194. The five paragraphs of the Indictment which exclusively concern events in Omarska prison camp begin with paragraph 6. It reads as follows:

During the period between 1 June and 31 July 1992, a group of Serbs, including Dusko TADIC, severely beat numerous prisoners, including Emir KARABASIC, Jasmin HRNIC, Enver ALIC, Fikret HARAMBASIC and Emir BEGANOVIC, in the large garage building or hangar of Omarska camp. The group forced two other prisoners, "G" and "H", to commit oral sexual acts on HARAMBASIC and forced "G" to sexually mutilate him. KARABASIC, HRNIC, ALIC, and HARAMBASIC died as a result of the assaults.

It is then alleged that by his participation in these acts the accused committed offences charged in seven counts.

195. Counts 5, 6 and 7 charge the accused by reason of his participation in the acts alleged in paragraph 6, with, respectively, a grave breach of the Geneva Conventions recognized by Article 2(a) (wilful killing) and Article 7, paragraph 1, of the Statute; with a violation of the laws or customs of war recognized by Article 3 and Article 7, paragraph 1, of the Statute and Article 3(1)(a) (murder) of the Geneva Conventions; and with a crime against humanity recognized by Article 5(a) (murder) and Article 7, paragraph 1, of the Statute. These three counts are thus concerned with the alleged deaths of Fikret Harambasic, Emir Karabasic, Jasmin Hrnic and Enver Alic which it is said resulted from the assaults upon them described in paragraph 6.

196. Counts 8 and 9 charge the accused by reason of his participation in the acts alleged with grave breaches of the Geneva Conventions recognized by Articles 2(b) (torture or inhuman treatment) and 2(c) (wilfully causing great suffering or serious injury to body and health) and Article 7, paragraph 1, of the Statute. Count 10 then charges the accused with a violation of the laws or customs of war recognized by Article 3 and Article 7, paragraph 1, of the Statute and Article 3(1)(a) (cruel treatment) of the Geneva Conventions. Count 11 charges the accused with a crime against humanity recognized by Article 5(i) (inhumane acts) and Article 7, paragraph 1, of the Statute.

197. There is a considerable body of evidence regarding these events from witnesses who were prisoners in the hangar building at the time, including one known as Witness H, who was forced to take an active part in the attack on the victim Fikret Harambasic. The Prosecution stated that it was unable to secure the presence of another former prisoner, known as G, to give evidence, he being the other forced participant in that attack.

198. From that body of evidence before the Trial Chamber it can be concluded that beatings of the five named prisoners and of Senad Muslimovic did take place in the hangar, that G and Witness H were compelled to and did take part in the sexual assault on Fikret Harambasic as alleged and that G was compelled sexually to mutilate him by biting off one of his testicles. It can also be concluded from the evidence of Armin Kenjar, who wrote the date of the occurrence on the wall of his room, that all these events occurred on 18 June 1992. These eight victims were all Muslims. A photograph of the hangar (Prosecution Exhibit 267) and of the inscription on the wall (Prosecution Exhibit 259) are attached to the Opinion and Judgment in Annex F.

199. The evidence falls into four distinct groups.

200. Chronologically, the first concerns the severe beating of Emir Beganovic, who was himself a witness. After the Serb assumption of power in Prijedor he had been arrested and taken to the Omarska prison camp where, after some 10 days outdoors on the pista and two days in the white house, he was placed in a room in the hangar. Apart from what he describes as routine beatings and maltreatment, he was three times beaten individually. The third of these occasions is that referred to in paragraph 6 of the Indictment. Emir Beganovic was called out from an upstairs room in the hangar, made to go onto the hangar floor, being beaten as he went, and there for up to half an hour was kicked and beaten by a group of soldiers armed with metal rods and metal cables. Then he was suspended upside down from an overhead gantry for some minutes until his feet slid free and he fell to the floor; he was then beaten again and told to return to his room, where he fainted. As a result of this and his earlier beatings Emir Beganovic suffered head fractures, a wasted hand which he cannot use, an injured spine and damage to one leg and to his kidneys.

201. The second body of evidence is that of Senad Muslimovic concerning the beatings which he received. He had already been much beaten and on the same day as these other incidents he was called out of his room in the hangar, beaten as he went down the stairs to the hangar floor and met by a group who beat him severely, tied him to a large tyre bigger than himself and there beat and kicked him into unconsciousness. When he regained consciousness he was on his knees and a man was holding a knife to his throat and threatening to cut it but was told to "leave him for the end". That man then made to cut off his ear but instead stabbed him twice in his shoulder. He was then beaten again into unconsciousness and when he came to found himself hanging upside down suspended from the hangar roof, in which position he was again beaten and kicked until he fainted. When he came to again he was lying on the floor, was beaten again, fainted yet again, came to once more and this time found himself lying in an inspection pit let into the hangar floor. He was taken out of the pit and allowed to return to his room in the hangar. He had suffered knife wounds to his right shoulder, knife cuts along his arms and feet, bruising, head pains and a broken jaw.

202. The third body of evidence relates to the attack on Emir Karabasic, Jasmin Hrnic and Enver Alic. These prisoners were called out by name from their rooms in the hangar building, Emir Karabasic first. Emir Karabasic came onto the hangar floor already covered in bruises from an earlier beating. Jasmin Hrnic was called out next and came out onto the hangar floor; he too had been badly beaten. He was followed by Enver Alic who, having already been much beaten, only responded to the call when his father, Mehmed Alic, a fellow prisoner, being forced to look for him, brought him out.

203. Many former prisoners gave evidence of these three men being called out and of sounds of beating and of cries of pain afterwards coming from the open area of the hangar. Emir Karabasic was seen there by Mehmed Alic, who testified that he saw him sitting bleeding on a table having been slashed with knives and having water poured over him. A little later Witness H saw the body of Emir Karabasic lying on the hangar floor.

