija Judgement,
paras 240 to 243; Kunarac Judgement, para. 851. In the opposite sense, See Separate
Opinion of Judge Cassese appended to the Tadic Sentencing Judgement III, para.
14, where it is stated that crimes against humanity are more serious than war
crimes because of “a whole pattern of criminality” within which they are committed
and the intent of the perpetrator of the crime who must be aware of the said
pattern. Also See the Joint Separate Opinions of Judge McDonald and Judge Vohrah
appended to Erdemovic Appeal Judgement, paras 20 et seq. and Separate and Dissenting
Opinion of Judge Li appended to the Erdemovic Appeal Judgement, paras 19 et seq. See also the Declaration of Judge Vohrah appended to the Furundzija Appeal
Judgement, in particular paras 5 et seq.
1476 - In this regard, the Trial
Chamber in the Tadic case held that “… What is to be punished by penalty is
the proven criminal conduct…”. Prosecutor v. Tadic , Decision on Defence Motion
on the Form of the Indictment, IT-94-1-PT, 14 November 1995.
1477 - Tadic Sentencing Judgement
III, para. 69.
1478 - Celebici Judgement, para. 1226.
1479 - Prosecutor’s Final Brief,
para. 469; See also Erdemovic Appeal Judgement, para. 15, the Kambanda Judgement,
para.42, Kayishema Sentence, para. 26; Kordic Judgement, para. 852.
1480 - Furundzija Judgement,
para. 283.
1481 - Prosecution Final Trial
Brief, para. 471.
1482 - Celebici Judgement, para. 1268.
1483 - Jelisic Judgement, para.
132.
1484 - Kayishema Sentence, para. 18; Blaskic
Judgement, para. 787; Kordic Judgement, para. 852.
1485 - In the opposite sense,
Kunarac judgement, which refers to the fact that some crimes stretch over a
long period or are committed repeatedly as an aggravating circumstance, para.
865. This fact Seems to enter in the quantitative assessment of the crimes.
1486 - Tadic Judgement; the Celebici (paras.1226,
1260, 1273), Furundzija (paras 281 et seq.) and Blaskic
(para. 787) Judgements.
1487 - Blaskic Judgement, paras. 779 and 780.
1488 - Erdemovic Sentencing
Judgement, para. 110, and Erdemovic Sentencing Judgement II, para. 16(1).
1489 - In many national jurisdictions,
the law specifically identifies those aggravating circumstances, e.g. Criminal
Law (Sentencing) Act of South Australia, (1988), Section 10; United States of
America Federal Sentencing Guidelines. In some jurisdictions, the judge cannot
consider any other aggravating circumstances than those provided by the law,
e.g. French Criminal Code, articles 132.71 et seq. (in general) for instance;
Dutch Criminal Code, Articles 10, 57, 421-423 for instance.
1490 - Prosecution Final Trial
Brief, para. 471.
1491 - Kambanda Judgement, para. 44, Kupreskic
Judgement, para. 862; Rutaganda Judgement, para. 470 and Akayesu Judgement,
para. 36.
1492 - Rutaganda Judgement, para. 469: "the fact that a
person in a high position abused his authority and committed crimes is to be
viewed as an aggravating factor." Kambanda Judgement, para. 44. In this
regard, the Appeals Chamber reduced the sentence imposed on Dusko Tadic
from 25 to 20 years stating that “there is a need for sentences to reflect the
relative significance of the role of the [accused] and […to take into account]
his level in the command structure, [which] was law.”, Tadic Sentencing
Judgement III, paras 55-57.
1493 - Sentences imposed by
the ICTY on subordinates are of an average of 15 years imprisonment as opposed
to sentences imposed on superiors, which are of an average of 17 years imprisonment.
1494 - Prosecution Final Trial
Brief, para. 471.
1495 - The Defense submits that
the true motive for the murders of the Bosnian Muslim men, were vengeance and
punishment, for failing to surrender following General Mladic’s invitation to
do so. Defence Closing Arguments, T. 10157.
1496 - Blaskic Judgement, para. 785.
1497 - Serushago Sentence, para.
30.
