1 - S/RES/827 (1993).
2 - IT/32/Rev. 17.
3 - Art. 1 of the Statute.
4 - When the Trial Chamber speaks of Croatian or Croat
forces in this Judgement it means the Bosnian Croatian forces and not those of
the Republic of Croatia.
5 - IT-96-16-AR73.3 - Judge David Hunt appended a separate
opinion, joining in the decision of the majority, but dissenting on some of the
reasoning.
6 - IT-95-16-AR65 for the accused Drago Josipovic;
IT-95-16-AR65.2 for the accused Mirjan and Zoran Kupreskic.
7 - Witness T, Transcript page (hereafter abbreviated
as “T.”) 2978.
8 - “The concept of a Greater Serbia has a long history”, Section
II(A)(4) (“Greater Serbia”), Prosecutor v. Tadic, (IT-94-1-T), Opinion
and Judgement, Trial Chamber, 7 May 1997 (hereafter Tadic, Trial Chamber Judgement,
7 May 1997), at para. 85.
9 - The Republic of Bosnia and Herzegovina was recognised
by the European Community on 6 April 1992 (UN Doc. S/23793, Annex) and was admitted
as a member of the United Nations on 22 May 1992 (GA Resolution 46/237).
10 - For example, see the Prosecution’s cross-examination of
Zvonimir Cilic, T. 5317-5319, in which the Prosecution referred to the
separatist thesis put forward by a Croat writer, Anto Valenta, notably in his
book “The Partition of Bosnia and its Political Future”, published in 1991. The
witness denied, however, that Valenta’s ideas were representative of those of
the Croatian people as a whole: “In other words, it reflected his own positions,
and this was not the position of any institution or organisation of Croatian people”.
Zvonimir Cilic, ibid., p. 5319.
11 - T. 2751.
12 - Payam Akhavan, T. 1341.
13 - T. 5579-5580.
14 - Lt. Col. Watters, T. 202; see also T. 233-234 and
Payam Akhavan, T. 1340.
15 - Lt. Col. Watters, T. 202-205. See also Payam Akhavan, T. 1336.
16 - Witness Y, T. 3298-3299, mentioning the villages
of Strane, Merdani, Loncari, Pezici, Rovna, Putis, Jelinak, all in the Lasva Valley,
in the Busovaca municipality, and the villages of Pezici, Rovna, Kovacevac, bordering
on the municipality of Vitez, which were attacked by the HVO. The HVO expelled
all the Muslims and burned their houses.
17 - Lt. Col. Watters, T. 202.
18 - Ahmici is in what would have been canton ten
under the Vance-Owen Plan.
19 - Fahrudin Ahmic, T. 1111-1112.
20 - Abdulah Ahmic, T. 269. See also Witness S,
T. 2878.
21 - T. 2878-2882.
22 - T. 3895.
23 - T. 2881 (emphasis added).
24 - T. 2883.
25 - T. 5598.
26 - Dragan Stojak, T. 6311-6312.
27 - T. 5446.
28 - Vlado Alilovic testified T. 5539 that, when Jajce
fell, “most of the territory of Bosnia-Herzegovina was cleansed of Croats and
Muslims by the JNA, that is, by the Serbs”.
29 - Zvonimir Cilic, T. 5141-5143; Ivica Kupreskic,
T. 8014-8015; Vlado Alilovic, T. 5460 and T. 5535; Mirko Sakic,
T. 7606-7607; Gordana Cuic, née Vidovic, T. 8181; Dragan Vidovic,
T. 8418; Mirko Sakic, T. 7606-7607 and T. 7683; Gordana Cuic, T.
8180-8181.
30 - See e.g. Defence’s Closing Brief of Counsel for
Mirjan Kupreskic at p. 12; Defence’s Closing Brief of Counsel for Dragan Papic,
at p. 5 – 7.
31 - T. 6119-6121.
32 - T. 6097-6134.
33 - The videotape is Exhibit D62/2; the transcript
of the videotape is D62 A/2 and the list of those killed in the incident is D63/2.
34 - T. 6112-6113 and T. 6115.
35 - T. 6116-6118.
36 - T. 6122-6123.
37 - See Exhibit D62/2 (video of the witness’s husband
and other dead and mutilated bodies).
38 - Zeljka Rajic, T. 6125.
39 - E.g. Rudo Kurevija, T. 5894.
40 - T. 5174-5175.
41 - T. 6235.
42 - Lt.-Col. Watters, T. 147.
43 - The videotape relating to this episode is D34/2
the Croatian translation, D34A/2, and the English translation D34B/2.
44 - Jadranka Tolic, T. 6156-6158.
45 - Zvonimir Cilic, T. 5425.
46 - An exhibit was produced to the witness (D39/2),
which was allegedly a list of HVO soldiers killed and wounded (23 killed and 63
wounded) in Vitez. It emerged during cross-examination that not all the soldiers
mentioned in the document were, however, from the Vitez brigade.
47 - Second Periodic Report on the Situation of Human Rights
in the Territory of the Former Yugoslavia, by Mr. Tadeusz Mazowiecki (hereafter
the Mazowiecki Report), UN Doc. E/CN.4/1994/4, 19 May 1993, Conclusions,
paras. 37 and 40.
48 - T. 6142-6180.
49 - T. 6151“… the life conditions were intolerable,
but the main reasons were the attack on Dusina and the crimes in Dusina, and this
horrified the citizens, Croats in Zenica, and other citizens. Then the attack
on Busovaca. Then from that time Croats in Zenica felt very insecure. They were
afraid for their own lives and the lives of their children”.
50 - T. 5191-5199.
51 - Zvonimir Cilic, T. 5206-5207.
52 - T. 1893-1894.
53 - T. 640-641.
54 - T. 1150-1151.
55 - T. 1015.
56 - T. 2340.
57 - T. 2538.
58 - T. 2877-2878.
59 - T. 3180-3181 and T. 3202.
60 - T. 3164.
61 - T. 4311.
62 - T. 10921-10924.
63 - T.10923.
64 - Fahrudin Ahmic, T. 1128–1129; Witness F,
T. 1373.
65 - T. 10923–10925.
66 - T.10937.
67 - T. 10938-10940 and T. 10957-10961.
68 - T. 10963-10964.
69 - Witness B, T. 737-741; Witness AA, T. 3735-3738
saw Miroslav Bralo when they were both in prison; Bralo being in prison for the
Salkic slaying in Nadioci. He related how Bralo was permitted a considerable degree
of freedom and was allowed to assault some Arabs who were there in the prison.
Shortly after his release, the witness was sent back to Kaonik prison on somewhat
trumped-up charges. This second time he was again in prison with Miroslav Bralo,
who was still there. The witness and Bralo were sent on trench digging details
but they did not really dig the trenches – the Muslims did this - with the witness
and Bralo sitting by, drinking and joking. The witness provoked the Muslims by
saying things to them. Bralo beat them with his hands and spade. Bralo couldn’t
understand why he was in prison “only because of one Balija”. Bralo was in prison
for some two months, but he was allowed to visit his wife, drink, etc. The cell
was never locked.
70 - See e.g. Closing Argument of the Counsel of the
Accused Zoran Kupreskic, 5 Nov. 1999, at p. 43.
71 - Niko Sakic, T. 8224; Jozo Alilovic, T. 8332;
Vlado Alilovic, T. 5442.
72 - Dragan Stojak, T. 6322; Vlado Alilovic,
T. 5551.
73 - T. 3717-3719.
74 - Abdulah Ahmic, T. 270.
75 - Witness G, T. 1544.
76 - Witness FF, T. 4329–4330, testified that her
husband had to surrender his weapons to Nenad Šantic, the local HVO commander
and the brother-in-law of Drago Josipovic. She testified that Nenad Šantic took
weapons from others too. Witness CA, T. 4577–4579, testified that her son was
told to hand his weapon – one of the burnt weapons from Slemenij - to Nenad Šantic,
and to tell others to hand in their weapons in Pirici.
77 - Lee Whitworth, T. 4271–4274.
78 - Witness D, T. 1013-1019; Witness I, T. 1778 (generally),
T. 1783 (freedom of movement was restricted), T. 1799 (witness was threatened
by a Croat soldier who put a knife to his neck and said “This is what is going
to happen to your neighbours [...]”); Fahrudin Ahmic, T. 1113: Muslims were intimidated
and insulted in order to force them to leave Ahmici.
79 - T. 1113.
80 - T. 542-545.
81 - T. 262.
82 - T. 1544-1545.
83 - T. 1212.
84 - T. 1790-1791.
85 - T. 2990-2991.
86 - T. 3209.
87 - T. 3291-3292.
88 - T. 3292-3293.
89 - T. 3712-3713.
90 - T. 3713-3714.
91 - T. 3715-3716.
92 - T. 3717-3718.
93 - T. 6977.
94 - T. 7325 and 7351.
95 - T. 7056–7057: “Q. Are you aware that he owned
and occasionally wore a black uniform? A. Yes, he did own a black uniform. It
was given to him as a present by somebody whose vehicle he had prepared, because
it was useful if he went to Zenica or somewhere else, he would not be stopped
at the checkpoints, and that's why he would wear it sometimes though it was too
small for him. So I saw him wearing it very rarely. Q. So it was a good idea to
wear a black uniform if you went to Zenica? A. Yes, because the HOS was the only
organised force in Zenica at the time, and all of them were wearing black uniforms.
Q. And why did he wear the camouflage uniform? A. He wore it because everybody
was wearing it. All young men were wearing uniforms. It was the fashion at the
time just before the war. Q. So young people who were not members of any particular
units -- A. Yes, they would get them from their friends and they would wear them”.
96 - T. 5076-5077.
97 - T. 8171.
98 - T. 11179 and T. 11182–11183: “Q. Did you go on
with your folklore activities while you were in the JNA? A. Yes. I was a dancer,
a folklore dancer, and I was at the head of this folklore section in the JNA,
and I also played in the orchestra.”
99 - T. 11192-11193: “Can you tell us when your folklore
group had a performance at a Muslim celebration last? When was the last time,
a purely Muslim celebration? A. Well, I remember we had a performance, it was
to celebrate the Muslim festival of Bajram, and it was in March 1993 at the fire
brigade building at the Mahala in Vitez. I remember that. Q. When was Bajram?
A. It was March 1993, at the end of March sometime. Q. After that, did you have
performances of any kind together with your Muslim members at an exclusively Croatian
celebration? A. Not for a long time afterwards. I remember several days before
the conflict, we had a performance with the same group in Mosunj to celebrate
the Catholic holiday of Easter. That was in April, the 10th or 11th of April,
somewhere around there”.
100 - Exhibits D16/1 to 19/1.
101 - T. 11564: “Q. When you got married and the
rest of them married, were you best men to one another? A. Yes, of course, particularly
those of us who were together in this folklore company, and we were together.
Yes, of course, we were best men to one another, and, of course, we married between
us. I could mention three or four marriages which were the product of that friendship
in that folklore company. Q. You mean marriages between Croats and Muslims; is
that so? A. Between Croats and Croats, and Croats and Muslims, and Croats and
Serbs. They all intermarried, all variations”.
102 - T. 11565–11566: “Q. Who were those closest
friends? A. Fahrudin Ahmic, the late Fahrudin Ahmic. I don’t think I should waste
any words about that. He was not only a friend from the folklore company, but
he was also a man who was in the band with me together, that is, we had various
things that we did together, which brought us together. … There was also Ibrahim
Salkic, another dancer, Veljko Cato, who was my best man, and he’s a Serb. Miro
Vujinovic, another Serb, and he was also my best man”.
103 - T. 11566: “Q. Did any changes happen in your
relations after the first conflicts in 1992? A. I can say that after that first
conflict, that those—that it may have brought us even closer together. Because
of all those events, we simply did not want anything like that to affect us in
any way, and we were all very eager to come even closer together in view of that”.
104 - T. 6135-6228.
105 - T. 6194: “Q. You said that in the Croatian
areas homes were usually torched after the Croats were expelled. Did I understand
you right? A. Yes. The houses were torched after the Croats were expelled, but
this happened on the 18th of April. Q. Okay. So now we see that you don't know
anything about the 16th. So now we're going to talk about the conduct of Muslim
forces after they captured Croatian villages. What happened with the Croatian
churches after the Muslims captured a Croatian village? A. Well, they would shoot
at the churches. The church in Cajdras is full of bullet holes. The priest and
two nuns were abused in Cahrcici”.
106 - See e.g. the Defence’s Closing Brief of Counsel
for Dragan Papic, section D.
107 - Exhibit D17/2.
108 - T. 5132-5133 and T. 5135; Exhibit D25/2 (minutes
of meeting signed by Blaskic); Exhibit D26/2 (document of a meeting between representatives
of the UNHCR, UNPROFOR, SDA, BiH army, the HVO government, the HVO headquarters,
and public security station in Vitez. “From this document, we can see that attempts
were continually made to re-establish the joint police station and joint government.
Yes. This is one of these attempts and attempts were made continuously … the municipal
war government which is mentioned in item 3, it was not called Croatian or HVO?
A. No, it was literally called Vitez municipality - the municipal war government
of Vitez, so it was ethnically neutral”.
109 - T. 6640–6641 and T. 6656-6657.
110 - T. 5328–5329.
111 - T. 5330.
112 - Hearing of 20 Jan. 1999.
113 - See Exhibits D31/2, D78/2, T. 6795: “Q. Also,
they mention here what you mentioned as well, that there is armed robbery, people
are being wounded, and also sabotages in the town, in cafes, and so far there
have been armed robberies in six houses (two Croats, one Serb, and three Muslims).
Did the military police make any kind of attempt to deal with the security situation?
Did you reach any kind of agreement with them? A. There were some discussions
to the effect that there should be a ban on carrying weapons in town. I know that
the chiefs talked about this, but agreement was never reached on this matter.
Perhaps there was something on paper, but it was not carried out”.
114 - T. 6783–6785.
115 - See the testimony of Witness AA, at T. 3735-3738,
who was imprisoned with Bralo, and saw that Bralo was allowed to move about freely
and to abuse Muslim prisoners while incarcerated.
116 - T. 6874.
117 - T. 5784–5785.
118 - T. 5789–5790.
119 - T. 5457.
120 - T. 6895-6896.
121 - T. 5458 and T. 5556–5557.
122 - In this connection, see section 2, para. 37 of the Mazowiecki
Report.
123 - T. 4531-4536; See also ibid., at paras. 37, 40
and Conclusions and Exhibit P. 82.
124 - T. 4539.
125 - A defence witness, Vlado Divkovic, T. 5791-5794,
believed there were problems with the Government of Bosnia-Herzegovina in 1992
in that it was not really operating because it was not possible to reach Sarajevo
and also because the BiH government was boycotted by the Serb representatives.
Accordingly a directive from the Government of Bosnia and Herzegovina sent to
the witness as manager of the Vitezit factory and directing that those who sided
with the aggressor against Bosnia and Herzegovina, i.e. nationalist Serbs, should
be fired, was ignored. The witness felt that the Government did not have the right
to issue such a directive because Vitezit was socially-owned, rather than a public
corporation, so only the Workers’ Council of the enterprise could make such a
move. Vlado Divkovic, T. 5794: “Q. You said that that is why you did not
pay attention to this document. A. Yes, of course. In view of the composition
of the government at the time, it could not be respected throughout the territory
of Bosnia-Herzegovina. And, anyway, the document was passed without any legal
grounds. Vitezit was never declared a public corporation. It was not an enterprise
that the government could appoint the managers of”.
126 - Vlado Alilovic, T. 5451.
127 - T. 5488-5489.
128 - Vlado Alilovic, T. 5450-5451.
129 - Zvonimir Cilic, T. 5152-5153: “A. Fifteen days
after I joined the command as a political officer, on orders of Colonel Tihomir
Blaskic which went through the municipal staff and other staffs, Mario Cerkez,
the chief of staff, I was sent on this date, 19 Oct., to a seminar in Busovaca
which was organised by the representatives of the Red Cross in Geneva. Q. What
was the topic of this seminar? A. This seminar was held for the representatives
of the HVO, and as I found out -- and this was a full-day seminar; a similar one
had been also organised for the representatives of the BiH army, and the topic
of the seminar was the International Conventions on the Laws of War. We received
a lot of promotional material in English and Croatian. We also saw films on the
activities of the Red Cross, and many of us, for the first time, learned more
about the history of the Red Cross and its goals and ... Q. Did the seminar also
include a discussion of the Geneva Conventions? A. Yes. It was about the rights
of prisoners, about the rights of prisoners of war, and I have to say that this
seminar left a great impression on me. I asked myself, why are they showing us
this? Because they were showing us a number of films from countries in Africa,
South America, and they were very disturbing images. Q. And you thought that this
could not happen in your region? A. Yes. I thought that it was very far removed
and I thought that it could never happen in our country”.
130 - Witness DA/5, T. 5639; Dragan Stojak,
T. 6277-6278; Mario Rajic, T. 6374 and T. 6384; Vlado Alilovic,
T. 5542. Several defence witnesses had difficulty explaining why their names appeared
on HVO membership lists (Exhibit P353), when they did not consider themselves
to have been members of the HVO. It seems they signed these lists simply in order
to receive shares. As Zdenko Rajic testified, T. 7431: “A. Honesty was
not at issue here. What was at stake here was to match the number of shares which
the BiH army members were getting. [...] By including the names of elderly and
women in this list as if they had been mobilised, meant increasing the number
of people receiving shares. [...] Q. What is the relationship with the compensation
that was received by the army of Bosnia-Herzegovina? A. Because of the fact that
[...] they received many more shares. We tried to get as close to that number,
to increase the number, to match their numbers, so that when these shares were
distributed, that we would get as close to the number that they were getting”.
131 - Mario Rajic, T. 6385; Zoran Strukar, T. 6762.
132 - Zoran Strukar, T. 6761–6765, T. 6851-6852 and T. 6855-6858,
emphasised that the Vitez police force was multi-ethnic: the commander of the
police was a Muslim and the chief of police was a Croat (Pero Skopljak). The ethnic
composition of the police more or less reflected the ethnic composition of the
population, roughly 50-50. See Exhibit D75/2: “What occurred reflects negatively
among the Croatian population and is perceived as powerlessness of the legal organs
and institutions of the HVO to counteract crime and criminals. In the ranks of
[the] BiH [army] they could hardly wait for this, and it is commented upon as
an open clash among the divided HVO forces. They follow further developments with
satisfaction and expect such further clashes, which influences their morale considerably
and they offer their “help”. Signed by Pasko Ljubicic, Commander of IV Battalion
VP, Vitez. The Seal of the communiqué is “Republic of Bosnia and Herzegovina/Croatian
Community Herceg-Bosna”. See also Exhibits D30/2 and D31/2, which are Reports
on these crimes.
133 - Lee Whitworth, T. 4271-4273.
134 - T. 3810-3811.
135 - T. 3724-3728 .
136 - T. 4269. Captain Stevens, T. 2143, among many
others, testified that the HVO commanders were based in the Hotel Vitez, which
does not seem to be in dispute. Witness B, T. 740-742, who was a 37-year
old ex-JNA captain (1st class), also testified, inter alia, that the directives
and orders for the HVO seemed to come from the Hotel Vitez and the Commander,
Mario Cerkez.