204. Jasmin Hrnic was seen by witnesses being struck as he entered the hangar floor. Later the prisoner Senad Muslimovic, who had been beaten, had fainted and had then recovered consciousness, saw a fellow prisoner whom his attacker addressed as "Jasko", Jasmin Hrnic's nickname, being slashed with a knife and having black liquid poured over him. Another witness, Halid Mujkanovic, saw Jasmin Hrnic being beaten with an iron bar and falling to the floor. Both Emir Karabasic and Jasmin Hrnic were also seen being beaten on the hangar floor by the witness Armin Mujcic.

205. There was no eyewitness to the mistreatment of Enver Alic but Witness H, when selected at random, together with G, and ordered onto the hangar floor, after seeing the body of Emir Karabasic, saw the bodies of Jasmin Hrnic and Enver Alic lying on the concrete floor beside a long inspection pit with oil and water in it let into the floor. He was ordered by a man in uniform to pick up Enver Alic's body but Enver Alic, who proved to be still alive, resisted. Then the man put his foot on Jasmin Hrnic's neck, turned Jasmin Hrnic's head to and fro and ordered G and Witness H to take a foot each and pull the inert body of Jasmin Hrnic about the hangar floor. This they were made to repeat a number of times, being made to do press-ups in between. That concludes the evidence relating to Emir Karabasic, Jasmin Hrnic and Enver Alic, none of whom has been seen or heard of since.

206. The fourth and last body of evidence relating to this paragraph of the Indictment concerns Fikret Harambasic and chronologically follows immediately after the attacks on the above three victims. After G and Witness H had been forced to pull Jasmin Hrnic's body about the hangar floor they were ordered to jump down into the inspection pit, then Fikret Harambasic, who was naked and bloody from beating, was made to jump into the pit with them and Witness H was ordered to lick his naked bottom and G to suck his penis and then to bite his testicles. Meanwhile a group of men in uniform stood around the inspection pit watching and shouting to bite harder. All three were then made to get out of the pit onto the hangar floor and Witness H was threatened with a knife that both his eyes would be cut out if he did not hold Fikret Harambasic's mouth closed to prevent him from screaming; G was then made to lie between the naked Fikret Harambasic's legs and, while the latter struggled, hit and bite his genitals. G then bit off one of Fikret Harambasic's testicles and spat it out and was told he was free to leave. Witness H was ordered to drag Fikret Harambasic to a nearby table, where he then stood beside him and was then ordered to return to his room, which he did. Fikret Harambasic has not been seen or heard of since.

207. As to the first of these four incidents, the attack upon Emir Beganovic, it has already been sufficiently described. Knowledge of the role of the accused comes from the evidence of Emir Beganovic himself. He says that he was called out by a man known to him as Dragan, who had previously beaten him and who began to beat him again, taking him onto the hangar floor where a group of men in a variety of military uniforms were waiting. They began to beat and kick him and he recognized the accused as one of that group who took an active part in hitting him. He was positive in his recognition of the accused whom he had known in the past, although he was no friend of his. The witness was already severely injured when he was called out, suffering, amongst other injuries, from wounds to his head which were roughly bandaged but he insists that he was quite capable of clear recognition of the accused.

208. The second of these incidents concerns Senad Muslimovic. The attacks on him have already been described. He describes in his evidence the role of the accused whom he had not met previously but whom other prisoners in Omarska had pointed out to him as being Dule Tadic. As mentioned in detail later in this Opinion and Judgment, Senad Muslimovic had, before giving his evidence, identified the accused in a photospread procedure and that identification has been accepted as reliable by the Trial Chamber. Senad Muslimovic said in his evidence that during much of the attack on him he could not identify his attackers but was able to identify the accused as kicking him very severely when tied to the large tyre and as being the person who menaced him with a knife, threatened to cut his throat and to cut off his ear and who in fact did stab him twice in the shoulder.

209. Concerning the third of these incidents, in which Emir Karabasic, Jasmin Hrnic and Enver Alic were the victims, the Prosecution tendered a large number of witnesses, Muslim prisoners in Omarska, most of whom knew the accused well from long prior acquaintance with him, sometimes from childhood, in the town of Kozarac.

210. Nine witnesses including Senad Muslimovic, in addition to Emir Beganovic, the subject of the first incident, speak of seeing the accused at the Omarska camp on the day of the calling-out and beating of the three prisoners, Emir Karabasic, Jasmin Hrnic and Enver Alic, an event which, as already mentioned, evidence places as taking place on 18 June 1992.

211. If the evidence of these nine witnesses is treated chronologically it involves the accused as being seen in the Omarska camp on that day by the following witnesses: by Mehmed Alic on his way to and from lunch, the accused being outside the hangar on one side of the pista and wearing a camouflage uniform and then, later on the same day, when he had been ordered from his room in the hangar to go and find his son Enver Alic, he again saw the accused, one of a group of three attacking Emir Karabasic on the hangar floor; by Armin Mujcic, as the accused entered the hangar with a group wearing camouflage uniforms and who were not camp guards but came from outside the camp; by Armin Kenjar, the accused being on the floor of the hangar, wearing a camouflage uniform, some time before the calling-out of the victims; by Muharem Besic, the accused being actually engaged in calling out Jasmin Hrnic, telling him to come out or others in the room would be killed; by Ferid Mujcic, who saw the accused in camouflage uniform standing behind a guard who had opened the door of his room in the hangar and was calling out Emir Karabasic; by Emsud Velic, who also saw the accused momentarily in the doorway of his room when Jasmin Hrnic was called out, the accused wearing a camouflage uniform; by Halid Mujkanovic at the time of the beating of the three, the accused standing on the floor of the hangar but not being involved in the beating; by Elvir Grozdanic who, having seen the accused in the morning when he was accosted and briefly questioned by the accused on the floor of the hangar, the accused wearing camouflage uniform, saw the accused again, some time later and at a distance, while the accused was beating unidentified prisoners on the hangar floor; and by Senad Muslimovic, when the accused together with others repeatedly assaulted him on the hangar floor and the accused threatened him with a knife and stabbed him.