1498 - Jelisic Judgement, paras
130-131; See also the Tadic Sentencing Judgement, para. 57 and the Tadic Sentencing
Judgement II, para. 20: the enthusiastic support for the attack launched against
the non-Serbian civilian population.
1499 - Kordic Judgement, para.
848.
1500 - Prosecution Closing Arguments,
T. 10011.
1501 - Furundzija Judgement,
para. 282. For instance, participation as an aider or abettor, e.g. in the crime
of genocide, may range from providing information, resources, or covering-up
the crimes, to leading the execution squads.
1502 - Defined as: "imminent
threats to the life of an accused if he refuses to commit a crime", Joint Separate
Opinion of Judges McDonald and Vohrah appended to the Erdemovic Appeal Judgement,
para. 66.
1503 - Joint Separate Opinion
of Judges McDonald and Vohrah appended to the Erdemovic Appeal Judgement, para.
88.
1504 - Jelisic Judgement, para.
124, Furundzija, para. 284.
1505 - Jelisic Judgement, para.
125.
1506 - Rules of Procedure and
Evidence, Rule 67 (A)(ii)(b): "diminished or lack of mental responsibility".
1507 - Erdemovic Judgement, para. 16(i); Akayesu
Sentencing Judgement, para. 35 (iii), but not in the Celebici Judgement,
para. 1256.
1508 - Celebici Judgement, para. 1283.
1509 - Kupreskic Judgement, para. 853; Serushago
Sentence, para. 35; See also the Musema Judgement, para. 1007;
See also on contrary Kambanda Judgement, para. 51; Akayesu
Sentencing Judgement, para. 35(i), Serushago Sentence, paras 40 and 41,
Ruggiu Judgement, paras 69-72, Kunarac Judgement, para. 869; Blaskic
Judgement, para. 780.
1510 - Blaskic Judgement, para. 774.
1511 - Blaskic Judgement, para. 774, the Erdemovic
Sentencing Judgement, paras 99-101 and the Erdemovic Sentencing Judgement
II, para. 16 iv, and the Kambanda Judgement, para. 47.
1512 - Kunarac Judgement, para.
868.
1513 - Musema Judgement, para.
1007. Idem in the Ruggiu Judgement, para. 53: a guilty plea accelerates the
proceedings and makes it possible to save resources.
1514 - Idem and in the contrary sense, Celebici Judgement,
para. 1244: Mucic's lack of respect for the judicial process, attempts to fabricate
evidence and influence witnesses are taken to be aggravating circumstances.
1515 - Prosecution Closing Arguments,
T. 10011.
1516 - Celebici Judgement, para. 1270.
1517 - Supra, paras. 90-94.
See also Witness I, T. 2420-22: "And 8.000 Srebrenica inhabitants are missing,
and we must all know that. We must all know that there must have been children,
poor people, between 16.000 and 20.000, and one needs to feed them all, to bring
them up. There are so many fathers without sons and sons without fathers. I
had two sons, and I don't have them any more. Why is that? And I lived and I
worked in my own home, nobody else's, and that was -- that same held true for
my father and my grandfather, but what they seized, what they took away, what
they grabbed. I had two houses. One they burnt down. It could burn. They burnt
it down, but the other one they couldn't burn, so they came and put a mine to
it because the house was new and I hadn't finished it yet. The roof was still
missing, but it was all made of concrete and bricks, so it wouldn't burn. And
I thought. Well, it will survive at least. But no, they came and planted mines,
and it just went down; nothing but bust. But, right. Never mind that. I had
it, so it's gone. They took it. They seized it. But why did they have to kill
my sons? "And I stand today as dried as that tree in the forest. I could have
lived with my sons and with my own land, and now I don't have either. And how
am I supposed to live today? I don't have a pension or anything. Before that,
I relied on my sons. They wouldn't have left me. They wouldn't have let me go
hungry. And today, without my sons, without land, I'm slowly starving.".
1518 - In late December 1994,
General Krstic was seriously injured when he stepped on a landmine. He was evacuated
to a military hospital in Sokolac, and subsequently transferred to the Military
Medical Academy in Belgrade. As a result of the injuries he sustained from the
landmine, part of his leg was amputated and he remained in rehabilitation and
on leave until mid May 1995.
1519 - Rule 101 (D).