137 - Zvonimir Cilic, T. 5143-5144: “… there was the
civilian police as well, as well as the municipal authorities who sought in every
possible way to maintain law and order, because this situation put the citizens
in a very difficult position, and many of them sought ways to abandon the area.
I think it was in January that the municipal government, the Croatian government
in Vitez, took the decision to form an intervention squad. This intervention squad
was composed of selected young men who had been tested in terms of their morals
and also physically, they were mentally in good health, they had no criminal record,
and they were ready to intervene physically and with force of arms to maintain
law and order. A decision was even taken that they should have (sic) certain compensation.
At the time it was quite considerable, because salaries were very low, whereas
I think the members of the squad received up to 400 or 500 German marks, which
was an extremely high salary for a month. For comparison's sake, the regular salaries
in enterprises were about 50 marks”.
138 - Witness Y, T. 3321: “Q. So according to this
map, there were some HVO forces along the frontline with the Chetniks? A. Yes,
as you can see, but very few. Q. Does the map indicate where the majority of HVO
forces were during this time period which is marked on the map Dec. '92 and Jan.
'93? A. Yes. Q. Where does this map indicate that the majority of the HVO forces
were located? A. (Indicating). The Lasva Valley”. See also Exhibit P227, which
shows the deployment of the BiH army, HVO and Serb forces.
139 - Vlado Alilovic, T. 5476-5478, testified that
on 16 April 1993, the BiH army tried to capture Vitez, the Lasva River Valley
and central Bosnia, as they did in Bugojno, Gornji Vakuf and other places. Muslim
forces wanted to divide Busovaca.
140 - Jadranka Tolic, T. 6148.
141 - Jadranka Tolic, T. 6148.
142 - Jadranka Tolic, T. 6149, testified that “All
the units being formed, I would call them altogether by one name, Muslim forces,
including the BiH army, the Green Legion, the Patriotic Legion, and the MOS, Mujahedin
organisation. These were all Muslim forces. They operated together in coordination
and that’s how they carried out their tasks”.
143 - Jadranka Tolic, T. 6154: “Q. So the BiH army
carried out the negotiations and exchanged Zivko Totic for Mujahedins. What does
this tell you? A. Well, I said already earlier that these were Muslim forces,
and they did everything in coordination. Both the Mujahedin and the BiH army.
These were not separate structures. The Mujahedin were part of the BiH army”.
144 - Gordana Cuic, T. 8144-8147.
145 - Jozo Alilovic, T. 8335–8336, testified that the
situation was very dangerous. The young men would shoot at anything. The witness
had to inform his superiors that he no longer felt safe as a gamekeeper because
of the possibility that he would be shot by these youths. Under cross-examination,
he stated that the youths would take the automatic rifles with them while tending
sheep, and shoot at birds.
146 - Abdulah Ahmic, T. 341-342; Fahrudin Ahmic,
T. 1099-1102.
147 - This was confirmed by several witnesses. See for example
Abdulah Ahmic, T. 341. Witness V, T. 3050-3051, who was on leave
from the front-line with the Cetniks, above Turbe, at the time of the events the
subject of this indictment, and said that the Bosniac territorial defence was
simply a patrol. Bosniac soldiers coming home from the frontline on leave would
initially take their weapons home with them, but they ceased to do so as relations
with the Croats grew tense, because the weapons were needed at the frontline for
the next shift and because at checkpoints the HVO would confiscate the weapons
from Bosniacs. Zvonimir Cilic. T. 5202, testified that, due to a shortage
of uniforms on the Muslim side, it was common to come across people who were armed
but not in uniform or only partly in uniform, and Witness V, T. 3085-3086
also confirmed that few Bosniacs had uniforms and that some went to the front
in civilian clothes.
148 - See for example Prosecutor’s Pre-Trial Brief
of 13 July 1998, at para. 18.
149 - See for example the opening statements of Counsel
Radovic, T. 5031, counsel [usak, T. 5051, and of counsel Puliselic, T. 5061.
150 - Zvonimir Cilic, T. 5429: “Q. Did members of HOS
ever become members of the Vitez Brigade? A. No, they never did. Q. Which unit
did they become members of, which special purpose unit? A. They all became members
of the Vitezovi special purpose unit”.
151 - T. 2468.
152 - Payam Akhavan, T. 1336.
153 - Vlado Alilovic, T. 5550-5551.
154 - Witness DA/5, T. 5648-5649.
155 - See Exhibit D55/2 – invoices of supplies. Defence witness
Ivan Taraba, T. 8734-8735, a worker at the SPS company in Vitez, also testified
that the ethnic composition of the factories in Vitez was balanced to reflect
the ethnic composition of the general population - approximately 50% Croats, 50%
Muslims, and a few Serbs – and remained so throughout the conflict.
156 - T. 8681.
157 - T. 5806-5807: “Q. Did you at any time receive
orders to stop deliveries of material to the Muslim side, meaning to the armed
forces of Bosnia and Herzegovina? A. I never received such an order. I don't know
if anybody amongst my colleagues received such an order. Q. And according to your
information, deliveries continued until the beginning of the war? A. Yes. Deliveries
went on until April '94 -- excuse me, '93”. T. 5836-5837: “Q. [...] what is the
main reason that the Lasva Valley or the part that remained under HVO control
was not captured by the BiH army during the conflict? A. Probably the main reason
which contributed to the defence of this area was this factory and the vast amount
of explosives in it, so that we could continue to produce those military ammunitions
during the war, and that was the main factor that made it possible for the people
there to defend themselves. Q. Even though the superiority of the BiH army was
quite significant in manpower? A. Yes, five, six, or seven times superior in numbers”.
158 - Dragan Vidovic, T. 8412-8413.
159 - Witness B, T. 816 and T. 827-828. See also Witness
V, T. 3196-3198.
160 - T. 3643.
161 - Abdulah Ahmic, T. 327-331.
162 - Witness Z, T. 3646-3647 and T. 3680.
163 - Witness B, T. 918; Mehmed Ahmic, T. 642.
164 - Abdulah Ahmic, T. 336-339. Mehmed Ahmic,
T. 643–645.
165 - T. 646.
166 - T. 646–650.
167 - T. 1018.
168 - T. 1103-1104 and T. 1133-1134.
169 - Photographic Exhibit P228 shows the damage done to a
building by an anti-aircraft gun, namely large holes in the walls of the building.
Witness Y, T. 3317–3318, testified that this same kind of weapon caused
damage to the witness’s house and the Kermo house.
170 - T. 3680.
171 - Fahrudin Ahmic, T. 1107-1108.
172 - T. 775.
173 - Witness G, T. 1557-1558; Witness D, T.
1013-1020, recounting how, between Oct. 1992 and April 1993, relations deteriorated:
“ […] Especially we in the lower part of Ahmici, we were in very great danger.
[…T] here would be an incident almost daily. They would insult us if they meet
(sic) a woman wearing pantaloons, they would say, “You balija woman”. […]. He
would come by in the car and shout, “We will not have pantaloons walking here”.
They would call out “Balijas”. In the evening, we would be sitting together, then
they would throw grenades into our meadows [sic]. The people closer to the road
would have their windows broken. We were sorrowful, we didn't know what was happening.
And so on, it went on like that. We saw that relations were not what they used
to be. Before, we would exchange visits, and then suddenly, they somehow separated.
They were doing something in secret. We didn't know what they were doing. But
we saw that things were not what they used to be” (T. 1014).
174 - Goran Papic, T. 7047, the younger brother of
the accused Dragan Papic, starkly blamed the Muslims for this conflict: “the Muslims
caused the conflict on that day and that conflict is their fault”.
175 - This view was expressed by defence witnesses Ivo
Vidovic, T. 6945; Ivica Kupreskic, T. 7944; Zdenko Rajic, T.
7440; Anto Rajic T. 8681–8682 and Zdravko Vrebac, T. 7763 (who stated
that local Croats from Ahmici-Santici were not involved in the conflict). Goran Males passed through the roadblock in question on 19 Oct. 1992, on his way
from Podjele to Rijeka, although he had been warned by some Croats not to go towards
Ahmici, because the road was blocked. He saw approximately 100 men at the roadblock,
most of whom wore camouflage uniforms. He identified them as armed members of
the BiH army, as well as a few civilians. The men at the roadblock insulted and
threatened him, saying, “Let’s kill him. [...] Gouge his eyes out,” until a person
went to fetch the commander, whom he identified as Fikret Ahmic. The witness answered
when the latter asked his first and last names, and he was let through. The roadblock
consisted of fences and was built to prevent circulation from Busovaca to Jajce.
He confided these occurrences to a friend who corroborated the statement. Although
Goran Males, T. 7261–7267, acknowledged that he did not know why the roadblock
had been erected, he stated that he believed that the reason for the roadblock
was to prevent people from Busovaca from going to Jajce.
176 - T. 7202.
177 - Goran Males, T. 7296–7297.
178 - Zvonimir Cilic, T. 5158–5160.
179 - Anto Rajic, T. 8678–8679.
180 - Dragan Vidovic, T. 8403; Ivica Kupreskic,
T. 7930; Pero Papic, T. 7195.
181 - Milutin Vidovic, T. 7491; Ivica Kupreskic,
T. 7929–7930; Ljubica Milicevic, T. 7301; Pero Papic, T. 7195; Zdenko
Rajic, T. 7386.
182 - Zdenko Rajic, T. 7386-7387. The witness stated
that he was given a telephone order around 5.00 am from Grabovac to go to Ahmici
to prevent the forces from the BiH army should they start moving from the direction
of Gornja Rovna, Kovacevac and Pezici towards the barricade which had been set
up by the Muslims. He was in charge of a squad of about ten men, which was deployed
in the forest near the Topola cemetery, but he did not take part in the conflict.
He did not actually see the barricade. (T. 7382–7388).
183 - Dragan Vidovic, T. 8407; Milutin Vidovic, T.
7495; Ivica Kupreskic, T. 7940.
184 - Mirko Sakic, T. 7600-7601: His father woke
him around 4:30 a.m., and later on people came to his shelter which had been used
previously during air attacks.
185 - Ljubica Milicevic, T. 7303.
186 - Zvonimir Cilic, T. 5158–5159.
187 - Anto Rajic, T. 8682.
188 - Milutin Vidovic, T. 7521 and T. 7546. He saw
smoke coming from Mehmed Ahmic’s house which was on fire.
189 - Mirko Sakic, T. 7603–7604; Milutin Vidovic,
T. 7496.
190 - Milutin Vidovic, T. 7495; Anto Rajic, T. 8682.
191 - Mirko Sakic, T. 7604; Zdravko Vrebac, T. 7759.
192 - Ivica Kupreskic, T. 7915 and T. 7942-7943.
193 - Ljubica Milicevic, T. 7304.
194 - Zvonimir Cilic, T. 5167-5168: “A. I said that
the conflict was very fierce, a number of houses were damaged, mostly Bosniac
houses because most of the houses there were Bosniac, and the first task of that
coordination body for the protection of citizens was to issue an appeal to the
public and to institutions of the civilian government in Vitez, and people with
means to collect funds and material assistance to repair the damages (sic) done
in the conflict, and this applied to homes and business premises, and the response
was beyond many expectations. A large number of people, and I must underline this,
these were damaged Muslim houses, but a large number of Croat citizens whole-heartedly
contributed to this collection campaign to repair those houses and a number of
those houses were repaired”.
195 - Zdravko Vrebac, T. 7759–7761; Mirko Sakic,
T. 7604–7605; Ivica Kupreskic, T. 7941–7942.
196 - Milutin Vidovic, T. 7502: “After the first
conflict the Croatian-Muslim relations became more tense, and there was a certain
amount of mistrust, the one towards the others. The village guards were separated.
There were separate Croat-Muslim guards and Muslim village guards, and each separate
group would stand guard in front of their own houses. The people working with
me at the market I felt of a certain amount of distrust towards me. You couldn't
do any work with them (sic) as you could before the conflict”.
197 - Zdravko Vrebac, T. 7760.
198 - Witness B, T. 786.
199 - Major Woolley, T. 3476.
200 - Esad Rizvanovic, T. 465.
201 - T. 791.
202 - Witness I, T. 1799. “When I turned around,
he pulled out a knife, which was a large knife, and placed it on the left side
of my neck. I slapped him on the wrist and I said, “What are you doing with this?”
And he told me, “This is what is going to happen to your neighbours, and as you
worked at my brother's, you and your children will not be touched”. I got up.
I saw what the situation was. I never experienced anything like that before, and
I started for the exit door. He pointed an automatic rifle at me, and I thought,
“This is the end”. He pulled the trigger, but, fortunately for me, there was no
bullet in it, and I went out”.
203 - Witness M, T. 2440-2441.
204 - Witness T, T. 2958.
205 - T. 3041-3042.
206 - T. 3238-3239.
207 - T. 3240.
208 - T. 3303.
209 - T. 4555-4556.
210 - T. 1373-1377.
211 - T. 1445-1448.
212 - T. 4094.
213 - T. 3602-3603.
214 - T. 4314.
215 - The factual descriptions which follow are restatements
of what the witnesses testified. Even though some of them may be phrased in the
indicative, only the Trial Chamber’s findings are relevant as to the facts underlying
the judgement.
216 - T. 160. See also Payam Akhavan, T. 1313 (stating
that the operation was not a small one but rather was a concerted and organised
military operation).
217 - T. 160-162.
218 - T. 199-202.
219 - T. 186-188.
220 - T. 216–217.
221 - T. 229–230 and T. 238–239.
222 - T. 200-201. Some witnesses, however, denied
that there was anything significantly Islamic about Ahmici vis-à-vis other villages.
See, for example, Witness EE, T. 4240-4241.
223 - Payam Akhavan, T. 1227-1228.
224 - Payam Akhavan, T. 1330-1331. and T. 1241-1242.
225 - Witness HH, T. 4477-4479.
226 - See video Exhibit P83, which shows Witness HH and Akhavan visiting the house with Col. Bob Stewart.
227 - T. 2148-2149.
228 - T. 2160-2161.
229 - T. 2154-2155.
230 - Exhibit P22 (photograph of burnt body (child)
by the steps of the house).
231 - Exhibit P17 (photograph of burnt body (adult)
by the steps of the house).
232 - Exhibits P18-21 (photographs of burnt bodies
being removed from the cellar). Corporal Skillen was not present during the clearing-up
operation shown in these photographs, which took place later.
233 - See Exhibit P32.
234 - T. 2655-2656.
235 - See Exhibit P53.
236 - Major Dooley, T. 2480 and T. 2509, determined
that the soldiers were of the HVO on the basis of their uniforms. The soldiers
were wearing the American-style camouflage uniforms worn by the HVO. The American-style
camouflage uniforms of the HVO were different from those of the BiH army, which
were more like the Malaysian camouflage outfits. The witness said that these soldiers
were unquestionably members of the Croatian army.
237 - T. 2481–2482: “A. The ones that we collected
were male and female. All of them were in their civilian clothes. … I saw no children
killed, but there were certainly male and female, and quite a few older people.
Q. Did you see any weapons close to those bodies? A. They were all civilians.
And perhaps an important point to note here was that the number of bullet wounds
in each of the victims was great, which would suggest to me that the shooting
was from a very close proximity”. - When challenged on this last point under cross-examination,
T. 2500, the witness clarified: “A. … Obviously a great deal of our training is
shooting at wooden targets and so you get a feel for grouping for shooting. These
victims all had maybe half a dozen rounds in each and the bullet wounds were maybe
two to three inches apart straddling their bodies. Now, to get such a grouping
in one area as a line, you would have to be very close, and I would say “very
close” would be maybe within ten feet of them. You'd be very close, as close as
maybe you and I are together, in order to do that”.
238 - See Exhibit P229, showing six points of interest
in Major Woolley’s tour of Ahmici: two burnt out houses (points a & b), the point
where he rescued five casualties (at IV), and the point where he picked up five
dead bodies (at VI).
239 - Point I – House 14 – on Exhibit P229.
240 - T. 3507-3508.
241 - Major Woolley, T. 3507-3508, identified Exhibit
P193 (showing the entrance to the cellar, from the back, and the Warrior vehicle
as they prepare to evacuate the wounded), Exhibit P74 (also showing the scene
of the wounded in the cellar), Exhibit P194 (showing the witness by the cellar),
and Exhibit P195 (showing the evacuation of the girl, D‘enana Pezer). Each photograph
which was produced to the witness as a prosecution exhibit was taken either by
the witness or the military photographer using his camera, so as to keep a record
of what was occurring. See also Exhibits P134, P137, P155, P235, P236, P237, P238,
and P239 (showing two Muslim men of fighting age with rifles, who were not soldiers
as such. There were approximately five victims around that house).
242 - Exhibit P235.
243 - See Exhibits P56 and P57.
244 - Major Woolley, T. 3554: “…whether there had
been any soldiers in this village at all, [...] at the end of the day, these houses,
these civilian houses, had been burnt down, were on fire - these were not houses
that had any signs of being defended by soldiers or had any fortifications - and
I think when you see 12 year old girls with bullet wounds and even men who could
fight with gunshot wounds in their backs or women with gunshot wounds in their
heads, it tells me that this is a slaughter of civilians”.
245 - T. 279-290.
246 - T. 524.
247 - These bodies were shown in the photographic
exhibits, Exhibits P53-56.
248 - T. 566.
249 - T. 802.
250 - T. 964.
251 - T. 1030.
252 - T. 1041.
253 - T. 1135.
254 - Witness F, T. 1388–1389. These were identified
via Exhibit P103 (HV insignia), Exhibit P104 (HVO insignia), and Exhibit P118
(Vitezovi insignia). The witness recalled the Jokers insignia on soldiers in Ahmici
on 16 April 1993, although not necessarily in the form of Exhibit P45.
255 - T. 1469-1470. “As I fell, my parents had more
or less reached these spots marked with the Xs, and my father spotted this soldier
who was next to Zahir's house, who had come out to the corner of Zahir's house.
He spotted him and these other soldiers, and he said, “Men, what are you doing?
Let me pass. Let the women and the children pass and kill me”. However, one of
these who had shot at me who were behind my back ordered three times this person,
this soldier who was there, to shoot at them, and he said, “Kill them. Kill them.
Kill them”. And he cursed at him, as if saying, “What are you waiting for?” And
he fired two short bursts of fire, and my parents fell. I just managed to raise
myself on my elbow, after which I fell to the ground altogether and stayed there
immobile. I was conscious but I wasn't quite all there. Q. Did you see what happened
to your sisters? A. Yes, I could see that they just fell together with my parents,
and they were all on the ground. They were all lying down.
256 - T. 1481.
257 - T. 1866-1872.
258 - Hendrikus Prudon, T. 2246-2254.
259 - The location is circled on Exhibit P182.
260 - Witness O, T. 2617-2626, who saw the killing
of Meho Hrustanovic, at T. 2629.
261 - This location was marked by Witness R on Exhibit
P203, an aerial photograph, on the side of the hill facing Vlatko Kupreskic’s
house. Witness R also indicated with an arrow on Exhibit P205 the route taken
by the group of persons with whom she fled; the route is to the left of the ridge
of the hill, i.e. the side of the hill facing Vlatko Kupreskic’s house.