212. It is necessary to examine more closely the evidence of these nine witnesses, taking each in turn in chronological order of sighting of the accused.

213. Mehmed Alic, the father of the victim Enver Alic, says that on the day of the calling-out and beating of the three he saw the accused some distance away across the pista sitting on a chair with guards around him while he, Mehmed Alic, was running from the hangar to where the prisoners were fed. He was being made to hurry with his head bowed while guards watched and he was frightened that if he moved his head he would be beaten but he gave a glance "very quickly" and says that he recognized the accused, whom he already knew by sight. Later that day, when going to collect his son, he saw Emir Karabasic sitting on a table "his feet dangling and I saw he was bloody . . . I saw him being cut all over with a knife and there were three soldiers to the right of him". When asked if he made an effort to see who those soldiers were, he said that he could not see: "But I do know that Dule Tadic was there and who else I do not know."

214. Armin Mujcic placed the accused as being in the hangar when the three were called out and beaten. He knew the accused well. Suffering from dysentery, he was allowed to sit on a box on the hangar floor near the lavatory. When the guards warned him that "the coloured ones are coming", meaning the greatly feared visitors from outside wearing camouflage uniforms, he began to run in fear towards the door leading to the stairs and to his upstairs room. He glanced back to see if he was being overtaken by those arriving and saw, and in a brief glance recognized, the accused as one of a group in camouflage uniform, the accused wearing sunglasses and a cap with a white eagle, a Serbian emblem; he alone describes the accused in this way. He was not able, due to the crowd of prisoners, to make his way upstairs but watched part of what happened on the hangar floor from inside a glass door at the foot of the stairs. Soon afterwards Emir Karabasic and Jasmin Hrnic were called out and began to be beaten by the group that had arrived and later Enver Alic was brought out. The witness was still there downstairs when G and Witness H, who were near him, were ordered out to deal with their bodies.

215. Muharem Besic also knew the accused well. The victim Jasmin Hrnic was with him in the same room and when he did not respond to the calls for him the accused, whose voice he recognized, called through the closed door of the room for Jasmin Hrnic to come out, threatening to kill all in the room. At that Jasmin Hrnic stood up, opened the door for the first time and went out, whereupon the accused cursed and struck him. It was when Jasmin Hrnic opened the door that the witness saw the accused standing outside. He did not see any guard with him.

216. This evidence conflicts with the account of other witnesses; thus Armin Kenjar, who was in the same room, and who says that he had seen the accused earlier walking on the hangar floor, says that after Jasmin Hrnic was called for, initially and mistakenly as Asko Hrnic, the door was opened by an unidentified individual, not being the accused, to whom Hrnic said: "This is Jasmin Hrnic here, there is no Asko Hrnic", to which the man who opened the door said: "It is you we need". It also conflicts with that of Elvir Grozdanic who knew the accused well, had been outside on the hangar floor and was returning to his room when Jasmin Hrnic was called out through the open door of that room by a military policeman, not the accused. He saw Jasmin Hrnic come out and be asked by that military policeman: "Why didn't you respond right away?" to which Jasmin Hrnic replied: "I did not know that you were calling me out", whereupon the policeman slapped him. Elvir Grozdanic was obliged to walk past the two of them in order to get into the room; he does not remember any third person being present at the time.

217. The witness Halid Mujkanovic saw Jasmin Hrnic pass on the outside of the glass door beside which he was sitting when Jasmin Hrnic finally responded to the call for him and described him as being escorted only by a guard, who hit Jasmin Hrnic as they passed the door. His evidence is to this extent therefore consistent with the account of Jasmin Hrnic's calling-out as given by Armin Kenjar and Elvir Grozdanic, rather than with Muharem Besic's version.

218. Only the evidence of Emsud Velic about the calling-out of Jasmin Hrnic is at all in accord with that of Muharem Besic since he describes the accused at the door of Jasmin Hrnic's room. However, unlike Muharem Besic, he speaks of the accused, after a guard had opened the door, as standing in the open doorway for some time looking over the prisoners, of Jasmin Hrnic's name then being called, to which Jasmin Hrnic did not respond, of the door then being partly closed and some short time later of Jasmin Hrnic being called again and this time making his way to the door which was then fully opened and through which the witness, while not sure, believes that he glimpsed the accused.

219. Armin Kenjar's sighting of the accused has already been mentioned; the accused was alone, was wearing a camouflage uniform and was walking from a door of the hangar towards him. As soon as the witness, who had been going towards the lavatory, saw him he turned and ran back to his room. As mentioned above, Armin Kenjar does not attribute the calling-out of Jasmin Hrnic to the accused.

220. Ferid Mujcic was at the time housed in a room downstairs in the hangar building and describes how Emir Karabasic was taken out of that room by a guard, with the accused standing behind him. He gives a detailed account of what had been Emir Karabasic's position in the room, sitting on a metal table to the left from the door next to the wall, and closer to the corner in the back of the room. He also describes Jasmin Hrnic's position in that same room, sitting with Emir Karabasic, and how Jasmin Hrnic was subsequently called out. However, other witnesses describe the calling-out of Emir Karabasic quite differently. Hussein Hodzic, a Prosecution witness but not one of these nine witnesses, describes Emir Karabasic, when he was called out, as being close to him in a room upstairs, not downstairs, which they shared, Emir Karabasic being "to the left, the third person from me" in that room whereas Jasmin Hrnic was in a room downstairs. The calling-out of Emir Karabasic was by someone shouting his name from downstairs, whereupon Emir Karabasic, according to this witness, crossed to a window that looked down onto the hangar floor, turned back with an expression of fear on his face and said: "Dule has arrived, I am finished", and then went downstairs in answer to the call for him. Other witnesses, Halid Mujkanovic and Armin Kenjar, also speak of Emir Karabasic as housed upstairs and as being called out from there, wholly inconsistent with the evidence of Ferid Mujcic.

221. Emsud Velic's evidence and its only partial agreement with that of Muharem Besic and its conflict with that of Armin Kenjar, Elvir Grozdanic and Halid Mujkanovic has already been discussed.

222. Halid Mujkanovic, after describing the calling-out of the three victims and of G and Witness H, speaks of seeing the accused, whom he knew well, on the floor of the hangar while prisoners were being beaten, first sitting on a tyre and later near one of the inspection pits with other soldiers, a group of some seven to ten soldiers. He himself was crouching beside a glass door at the foot of the stairs leading into the hangar floor with his hands over his face so that the guards would not think that he was watching what was happening. He nevertheless did see the beating of Jasmin Hrnic with an iron bar, already referred to, G emerging from the inspection pit covered in oil and a man being held down by the hands while G was ordered to bite the man's genitals, later he saw G with his mouth full and "all bloody with oil" and someone being made to eat a live pigeon. He also saw Jasmin Hrnic being beaten and falling, "as he fell he was showing no signs of life", and soldiers on the hangar floor were behaving as if they were supporting a team at a football match. He did not see the accused taking any active part in what happened on the hangar floor. However, one of the two occasions on which, while crouching beside the glass door, he saw the accused on the hangar floor was at the time of the incident involving G emerging from the inspection pit and having sexually to assault a man. Halid Mujkanovic did not associate that assault with Fikret Harambasic but rather with one or other of the three earlier victims. However, it is clear that it was with Fikret Harambasic and he alone that G was concerned at the time of the inspection pit incident. Accordingly, this witness's sighting of the accused on the hangar floor on this occasion is evidence that the accused was there when Fikret Harambasic was attacked and sexually assaulted. In this witness's evidence there is some confusion as to the sequence of events. The pigeon episode, which he seems to place after G and Witness H had been on the hangar floor and in the inspection pit, appears in fact, according to Witness H's evidence, to have occurred before G and Witness H were called onto the floor; similarly, his account seems to place too late in sequence the beating of Jasmin Hrnic and his falling to the hangar floor.

223. Elvir Grozdanic's evidence has already been discussed in part. He describes encountering the accused, whom he knew and with whom he had had an argument in Kozarac before the war, on the floor of the hangar on the morning of the attack on the three victims, when the accused questioned him and he successfully denied that he was Elvir Grozdanic from Kozarac. Then later that day he was with a guard, who was a close friend of his, on the hangar floor and as he walked from there to the lavatories he says that he saw the accused some 20 or 30 metres away beating a prisoner. He hid in a cubicle of the lavatories for some time while hearing blows and screams and when his friend came and told him it was safe to leave he walked past two apparently dead bodies lying in the washroom which he could not identify. As he walked onto the hangar floor he recognized the accused, whose back was turned to him, some 20 metres away walking away from him out of the hangar with a bloody iron stick in his hand. It was then, as he walked towards his room along the hangar floor, that he saw Jasmin Hrnic being called out and passed him to enter the room from which Jasmin Hrnic had been called.

224. It seems clear that Jasmin Hrnic was called out after Emir Karabasic and before Enver Alic and that the incident involving Fikret Harambasic and G and Witness H occurred later; also that, as mentioned below, Witness H saw the body of Emir Karabasic lying on the hangar floor. The chronology accordingly suggests that the two bodies which Elvir Grozdanic says he saw could not have been those of any of the three victims or of the victim Fikret Harambasic. This witness was cross-examined about a prior statement he had made to police in which he had named the accused but had not mentioned him as being seen beating anyone and in which he said that he thought the two bodies he saw in the washroom were those of Emir Karabasic and of Fikret Harambasic. In that statement he also spoke of recognising G in a television film and of being told by G of G's part in the attack upon the victim Fikret Harambasic and in it he gave a somewhat different description of his earlier encounter that morning with the accused to that which he gave in his evidence. The witness denied seeing such a film or speaking to G and attributed all errors and omissions in that prior statement to poor interpretation of his interview with police.

225. Senad Muslimovic is a witness who, as already described, was much beaten during his time in Omarska. He saw the accused for the first time when, in the Omarska camp, other prisoners had pointed out to him a man whom they said was Dule Tadic. Later, in the course of the violent attack on him described earlier and which occurred on the same afternoon as the other attacks dealt with in this paragraph of the Indictment, the witness, while on the hangar floor, heard another prisoner being addressed by an unseen questioner as Jasko and being asked what he had been doing at Benkovac. To that the prisoner replied: "I do not know, I have done nothing, Dule, cross my heart, I know nothing." The witness then saw that same prisoner being cut by the accused with a knife, "sliced as if once one slices chops", and having black liquid, probably oil, poured over him. At that point this witness then lost consciousness. Not only was "Jasko" the prisoner Jasmin Hrnic's nickname, but after the attack on Kozarac Jasmin Hrnic had been apprehended in the mountains at Benkovac. As previously mentioned, Senad Muslimovic had identified the accused in a photospread procedure; also it had been with a knife that the accused had threatened Senad Muslimovic and ultimately stabbed him in the shoulder.

226. This concludes the evidence of the nine witnesses who spoke of the accused being involved in the third incident, being the attacks upon Emir Karabasic, Jasmin Hrnic and Enver Alic.

227. Witness H says that he did not see the accused, whom he knew well, in the Omarska camp either on the day of the attack or at all. He gave a comprehensive account of the calling-out of Emir Karabasic, Jasmin Hrnic and Enver Alic, of Jasmin Hrnic's delay in responding to the call for him and of Enver Alic's father, Mehmed, being made to search for and bring out Enver Alic. Witness H was sitting on the floor in the same room as Halid Mujkanovic at the foot of the stairs leading from the upper storey of the hangar and close to the glass door leading onto the hangar floor. From this position he heard at close quarters the sound of the beatings and the cries of victims, his proximity to the glass door leading to the hangar floor being the reason why he and G were later called out, as the nearest available prisoners, to deal with the bodies of the three. He saw and described various men involved in the entire incident and gave a clear account, earlier described, of all that he was made to do on the hangar floor. However, he kept his gaze "mostly downwards" because of fear. On his return to his room after the incident with Fikret Harambasic he was asked by other prisoners whether the accused was involved in what had happened: "They asked me if it was Dule." He did not know why they should ask him specifically about the accused. This witness's evidence, although the only witness actively involved in the attack on the three victims and on Fikret Harambasic, cannot be treated as conclusive of the accused's absence from the events on the hangar floor since the witness, for good reasons of personal safety, did not take the opportunity to look around him when on the hangar floor and identify in detail those he could recognize.