262 - Witness Q, T. 2763.
263 - Witness T, T. 2961.
264 - Witness T, T. 2963.
265 - See Exhibits P195 and P196. Witness Q produced
the jacket he was wearing on 16 April 1993 which sustained a whole from a piece
of shrapnel. This jacket can also be seen on photograph 196.
266 - See Exhibit P187, produced to Witness S, showing
a burnt out house with dead bodies, which was Jamal Ahmic’s house (house # 205),
where his mother was killed. The bodies in the house were burnt and decayed beyond
recognition, but Witness S was able to identify his mother by a piece of cloth
that remained. Later, knee caps, which withstand fire best, and spines and ribs,
were retrieved from the site and buried.
267 - See photographic Exhibits P214-216; see also
Witness U, T. 3003-3012.
268 - T. 3008.
269 - T. 3052.
270 - T. 3052-3057.
271 - T. 3058.
272 - T. 3061-3062.
273 - T. 3067-3078.
274 - T. 3149-3154.
275 - T. 3154-3158.
276 - T. 3158.
277 - T. 3167.
278 - T. 3242.
279 - T. 3244.
280 - T. 3245. - “When they came up to us, it was
the HVO army, in fact. They stopped there, they cursed ‘our balija mother’, and
they said ‘How come you’re alive?’ I called out to Franjo (sic), Vlatko’s father,
and I said, ‘Franjo, what’s this happening here? What have I done to you?’ And
I said that they had killed [...] my husband and that they had killed one of my
daughters, that they had injured my other daughter. What have we done to deserve
this?’ I said. And he just laughed.”
281 - T. 3246.
282 - T. 3246. On re-examination, T. 3263, Witness X repeated that the soldiers said, “if we want to rape you, we can rape you, if
we want to slaughter you, we can slaughter you. You can choose. “We said: You
can do whatever you want with us”.
283 - T. 3266-3268.
284 - T. 3263-3264.
285 - T. 3316-3317.
286 - T. 3314-3315.
287 - T. 3315-3316.
288 - T. 3818-3831.
289 - T. 3821-3822.
290 - T. 3821-3822.
291 - T. 3823–3824: “Somebody had called out my name,
and I was looking all around, and I noticed in Vlado's shed, some of our people.
I went across the field between Vlado's house and Drago's house. There's a field
there. I went to the shed and I saw a neighbour of mine, her daughter-in-law,
her son, two refugees, also, that was a mother-in-law and a daughter-in-law with
two young children, they had killed her husband and son too. They killed them
before their very own eyes. I said that UNPROFOR would come and that we could
all get out of there. At that time, we heard the UNPROFOR coming”.
292 - T. 3873: “Q. The two soldiers in the vicinity
of Husein's house, what were they doing? A. One of them stood in front of the
house and talked to his sister-in-law, and she was crying and screaming and begging
him to allow her to get clothes for her children so that she could change them.
He hollered at her and said, “No way. Leave everything behind and run”.
293 - T. 3869, Exhibits P259 and 260 show the destruction
of Witness CC’s house.
294 - T. 3897-3900.
295 - T. 3901-3904.
296 - Exhibit P274 shows the house’s destruction
after 16 April 1993.
297 - T. 4077-4106.
298 - T. 4109-4120.
299 - T. 4126–4128: “Two HVO soldiers entered the
room. They had the black socks over their heads with just slits for the eyes.
All you could see were their eyes. One of them was fairly tall, the other one
was a little shorter in build, and as we knew him personally, we concluded that
it was Nika Plavcic. We called him Nika ^, that being a picture, and he was a
photographer, in fact. … As Fatima was in the corner with her husband, Ahmic Hasim,
he said, “You, you, you, you, you, let's go”. Fatima jumped up and hugged Hasim,
and she said, “Please don't take him away. He has a bad kidney and he has to have
dialysis. Please don't take him away”. “Don't worry about that,” they said, “He'll
be cured very quickly”. Ramic Zenur, his brother Amir, and Mr. Engineer Helug
Munir went out. A little boy from Loncari, he was fairly tall and thin, he managed,
as the door was here, and the women had lined up against this door, when he left,
he hid behind the women and crouched down. And that's how he stayed. He stayed
alive by crouching and hiding behind the line of women. … Q. Did Hasim and the
other Muslim men who were taken, did they return at any time? A. No, never”.
300 - Shown in Exhibits P277 and 277A., T. 4129-4138.
301 - T. 4360. - “…, she came back all in tears,
lost, she was trembling. Then we asked her what she had seen and what had happened.
She said that the house had burned down, that she saw corpses in the yard, in
our yard. She saw Muhamed Neslanovic’s corpse there. Behind our house she saw
Ibrahim Pezer’s corpse, and in front of house, since she went in front of the
house of Sefik Pezer, she saw his corpse too”.
302 - T. 4362.
303 - T. 4362-4364.
304 - T. 4557-4577and T. 4592
305 - T. 4565–4568.
306 - Exhibits P299, P300, P301, P302 and P303 show
bodies being laid out for identification. Exhibit P299 is a general view of the
burial site. Exhibits P295, P296, P297 and P298 show bodies being put into the
mass grave. Exhibit P294 shows the mass grave after it had been filled.
307 - Exhibits P307 and P307A are lists of persons
buried.
308 - T. 4737.
309 - Exhibit P309 is a video showing the burial.
Exhibit P312 shows the names of some of the victims on the memorial: Sukrija Ahmic,
Meho Hrustanovic, Aziz Pezer, Sabahudin Zec, Rasim Ahmic, Nazif Ramiza Ahmic,
Ramiz Seho Ahmic, Musafer Puscul, Fahrudin Ahmic, Naser Ahmic, Elvis Ahmic; Edina
Ahmic, Sejo Ahmic, Abdulah Mehmed Brko.
310 - T. 4792: “Q. I just want to clarify one last
thing. This list does not contain, as far as you know, does it, the entire list
of people who were killed in Ahmici on April 16, 1993, does it? A. Yes, that is
correct. It doesn't contain all the names”.
311 - See, for example, Vlado Alilovic, under cross-examination
by the Prosecutor, T. 5586-5587: “Q. But you would concede, therefore, sir, that
these numbers of Muslim persons were held in those locations and were not allowed
to leave of their own will? A. Yes, I will agree. Q. Did you hear subsequently
about such things as detainees being taken to the lines to dig trenches? A. No,
I didn't hear that. Q. You didn't hear that? A. No. Q. Did you hear of the transfer
of Muslim detainees to the Kaonik camp where they were further detained? A. No,
I didn't hear about that. Q. Did you hear about searches and seizures in civilian
apartments in Vitez during that period? A. No, I didn't hear about that at an
official meeting, but this is possible”.
312 - Vlado Alilovic, T. 5608-5609.
313 - Lt.-Col. Watters, T. 205-206.
314 - T. 1401.
315 - T. 1872.
316 - T. 307.
317 - T. 3029-3031.
318 - T. 4569-“So when we came up to that classroom
it was horrible to see what was written on the pictures. There was a head drawn
with the knife through the neck saying we will kill the balijas like this”.
319 - T. 4570.
320 - T. 8745.
321 - T. 6052: “Q. And you had no knowledge of a
specific attack or intended attack coming from the Bosnian army prior to being
shelled on the morning of the 16th, had you? A. No, no, we hadn't noticed a thing
and we hadn't received any kind of information from anyone that there would be
an attack that morning. Q. You were completely surprised when the shelling occurred?
A. Exactly that way”.
322 - T. 5633-5636.
323 - T. 5472-5743: “Q. In that case, Madam, how
can we understand that, on the 16th of April, you were at home at a crucial moment
for the HVO, when it was apparently in an armed conflict, exposed to a very violent
offensive, and you, you were at home? A. Yes, that is exactly right. I was at
home. Regardless of the fact that I held a very responsible post, I basically
had not started to carry out these duties fully. I simply -- I assume that the
people in the brigade command were also taken by surprise by the situation, and
I simply at that moment, in order to do something, somebody had to help me to
do that. In order to structure the brigade, in order to mobilise. I assume, when
the conflict broke out, everybody thought that this was something of a small scale
and it would stop in a few days and we would continue to work, so I don't know”.
324 - Exhibit P343. See also Witness Rudo Kurevija,
T. 5890–5891.
325 - T. 5034
326 - T. 6080–6081.
327 - T. 5890-5891: “A. On the 15th of April I was
at home. Yes, I was at home. In the evening -- this was already in the early morning
hours of the 16th of April, the commander called me to the command office by telephone,
called me to come to Stara Bila. I think this happened between 2.30 or 3.00 a.m.,
and all the other members of the command arrived there too. We received information
that an attack by the Muslims was expected, and then on that day in the evening
of that day, the attack on Kuber took place against HVO positions. The Muslims
carried out this attack. So that an attack was expected, and I was instructed,
together with the commander of the platoon in my village Mali Mosunj to establish
a line of defence in between the houses facing the Muslims. So that's where I
went, together with the commander. I engaged some men. We established points among
our houses as the border of our houses and Muslim houses. [...] A. Upon my arrival
at the command, I think Slavko was there and two more members of the command staff.
I think Marinko came later. The commander verbally told us all the information,
that he had received orders from the command of the brigade for lines of defence
to be set up, and also, he informed us that an attack by Muslims was expected,
as well as information that already in the evening hours an attack was carried
out by Muslims in the region of Kuber. We were also told at that time that the
commander of the Zenica HVO, Zivko Totic had been arrested, together with his
escort, that four members of the escort were killed, and I think there was an
eyewitness, a Muslim, that Zivko was still being detained”.
328 - T. 6243–6244.
329 - T. 6307–6308: “The elevation of Kuber is on
the crossroads between Busovaca, Vitez and Zenica, and it is very important because
it dominates the entire valley, and from it it is easy to exercise control over
the entire town of Vitez and along the communications line between Vitez and Busovaca,
and it's also easy to reach Zenica from there. Q. Are you aware of the fighting
on Kuber in April of 1993? A. Yes. I mostly heard about it and I also read reports
of the civilian structures. There was sporadic fighting on the 15th of April in
Kuber, and later, of course, it intensified during the 16th and the 17th, and
according to Civil Defence reports, there were four persons killed in that area.
Q. Did you know any of the persons who were killed? A. Yes, I did. I knew Mr.
Livancic”.
330 - T. 6915.
331 - T. 6918–6919.
332 - See for Poculica, for example, Dragan Grebenar,
T. 6066.
333 - T. 6934–6935: “Q. In fact, would it -- to the
best of your knowledge, Mr. Plavcic, wasn't there, in fact, just the area becoming
a large battle zone with damage to both Croatian and Muslim properties? A. That
is correct, that on the 18th all houses in the village of Jelinak and Putis, in
Putis the Croatian houses and in the village of Jelinak all the houses were burning
on the 18th, that's what I heard in Busovaca that all the houses were on fire”.
334 - T. 5380.
335 - T. 5608–5609.
336 - T. 5930–5931.
337 - T. 6601-6602.
338 - T. 6017–6020.
339 - T. 5948-5961.
340 - T. 5979.
341 - Anto Kristo was killed in action, apparently
by a sniper within the village; the witness’s neighbours Pero Papic, Ivo Vidovic
and Jozo Vidovic were killed while prisoners, T. 5994-5995. A Muslim from the
village was also killed on 16 April 1993.
342 - The burnt houses are shown in videotape D60/2.
The English translation is D60A/2, and the Bosnian-Croatian-Serbian (“B/C/S”)
translation is D60B/2.
343 - T. 6017.
344 - T. 6066.
345 - T. 6572-6573.
346 - T. 6601-6602: “Q. … throughout that particular
period when you heard these detonations, for the most part you could not identify
who was firing at who or from where, would that be correct? A. I was not able
to identify them, no. I just heard detonations from the direction of Vitez, but
I did not know what was happening”.
347 - T. 6574. “At that moment uniformed soldiers
of the Muslim nationality, in groups of about five to six men, there were quite
a few groups made up of five to six men, and they took control and surrounded
the Croatian houses, and their tactics were first to throw devices which led to
strong detonation. From these explosions you could hear glass being shattered
and things being destroyed in the houses”.
348 - T. 6592-6593: “Q. And how did you know they
were Mujahedins? A. Well, they didn't hide the fact. They had the scarfs that
they wore. They did not understand Serbo Croatian and they were dark skinned compared
to us that is. But, as I was born there, I knew, at least by sight, all the locals,
including Poculica and Prnjavor from Vrhovine and Vjetrenica and further afield
as well. Q. Did they instil fear in the Croats? A. Yes. Q. In what way did they
do this? A. Well, they made us afraid of them because when they would pass by
our houses, they would very frequently express their type of greeting, and other
forms of religious exclamations. So that part I understood”.
349 - Lt.-Col. Watters, T. 147.
350 - The videotape showing this episode is D34/2
the Croatian translation, D34A/2, and the English translation D34B/2.
351 - Jadranka Tolic, T. 6156-6158.
352 - Witness DC/1,2 , T. 8523.
353 - Ljubica Milicevic, T. 7305; Zdenko Rajic, T.
7402; Dragan Vidovic, T. 8403; Zdravko Vrebac, T. 7817-7818.
354 - T. 7860–7862.
355 - T. 8154: “Q. So when you were in that room
where everyone was, what was the discussion about? Were they talking about that
there's going to be a war tomorrow, they need to cleanse Muslims from Ahmici,
or were they discussing some other topics? A. Well, these were just casual topics.
We remained in Ivica's house for a short while”.
356 - T. 7961-7967.
357 - T. 8312–8313.
358 - T. 5715.
359 - T. 5795: “Q. Do you consider Vitez to be of
particular significance for the BiH army because of this strategically important
factory? A. That is quite evident. There can be no question that it was an extremely
important locality strategically”. See also Exhibit D55/2 (invoices).
360 - T. 5812-5813 and T. 5836-5837.
361 - T. 5252.
362 - T. 8424-8425: “Q. Can you tell us what Ivica
Vidovic, Jevco, told you what (sic) to do? A. He explained that there was some
problems, that it was possible that we would be attacked by the Muslims, and that
I should go and tell my family and my other neighbours and that I should take
them to shelters. He told me, since it was on my way, to drop in to Niko Sakic's
house and tell him that he should do the same in his area, to do what I was to
do in my area”.
363 - T. 7871: “Q. Then when did you leave this shelter
and where did you go to? A. Then they told us that the Muslims, the Mujahedin
had barged into Krtina Mahala, and many women and children down there were running.
They were crying and screaming, and they were barefoot and hardly -- they hardly
had any clothes on. (…All( these people who ran out of Krtina Mahala were evacuated
to Donja Rovna”.
364 - T. 7875–7876.
365 - T. 7979-7980: “They had automatic rifles with
them, and they had rounds of ammunition and several hand grenades. They had black
bands over their foreheads, and they had paint on their faces. One of them had
an M-48 rifle slung over his shoulder”.
366 - T. 7493. Witness BB, T. 3821.
367 - See video produced in evidence by Dragan Vidovic
showing the depression (Exhibit D105/2, D106/2).
368 - Mirko Sakic, T. 7628.
369 - Dragan Vidovic, T. 8446: “Q. Did you talk with
the Military Police who brought you up there? A. Yes. About 20 metres before we
reached the place where we stopped, one of those two said to us to guard that
line well, and I quote him: “Because if the Muslims break through that line they
will do to you the same that we did to them”. Q. When you say “we”, who do you
mean? A. Those two military police members”. - The witness dug in there and stayed
there until the end of the war. The group of armed soldiers that went by had white
belts, so he assumed they were military police. All had their faces painted, apart
from Mirjan [antic, a local whom he recognised. On 18 April 1993, they received
instructions from the Military Police to dig trenches in Pirici.
370 - Ivo Vidovic, T. 6949.
371 - T. 6950: “Q. Where did you go with your wife
and children, to which shelter? A. I started toward the house of Jozo where all
the others had been going because this had been our shelter before. When the Serbian
planes flew over, we always took shelter there. … I stayed for about ten minutes,
then I went out to see what was going on and I met other people coming to the
shelter. I talked to them about what was going on, because we didn't know what
was happening. Q. Did you meet anyone who told you to go somewhere? A. I met Nenad
Šantic, the commander of my village guard. Q. What did Nenad Šantic say to you?
A. Nenad told me that I had to go and defend the bridge, Radakov Most, immediately’.
372 - T. 7407.
373 - T. 6319.
374 - Exhibit P337 shows that only 2 HVO soldiers
died in Vitez on 16 April 1993.
375 - See #435 on Exhibit P337.
376 - T. 7513.
377 - Note that Witness E recognised a soldier who
worked in Vlatko Kupreskic’s Sutre store. T. 1270: “[...] Q. Can you please tell
this Court where you felt you had seen that person before? In what circumstances?
A. Well, this person that I have just described, I went to the Sutre shop cellar
twice, three times, and there I met a similar person. [...]. Dragan Vidovic said
that Mirjan [antic, whom he saw in the group of armed soldiers, used to work at
Vlatko Kupreskic’s store, T. 8428 - 8429: “He was in the warehouse often. He would
come to Vlatko Kupreskic's warehouse often, and he knew the place. He moved around
a lot. [...] Q. Could you tell us whether that shop, (which( was in Vlatko Kupreskic's
warehouse was the only shop that operated in those three villages of [antici,
Pirici, and Ahmici? A. Yes, at that time, it was the only one that was working,
so almost all the neighbours would come to the shop and buy the food that they
needed”.
378 - T. 8529.
379 - Mirko Sakic, T. 7614–7615, said that on the
morning of 16 April 1993, shortly after he saw Zoran and Mirjan Kupreskic pass
with their families moving in the direction of Zume, maybe five or ten minutes
after that a group of about 25 or 30 armed men appeared. Some were camouflaged,
some were in black uniforms. They were fully armed, with RPGs, some with their
faces painted in dark paint. The witness recognised one man, Mirjan Šantic. Some
had white belts, which suggested a Military Police unit. They came from the direction
of Zume, and went towards the Kupreskic houses.
380 - Niko Sakic, T. 8263–8265, saw 30-35 well-armed,
uniformed soldiers pass by his house around 5.30 a.m., on 16 April 1993. Their
faces were painted; each had two weapons. They went in the direction of the warehouse
of Vlatko Kupreskic. They had white belts and pistol casings, holsters and some
kind of coloured bands tied to their shoulders. Sakic also mentioned that there
were Muslim as well as Croat families in the shelter of Niko Vidovic on 16 April
1993 (the witness moved from the Vrebac shelter to the Vidovic shelter at around
5 p.m., on 16 April 1993 because they were told it was safer) and thus the Muslims
were not discriminated against: “Q. Who did you see in the shelter? Did you see
both Croats and Muslims, and who were they? A. There were both Muslims and Croats
in the basement. From the Muslims, there were three families. … Q. Were the Muslims
who were in the shelter with you also afraid, in the shelter of Niko Vidovic,
the Bilici and the Strmonja families? A. They were not afraid of us, the neighbours,
but they were afraid just because of the gunfire, but I don't think that they
would have been there if they had been afraid of us. Q. Did they know that the
family -- the Ramic and the Strmonja families were in that shelter? A. Yes, they
did, and from my house, from Mirko's apartment on the first floor, Mirko came
and Zoran came, and they called some woman called Ranka who used to work in UNPROFOR
with ^, to make the Bilic and Strmonja families, to get them out of there. I don't
know if they succeeded in that. Q. Who told them to call UNPROFOR? A. Because
they could see them there -- I don't know who told them. I talked to them and
I said it would be good to get those families out of there”.
381 - T. 7979–7980.
382 - T. 11273-11275 and T. 11458-11459.
383 - T. 11264-11271.
384 - T. 11470 and T. 11472.
385 - T. 11599-11603.
386 - T. 11867.
387 - T. 11764-11766.
388 - T. 11767-11769.
389 - T. 11797-11798.
390 - T. 11810.
391 - T. 11802 and T. 11817.
392 - T. 10928-10933.
393 - As Court Witness Bringa put it, “the house
you managed to build throughout your lifetime, when that’s destroyed it’s not
only a physical thing that’s destroyed, but it feels -- it’s an attack on your
whole being because you put so much into it” (T.10932).
394 - T. 10933-10934.
395 - Court Witness Bringa illustrated this type of
violence by citing a Muslim woman of another village who had told the witness
that she was not scared of shells or grenades, “because there is just death and
it is immediate. What I am terrified of are the pjesadija, the foot soldiers
who come into my house, force themselves into my house. Maybe they rape, they
kill your children in front of your eyes. […] Shells don’t ask me my name” (T.
10985-10986). “That’s the point” -- observed the witness --“because from your
name you can usually tell which ethnic identity you have” (ibid.). According
to this witness, the foot soldiers mentioned by the Muslim woman “attack their
[…] very being […] the sense of their identity, by going in and attacking them
personally” (T. 11016).
396 - R v. Turnbull (1977( QB 224.
397 - Exhibit P353.
398 - T. 1026.
399 - T. 261.
400 - T. 261-262.
401 - T. 539-545.
402 - T. 7040-7045.
403 - T. 7208-7210.
404 - T. 7268.
405 - Testimony of Ivo Vidovic, T. 6974-6977, supported
by Pero Papic, T. 7208 and T. 7241.
406 - Exhibits D29-30/5.
407 - Evidence of Rudo Vidovic, T. 6683.
408 - T. 646, T. 650-652 and T. 670.
409 - T. 654-655, T. 674-677 and T. 692-693.
410 - T. 695-696, T. 692-693.
411 - T. 1787.
412 - T. 1113.
413 - T. 1110-1114 and T. 1125-1126.
414 - T. 7050-51.
415 - T. 7198-7200, T. 7214 and T. 7230.
416 - T. 7387-94 and T. 7398-99.
417 - T. 7144.
418 - T. 7146.
419 - Witness D, T. 1022, T. 1025; Witness G, T.
1444.
420 - Abdulah Ahmic, T. 273-274; Esad Rizvanovic,
T. 456-459; Witness T, T. 2949.
421 - T. 3043.
422 - T. 3601.
423 - T. 274-275.
424 - Witness B T. 799-801 and T. 820.
425 - T. 759-767.
426 - Esad Rizvanovic, ibid.; Witness G, ibid.
427 - Fahrudin Ahmic, T. 1128-1129.
428 - T. 2539.
429 - T. 547-550.
430 - T. 1447.
431 - T. 275 and T. 386-387.
432 - Evidence of Goran Papic, T. 7038-7039.
433 - Exhibit D12/5.
434 - T. 6976.
435 - T. 7056.
436 - Evidence of Pero Papic, T. 7242-7243; Goran Papic, T. 7067.
437 - Goran Papic, T. 7067.
438 - Ivo Vidovic, T. 6974-6977; Pero Papic, T. 7241.
439 - T. 1134.
440 - T. 1134 and T. 1138-1139.
441 - T. 568 and T. 570.
442 - T. 3607-3608.
443 - T. 1464-1470 and 1475
444 - T. 1475-1477.
445 - T. 2152-2154 and T. 2181-2190.
446 - T. 7059.
447 - Evidence of Ljubica Milicevic, T. 7307.
448 - T. 7148-7149.
449 - T. 7154-7155.
450 - T. 7149.
451 - T. 6951-6953.
452 - Birth certificate, Exhibit D18/5; T. 7017.
453 - T. 6972-6973 and T. 7027.
454 - Exhibit P335.
455 - Goran Males, T. 7279.
456 - T. 7424, T. 7430 and T. 7433.
457 - Exhibits P351/353.
458 - T. 7091; see also evidence of Zdenko Rajic,
T. 7438-39.
459 - Exhibit D18/2.
460 - The evidence of Fahrudin Ahmic in this connection
does not, by itself, establish that the accused was an active participant. Even
if it did, it would not be safe to rely on it in the light of the evidence of
the four witnesses, called by the Defence, to the effect that the accused was
not involved in the armed conflict.
461 - T. 1530-1531, T. 1548-1549 and T. 1587.
462 - T. 1589.
463 - T. 1552-1553; on a previous occasion the witness
had said the accused always wore a black uniform. In his testimony, however, the
witness said he was wearing a camouflage uniform on 16 April.
464 - Zoran Kupreskic, T. 11170-11171, T. 11180 and
T. 11183.
465 - Mirjan Kupreskic, T. 11556-11559.
466 - Witness KL, T. 1893.
467 - T. 1080.
468 - T. 2884.
469 - Witness CA, T. 4613. The Trial Chamber notes
that this is a different Fahrudin Ahmic than the witness in this case:
it was common in Ahmici for several people to share the same name.
470 - Photo, Exhibits D16-19/1; Zoran Kupreskic, T.
11186-11193.
471 - Mirjan Kupreskic, T. 11560-11565.
472 - Rudo Kurevija, T. 5895-5897.
473 - Zdravko Vrebac, T. 7786.
474 - Zdravko Vrebac, T. 7787-7788, Dragan Vidovic,
T. 8419.
475 - T. 6654-6655.
476 - T. 6660-6661.
477 - T. 8737.
478 - T. 8796.
479 - T. 8816-8817.
480 - Evidence of Dragan Grebenar, T. 6023-25 and
T. 6028.
481 - T. 11237 and T. 11388-11390.
482 - T. 11659.
483 - Exhibit P353 at pp. 75 and 30 respectively.
484 - Ivica Kupreskic, T. 7997.
485 - T. 11667.
486 - T. 12288-12292, T. 12357-12358 and T. 12367.
487 - T. 769-773.
488 - T. 366-370.
489 - T. 3299-3301.
490 - T. 2948-2955; Witness T also saw Zoran Kupreskic
in uniform; T. 2949; as did Witness V, T. 3072.
491 - T. 11533.
492 - T. 11201-11209.
493 - Zoran Kupreskic, T. 11216-11224.
494 - Zoran Kupreskic, T. 11460-11463 and T. 11465.
495 - This evidence was supported by Milutin Vidovic,
T. 7493; Zdravko Vrebac, T. 7754–7759, and Mirko Sakic, T. 7602.
496 - T. 11247-11251 and T. 11585-11590.
497 - Evidence of Niko Sakic, T. 8231; Mirko Sakic,
T. 7602; Zdravko Vrebac, T. 7809; Dragan Vidovic, T. 8405; Mirko
Vidovic, T. 8583.
498 - Evidence of Zdravko Vrebac, T. 7752; Mirko Sakic, T. 7692
499 - Ivica Kupreskic, T. 7938.
500 - Exhibit D26/1.
501 - Exhibit D27/1.
502 - T. 11256-11258 and T. 11443-11445.
503 - T. 3041-3042.
504 - T. 1905-1906, T. 1913-1914 and T. 1917-1922.
505 - Exhibits D 3/1-8/1.
506 - T. 2006-2007.
507 - T. 2009-2010.
508 - Exhibit P82, para. 17.
509 - T. 4245-4249; Statement dated 14 May 1993,
Exhibit D10/1.
510 - T. 1235-1237 and T. 1244-1248; Video Exhibit
P83; Photo Exhibits P84-96.
511 - Exhibit P169.
512 - T. 4489-4491, T. 4521-4524, T. 4641-4648 and
T. 4662. Witness HH's notes of interview, Exhibit P292.
513 - T. 1631-1640 and T. 1653-1654.
514 - T. 1641-1652.
515 - T. 1723-1724 and T. 1729.
516 - Exhibit D1/2.
517 - T. 1706-1708.
518 - T. 1705. In order to contradict the evidence of Witness
H, the Defence called the Investigating Judge, Mrs. Dijana Ajanovic, who
took the statement from the witness and confirmed that the signature was that
of the witness; T. 8988-92.
519 - She also saw the accused Vlatko Kupreskic that
day: see below.
520 - Exhibits C1-6.
521 - T. 942-948, T. 971-974 and T. 980.
522 - Exhibit P335.
523 - T. 12307-12310, T. 12314-12315, in particular
T. 12333-12336 and T. 12376-12378.
524 - T. 11264-71.
525 - Zoran Kupreskic, T. 11470 and T. 11472.
526 - T. 11599-603.
527 - Ivan Grabovac, T. 8640-8642; Veljko Cato,
T. 8811-8812; Marko Martinovic, T. 8831-8832; Zdravko Vrebac, T.
7766-7768.
528 - T. 7861.
529 - Mirko Sakic, T. 7609-7611.
530 - T. 8154; Witness DC/1,2, T. 8526.
531 - T. 7966-7967; Ankica Kupreskic, T. 7862.
532 - Evidence of Ankica Kupreskic, T. 7863; Ivica
Kupreskic, T.7967.
533 - T. 8155-8156 and T. 8198.
534 - T. 8156-8157.
535 - Zoran Kupreskic, T. 11278-11280.
536 - Zoran Kupreskic, T. 11281-11282.
537 - Zoran Kupreskic, T. 11283-11287.
538 - Zoran Kupreskic, T. 11287-11290.
539 - Zoran Kupreskic, T. 11295-11299.
540 - Zoran Kupreskic, T. 11306-11307.
541 - T. 11303.
542 - Zoran Kupreskic, T. 11304 and T. 11307-11310.
543 - Zoran Kupreskic, T. 11311-11314.
544 - T. 11468-11469.
545 - Zoran Kupreskic, T. 11473-11479.
546 - Zoran Kupreskic, T. 11487-11488.
547 - T. 11506.
548 - Zoran Kupreskic, T. 11511-11513.
549 - Zoran Kupreskic, T. 11554-11555.
550 - T. 11673-11679.
551 - Mirjan Kupreskic, T. 11604-11608.
552 - Mirjan Kupreskic, T. 11608-11610.
553 - T. 11610-11616.
554 - Mirjan Kupreskic, T. 11617-11619.
555 - Mirjan Kupreskic, T. 11735.
556 - Mirjan Kupreskic, T. 11619-11621.
557 - Mirjan Kupreskic, T. 11621-11625.
558 - Mirjan Kupreskic, T. 11625-11628.
559 - Mirjan Kupreskic, T. 11628-11631.
560 - T. 11632-11633.
561 - T. 11678-11683, T. 11691-11692 and T. 11706.
562 - Mirjan Kupreskic, T. 11711-14, 11717.
563 - Dragan Vidovic, T. 8425; Witness DC/1,2,
T. 8527-8528; Ivica Kupreskic, T. 8058, T. 8074; Gordana Cuic, T.
8159; Niko Sakic, T. 8247; Mirko Sakic, T. 7613; Jozo Vebrac,
T. 9495; Ankica Kupreskic, T. 7868-7869; Ljuba Vidovic, T. 8091.
564 - Evidence of Milutin Vidovic, T. 7520, T. 7565-7566
and T. 7587; Dragan Vidovic, T. 8434; Mirko Sakic, T. 7618, T. 7627-7628; Ivica Kupreskic, T. 7983; Niko Sakic, T. 8254.
565 - T. 8502.
566 - T. 8498-8504.
567 - T. 8510.
568 - T. 8515.
569 - T. 7119.
570 - T. 8361 and T. 8383.
571 - Exhibit P157. Anto Rajic, T. 8706; Mirko Safradin,
T. 8760.
572 - T. 8700-8702 and T. 8704.
573 - T. 8756.
574 - T. 11320-11321.
575 - Zoran Kupreskic, T. 11322-11324.
576 - Zoran Kupreskic, T. 11325-11327.
577 - T. 11328.
578 - Zoran Kupreskic, T. 11328-11331.
579 - T. 11632-11637.
580 - Mirjan Kupreskic, T. 11707.
581 - Mirjan Kupreskic, T. 11638-11642: Demobilisation
Certificate dated 1.6.94; Exhibit D112/2 shows 31.5.94 as the date which is not
correct.
582 - T. 11643-11644.
583 - Aerial photo Exhibit D23/1; Zoran Kupreskic,
T. 11332-11334.
584 - Demobilisation certificate Exhibit D24/1.
585 - T. 11336-11339.
586 - Exhibit P353.
587 - Zoran Kupreskic, T. 11405-11407.
588 - T. 12555-12557, T. 12559-12562. T. 12564 and
T. 12576-12577.
589 - It should be noted that the only evidence about
the activities of the accused during the conflict on 20 Oct. 1992 was given by
defence witnesses. Evidence about that day plays no specific part in the Prosecution
case against these two accused. The Trial Chamber makes no findings except to
comment that the evidence that the accused spent the day in the Depression appears
unlikely to be true.
590 - T. 2946.
591 - Exhibits P377 and P378.
592 - Witness Q, T. 2751.
593 - Vlatko Kupreskic, T. 11747-11751 and T. 11757.
594 - Exhibits D13-17/3.
595 - Ivica Kupreskic, T. 8037; Fikreta Vidovic,
T. 9556; Ljubica Kupreskic, T. 9372-9373; Rudo Vidovic, T. 6663-6664.
596 - Exhibit D18/3.
597 - Vlatko Kupreskic, T. 11752-11758 and T. 11801;
Rudo Vidovic, T. 6663-6664; Ivica Kupreskic, T. 8003; Ljuba Vidovic,
T. 8108-8109; Niko Sakic, T. 8273-8274; Witness DF, T. 9213-9214.
598 - Exhibit D61/3.
599 - T. 11862-11865
600 - T. 1896-1897.
601 - T. 778-781, T. 860-861 and T. 916-917.
602 - Witness L, T. 2349.
603 - Witness M, T. 2439.
604 - Witness O, T. 2623.
605 - Exhibit D8/2 p. 19; T. 3224.
606 - T. 7955-60.
607 - Exhibits D24-26/3.
608 - Vlatko Kupreskic, T. 11764-11766; Ivica Kupreskic,
T. 7955-7960 and T. 8040-8041; Mrs. Ankica Kupreskic (her passport was
produced, Exhibit D12/1), T. 7851 and T. 7855.
609 - T. 9157-9158 and T. 9160.
610 - T. 9357-9359.
611 - T. 9375-9376.
612 - T. 11797-11798.
613 - T. 11810.
614 - T. 11802 and T. 11817.
615 - T. 11819.
616 - Exhibit P335.
617 - Exhibit P329.
618 - T. 470-478, in particular T. 475.
619 - T. 1277-1279.
620 - T. 1656-1658.
621 - T. 1906-1907 and T. 1927.
622 - T. 1936 and T. 1939.
623 - T. 2544.
624 - T. 3060.
625 - T. 3156.
626 - T. 3830-3831.
627 - T. 3247 and T. 3261-3264.
628 - Exhibit P356.
629 - T. 9184-9185 and T. 9197.
630 - T. 9242-9243.
631 - T. 9244.
632 - Exhibits P203, 205.
633 - Exhibit D4/3.
634 - T. 2809-2811.
635 - T. 2763, T. 2771-2773 and T. 2832.
636 - T. 12066 and T. 12072; Exhibit P385.
637 - T. 11979-11984 and T. 11990.
638 - Vlatko Kupreskic, T. 11770-11773.
639 - T. 11773-11775.
640 - Vlatko Kupreskic, T. 11777-11782.
641 - Vlatko Kupreskic, T. 11798-11799.
642 - Vlatko Kupreskic, T. 11783-11785.
643 - T. 11801-11803.
644 - Vlatko Kupreskic, T. 11813-11814.
645 - TT. 11814-16 and T. 11820.
646 - Vlatko Kupreskic, T. 11922.
647 - Vlatko Kupreskic, T. 11909-11910.
648 - T. 11912.
649 - T. 9378-9383 and T. 9440-45.
650 - T. 7971; see also Niko Sakic, T. 8275-8276.
651 - T. 9469-9470.
652 - T. 6984-6988.
653 - T. 8106.
654 - T. 8174-8175 and T. 8208-8212.
655 - T. 8299-8300.
656 - T. 9162.
657 - T. 9384-9385.
658 - T. 9210-9213 and T. 9215.
659 - T. 9848-9849, T. 9853, T. 9861-9862 and T.
9873.
660 - T. 9854-9857.
661 - Witness CE, T. 9613-9616; Witness CF,
T. 9655-9657.
662 - Exhibit D4/3.
663 - T. 9623-9627 and T. 9665-9669.
664 - Exhibit P365.
665 - T. 9688-9690 and T. 9693.
666 - Exhibit P364.
667 - T. 9707-9710.
668 - Exhibit P363.
669 - T. 9640-9645.
670 - T. 9805-9807, T. 9810, T. 9814, and T. 9818. A further
witness was called during rejoinder evidence, Witness CH, who said that
she also had gone to the Kermo house that morning and had seen Fata Pezer’s body
on the edge of the forest at the foot of the hill (T. 12499, T. 12502-12506, T.
12517-12518).
671 - T. 9579-9583 and T. 9599.
672 - T. 9728-9739.
673 - Joint Report, Exhibit D54/3.
674 - T. 9764-9768.
675 - T. 9764-9767.
676 - T. 9779-9780, T. 9787-9789 and T. 9795.
677 - The suggestion in the evidence of Witness DE
that Vlatko Kupreskic may have had anything to do with the destruction of the
mosque is unsubstantiated and is discounted by the Trial Chamber.
678 - T. 1446-1447, T. 1559-1561.
679 - Witness Z, T. 3598-3600; Witness FF, T.
4312.
680 - T. 4341-4342.
681 - T. 4343.
682 - T. 8938-8940.
683 - T. 4068.
684 - T. 4092.
685 - T. 4093-4094.
686 - Exhibit P343.
687 - Evidence of Vlado Alilovic, T. 5504; Rudo Vidovic,
T. 6677; Milica Vukadinovic, T. 10458-10460, T. 10466; Dragan Stojak,
T. 6320-6321; Marinko Katava, T. 10582; declarations as to the character
of the accused, Exhibits D29/5 and D30/5.
688 - Ivo Vidovic, T. 6993.
689 - Witness CB, T. 8893-8895, T. 8898; Jozo Livancic,
T. 10035-10036.
690 - Witness B, T. 736-737, T. 741-742 and T. 845-846.
691 - Witness AA, T. 3707-3709.
692 - T. 745-746.
693 - Exhibits P390-1/2 (AD/1-6).
694 - Exhibit P390/2 (AD/1).
695 - T. 12178-12180 and T. 12182-12184.
696 - T. 3699.
697 - Exhibit P119.
698 - T. 3719-3729.
699 - Exhibits P250-252; T. 3732-3733 and T. 3740.
700 - Evidence of Rudo Kurevija, T. 5932.