228. The fourth incident concerns the attack upon Fikret Harambasic which has already been described in sufficient detail in referring to the evidence of Witness H. Except to the extent that witnesses speak of the accused being present on the hangar floor in the afternoon of 18 June 1992, there is no evidence to connect the accused with this incident, of which Witness H is the only witness and who describes it in detail but whose evidence does not involve the accused in it.

229. On the part of the accused his defence to the counts in paragraph 6 of the Indictment is exclusively by way of alibi. He says that he never visited the Omarska camp and that on 18 June 1992, when the three incidents occurred, he was living in Prijedor and working as a traffic policeman. However, as will be discussed in detail in the examination of the accused's alibi evidence, even for the period of the accused's employment as a traffic policeman at the Orlovci checkpoint it provides no conclusive alibi. Thus the Trial Chamber does not accept the accused's account of his whereabouts from 15 June to 17 June 1992. In any event on 18 June 1992 the accused's shift at the checkpoint did not begin until 9 p.m. and the evidence regarding the incidents referred to in this paragraph of the Indictment place them as occurring on the afternoon of 18 June; thus Senad Muslimovic described the attack on him as occurring late in the afternoon, as did Emir Beganovic who said that he was called out around 6 p.m. and that his beating lasted for between twenty minutes and half an hour. Armin Kenjar in his testimony placed the attack on Jasmin Hrnic and Emir Karabasic as having ended around 6 p.m. and Muharem Besic describes the arrival of the accused in the hangar as being between 4 p.m. and 5 p.m. Other witnesses simply describe the calling-out of the three victims as happening in the afternoon. Accordingly, for the incidents alleged in paragraph 6, the accused's checkpoint duty affords no alibi.

230. Not only does the accused's checkpoint duty provide no alibi for the afternoon of 18 June 1992 but his wife had left him to return by train to Banja Luka "sometime during the day" of 18 June and no other Defence witness could assign 18 June as a date when the accused was in his or her company. Accordingly, there remains only the accused's denial of ever having visited the Omarska camp, let alone having participated in the acts alleged against him.

231. The Defence has, in argument, submitted the Prosecution evidence under paragraph 6 to substantial criticism. It asserts that the evidence of Prosecution witnesses can be seen to be unreliable in their identification of the accused as being at all involved in those incidents and that his purported involvement is due both to their acceptance of a rumour that the accused was present in the camp on that day and to their subsequent reconstruction of events to fit that rumour. In particular it is said that the accused has been introduced into the evidence of these witnesses as a result of the incident of sexual assault upon Fikret Harambasic having achieved great notoriety. In consequence it came to be much talked about and, consciously or unconsciously, the truth has been distorted. This process of distortion may, it is said, have begun when G returned to his room from the hangar floor in a highly emotional state. By the time Witness H returned, there were those who already asked him whether the accused, naming him, was involved in the sexual mutilation, his denial of having seen the accused not being enough to stop a rumour that the accused had been involved; this, it is said, has tainted the witnesses' evidence.

232. Two specific points are made in support of this submission of general unreliability of the evidence, in addition to reliance on the several inconsistencies occurring in the various accounts given by the witnesses. The first of these points is the fact that it would seem, from several accounts of the calling-out from his room of Jasmin Hrnic, that he was called for as "Asko Hrnic". It is said that this clearly disassociates the accused, who knew Jasmin Hrnic well, from the calling-out since he would not conceivably have made such a mistake himself and would have promptly corrected it if he were present and it had been made by another. However, the evidence is that the nickname of Jasmin Hrnic was Jasko. The second point is the way in which a number of witnesses in their evidence assumed that the victims of the sexual attack were Emir Karabasic, Jasmin Hrnic and Enver Alic whereas in fact the evidence of Witness H makes it plain that it was only Fikret Harambasic who was thus attacked, Witness H and G being made the unwilling agents of that attack.

233. Apart from these two general points, the accounts of events by some Prosecution witnesses contain notable inconsistencies. Some of them have already been noted: the differing accounts of the calling-out of Jasmin Hrnic and whether the accused played any part in that episode; where Emir Karabasic was housed in the hangar building before being called out; inconsistency between the prior statements of some witnesses and their evidence as given before this Trial Chamber; perhaps most significant, and not strictly any inconsistency, is the failure of Witness H to see the accused at all during his direct involvement with the three victims and with Fikret Harambasic, a matter on which, however, a brief comment has already been made. Some of these necessarily cast some doubt upon the accuracy of recollection of certain of the Prosecution witnesses, particularly regarding the precise sequence of events. This is, perhaps, not surprising having regard to the conditions to which prisoners were subjected in the Omarska camp: the fear in which prisoners constantly lived, the especially terrifying conditions existing on 18 June 1992 in the hangar building, the physical mistreatment and near-starvation to which they were subject and the lapse of time, involving gross disruption of their lives, since the events of which they speak.

234. Giving full weight to these Defence submissions there is nevertheless, opposed to the accused's denial of any part in these three incidents the subject of paragraph 6, much evidence from many witnesses of the accused having been seen by them in the Omarska camp on 18 June 1992 and on other occasions, evidence which the Trial Chamber accepts as truthful. Once it is accepted that the accused is untruthful in his denial of ever having visited Omarska, the Defence case is placed in jeopardy. However, it remains, as ever, for this Trial Chamber to determine whether, notwithstanding the criticism of the Prosecution evidence made by the Defence, it is satisfied beyond reasonable doubt of the guilt of the accused of each of the detailed acts alleged in paragraph 6.