701 - T. 10862.
702 - Exhibits D16-20/6.
703 - T. 4077-4083.
704 - T. 4085-4091.
705 - T. 4109-4113.
706 - T. 4116.
707 - T. 4152-4153.
708 - T. 4216-4217.
709 - T. 4221.
710 - T. 4258.
711 - T. 4259.
712 - Exhibit P292.
713 - Exhibit D10/1; T. 1300.
714 - Exhibit D3/6; T. 1305.
715 - Exhibit D4/6.
716 - T. 9304, 9320, 9343.
717 - T. 10627-10632, T. 10635-36 and T. 10641-10643.
718 - Exhibit D2/6.
719 - T. 9249-50 and T. 9253-55.
720 - T. 10536-38, T. 10541-10542, T. 10574 and T.
10623.
721 - Ivo Pranjkovic, T. 10212, T. 10217; Andjelko
Vidovic, T. 10670-10674.
722 - T. 4081.
723 - T. 3899-3900; T. 3922-3926; T. 3933-3935; T.
3956 and T. 3962-3973.
724 - T. 3982.
725 - T. 4571 and T. 4575-4577.
726 - T. 4557-4562 and T. 4581-4583.
727 - T. 4562-4563, T. 4577 and T. 4591-4592.
728 - T. 4563 and T. 4622.
729 - T. 4565 and T. 4596-4598.
730 - T. 4314-4317.
731 - T. 3617-3618.
732 - T. 3616.
733 - T. 3824 and T. 3834.
734 - T. 787-791.
735 - T. 3749; Exhibit P253.
736 - T. 4394-4396 and T. 4402.
737 - T. 4026-4030.
738 - T. 9927-9933.
739 - T. 9952-9953.
740 - Franjo Kovac, T. 10092-10199, T. 10102; Katica
Kovac, T. 10157-10162, T. 10167 and T. 10190-10192; Anto Bralo and
Finka Bralo, T. 10389-10392; Finka Bralo, T. 10340-10342, T. 10348
and T. 10357.
741 - Witness CB, T. 8868-8948.
742 - T. 10102 and T.10429.
743 - T. 8873-8875 and T. 8876-8877; Anto Papic, T.
9937-9940; Katica Kovac, T. 10166-10167.
744 - Anto Papic, T. 10007-10008.
745 - Josip Vidovic, T. 10282-10285 and T. 10293-10297;
Josip Covic, T. 10305-10315.
746 - T. 8856-8857.
747 - T. 8945.
748 - T. 8857-8858.
749 - T. 8880.
750 - T. 8861-8862, T. 8878, T. 8863-8864 and T.
8947.
751 - T. 8863-8865.
752 - T. 10249-10251 and T. 10256-10257.
753 - T. 10732-10738 and T. 10759.
754 - T. 10739-10743.
755 - T. 10745-10749.
756 - T. 10749, T. 10752 and T. 10759-10780.
757 - T. 10788-10789.
758 - T. 10794, T. 10798 and T. 10801-10806.
759 - T. 10828-10830.
760 - T. 10761 and T. 10783.
761 - T. 10766 and T. 10784.
762 - See, inter alia, the Defence’s Submission of
Witnesses (sic) Summaries pursuant to the Request of the Trial Chamber on 15 Oct.
1998, Nov. 10 1998 (filed 13 Nov. 1998), Doc. No. D2943-D2928: “the commander
of the Army of Bosnia and Herzegovina (sic) in Ahmici [...] confessed crying before
the major (sic) group of Croats that Nijaz Sivro was the one who was in charge
and set targets [for…] the Army of Bosnia and [H]erzegovina with the final aim
of persecution of Croats from Ahmici [...]” and T. 5999-6033.
763 - See for instance Defence’s submission of the Answer
whether on 16 April 1993 a massacre was carried out in Ahmici [...], Nov. 10, 1998,
filed 13 Nov. 1998, Doc. No. D2958-D2947: “Ahmici was not [an] undefended village
in which all Moslems were (sic) the civilian population […. M]any people were
killed … because it is (sic) a sad consequence of the war and armed conflict”.
764 - See for example the Defence’s assertion that members
of the BiH Army seldom wore uniforms or distinctive insignia and hence, the mere
fact that none of the victims appeared to be wearing uniforms cannot be dispositive
of this issue. (See Petition of the Counsels of the Accused Zoran and Mirjan Kupreskic,
filed 12 Nov. 1998, Doc. No. D2904-D2891, at para. 7: “… in (sic) the incriminated
time most of the members (sic) of the BiH had no uniforms, that they were (sic)
in civilian clothes, with no special marks on them, and they were dressed that
way when they left for the front line with Serbs, so, according to that, the fact
that no dead persons in uniforms have been seen, does not mean that they were
not army members”. See also Defence’s Closing Brief of 5 Nov. 1999, Doc. No. D5970-D5879,
at p. 18: “In Ahmici [on April 16 1993 …t]he resistance was significant and organised”
and the closing argument of defence counsel Radovic, T. 12733-12734.
765 - See for instance the Defence’s Closing Brief of 5 Nov.
1999, at p. 84: “[P]rivate individuals [...] who had previously taken part in
any fashion in the internal hostilities, who previously had taken arms, or who
spontaneously take up arms to resist an attacker [...] directly take part in hostilities
and, therefore, are (not( covered by this definition of “non-combatant” (or( protected
by ICTY Art. 3”.
766 - See for instance Defence’s submission of the
Answer whether on 16 April 1993 a massacre was carried out in Ahmici, ibid.
767 - See for instance the cross-examination of Witness
Y, where defence counsel Ms. Glumac gave a list of Croatian villages from which
Croats were allegedly expelled and their houses burnt, supporting the inference
that the Croats justified the massacres in Ahmici in terms of revenge (T. 3344-46).
See also paras. 23, 125 and 338, ibid.
768 - US v. von Leeb et al (the High Command
trial) (1948), Law Reports of the Trials of War Criminals (hereafter LWT), vol.
12, p. 1, at p. 64 (US Military Tribunal, Nuremberg). See also ‘Final Report
of the Commission of Experts Established Pursuant to Security Council Resolution
780 (1992),’ UN Doc. S/1994/674 (27 May 1994), p. 18, para. 63.
769 - This is translated in para. 121 of the 1958 British
Manual of Military Law into a clear rejection of a broad principle of reciprocity:
A belligerent is thus not justified in declaring himself freed altogether from
the obligation to observe the laws of war or any of them on account of their suspected
or ascertained violation by his adversary. (UK War Office, Manual of Military
Law, Part III, The Laws and Usages of War on Land (H. Lauterpacht (ed.),
London, HMSO, 1958), para. 121, n. 1(a)). This Manual does, however, leave open
the possibility of reprisals against an earlier violation by the enemy (see paras.
642-9 of the Manual).
770 - Barcelona Traction, Light and Power Co. Ltd. (Belgium
v. Spain), ICJ Reports, 1970, p. 3 at p. 32. See also W. Riphagen, “Second
Report on the Content, Forms and Degrees of International Responsibility”,
Yearbook of the International Law Commission, 1981, UN Doc. A/CN.4/344.
Vol. 2, part. 1, p. 79 at p. 86.
771 - Art. 53, Vienna Convention on the Law of Treaties, 23
May 1969. A peremptory norm or jus cogens principle is a norm that enjoys a higher
rank in the international hierarchy than treaty law and even ‘ordinary’ customary
rules: Prosecutor v. Furundzija, (IT-95-17/1-T), Judgement, Trial Chamber,
10 December 1998, (hereafter Furundzija, Judgement, 10 Dec. 1998), at para.
153. With regard to the impermissibility of reservations to human rights conventions
with respect to peremptory norms, see also General Comment 24 of the UN Human
Rights Committee on “Issues relating to reservations made upon ratification or
accession to the Covenant (on Civil and Political Rights( or the Optional Protocol
thereto, or in relation to declarations made under article 41 of the Covenant
(fifty-second Session, 1994), 4 Nov. 1994.
772 - House of Commons Debates, 21 June 1938, vol.
337, col. 937.
773 - The Resolution was adopted on 30 Sept. 1938; see League
of Nations, Official Journal, Special Supplement no. 182, Records of the
XIXth Ordinary Session of the Assembly, pp. 15-17.
774 - Legality of the Threat or Use of Nuclear Weapons
(Advisory Opinion), ICJ Reports 1996, p. 257 (para. 78).
775 - In his statement in the House of Commons on the Spanish
civil war, the British Prime Minister stated that one of the rules applicable
in any armed conflict was the rule whereby “(r(easonable care must be taken in
attacking [...] military objectives so that by carelessness a civilian population
in the neighbourhood is not bombed”. (House of Commons, Debates, 21 June
1938, vol. 337, cols. 937-938).
776 - ICJ Reports, 1949, p. 22.
777 - ICJ Reports, 1986, p. 112, para. 215.
778 - ICJ Reports, 1996, p. 257, para. 79.
779 - The Martens Clause was first set forth in the
preambular provisions of the 1899 Hague Convention concerning the Laws or customs
of War on Land which reads as follows: Until a more complete code of the laws
of war is issued, the High Contracting Parties think it right to declare that
in cases not included in the Regulations adopted by them, populations and belligerents
remain under the protection and empire of the principles of international law,
as they result from the usages established between civilised nations, from the
laws of humanity, and the requirements of the public conscience. The French text
of this Article reads as follows: En attendant qu’un code plus complet des lois
de la guerre puisse être édicté, les Hautes Parties Contractantes jugent opportun
de constater que, dans les cas non compris dans les dispositions réglementaires
adoptées par Elles, les populations et les belligérants restent sous la sauvegarde
et sous l’empire des principes du droit des gens, tels qu’ils résultent des usages
établis entre nations civilisées, des lois de l’humanité et des exigences de la
conscience publique. A modern version of this clause is to be found in Art. 1(2)
of Additional Protocol I of 1977, which refers, instead, to “the principles of
humanity and [...] the dictates of public conscience” (“principes de l’humanité
et des exigences de la conscience publique”).
780 - Legality of the Threat or Use of Nuclear Weapons
(Advisory Opinion), ICJ Reports 1996, at p. 259, para. 84.
781 - See Draft Articles on State Responsibility, in Report
of the International Law Commission on the Work of its forty-eighth Session,
6 May-26 July 1996, UNGAOR, 51st Session, Supp. No. 10, (A/51/10) para. 237, p.
145.
782 - See Department of the Army Field Manual, FM 27-19, July
1956, pp. 177-178, para 497. After stating that reprisals against “protected persons”
are prohibited pursuant to the Geneva Conventions of 1949, the Manual goes on
to state that “(h(owever, reprisals may still be visited on enemy troops who have
not yet fallen into the hands of the forces undertaking the reprisals” (para.
497(c)). In sub-para (a) of the same paragraph it is stated that “[t]he employment
by a belligerent of a weapon the use of which is normally precluded by the law
of war would constitute a lawful reprisal for intentional mistreatment of prisoners
of war held by the enemy”.
783 - See Handboek voor de Soldaat (“Soldiers Handbook”),
VS 2-1350, 1974, Chapter VII (“The Laws of warfare”), Art. 34 (“The civilian population,
who takes no active part in the hostilities, must be spared. [...] Reprisals against
civilians are prohibited [...]”. Art. 35: “[...] Collective punishments (of civilians(,
the taking of hostages, and reprisals [against civilians] are prohibited” (unofficial
translation). These provisions have been restated in the edition of March 1995
of the Dutch Manual, at Art. 6 (pp. 7-43).
784 - See for example the British Manual (The Law of War
on Land, The War Office, 1958, p. 184, para 644 and note 2). The Austrian
Manual (Truppenführung), Bundesministerium für Landesverteidigung, Wien
1965, p. 255, para 48, lists the various categories of persons and objects against
whom reprisals are prohibited by the Geneva Conventions, but specifies that these
are the reprisals “expressly prohibited” (ausdrücklich verboten).
785 - In his report to the United States Secretary of State,
the U.S. Deputy Legal Adviser and Head of the U.S. Delegation to the Geneva Diplomatic
Conference of 1974-77 stated that in his view the Geneva Conference had “gone
unreasonably far in its prohibition of [reprisals]” (text in 72(2) American
Journal of International Law, 1978 at p. 406) and added: “It is unreasonable
to think that massive and continuing attacks directed against a nation’s civilian
population could be absorbed without a response in kind. By denying the possibility
of response and not offering any workable substitute, Art. 51 [of the First Additional
Protocol] is unrealistic and cannot be expected to withstand the test of future
conflicts. On the other hand, it will not be easy for any country to reserve,
explicitly, the right of reprisal against an enemy’s civilian population, and
we shall have to consider carefully whether such a reservation is indispensable
for us” (ibid). Furthermore, it has been reported that the United States
JCS (Joint Chiefs of Staff), faced with the possibility that other States would
not accept individual monitoring mechanisms, expressed misgivings about the acceptance
of the prohibition of reprisals against civilians. (J.A. Roach, in ICCR Review,
1991, 67 at p. 183, note 7: “If the United States cannot rely on neutral supervision
to ensure compliance with humanitarian law, then the threat of unilateral retaliation
retains its importance as a deterrent sanction to ensure at least a minimum level
of humane behaviour by US adversaries”).
786 - U.N. General Assembly Resolution 2675 (XXV)
of 9 Dec. 1970.
787 - It should, however, be noted that in 1998 the United
Kingdom, in ratifying the First Additional Protocol of 1977, made a reservation
concerning the obligations of Articles 51 and 55 of the Protocol on the use of
reprisals against civilians (see the letter sent on 28 January 1998 by the British
Ambassador C. Hulse to the Swiss Government, and partially reproduced in in M.
Sassoli and A.A. Bouvier (eds.), How Does Law Protect in War?, ICRC, Geneva
1999, pp. 617-618).
788 - The ICRC pointed out the following: “The Iraqi forces
have indiscriminately and systematically bombarded towns and villages, causing
casualties among the civilian inhabitants and considerable destruction of civilian
property. Such acts are inadmissible, the more so that some were declared to be
reprisals before being perpetrated. [...] Such acts are in total disregard of
the very essence of international humanitarian law applicable in armed conficts,
which is founded on the distinction between civilians and military forces” (memorandum
from the International Committee of the Red Cross to the States Parties to the
Geneva Conventions of August 12, 1949 Concerning the Conflict Between the Islamic
Republic of Iran and the Republic of Iraq, Geneva, May 7, 1983, partially reproduced
in M. Sassoli and A.A. Bouvier (eds.), How Does Law Protect in War?, ICRC,
1999 at 982).
789 - Prosecutor v. Milan Martic, Review of Indictment
Pursuant to Rule 61, ICTY Trial Chamber, Case No. IT-95-11-R61, 8 March 1996,
at paras. 10-18.
790 - See the Memorandum of the ICRC, ibid.
791 - See Diplomatic Conference on the Reaffirmation and Development
of International Humanitarian Law Applicable in Armed Conflict, Geneva 1974-77,
Official Records, Vol. VI, 1977, at 162. France voted against the provision
prohibiting reprisals, stating, inter alia, that it was “contrary to existing
international law” (idem).
792 - See the British reservation to the First additional
Protocol of 1977, ibid.
793 - See the Commission’s comments on the former Article
14 of the IInd Part of the Draft Articles in Yearbook of the International
Law Commission, 1995, Volume II, Part Two, A/CN.4/SER.A/1995/Add.1 (Part 2)
(State responsibility), para. 18, p. 72.
794 - See in this regard Military and Paramilitary Activities
in and Against Nicaragua (Merits), Judgment of 27 June 1986, ICJ Reports 1986,
p. 113, especially at para. 218.
795 - Ibid., p. 114 at para. 219.
796 - Croatia succeeded to the four Geneva Conventions
of 1949 and the two Additional Protocols on 11 May 1992 and Bosnia and Herzegovina
on 31 Dec. 1992.
797 - A reference to such a method is made in the Report
of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution
808 (1993), (S/25704), 3 May 1993, at paragraph 58 (hereafter Report of
the Secretary-General).
798 - Prosecutor v. Nikolic, Rule 61 Decision, Trial
Chamber, 20 Oct. 1995, (hereafter Prosecutor v. Nikolic, Rule 61 Decision),
at para. 26.
799 - As the Trial Chamber stated in its Judgement: “it is
now well established that the requirement that the acts be directed against a
civilian “population” can be fulfilled if the acts occur on either a widespread
basis or in a systematic manner” (Tadic, Trial Chamber Judgement, 7 May
1997, para. 646).
800 - Ibid., at paras. 626 and 657.
801 - See Prosecutor v. Tadic, (IT-94-1-AR72), Decision
on Defence Motion for Interlocutory Appeal on Jurisdiction, Appeals Chamber, 2
Oct. 1995, (hereafter Tadic, Appeals Chamber Decision on Jurisdiction, 2 Oct.
1995) at 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 … customary international law may not require a connection between
crimes against humanity and any conflict at all’.
802 - Ibid., at para. 142: “Art. 5 may be invoked as
a basis for jurisdiction over crimes committed in either internal or international
armed conflicts”.
803 - Ibid., at para. 70.
804 - In this regard, the Appeals Chamber in Tadic noted that
“[...] the temporal scope of the applicable rules clearly reaches beyond the actual
hostilities. Moreover, the [...] nature of the language [...] suggests a broad
geographical scope as well” (ibid., at para. 69).
805 - The Barbie case, French Court of Cassation
(Criminal Chamber), 20 Dec. 1985, 78 ILR 125.
806 - Ibid., at 137.
807 - On this point, the Trial Chamber held that “[a]lthough
according to the terms of Article 5 of the Statute of this Tribunal [...] combatants
in the traditional sense of the term cannot be victims of a crime against humanity,
this does not apply to individuals who, at one particular point in time, carried
out acts of resistance. As the Commission of Experts, established pursuant to
Security Council Resolution 780, noted, “it seems obvious that Article 5 applies
first and foremost to civilians, meaning people who are not combatants. This,
however, should not lead to any quick conclusions concerning people who at one
particular point in time did bear arms. ... Information of the overall circumstances
is relevant for the interpretation of the provision in a spirit consistent with
its purpose”. (Prosecutor v. Mrksic et al, Review of Indictment Pursuant
to Rule 61, 3 Apr. 1996, para. 29, citing Report of the Commission of Experts
established pursuant to Security Council Resolution 780, Doc. S/1994/674,
para. 78.)
808 - Tadic, Decision on Defence Motion on the Form
of the Indictment, 14 Nov. 1995, at para. 11.
809 - On this point, the Trial Chamber in Tadic has
held that “[c]learly, a single act by a perpetrator taken within the context of
a widespread or systematic attack against a civilian population entails individual
criminal responsibility and an individual perpetrator need not commit numerous
offences to be held liable. Although it is correct that isolated, random acts
should not be included in the definition of crimes against humanity, that is the
purpose of requiring that the acts be directed against a civilian population
and thus “[e]ven an isolated act can constitute a crime against humanity if it
is the product of a political system based on terror or persecution” (Tadic,
Trial Chamber Judgement, 7 May 1997, para. 649, s omitted).
810 - See e.g. the judgements of the Supreme Court for the
British zone in: Entscheidungen des Obersten Gerichtshofes für die Britische
Zone in Strafsachen, Vol. I, pp. 6 et seq.; 19 et seq.; 39 et
seq.; 45 et seq.; 49 et seq.; 56 et seq.
811 - Tadic, Trial Chamber Judgement, 7 May 1997, at
para. 653, where the Trial Chamber noted that “[t]he reason that crimes against
humanity so shock the conscience of mankind and warrant intervention by the international
community is because they are not isolated, random acts of individuals but rather
result from a deliberate attempt to target a civilian population.” It went on
to explain that although traditionally this requirement was understood to mean
that there must be some form of State policy to commit these acts occurred during
this period, this was no longer the case (ibid., at para. 654). See also Prosecutor
v. Nikolic, Rule 61 decision, at para. 26: “Although they [the crimes in question]
need not be related to a policy established at State level, in the conventional
sense of the term, they cannot be the work of isolated individuals alone.”
812 - The Court held in both Barbie, (French Court
of Cassation (Criminal Chamber), 3 June 1988, 100 ILR 331 at 336) and the Touvier
(France, Court of Appeal of Paris, First Chamber of Accusation, 13 April 1992);
Court of Cassation (Criminal Chamber), 27 Nov. 1992, 100 ILR 338 at 351), that
crimes against humanity are acts performed in a systematic manner in the name
of a State practising by those means a policy of ideological hegemony.
813 - R v. Finta [1994] 1 S.C.R. 701 at 733.
814 - See in this regard the German ‘denunciation’ cases,
ibid.
815 - See the decision of the Landgericht of Mönchengladbach
of 16 June 1948 (unpublished), the decision of the Oberlandesgericht of Düsseldorf
of 21 Oct. 1948 (unpublished) and the decision of the German Supreme Court in
the British occupied zone, of 21 Dec. 1948 (in Entscheidungen, ibid.,
vol.1, pp. 203-208), the decision of the Schwurgericht of Mönchengladbach
of 20 April 1949 (unpublished), that of the German Supreme Court in the British
occupied zone, of 10 Oct. 1949 ( unpublished) and the decision of the Schwurgericht
of Mönchengladbach of 21 June 1950 (unpublished). The aforementioned decisions
are on the Tribunal's files (they have been kindly provided to the Tribunal by
the Nordrhein Westfälisches Hauptstaatsarchiv).
816 - In this regard the Supreme Court noted that “[a]ctions
which seemingly or actually originated from quite personal decisions were also
often and readily put by the national-socialist leadership at the service of its
criminal goals and plans. This held true even for actions which outwardly were
even disapproved of [...] The link, in this sense, with the national-socialist
system of power and tyranny does in the case at issue manifestly exist [as] the
actions of the accused fitted into the numerous persecutory measures which were
then imposed against the Jews in Germany or could at any time be imposed against
them. […] [Th]e link with the national-socialist system of power and tyranny does
not exist only in the case of those actions which are ordered and approved by
the holders of hegemony; that link exists also when those actions can only be
explained by the atmosphere and conditions created by the authorities in power.
The trial court was [thus] wrong when it attached decisive value to the fact that
the accused after his action was "rebuked" and that even the Gestapo disapproved
of the excess as an isolated infringement. That this action nevertheless fitted
into the persecution of Jews effected by the State and the party, is shown by
the fact that the accused … was not held criminally responsible… in proportion
to the gravity of his guilt….” (See Entscheidungen, ibid., vol.1,
pp. 206-207). The Supreme Court for the British zone returned to this matter,
although only fleetingly, in its decision of 10 October 1949 (unpublished), where
it restated its position on the issue of crimes against humanity (see pp. 4-5
of the typescript).
817 - Tadic, Trial Chamber Judgement, 7 May 1997, at
para. 656. See also ibid., para. 659, where it was noted that “if the perpetrator
has knowledge, either actual or constructive, that these acts were occurring on
a widespread or systematic basis … that is sufficient to hold him liable for crimes
against humanity. Therefore the perpetrator must know that there is an attack
on the civilian population [and …] know that his act fits in with the attack ….”.
Note the recent finding of the Tadic Appeals Chamber, which has declared erroneous
the Trial Chamber’s enunciation of a negative element; namely, that crimes against
humanity must not be committed for the purely personal motives of the perpetrator:
Prosecutor v. Tadic, (IT-94-1-A), Judgement, Appeals Chamber, 15 July 1999,
(hereafter Tadic, Appeals Chamber Judgement, 15 July 1999), at para. 248-52.
818 - Prosecutor v. Kayishema and Ruzindana, (ICTR-95-1-T),
Judgement, Trial Chamber, 21 May 1999 (hereafter Kayishema and Ruzindana,
Judgement, 21 May 1999), paras. 133-4.
819 - Tadic, Appeals Chamber Judgement, 15 July 1999,
at para. 305.
820 - Ibid., at para. 272.
821 - As was acknowledged by the International Law Commission:
“Murder is a crime that is clearly understood and well defined in the national
law of every State. This prohibited act does not require any further explanation”.
(Report of the International Law Commission on the work of its 48th Session,
6 May-26 July 1996, p. 96, Commentary to Article 18 (Crimes against Humanity),
51st Session, Supp. No. 10, UNGAOR (A/51/10), para. 7).
822 - Prosecutor v. Akayesu, (ICTR-96-4-T), Judgement,
Trial Chamber, 2 September 1998, (hereafter Akayesu, Judgement, 2 Sept.
1998), at para. 589.
823 - Idem.
824 - Kayishema and Ruzindana, Judgement, 21 May 1999,
at para. 139.
825 - ICRC Commentary on the IVth Geneva Convention Relative
to the Protection of Civilian Persons in time of War (1958, repr. 1994), p.
39.
826 - See 18 ILR, 1951, p. 540. See also the Enigster
case (Decision of 4 Jan. 1952 by the same Court), ibid., at p. 541-2.
827 - With regard to a similar concept, that of ‘inhuman treatment’
under Art. 2(b) (grave breaches), the ICTY Trial Chamber in Delalic et al. noted
that “inhuman treatment” was constituted by “an intentional act or omission [...]
which causes serious mental or physical suffering or injury or constitutes a serious
attack on human dignity” (Prosecutor v. Delalic et al, (IT-96-21-T), Judgement,
Trial Chamber, 16 Nov. 1998, (hereafter Delalic et al., Judgement, 16 Nov.
1998), at para. 543). The Trial Chamber also suggested a negative definition,
namely that inhuman treatment is treatment which causes severe mental or physical
suffering but which falls short of torture, or lacks one of the elements of torture
(e.g. a prohibited purpose or official sanction). (Ibid. at para. 542). Whether
a given conduct constitutes inhuman treatment will be determined on a case-by-case
basis and appears ultimately to be a question of fact (ibid., at para.
544. See also Kayishema and Ruzindana, Judgement, 21 May 1999, at para.
151: “(T(he acts that rise to the level of inhuman acts should be determined on
a case-by-case basis”).
828 - The International Law Commission, commenting on Art.
18 of its Draft Code of Crimes further states that “[t]he Commission recognized
that it was impossible to establish an exhaustive list of the inhumane acts which
might constitute crimes against humanity. First, this category of acts is intended
to include only additional acts that are similar in gravity to those listed in
the preceding subparagraphs. Second, the act must in fact cause injury to a human
being in terms of physical or mental integrity, health or human dignity” (Report
of the International Law Commission on the Work of its Forty-Eighth Session,
6 May-26 July 1996, UNGAOR 51st Sess. Supp. No. 10 (A/51/10) (Crimes Against the
Peace and Security of Mankind), at para. 17, p. 103).
829 - As for the specification of what constitutes cruel,
debasing, humiliating or degrading treatment, resort can of course be had to the
important case-law of the relevant international bodies, chiefly to the United
Nations Torture Committee and the European Commission and Court of Human Rights.
It is worth adding that resort to the standards laid down in the Universal Declaration
of Human Rights has already been made in 1950 by a Belgian court. The Conseil
de guerre of Brussels, in a judgment of 8 Feb. 1950, held that Art. 5 of the
Universal Declaration, prohibiting torture and inhuman treatment can be utilised
for the application of the so-called Marten's clause in the IVth Hague Convention
of 1899. It noted, at p. 566, that “in searching for the principles of the law
of nations as they result from the usages established among civilized peoples,
from the laws of humanity and the dictates of public conscience, the Court-Martial
is presently guided by the Universal Declaration of Human Rights …” [D]ans
la recherche des principes du droit des gens tels qu'ils résultent des usages
etablis entre nations civilisees, des lois de l'humanité et des exigences de la
conscience publique, le Conseil de guerre est aujourd'hui guidé par la declaration
universelle des droits de l'homme [...]. After citing Art. 5 of the Declaration,
the court went on to say that “[...] suspending a human being by his hands tied
behind his back from a pulley specially rigged for the purposes is torture;
[...] blows to the face, delivered so repeatedly and violently that they caused
it to swell up and, in several cases, broke some teeth, constitute cruel treatment”
(ibid.). ([L] a pendaison d'un être humain, par les mains liées derriere
le dos, à une poulie specialement aménagée a cet effet, est une torture; [...]
des coups au visage, à ce point répétés et violents qu'ils l'ont tuméfié et dans
plusieurs cas, ont brisé des dents, constituent un traitement cruel
(in 30 Revue de droit pénal et de criminologie, 1949-50, p. 566).
830 - In this regard, another Trial Chamber has held that
“persecution can take numerous forms, so long as the common element of discrimination
in regard to the enjoyment of a basic or fundamental right is present, and persecution
does not necessarily require a physical element”. (Tadic, Trial Chamber
Judgement, 7 May 1997, at para. 707).
831 - In both cases the crimes at issue were held to constitute
persecution. In the Barbie decision, the French Court of Cassation held
that crimes against humanity in the form of persecution had been perpetrated against
members of the French resistance movements (ibid.). The same view was taken
by the Chambre d'accusation of the Court of Appeal of Paris in a judgment
of 9 July 1986 in the same case and confirmed by the Chambre d'accusation
of the Court of Appeal of Paris in a Judgment of 13 April 1992 in the Touvier
case (ibid.). The Chambre d'accusation stated that Jews and members
of the Resistance persecuted in a systematic manner in the name of a State
practising a policy of ideological supremacy, the former by reason of their membership
of a racial or religious community, the latter by reason of their opposition to
that policy, can equally be the victims of crimes against humanity. (ibid.,
p. 352; emphasis added).
832 - The question is thus raised as to whether a
crime against humanity could also be committed on discriminatory grounds not enumerated
in the list provided in Art. 5(h) (eg. discrimination on grounds of gender, political
opinion or social class): see Tadic, Appeals Chamber Judgement, 15 July 1999,
at para. 285.
833 - 13th Report on the Draft code of Crimes against the
Peace and Security of Mankind, UN Doc. A/CN.4/455, 24 March 1995 at para.
75; Comments and Observations of Governments on the Draft Code, UN Doc. A/CN.4/448,
1 March 1993, at p. 97.
834 - Although the text of Article 5 reads “political, racial,
and religious grounds”, these grounds should be read disjunctively: Tadic,
Trial Chamber Judgement, 7 May 1997, at paras. 711-713.
835 - Tadic, Appeals Chamber Judgement, 15 July 1999,
at para. 305.
836 - Brief of the Defendants Zoran Kupreskic and
Mirjan Kupreskic on Legal Trial Issues, filed on 19 Nov. 1998, at para. 58; Defence’s
Closing Brief, filed by counsel for Mirjan Kupreskic, 9 Nov. 1999, p. 91.
837 - Judgement of the International Military Tribunal,
Trial of Major War Criminals before the IMT, Nuremberg, (14 Nov. 1945 – Oct. 1946)
(hereafter IMT Judgement), Vol. I, p. 318.
838 - Ibid., p. 302.
839 - Ibid., p. 304.
840 - Art. II(c) of Control Council Law No. 10 defines crimes
against humanity as “[a]trocities and offences, including but not limited to murder,
extermination, enslavement, deportation, imprisonment, torture, rape, or other
inhumane acts committed against any civilian population, or persecutions on political,
racial, or religious grounds whether or not in violation of the domestic laws
of the country where perpetrated”. As was held in US v. Josef Alstötter et
al. (the Justice case), Trials of War Criminals (before the Nuremberg
Military Tribunal, (hereafter NMT)) Vol. III at p. 974: “. . . it must be noted
that Control Council Law No. 10 differs materially from the Charter. The latter
defines crimes against humanity as inhumane acts, etc., committed, “in execution
of, or in connection with, any crime within the jurisdiction of the tribunal”,
whereas in C. C. Law 10 the words last quoted are deliberately omitted from the
definition”.
841 - S. 7 (3.76) of the Canadian Criminal Code provides that:
“[C]rimes against humanity” means murder, extermination, enslavement, deportation,
persecution or any other inhumane act or omission that is committed against any
civilian population or any identifiable group of persons, whether or not it constitutes
a contravention of the law in force at the time and in the place of its commission,
and that, at that time and in that place, constitutes a contravention of customary
international law or conventional international law or is criminal according to
the general principles of law recognised by the community of nations”.
842 - Art. 212-1, para. 1 of the French Criminal
Code (enacted by the Law no. 92-1336 of 16 Dec. 1992, modified by the Law no.
93-913 of 19 July 1993, entered into force on 1 March 1994) provides that “La
déportation, la réduction en ensclavage ou la pratique massive et systématique
d’exécutions sommaires, d”enlèvements de personnes suivis de leur disparition,
de la torture ou d’actes inhumains, inpirés par des motifs politiques, philosohpiques,
raciaux ou religieux et organisés en execution d’un plan concerté à l’encontre
d’un groupe de population civile sont punies de la réclusion criminelle à perpetuité”.
843 - See e.g. US v. Otto Ohlendorf et al. (the Einsatzgruppen
case), NMT Vol. IV, p. 49; Justice case, ibid. NMT Vol. III, p.
974. See, however, the Flick case, ibid. NMT Vol. VI, p. 1213.
844 - Tadic, Appeals Chamber Decision on Jurisdiction,
2 Oct. 1995, paras. 140-141.
845 - At present, customary international law bans crimes
against humanity whether they are committed in time of war or peace (see on this
point the dictum by the Appeals Chamber in Tadic, Appeals Chamber
Decision on Jurisdiction, 2 Oct. 1995, para. 141).
846 - Prosecutor’s Brief on the Permissibility of
Charging Criminal Violations under the Same Articles of the Statute Based on Conduct
Arising from a Single Incident, filed 15 Sept. 1998 (hereafter Prosecutor’s Brief),
paras. 31-32; see also Prosecutor’s Closing Brief, para. 12.17.
847 - Brief of the Defendants Zoran Kupreskic and
Mirjan Kupreskic on Legal Trial Issues, filed on 19 Nov. 1998, paras. 55-56.
848 - Petition of the Counsels of the Accused Zoran
and Mirjan Kupreskic, 12 Nov. 1998; Defence’s Closing Brief, filed by counsel
for Dragan Papic, 5 Nov. 1999.
849 - Tadic, Trial Chamber Judgement, 7 May 1997, at
para. 710.
850 - Ibid., at para. 715.
851 - Brief of Defendants Zoran Kupreskic and Mirjan
Kupreskic on Legal Trial Issues, 19 Nov. 1998, paras. 55-63.
852 - Comments and Observations of Governments on
the International Law Commission Draft Code, UN Doc. A/CN.4/448, 1 March 1993,
p. 93.
853 - Art. 1A(2) of the Refugee Convention defines a refugee
as someone who: “[...] owing to a well-founded fear of being persecuted for reasons
of race, religion, nationality, membership of a particular social group or political
opinion is outside the country of his nationality and is unable or, owing to such
fear, is unwilling to avail himself of the protection of that country; or who
[...] is unwilling to return to it”. Art. 33 of the same Convention states: “No
Contracting State shall expel or return (“refouler”) a refugee in any manner
whatsoever to the frontiers of territories where his life or freedom would be
threatened on account of his race, religion, nationality, membership of a particular
social group or political opinion”.
854 - The UNHCR Handbook on Procedures and Criteria for
Determining Refugee Status, (hereafter UNHCR Handbook) states at para.
51: “There is no universally accepted definition of “persecution”, and various
attempts to formulate such a definition have met with little success. From Art.
33 of the 1951 Convention, it may be inferred that a threat to life or freedom
on account of race, religion, nationality, political opinion or membership of
a particular social group is always persecution. Other serious violations of human
rights - for the same reasons - would also constitute persecution”.
855 - Art. 3 of the European Convention on Human Rights provides
that “[n]o one shall be subjected to torture or to inhuman or degrading treatment
or punishment”.
856 - Ahmed v. Austria (1997) 24 ECHR 278; Altun
v. Federal Republic of Germany D & R 36 (1984) p. 209; A v. Switzerland
D & R 46 (1986), p. 257 (271).
857 - For example, Judge McHugh of the Australian High Court
in Chan v. Minister for Immigration and Ethnic Affairs held that “[a]s
long as the person is threatened with harm and that harm can be seen as part of
a course of systematic conduct directed for a Convention reason against that person
as an individual or as a member of a class, he or she is "being persecuted" for
the purpose of the Convention [...] Moreover, to constitute “persecution” the
harm threatened need not be that of loss of life or liberty [...] Other forms
of harm short of interference of life or liberty may constitute 'persecution'
for the purposes of the Convention and Protocol. Measures 'in disregard' of human
dignity may, in appropriate cases, constitute persecution [...] [...]1989) 169
CLR 379). The Judgement went on to hold that “[p]ersecution on account of race,
religion and political opinion has historically taken many forms of social, political,
and economic discrimination. Hence, the denial of access to employment, to the
professions and to education or the imposition of restrictions on the freedoms
traditionally guaranteed in a democratic society such as freedom of speech, assembly,
worship or movement may constitute persecution if imposed for a Convention reason"
(idem).
858 - Prahastono v. Minister for Immigration and Multicultural
Affairs 1997 Austr. Fed. Ct. Lexis 514, the Federal Court of Australia, per
Hill J.
859 - R v. Secretary of State for the Home Department ex
parte Sasitharan Queens Bench Division (Crown Office List) Co/ 1655/98, 23
June 1998, per Sedley J.
860 - Immigration and Naturalization Service, Petitioner
v. Jairo Jonathan Elias-Zacarias, Supreme Court of the United States, 1992
U.S. Lexis 550. The UNHCR Handbook states in paragraphs 52 and 53: “Due
to variations in the psychological make-up of individuals and in the circumstances
of each case, interpretations of what amounts to persecution are bound to vary.
In addition, an applicant may have been subjected to various measures not in themselves
amounting to persecution (e.g. discrimination in different forms), in some cases
combined with other adverse factors (e.g. general atmosphere of insecurity in
the country of origin). In such situations, the various elements involved may,
if taken together, produce an effect on the mind of the applicant that can reasonably
justify a claim to well-founded fear of persecution on ‘cumulative grounds’”.
861 - The Nuremberg Principles stated that Art. 6(c) of the
Charter “distinguished two categories of punishable acts, to wit: first, murder,
extermination, enslavement, deportation and other inhuman acts committed against
any civilian population, before or during the war, and second, persecution on
political, racial or religious grounds” (Nuremberg Principles, Report of the
International Law Commission to the General Assembly, 2nd Session (5 June
–29 July 1950) UN Doc. A/1316, para. 120).