235. This Trial Chamber is satisfied beyond reasonable doubt that the accused was one of a group of men who severely beat Emir Beganovic and also Senad Muslimovic. It accepts their evidence of having been brutally beaten and kicked on the hangar floor by that group and of their identification of the accused as taking an active part in that kicking and beating and, in the case of Senad Muslimovic, of the accused threatening him with a knife and then stabbing him.

236. This Trial Chamber is further so satisfied from the evidence of Mehmed Alic, Armin Mujcic, Armin Kenjar, Halid Mujkanovic and Senad Muslimovic that the accused was present on the hangar floor when the three victims, Emir Karabasic, Jasmin Hrnic and Enver Alic, were called out and attacked. It is further so satisfied from the evidence of Senad Muslimovic that the accused attacked Jasmin Hrnic with a knife on the hangar floor and severely cut him, from the evidence of Mehmed Alic and Armin Mujcic that the accused took part in the attack upon and the beating of Emir Karabasic, and from that of Armin Mujcic that the accused took part in the beating of Jasmin Hrnic.

237. This Trial Chamber is satisfied beyond reasonable doubt from the evidence of Halid Mujkanovic that the accused was present on the hangar floor on the occasion of the assault upon and sexual mutilation of Fikret Harambasic but is not satisfied that he took any active part in that assault and mutilation.

238. As to the alleged deaths of Fikret Harambasic, Emir Karabasic, Jasmin Hrnic and Enver Alic, there is much evidence of screams and cries of pain after all these latter three were called out onto the hangar floor. However, the Prosecution failed to elicit clear and definitive evidence from witnesses about the condition of the four prisoners after they had been assaulted, let alone that they died or that death resulted from the assault upon them. In the case of Enver Alic there is no eyewitness testimony as to his beating, only evidence that later he was seen lying on the hangar floor and, when a witness tried to pick him up, he slipped from his grasp, was fighting back and was clearly alive. Of Fikret Harambasic the Trial Chamber knows that in the attack on him he suffered a severe injury, his testicle having been bitten off, but the sole witness to testify to his subsequent condition states only that, having dragged him to a table in the hangar and stood beside him, Fikret Harambasic then asked him for water. Of Emir Karabasic, a witness testified that he was beaten, but no evidence was offered about the details of that beating. Another witness saw him being cut and bloody, but only from a fleeting glance as a guard hurried him past, a knife at his throat. Another witness saw, as he entered the hangar, a pool of blood and then saw the body, as he characterized it, of Emir Karabasic on the floor but it is not clear whether Emir Karabasic was lying in that pool of blood or whether the witness first saw the blood and then moved on and saw Emir Karabasic on the floor; that witness was not asked whether or not Emir Karabasic was dead, and no further details regarding his condition were elicited. It was about the condition of Jasmin Hrnic after he was beaten that the Trial Chamber received the most evidence. He had been beaten with an iron bar, a black liquid had been poured over him, and he had been "sliced as if once one slices chops". Then, when lying on the hangar floor, Jasmin Hrnic "showed no signs of life", according to one witness. Another witness was asked directly by the Prosecution if Jasmin Hrnic was dead after the assault on him and answered "most likely"; a guard had put a foot on Jasmin Hrnic's neck and turned his head backwards and forwards and then ordered fellow prisoners to drag his body to and fro across the floor, which they did. That is all that is known of the condition of Jasmin Hrnic after the assault.

239. A witness spoke of subsequently hearing the sound of the engine of the truck that was used at the camp to bring in food and take away bodies and of then hearing a shot in the distance and stated that: "I believe one of them was alive, and therefore was finished up." Even assuming the witness to be correct in his assumption, there is neither evidence of who fired the shot nor which one, if any, of the four was shot. It is clear that none of the four prisoners returned to their room in the hangar and it may be that these prisoners are in fact dead but there is no conclusive evidence of that, although there was poignant testimony from Mehmed Alic, the father of Enver Alic, that: "Never again, from that day, never again", has he seen his son. Certainly it seemed to be the general practice at the camp to return to their rooms prisoners who had been beaten and survived and to remove from the camp the bodies of those who were dead or gave that appearance; none of the four prisoners have been seen again.

240. The Trial Chamber is cognisant of the fact that during the conflict there were widespread beatings and killings and indifferent, careless and even callous treatment of the dead. Dead prisoners were buried in makeshift graves and heaps of bodies were not infrequently to be seen in the grounds of the camps. Since these were not times of normalcy, it is inappropriate to apply rules of some national systems that require the production of a body as proof to death. However, there must be evidence to link injuries received to a resulting death. This the Prosecution has failed to do. Although the Defence has not raised this particular inadequacy of proof, it is incumbent upon the Trial Chamber to do so. When there is more than one conclusion reasonably open on the evidence, it is not for this Trial Chamber to draw the conclusion least favourable to the accused, which is what the Trial Chamber would be required to do in finding that any of the four prisoners died as a result of their injuries or, indeed, that they are in fact dead.

241. For these reasons the Trial Chamber finds that the Prosecution has failed to establish beyond reasonable doubt that any of these four prisoners died from injuries received in the assaults made on them in the hangar, as alleged in Counts 5, 6 and 7 contained in paragraph 6 of the Indictment.

242. The Trial Chamber finds beyond reasonable doubt, as charged in the Indictment, that the accused was part of the group that beat Emir Beganovic, Senad Muslimovic, Emir Karabasic and Jasmin Hrnic. The Trial Chamber finds beyond reasonable doubt that the accused was present when Enver Alic was beaten and Fikret Harambasic attacked. The Trial Chamber is satisfied that these acts occurred within the context of the armed conflict; it will be necessary in the Legal Findings section of the Opinion and Judgment to consider the effect of Article 7, paragraph 1, of the Statute to determine whether the accused's culpability has been established beyond reasonable doubt.