862 - Report of the International Law Commission on the
Work of its forty-eighth session, 6 May-26 July 1996, at 98. It is not clear
whether the International Law Commission interprets persecution to include other
subheadings of the Article on crimes against humanity. In its Commentary on its
1991 Draft (UN Doc. A/46/10), the International Law Commission states the following:
“Persecution on social, political, racial, religious, or cultural grounds, already
a crime under the 1954 draft Code, relates to human rights violations other than
those covered in the previous paragraphs, committed in a systematic manner or
on a mass scale by government officials or by groups that exercise de facto
power over a particular territory and seek to subject individuals or groups of
individuals to a kind of life in which enjoyment of some of their basic rights
is repeatedly or constantly denied. Persecution may take many forms, for example,
a prohibition on practising certain kinds of religious worship; prolonged and
systematic detention of individuals who represent a political, religious or cultural
group; a prohibition on the use of a national language, even in private; systematic
destruction of monuments or buildings representative of a particular social, religious,
cultural or other group. Such acts could come within the scope of this Article
when committed in a systematic manner or on a mass scale”.
863 - Prosecutor’s Brief, paras. 31-32.
864 - Brief of the Defendants Zoran Kupreskic and
Mirjan Kupreskic on Legal Trial Issues, filed on 19 Nov. 1998
865 - The Closing briefs of two of the accused, Vladimir
[antic and Dragan Papic, both filed 5 Nov. 1999, indicate acceptance of a broader
definition of persecution. The Defence Final Brief for the accused Vladimir [antic
states: “The Defence admits that such inhuman acts can occur in very many forms
which have one mutual characteristic and that is denial of fundamental rights
and freedoms which an individual is entitled to without distinction” (p. 8). The
Defence’s Closing Brief for the accused Dragan Papic states: “The concept of persecution
covers a wide sphere . . .”
866 - IMT Judgement, p. 247.
867 - Ibid., p. 248-249.
868 - Ibid., p. 251.
869 - For example, for the role played by the SD and the Gestapo
in the persecution of the Jews, see ibid., pp. 265-267; for the role of
the SS see ibid., pp. 271-273.
870 - For example see IMT Judgement on defendants Frank (ibid.,
pp. 297-298); von Schirach (ibid., p. 319); Seyss-Inquart (ibid., pp. 328-29),
Borman (ibid., pp. 339-340).
871 - See IMT Judgement on Göring, ibid., p. 282, Frank,
ibid., pp. 297-298 and Funk, ibid., p. 305.
872 - Ibid., p. 300.
873 - The German High Command Trial, NMT, Vol II at
pp. 647-648. The US Military Tribunal, in a summary of the evidence against the
accused von Roques, stated that “many of the documents heretofore show ill-treatment
and persecution of the civilians within the accused von Roques’ area of command.
Other documents show the establishment of ghettos for the Jews; requirements that
they wear the Star of David; prohibition of Jewish rites; confiscation of Jewish
ritual articles; requirements that Jews surrender all foreign exchange securities,
precious metals, and precious stones; terror killings of suspect partisan and
partisan sympathisers; so-called mopping-up exercises and turning over of Jews
and Communists to the SD [...]”.
874 - Ministries Case, NMT, Vol. XIV at p. 471: “The
Jews of Germany were first deprived of the rights of citizenship. They were then
deprived of the right to teach, to practice professions, to obtain education,
to engage in business enterprises; they were forbidden to marry except among themselves
and those of their own religion; they were subject to arrest and confinement in
concentration camps, to beatings, mutilation and torture; their property was confiscated;
they were herded into ghettos; they were forced to emigrate and to buy leave to
do so; they were deported to the East, where they worked to exhaustion and death;
they became slave labourers; and finally over six million were murdered”. See
also the United States Military Court in the Trial of Ulrich Greifelt et al.
(RuSHA case) NMT Vol. V. Ulrich Greifelt and his co-accused from the RuSHA
(Reichs Security Head Office) were convicted inter alia of participation
in a 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” (p. 88). The Notes on the Case (Law Reports of
Trials of War Criminals, UN War Crimes Commission, (hereafter UNWCC), 1948
Vol XIII) state at p. 1-2 “The trial dealt with the main body of racial persecutions
which distinguished so conspicuously the Nazi regime inside the Third Reich”.
875 - Ministries case, ibid.
876 - Ibid., at p. 470.
877 - Ibid., Trial of Gauleiter Artur Greiser, Supreme
National Tribunal of Poland, 21 June – 7 July 1946. Law Reports of Major War Criminals,
UNWCC, Vol. XIII at p. 105.
878 - Judgement of Bijzonder Gerechtshof Amsterdam,
3 Aug. 1948 (referred to in Judgement of Bijzondere Raad van Cassatie,
6 Dec. 1948, Nederlandse Jurisprudentie, 1949 No. 85): English translation found
in UNWCC, Vol. XIV, p. 139.
879 - Attorney General of Israël v. Adolf Eichmann,
ILR 5, pp. 277-78 (1968).
880 - Barbie, ibid., at 139.
881 - Artukovic, Zagreb District Court Doc. No. K-1/84-61,
14 May 1986, Translation (on file with the ICTY), at p. 23.
882 - Ibid., at p. 26.
883 - Tadic, Trial Chamber Judgement, 7 May 1997, at
para. 717.
884 - Prosecutor’s Brief, at para. 15.
885 - Ibid., para. 22.
886 - IMT Judgement, pp. 248-249.
887 - Frank, ibid., pp. 297-298; Funk, ibid.,
p. 305; Frick, p. 300.
888 - NMT Vol. III.
889 - Indictment, Justice trial, NMT Vol. III, p. 18.
890 - Ibid., pp. 1063-64.
891 - Ibid.
892 - For instance, “[h]e issued orders under which Jews were
subjected to discriminatory treatment and gradually segregated from the rest of
the population, which facilitated their being detected and apprehended at a later
date for slave labour and eventual extermination. Jews were ordered to wear a
Star of David in public, and were forbidden to take part in public gatherings,
to make use of public places for amusement, recreation or information, to visit
public parks, cafes and restaurants, to use dining and sleeping cars, to visit
theatres, cabarets, variety shows, cinemas, sports clubs, including swimming baths,
to remain in or make use of public libraries, reading rooms, and museums. A special
curfew was introduced for all Jews between the hours of 8 p.m., and 6 a.m. Later
orders banned them from railway yards and the use of any public or private means
of transport. These measures were followed by the erection of concentration camps
in various places. They culminated in systematic round-ups of Jews, who were sent
to the concentration camps in order to be deported to Germany or Poland, where
they were to be used for slave labour or exterminated”. (Trial of Hans Albin Rauter,
Bijzondere Gerechtshof te (s-Gravenhage, 4 May 1948, (referred to in the Judgement
of the Bijzondere Raad van Cassatie, 12 Jan. 1949, Nederlandse Jurisprudentie,
1949, No. 89); English Translation in UNWCC, Vol. XIV 1949, p. 93).
893 - Artukovic, ibid., p. 16.
894 - Ibid., p. 24: “The defendant has committed a
war crime by his actions against humanity and international law. He implemented
racist law, which amounted to an imitation of the law of the Third Reich against
non-Aryans, Jews, and Gypsies. He also savagely and ruthlessly treated Serbs in
Croatia, hundreds of thousands of whom perished in internment, concentration and
labour camps, and other places. He did not choose means to eliminate and kill
Serb, Croats who had not accepted the Ustasa ideology and system, Jews, communists,
Gypsies, anti-fascists, and members of other ethnic groups. The apparatus through
which all was done . . . was a horrific machine of violence and generally a mechanic
organisation which planned, prepared, executed and systematically implemented
such crimes, as the crimes against humanity, which are most characterised by the
mass destruction of human beings”.
895 - The Tribunal in the Justice trial NMT Vol. III,
p.1063) found that: “The record contains innumerable acts of persecution of individual
Poles and Jews, but to consider these cases as isolated and unrelated instances
of perversion of justice would be to overlook the very essence of the offence
charged in the indictment. The defendants are not now charged with conspiracy
as a separate and substantive offence, but it is alleged that they participated
in carrying out a governmental plan and program for the persecution and extermination
of Jews and Poles, a plan which transcended territorial boundaries as well as
the bounds of human decency [...]”. The Notes on the case, UNWCC, 1948, Vol. VI
state at pp. 82-3 that “it is probably true to say that the Tribunal regarded
as constituting crimes against humanity not merely a series of changes made in
the legal system of Germany but a series of such alterations as involved or were
pursuant to persecutions on political, racial or religious grounds, or (perhaps)
such as led to the commission of "atrocities and offences, including but not limited
to murder, extermination, enslavement, deportation, imprisonment, torture, rape,
or other inhumane acts against any civilian population”. In similar terms, the
Zagreb District Court in the case of Artukovic found that “[t]he obligation of
wearing a sign to signify Jewish origin [...] was not only inhuman behaviour [with
regard] to the whole people, but also a revealing foreboding of death”. It is
not each individual act, but rather their cumulative effect that matters. (Ibid.,
UNWCC, p. 15).
896 - Tadic, Trial Chamber Judgement, 7 May 1997, at
paras. 697, 710.
897 - In this case, the U S Military Tribunal sitting at Nuremberg
held that “[n]ot even under a proper construction of the section of Control Council
Law No. 10 relating to crimes against humanity, do the facts [compulsory taking
of Jewish industrial property] warrant conviction. The “atrocities and offences”
listed therein, “murder, extermination,” etc., are all offences against the person.
Property is not mentioned. Under the doctrine of ejusdem generis the catch-all
words “other persecutions” must be deemed to include only such as affect the life
and liberty of the oppressed peoples. Compulsory taking of industrial property,
however reprehensible, is not in that category”. (Flick et. al., in NMT
Vol. VI, p. 1215). This statement was taken up and used by the U.S. Military Tribunal
in US v. Krauch et al., (Farben case) (NMT Vol. VIII pp. 1129-1130).
See also Notes on the Case, UNWCC, Vol. IX, which states at p. 50, that the judgement
in the Flick case declared that “A distinction could be made between industrial
property and the dwellings, household furnishings and food supplies of a persecuted
people” and thus left open the question whether such offences against personal
property as would amount to an assault upon the health and life of a human being
(such as the burning of his house or depriving him of his food supply or his paid
employment) would not constitute a crime against humanity”.
898 - In this regard the Trial Chamber notes that the US Military
Tribunal in the Einsatzgruppen case (NMT Vol IV) stated at p. 49: “Can
it be said that international conventions and the law of nations gave no warning
to these accused that their attacks against ethnic, national, religious, and political
groups infringed the rights of mankind? We do not refer to localised outbursts
of hatred nor petty discriminations which unfortunately occur in the most civilised
of states. When persecutions reach the scale of nationwide campaigns designed
to make life intolerable for, or to exterminate large groups of people, law dare
not remain silent (. . . ) The Control Council simply reasserts existing law when
naming persecutions as an international offence.”
899 - IMT Judgement, p. 302.
900 - Ibid., pp. 302-4. This is also demonstrated in
cases brought before German courts acting under Control Council Law no. 10. The
Oberster Gerichtshof für die Britische Zone in Köln, 9 Nov, 1948, StS 78/48
held that denunciation “is [...] intimately linked to the National Socialists’
regime of violence and arbitrariness because, from the very outset, it clearly
fitted into the organised campaign of persecution against all Jews and everything
Jewish in Germany which all humanity not under the sway of National Socialism
perceived as an assault and, although directed against this one victim only, became
part and parcel of all the mass crimes committed during the persecution of Jews
(translation on file with the ICTY)”. More generally, the Düsseldorf Oberlandesgericht
stated in a Judgement of 20 May 1948 (Criminal Chamber 3/48) that National Socialism
has built up a power mechanism in the party and State which could be set in motion
against anyone from anywhere. Not only the holder of the power himself who used
his own personal position of power against someone weaker can be a perpetrator
of a crime against humanity but also anyone who on his own initiative also participated
in any way or even only encouraged the commission of such acts. (Judgement of
Düsseldorf Regional Appellate Court, 20 May 1948, translation on file with ICTY,
p. 4).
901 - IMT Judgement, p. 282.
902 - Ibid., pp. 305, 328-329.
903 - See evidence of witness Dr. Bringa summarized
above, para. 336.
904 - The RuSHA trial (ibid.) dealt with persecution
of Jewish and Polish people, Greiser was charged with the persecution of
Polish as well as Jewish people, Rauter was charged with persecution of
relatives of members of the Netherlands police forces who refused to carry out
German orders or who had joined the resistance movement.
905 - Prosecutor’s Brief.
906 - Akayesu, Judgement, 2 Sept. 1998, p. 194, para.
468 (emphasis added).
907 - Prosecutor v. Kupreskic et al., Decision on Defence
Challenges to the form of the Indictment, 15 May 1998, at p. 3 (emphasis added).
908 - Prosecutor’s Brief, para. 7.
909 - This conclusion is implicit in para. 40 of
the Prosecutor’s Brief.
910 - Tadic, Decision, 14 Nov. 1995, at p. 6, para.
17.
911 - Prosecutor v. Tadic, (IT-94-1-T), Sentencing
Judgement, Trial Chamber, 14 July 1997 (hereafter Tadic, Sentencing Judgement,
14 July 1997).
912 - Delalic et al., Judgement, 16 Nov. 1998, para.
1286.
913 - Furundzija, Judgement, 10 Dec. 1998, paras. 292-296.
914 - Delalic et al., Decision on motion by the accused
Zejnil Delalic based on defects in the form of the indictment, 4 Oct. 1996, para.
24; Decision on Motion by the Accused Esad Land`o based on defects in the form
of the Indictment, 15 Nov. 1996, para. 7, and Decision on Motion by accused Hazim
Delic based on defects in the form of the Indictment, 15 Nov. 1996, para. 22 (upheld
by a bench of the Appeals Chamber in Decision on Application for Leave to Appeal
by Hazim Delic (Defects in the form of the Indictment), 6 Dec. 1996 paras. 35-36).
915 - Prosecutor’s Brief, paras 13-34.
916 - Tadic, Appeals Chamber Judgement, 15 July 1999,
at para. 305.
917 - Prosecutor’s Brief, para. 15: “The prohibition
of persecution and that of murder as crimes against humanity protect different
societal interests since murder concerns the taking of individual life and although
persecution may also involve the taking of individual life it must be that of
members of a targeted group on the grounds of their political, racial and religious
membership of the group”.
918 - Ibid., para. 4.
919 - Ibid., para. 15.
920 - Ibid., para. 35.
921 - Ibid., para. 38.
922 - Ibid., Conclusion, para. 40.
923 - Ibid., para. 12.
924 - This issue arises for consideration since the
amended indictment in this case cumulatively charges inhumane acts and cruel treatment
in Counts 10 and 11, Counts 14 and 15 and Counts 18 and 19.
925 - Oral Ruling of 15 Oct. 1998.
926 - Brief of Defendants Zoran Kupreskic and Mirjan
Kupreskic on Legal Trial Issues, 19 Nov. 1999.
927 - Kupreskic Brief, para. 74. The Defence cites
Bassiouni as arguing that, since the Tribunal’s Statute does not include a “general
part”, aside from Art. 7 of the Statute, the Tribunal should apply the law of
the former Yugoslavia in order to act in accordance with the principle of legality.
928 - Tadic, Appeals Chamber Decision on Jurisdiction,
2 Oct. 1995, para. 87.
929 - Kupreskic Brief, para. 76.
930 - Tadic, Trial Chamber Judgement, 7 May 1997, para.
702.
931 - Kupreskic Brief, para. 80.
932 - Idem.
933 - Petition of the counsel of the Accused Zoran
and Mirjan Kupreskic, 12 Nov. 1998.
934 - Pre-Defence Brief, 13 Nov. 1998.
935 - Defence’s response on Prosecutor’s brief on
the permissibility of charging criminal violations under the Same Articles of
the Statute based on conduct arising from a single incident, 13 Nov. 1998, para.
26.
936 - Ibid., paras. 11-14.
937 - Ibid., paras. 18-22.
938 - Ibid., para. 26.
939 - None of the Tadic, Prosecutor v. Kambanda, [...]ICTR
97-23-S), Judgement and Sentence, 4 Sept. 1998), Delalic et al. or Furundzija,
final Judgements treated of the issue in depth. The Akayesu Judgement contains
a brief discussion on the subject of “Cumulative Charges” (Judgement, 2 Sept.
1998, paras 461-470); so does the Judgement in Kayishema and Ruzindana,
25 May 1999 at paras. 625-650.
940 - See the Report of the Secretary-General, at para.
34: “... the international tribunal should apply rules of international humanitarian
law which are beyond any doubt part of customary law so that the problem of adherence
of some but not all States to specific conventions does not arise”. See also Decision
on Application for Leave to Appeal by Hazim Delic (Defects in the form of the
Indictment), Delalic et al., 6 Dec. 1996, Bench of the Appeals Chamber:
“the Tribunal’s Statute does not create new offences but rather serves to give
the Tribunal jurisdiction over offences which are already part of customary law”
(para. 26); see also the final Judgement in Delalic et al., Judgement,
16 Nov. 1998: “The Statute does not create substantive law, but provides a forum
and framework for the enforcement of existing international humanitarian law”
(para. 417, and discussion at paras. 414-417).
941 - Art. II paragraph 3 of which provides that:
“Any person found guilty of any of the crimes above mentioned may upon conviction
be punished as shall be determined by the tribunal to be just. Such punishment
may consist of one or more of the following: a) Death. b) Imprisonment for life
or for a term of years, with or without hard labour. c) Fine, and imprisonment
with or without hard labour, in lieu thereof. d) Forfeiture of property. e) Restitution
of property wrongfully acquired. f) Deprivation of some or all civil rights”.
942 - However, two defendants (Streicher and von
Schirach) were only found guilty of crimes against humanity (IMT Judgement, pp.
304, 320), while another two defendants, Raeder and Doenitz, the two highest commanders
of the naval forces, were convicted only of war crimes (IMT Judgement, pp. 317,
315) (Raeder was also convicted of crimes against peace and conspiracy to commit
crimes against peace).
943 - See the Court’s judgement in the Velásquez
Rodrìguez Case (I/A Court H. R., Judgment of July 29 1988, Series C No. 4,
para. 155).
944 - See ibid., paras. 155-157 and 186 et seq., as
well as the Godìnez Cruz Case (I/A Court H. R., Judgment of Jan. 20, 1989,
Series C No. 5, paras. 163-166) and Fairen Garbi and Solis Corrales Case
(I/A Court H. R., Judgment of 15 May, 1989, Series C No. 6, paras. 147-150).
945 - See Caballero Delgado and Santana Case (I/A Court
H. R., Judgment of Dec. 8, 1995, Series C No. 22, para. 72).
946 - See European Commission of Human Rights, Final Decision
of the Commission as to the Admissibility of the Application, 16 July 1970, Denmark,
Norway and Sweden v. Greece (the Greek case), Application No. 4448/70,
annexed to the Report of the Commission (adopted 4 Oct. 1976) in the same case,
at pp. 19-20.