243. In the case of the acts found to have been committed by the accused involving Emir Beganovic and Senad Muslimovic, they involved, because of their nature and consequences, and on any meaning of the words, acts that caused serious injury and great suffering to the victims and which are described in Counts 8, 9, 10 and 11 respectively as "torture or inhuman treatment", "wilfully causing great suffering or serious injury to body and health", "cruel treatment" and "inhumane acts". Likewise, in the cases of Fikret Harambasic, Emir Karabasic, Jasmin Hrnic and Enver Alic, the acts which the accused committed or was otherwise associated with, because of their nature and consequences, involved inhuman treatment, wilfully causing great suffering or serious injury to body and health, cruel treatment and inhumane acts.

244. What remains for consideration, however, is whether the elements of "inhuman treatment', "wilfully causing great suffering or serious injury to body and health", "cruel treatment" and "inhumane acts" as charged in Counts 8, 9, 10 and 11 respectively, have been met. This will be considered in later paragraphs of this Opinion and Judgment when legal findings are made.

B. Paragraph 10 of the Indictment

245. This paragraph relates to an incident alleged to have taken place at the Omarska camp. It reads as follows:

About 8 July 1992, in the building known as the "white house," a group of persons from outside the camp, including Dusko TADIC, called prisoners individually from one room in the "white house" to another, where they were beaten. After a number of prisoners were called out, Hase ICIC was taken into the room, where members of the group, including Dusko TADIC, beat and kicked him until he was unconscious.

It is then alleged that by his participation in these acts the accused committed offences charged in three counts.

246. Count 21 of the Indictment charges that by his participation in these acts the accused committed a grave breach recognized by Article 2(c) (wilfully causing great suffering or serious injury to body or health) and Article 7, paragraph 1, of the Statute. In Count 22 of the Indictment it is charged that by his participation in these acts the accused committed a violation of the laws or customs of war recognized by Article 3 and Article 7, paragraph 1, of the Statute and Article 3(1)(a) (cruel treatment) of the Geneva Conventions. In Count 23 of the Indictment it is charged that by his participation in these acts the accused committed a crime against humanity recognized by Article 5(i) (inhumane acts) and Article 7, paragraph 1, of the Statute.

247. Hase Icic and Armin Kenjar testified for the Prosecution regarding paragraph 10 of the Indictment.

248. On 14 June 1992 Hase Icic, who is a Muslim, was taken by persons he identified as Serb forces from Trnopolje to the Keraterm camp. He remained there until 7 or 8 July 1992 when he was transferred to the Omarska camp. He arrived at Omarska with a group of about 40 to 50 Muslims and Croats, was taken off the bus and was sent to the white house. On the way, he and other prisoners were beaten as they were forced to run through a cordon of guards who were dressed in civilian clothes or police uniforms. That day he was taken for interrogation, a statement that he had given while at Keraterm was read to him, and he was asked if he had anything to add. He was returned to the white house the same day and was placed in another room with other prisoners who were all ordered to lie on their stomachs with their arms stretched over their heads with three fingers together in the fashion that Serbs pray. If their fingers were not in the correct position, they were beaten by the guards with rifle butts as they shouted: "Be a great Serb, you Serb." The Serbs, as Hase Icic describes them, slashed the prisoners' clothes and cut some of them, making crosses on their backs. Later that day, the commander of the shift, Mladjo Radic, whose nickname was "Krkan", ordered the prisoners to sign their names on a sheet of paper and turn over any money, jewellery or valuables they had, saying that if the amount was enough, they would be spared further torture. The prisoners had no valuables because they had been taken from them at the Keraterm camp. Krkan took the list and later that evening, as Hase Icic stated, a "group of Serbs from outside the camp" came to the white house. Hase Icic heard prisoners in the adjacent room say: "Here, the executioners are coming." The group arrived in the evening at about 10 p.m. and set up lighting in the hallway. After the lighting system was set up, Krkan came to the door of Hase Icic's room and began calling prisoners out from the list in the order that their names appeared. Hase Icic testified that prisoners were called out and taken to a small room at the end of the corridor and beaten. After 10 to 15 prisoners had been called out and beaten, the group took a break and went to an area in front of the white house and began drinking, making toasts and discussing what each would do next. Hase Icic was finally called out and taken to that same small room at the end of the corridor. As he left, he saw two guards standing at the entrance to the white house. Hase Icic was taken into the small room, which he described as the "beating room". He was told to greet the group of Serbs there by saying: "God be with you, heroes." A noose was put around his neck and it was pulled tight. Seconds later, one of the group struck a heavy blow on his back and he fell. He was then beaten with a whip made of cable, with iron balls, an iron rod, a wooden bat and rubber truncheons. The noose was repeatedly tightened and loosened as he was beaten, and he lost consciousness. When he regained consciousness in the morning, he was lying among battered prisoners in the room in which he had been placed upon his arrival. Guards entered the room, walking among the prisoners to see who among them were dead. One of them placed his foot on Hase Icic and when he let out a cry of pain, the guard responded: "He's alive, but not for long." The prisoners who were dead were carried out of the white house by other prisoners.

249. Hase Icic testified that he remained in the white house until 13 or 14 July 1992. During that period, he was not given anything to eat. While in the white house, more than 30 to 40 prisoners were killed each night. His ribs were broken as a result of the beating. He described the white house as being "a very messy slaughterhouse, stench and blood, urine and beaten up people, blood sprayed on the walls, horror". At one point, the prisoners were taken out of the white house for a period of time because the guards could not tolerate the stench. While he was sitting in front of the white house, Hase Icic observed naked prisoners falling down as they were being sprayed with hoses by the guards. A photograph of the model of the white house (Prosecution Exhibit 130) is included in the Opinion and Judgment as Annex G.

250. Armin Kenjar testified that he saw Hase Icic, who is a relative of his, while he was sitting in front of the white house and he bribed a person he identified as a Serb official at the camp with a payment of 100 Swiss francs to move Hase Icic to another part of the camp where he remained until he was released.