947 - See Eur. Court H.R., case of Erkner and Hofauer,
decision of 23 April 1987, Series A, no. 117, para. 76; Eur. Court H.R., Poiss,
judgement of 23 April 1987, Series A, no. 117, para. 66; Eur. Court H.R, Venditelli
v. Italy, judgement of 18 July 1994, Series A, no. 293-A, para. 34.
948 - Morey v. The Commonwealth, (1871) 108 Mass. 433
and 434. See Prosecutor’s Brief, pp. 23-24.
949 - Blockburger v US (1932) 284 U.S. 299, 304, 52
S.Ct. 180, and see the cases referred to in the Prosecutor’s Brief, pp. 23-24.
950 - “Where an act is punishable under one general
penal provision and a special penal provision applies, only the special penal
provision shall be applicable”.
951 - “When a matter is governed by more than one
penal law or more than one provision of the same penal law, the specific law or
provision of law shall prevail over the general law or provision of law, except
as otherwise prescribed”.
952 - Inter-American Court of Human Rights, Caballero Delgado
and Santana case, Judgment of 8 Dec. 1955, p. 99.
953 - See Archbold, Criminal Pleading, Evidence and Practice
(1997), paras. 4-453 – 4-464 at 4-453): “At common law conviction of a lesser
offence than that charged was permissible provided that the definition of the
greater offence necessarily included the definition of the lesser offence […]”.
954 - See e.g. its application by the Austrian Supreme Court:
Decision of the Oberster Gerichtshof of 3.4.1962, reported in the Evidenzblatt
of the Österreichische Juristenzeitung (“EvBl”) 1962/427, p.
527, Decision of the Oberster Gerichtshof of 7.10.1969, reported in Ev.Bl. 1970/143,
Decision of the Oberster Gerichtshof of 16.2.1977, reported in the Ev.Bl.
1977/165, p. 360 and LSK 1983/162, in EvBl 1984/57, p. 220. See also the
judgement delivered by the German Bundesgerichtshof on (26 June 1957) in Entscheidungen
des Bundesgerichtshofs in Strafsachen, vol. 10, p. 313 ff.
955 - Eur. Court HR, Aksoy v. Turkey judgment of 18
Dec. 1996, Reports of Judgments and Decisions 1996-VI, p. 2279. The Bundesgerichtshof
held in a decision of 30 April 1999 on the appeal of Jorgic, (BGH, Urt.
V. 30 April 1999 – 3 STR 251/98, OCG, Düsseldorf) that the offence of genocide
did not in the first place protect the life and health of the individual, but
the integrity and living conditions of the racial, ethnic, religious or national
group subjected to such attacks (NStZ 1999, p. 396 and 401). Thus the Federal
Court concluded that the offence of genocide may be committed over a longer period
of time and the individual acts of murder etc. occurring therein are not of and
by themselves counts of genocide, but rather of murder, committed in Tateinheit
with genocide (ibid., at p. 397). The Court of First Instance had convicted
Jorgic of 11 counts of genocide. The conviction was therefore modified by the
Federal Court to only one count, but the sentence remained unchanged and the appeal
was finally dismissed (ibid., at p. 399).
956 - This test, advanced by the Prosecution in its Brief,
is one applied in the dissenting judgement of Ritchie, J in the Canadian case
of Kienapple v The Queen [1975] 1 S C R. 729, at 731, in which Kienapple
appealed against his conviction both for rape and for unlawful carnal knowledge
of a female under fourteen years of age. This judgement, contained the following
passage: “The purpose and effect of s.146(1) is in my view to protect female children
under the age of fourteen years from sexual advances leading to intercourse by
male persons over that age ... and I cannot subscribe to a result which relieves
an assailant from the consequences of violating a child on the ground that his
act also constitutes the crime of rape” (ibid., at p. 734). See also the
decision of the French Cour de Cassation of 3 March 1960 in the Goulam and
Ben Haddadi case (Crim., 3 mars 1960, Bull. crim., no. 138): “Attendu
que si la loi punit de la peine de mort la destruction par l’effet d’un explosif
d’un édifice habité ou servant à l’habitation, parce que ce fait met en péril
des vies humaines, ce crime n’en est pas moins essentiellement établi en vue d’assurer
la protection des propriétés”.
957 - See the dissenting judgement of Ritchie, J in the Canadian
case of Kienapple v The Queen (1975( 1 S C R 729 at p. 731. See also the
decision of the French Cour de Cassation of 3 March 1960 in the Goulam and
Ben Haddadi ibid., and the following Austrian Supreme Court cases: LSK 1983/162,
in EvBl 1984/57, p. 221 (different values protected in conjunction with reciprocal
specialty) and Decision of the Oberster Gerichtshof of 3 April 1962, in
EvBl 1962/427, p. 527 (different values protected in conjunction with no
consumption of the lesser offence). The only cases in which a multiple conviction
was entered for a single action by virtue of the “different protected values
test”, although under the speciality test a single conviction would have been
appropriate, the Trial Chamber is aware of, were decided by the Italian Corte
di Cassazione (Decision of 6 Oct. 1964, reported in summary in Giustizia
penale, 1965, II, p. 205 and decision of 21 Jan. 1982, reported in Cassazione
penale, 1983, p. 621). However, as the Corte di Cassazione admitted
in the decision of 21 Jan. 1982, its own jurisprudence on the issue is far from
homogeneous (ibid., p. 623).
958 - This result is borne out by the Appeals Chamber in its
Decision on Jurisdiction: “Article 3 thus confers on the International Tribunal
jurisdiction over [any] serious offence against international humanitarian law
not covered by Article 2, 4 or 5. Article 3 is a fundamental provision laying
down that any “serious violation of international humanitarian law” must be prosecuted
by the International Tribunal. In other words, Art. 3 functions as a residual
clause designed to ensure that no serious violation of international humanitarian
law is taken away from the jurisdiction of the International Tribunal (emphasis
added)”. See Tadic, Appeals Chamber Decision on Jurisdiction, 2 Oct. 1995,
para. 91.
959 - The text of Art. 48 reads as follows: (1) If,
by one or more acts, the perpetrator has committed more than one criminal offence
for which he is being tried simultaneously, the court shall first determine the
sentences for each offence and then impose a single sentence for all the offences.
(2). The single sentence shall be imposed according to the following rules: i)
if the death penalty was determined for one of the concurrent criminal offences,
only that sentence shall be imposed; ii) if a sentence of twenty years imprisonment
was determined for one of the concurrent criminal offences, only that sentence
shall be imposed; iii) if sentences of imprisonment are determined for concurrent
criminal offences, the single sentence shall be greater than each individual sentence
determined, but it shall not be greater than the sum of the sentences determined,
nor shall it be greater than a term of imprisonment of fifteen years; iv) if sentences
of up to three years imprisonment were determined for all concurrent criminal
offences, the single sentence may not exceed eight years of imprisonment.
960 - See Art. 60 of the Croatian Penal Code of 1997.
961 - Art. 81 of the Codice Penale reads: “(1) Anyone
who, by a single act or omission, violates different provisions of law or commits
more than one violation of the same provision of law, shall be punished with the
punishment which would be imposed for the most serious violation, increased up
to no more than three times that sentence. […]
962 - Tadic, Sentencing Judgement, 14 July 1997, at
para. 9.
963 - Art. 52 reads: (1) If the same act violates
several criminal statutes or violates the same statute more than once, only one
punishment may be imposed. (2) If several criminal statutes have been violated,
the punishment shall be determined by the statute which provides the most severe
kind of punishment. It may not be any less severe than the other applicable statutes
permit.
964 - See Trial of the Major War Criminals Before
the International Military Tribunal, 1947, Vol. I, p. 221.
965 - See Furundzija, Judgement, 10 Dec. 1998, paras.
177-178.
966 - See also, in this regard, the Criminal Procedure Code
of the Republic of Zambia of 1 April 1934. Art. 181 of the Zambian Procedural
Code, which deals with lesser included offences, provides as follows: (1) When
a person is charged with an offence consisting of several particulars, a combination
of some only of which constitutes a complete minor offence, and such combination
is proved but the remaining particulars are not proved, he may be convicted of
the minor offence although he was not charged with it; (2) When a person is charged
with an offence and facts are proved which reduce it to a minor offence, he may
be convicted of the minor offence although he was not charged with it. A specific
example of this is contained in Section 186(1) of the Zambian Code, which states
that if a person is charged with rape and the court is of the opinion that he
is not guilty of that offence but that he is guilty of, say, indecent assault,
he may be convicted of that offence even though he was not charged with it. Additionally,
Art. 213(1) provides that “(w(here, at any stage of a trial before the accused
is required to make his defence, it appears to the court that the charge is defective
either in substance or in form, the court may ... make such order for the alteration
of the charge, either by way of amendment of the charge or by the substitution
or addition of a new charge, as the court thinks necessary to meet the circumstances
of the case”. Where an alteration of a charge is made, Art. 213(3) obliges the
court to allow for an adjournment if it is of the opinion that the accused may
have been thereby “misled”. For similar provisions, see also Section 169 of the
Nigerian Criminal Procedure Act 1958 and Section 219 of the Criminal Procedure
Code of 1963, whereby a court can convict an accused for an offence not charged
if the evidence adduced supports a conviction on that charge and Sections 256-269
of the South African Criminal Procedure Act 51 of 1977. In particular, Section
270 of this Act reads as follows: If the evidence on a charge for any offence
not referred to in the preceding sections of this Chapter does not prove the commission
of the offence so charged but proves the commission of an offence which by reason
of the essential elements of that offence is included in the offence so charged,
the accused may be found guilty of the offence so proved. In practice, the effect
of Section 270 is that a court can convict an accused only of lesser included
offences, the essential elements of which must be included in the offence charged.
(See S v. Mbatha 1982 (2) SA 145 (N); S v. Mei 1982 (1) SA 299 (O);
S v. Mavundla 1980 (4) SA 187 (T); and S v. Nkosi 1990 (1) SACR
653 (T)).
967 - R. v. Mandair [1994] 2 WLR 700, (H.L.).
968 - Archbold, Criminal Pleading, Evidence and Practice
(1997), para. 21-12 .
969 - Rule 31(1) of the US Federal Rules of Criminal
Procedure provides: “The defendant may be found guilty of an offense (sic) necessarily
included in the offense charged or of an attempt to commit either the offense
charged or an offense necessarily included therein if the attempt is an offense”.
970 - Schmuck v. United States, 489 U.S. 705 (1989).
971 - Art. 272 of the 1985 SFRY Law on Criminal Procedure,
dealing with pre-trial proceedings, provides that when making a ruling under Art.
269(3) and Arts. 270 and 271, the Chamber is not bound by the legal characterisation
of the offence specified by the Prosecutor in the indictment. Arts. 269(3), 270
and 271 refer, respectively, to a finding that a criminal offence falls instead
within the jurisdiction of another court (Art. 269(3)); a finding that the facts
alleged does not comprise a criminal offence, that circumstances exist to preclude
criminal culpability or that insufficient evidence exists to support the charge
(Art. 270) and special cases, such as private prosecutions (Art. 271). Additionally,
Art. 337(1) of the SFRY law permits a prosecutor to amend the indictment in the
course of a hearing if the evidence presented “indicates that the factual situation
outlined in the indictment has changed”. In such circumstances, the court may
adjourn the main hearing to allow the Defence to prepare (Art. 337(2)). Furthermore,
in issuing its judgment, the court “shall not be bound by the legal characterisation
of the act proposed by the prosecutor” (Art. 346(2)). This, in practice, has been
interpreted to mean that the court may decide that the offence proved is either
a more or a less serious offence than that charged if the factual circumstances
outlined in the indictment so dictate. (See the commentary by Petric (ed.), The
Law on Criminal Procedure as Explained by the Case Law (Belgrade, 1983) at
p. 198, concerning the equivalent and substantively identical provision in the
earlier SFRY Code of 1976). Art. 346(2) of the 1997 Law on Criminal Procedure
of the Republic of Croatia is identical to its counterpart in the SFRY Law on
Criminal Procedure. In addition, and with regard to Croatian pre-trial proceedings,
Arts. 274(3), 275, 276, 277 and 341(1) and (2) of the Croatian Law on Criminal
Procedure mirror Arts. 269(3), 270, 271, 272 and 337(1) and (2) of the SFRY Law
on Criminal Procedure, considered above.
972 - Strafprozessordnung, (StPO).
973 - For a similar provision, see also Art. 262
of the Austrian Code of Criminal Procedure (StPO).
974 - Arts. 653 and 732 Ley de Enjuiciamiento Criminal.
(Hereinafter LECrim).
975 - Ibid., Art. 793.
976 - A similar procedure applies in the recently established
jury trial (tribunal del jurado) under Arts. 29 No. 3, 42 and 48 of the
Ley Orgánica 5/1995, de 22 de mayo, del Tribunal del Jurado. Art. 733 LECrim
empowers the court in extraordinary circumstances to give the parties a warning
that the charges may qualify for different legal classification and to ask them
to present their views on the matter. However, this is a rather exceptional procedure
given the adversarial nature of the Spanish trial. It would appear, though, that
under constitutional law the court is always required to give a warning under
Art. 733 LECrim before sentencing the accused on a more serious charge
if the Prosecution does not address the issue, or risk having its verdict quashed
on appeal in terms of Art. 851 No. 4 LECrim
977 - This follows from a comparison of Art. 742 LECrim,
which applies to ordinary and jury trials, and Art. 794 No. 3 LECrim, which
deals with the expedited procedure (procedimiento abreviado) applicable
to certain classes of relatively minor offences. In these kinds of proceedings
the court may not find the defendant guilty of any offence other than the one
charged if the new offence protects a different interest or the verdict would
lead to a substantial change in the acts tried (mutación sustancial del hecho
enjuiciado). Art. 742 LECrim does not contain that restriction.
978 - According to the French Court of Cassation “il appartient
aux juridictions correctionnelles de modifier la qualification des faits et de
substituer une qualification nouvelle à celle sous laquelle ils leur étaient déférés”,
on condition, however, that facts are not changed (the new characterisation is
admissible “à la condition qu’il ne soit rien changé ni ajouté aux faits de la
prévention et que ceux-ci restent tels qu’ils ont été retenus dans l’acte de saisine”.)
(See Cass. Crim., 22 April 1986, in Bulletin Criminel, no. 136; see also
Cass. Crim., 21 June 1989, in Bulletin Criminel, no. 267).
979 - See Court of Cassation, Section I, 8 July 1985, Sconocchia
case, in Giustizia penale, 1986, pp. 562-564; Court of Cassation, Section
VI, 16 April 1991, Parente case, in Giurisprudenza italiana,1992,
II, p.297.
980 - See e.g Permanent Court of International Justice,
Lotus case, Judgement No. 9, 7 Sept. 1927, Series A no. 10, p. 31; Brazilian
Loans case, 12 July 1929, Series A, no. 14, p. 124; Military and Paramilitary
Activities in and against Nicaragua, 27 June 1986, ICJ Reports 1986, pp. 24-25,
para. 29. See also European Court of Human Rights, Neumeister case, 27
June 1968, Recueil, Series A, no. 8, para. 16; Handyside case, 7 Dec. 1976,
Series A no. 24, para 41; Inter-American Court of Human Rights, Velasquez Rodriguez
case, 29 July 1988, Series C, No. 4, p. 151, para. 163. It would seem that the
best definition of the principle is that given by the ICJ. in Fisheries
(Jurisdiction): “The Court [...], as an international judicial organ, is deemed
to take judicial notice of international law and is therefore required [...] to
consider on its own initiative all rules of international law which may be relevant
to the settlement of the dispute. It being the duty of the Court itself to ascertain
and apply the relevant law in the given circumstances of the case, the burden
of establishing or proving rules of international law cannot be imposed upon any
of the parties, for the law lies within the judicial knowledge of the Court”.
(ICJ Reports 1974, p. 181, para. 18).
981 - Tadic, Appeal Chamber Judgement, 15 July 1999
at para. 227-228.
982 - Closing Argument of the Counsel of the Accused
Zoran Kupreskic, filed on 5 Nov. 1999.
983 - Defence’s Closing Brief, filed on 5 Nov. 1999.
984 - Idem.
985 - The Defence Final Trial Brief for the Accused
Vladimir Šantic, filed on 5 Nov. 1999, p 65.
986 - Closing Argument of the Counsel of the Accused
Drago Josipovic, filed on 5 Nov. 1999, p 60.
987 - The Defence Closing Brief for the Accused Vlatko
Kupreskic, filed on 5 Nov. 1999.
988 - In the case of Zoran Kupreskic, it was submitted
that no arguments in mitigation need be made since the innocence of the accused
is presumed: T. 12763.
989 - In particular, Art. 41(1) of the SFRY Criminal
Code provides: “The court shall weigh the punishment to be imposed on the perpetrator
of a criminal offence within the legal limits of the punishment for that offence,
bearing in mind the purpose of punishment and taking into consideration all the
circumstances which influence the severity of the punishment (mitigating and aggravating
circumstances), and in particular: the degree of criminal responsibility; motives
for the commission of the offence; the severity of threat or injury to the protected
value; circumstances of the commission of the offence; the perpetrator's previous
conduct; the perpetrator's personal circumstances and his behaviour subsequent
to the commission of the offence; as well as other circumstances relating to the
perpetrator”.
990 - Official Gazette of the FRY, no. 37 of 16 July 1993,
p. 817, Delalic et al., Judgement, 16 Nov. 1998, para. 1193; Tadic,
Sentencing Judgement, 14 July 1997, para. 7.
991 - Delalic et al., Judgement, 16 Nov. 1998, para.
1206.
992 - Art. 48 of the SFRY Criminal Code provides:
(1) If, by one or more acts, the perpetrator has committed more than one criminal
offence for which he is being tried simultaneously, the court shall first determine
the sentences for each offence and then impose a single sentence for all the offences.
(2). The single sentence shall be imposed according to the following rules: i)
if the death penalty was determined for one of the concurrent criminal offences,
only that sentence shall be imposed; ii) if a sentence of twenty years imprisonment
was determined for one of the concurrent criminal offences, only that sentence
shall be imposed; iii) if sentences of imprisonment are determined for concurrent
criminal offences, the single sentence shall be greater than each individual sentence
determined, but it shall not be greater than the sum of the sentences determined,
nor shall it be greater than a term of imprisonment of fifteen years; iv) if sentences
of up to three years imprisonment were determined for all concurrent criminal
offences, the single sentence may not exceed eight years of imprisonment.
993 - Tadic, Sentencing Judgement, 14 July 1997, para.
8.
994 - Idem.
995 - Delalic et al., Judgement, 16 Nov. 1998, para.
1231.
996 - Ibid., at para. 1234; Furundzija, Judgement,
10 Dec. 1998, para. 288.
997 - Delalic et al., Judgement, 16 Nov. 1998, para.
1286; Tadic, Sentencing Judgement, 14 July 1997, para. 75; Prosecutor
v. Tadic, (IT-94-1-Tbis-R117), Sentencing Judgement, Trial Chamber, 11 Nov.
1999, (hereafter Tadic, Sentencing Judgement II, 11 Nov. 1999), p. 17;
Furundzija, Judgement, 10 Dec. 1998, paras. 292-296 and p. 112 (Disposition).