251. After Hase Icic heard prisoners in a room adjacent to his say: "Here, the executioners are coming", he saw the accused and a group of persons he identified as Serbs arrive and set up lighting in the hallway. Hase Icic watched them as they set up this equipment. Hase Icic had known the accused since his school days and also went to school and played soccer with one of the accused's brothers, Mladen. He recognized the accused together with other Serbs, including Simo Kevic, from Orlovici, whom he knew from before the conflict. He also recognized one Banovic and a man called Duca. Both were from Prijedor and the witness had seen them before in the Keraterm camp. Later, when the group began to talk among themselves, he heard the names Dule, Simo and the others already mentioned, as well as a person whom they referred to as Dragan Babic.

252. Hase Icic testified that when he was taken to the room at the end of the corridor in the white house, he stood face to face with the accused who was standing near Simo Kevic and three other members of the group of Serbs. It was then that a noose was placed around his neck and he was beaten and kicked by the group until he lapsed into unconsciousness.

253. The accused testified that he had never been at the Omarska camp and asserts by way of alibi that he was working at the Orlovci checkpoint at the times relevant to this paragraph. Further, the Defence contends that as a matter of law, the principle of unus testis, nullus testis prevents the Trial Chamber from reaching a finding of guilt based on the testimony of the single witness to these events. Finally, on cross-examination, the Defence challenged the credibility of Hase Icic.

254. In its closing arguments, the Defence seemingly accepted that the events charged in paragraph 10 took place on 8 July 1992. Hase Icic testified that the events happened on either 7 or 8 July 1992. The assignment records for the Orlovci checkpoint show that the accused was off duty on 7 July 1992 as of 7 a.m. and was not assigned again until 8 July. Hase Icic testified that the events happened during the evening and, on cross-examination, confirming an earlier account of the events, he estimated the time to be around 10 p.m. On 8 July, according to the assignment records, the accused completed his duty at the Orlovci checkpoint at 7 p.m.

255. The Defence challenged the credibility of Hase Icic. As will be discussed later in reference to paragraph 7, the Defence contended that a prior account of the events recorded by Hase Icic on 12 February 1993 differed from his testimony at trial. The Defence argued that, although the discrepancy does not relate directly to paragraph 10, it does affect the overall credibility of this witness.

256. The final challenge made by the Defence in regard to the unus testis, nullus testis rule is a question of law. This principle still prevails in the civil law system, according to the Defence, and should be respected by the International Tribunal; therefore, because only one witness testified in support of paragraph 10, the accused cannot be found guilty. This principle is discussed elsewhere in this Opinion and Judgment but suffice it to say that the Trial Chamber does not accept this submission, which in effect asserts that corroboration is a prerequisite for acceptance of testimony.

257. The Trial Chamber finds that the assignment records for the Orlovci checkpoint do not provide the accused with an alibi for paragraph 10. Hase Icic is very clear in his testimony that the beatings took place on the evening of his arrival at the Omarska camp, at around 10 p.m. The Defence does not dispute that these events occurred on either 7 or 8 July 1992. The assignment records reflect that on those nights the accused was off duty. On 7 July 1992 the accused was off duty after 7 a.m. and offered no testimony regarding his whereabouts. On 8 July 1992 the records reflect that he completed his assignment at 7 p.m. and he likewise offered no testimony regarding his whereabouts at the time these events occurred. Prijedor is about 20 kilometres from the Omarska camp. The travel time is 30 - 35 minutes by car.

258. Hase Icic testified that he was standing face to face with the accused in the "beating room" at the end of the corridor of the notorious white house, just before a noose was put around his neck and the first blows hit him on the back. Hase Icic knew the accused since childhood and had regularly seen him in Kozarac until just before the war and thus could not have been mistaken about his identity. The witness's description of the white house, its different rooms and their location correspond to that given by other witnesses whose testimony the Trial Chamber credits and is supported by the exhibits received into evidence.

259. Balancing the accused's denial of ever having been at Omarska with the overwhelming testimony of witnesses that has been offered to the contrary, the Trial Chamber cannot accept this denial. The Trial Chamber furthermore has observed the demeanour of Hase Icic while he was testifying and concludes that he was credible and trustworthy. Although the Defence contended that there were important discrepancies between Hase Icic's testimony in court and an earlier account of the events made by the witness on 12 February 1993, his recollection of the events specifically forming the basis of paragraph 10 was not challenged. The Trial Chamber finds that the alleged discrepancies which relate to Hase Icic's testimony concerning paragraph 7 of the Indictment are not significant and do not affect his overall credibility.

260. The Defence's general allegation of bias on the part of all victims is not a basis for the rejection of Hase Icic's testimony. This issue is generally addressed elsewhere in the Opinion and Judgment. Although he was the only witness who testified in support of these charges, the quality of that testimony is sufficient to credit the allegations.

261. Having considered all the relevant probative evidence, the Trial Chamber finds beyond reasonable doubt that the accused was part of the group of Serbs who beat and kicked Hase Icic until he was unconscious in the white house on or about 8 July 1992 and that these acts were committed in the context of the armed conflict. All that remains for consideration in relation to the beating of Hase Icic is whether the elements of each of the crimes as charged in Counts 21, 22 and 23 of the Indictment are satisfied and, as stated previously, this will be considered in the Legal Findings section of the Opinion and Judgment.

C. Paragraph 7 of the Indictment

262. This paragraph concerns an incident alleged to have taken place at the Omarska camp. It reads as follows:

Around July 10, 1992, in the building known as the "white house" in Omarska camp, a group of Serbs from outside the camp, including Dusko TADIC, severely beat Sefik SIVAC, threw him onto the floor of a room and left him there, where he died.

It is then alleged that by his participation in these acts the accused committed offences charged in three counts.

263. Count 12 of the Indictment charges that by his participation in these acts the accused committed a grave breach recognized by Article 2(c) (wilfully causing great suffering or serious injury to body or health) and Article 7, paragraph 1, of the Statute. In Count 13 of the Indictment it is charged that by his participation in these acts the accused committed a violation of the laws or customs of war recognized by Article 3 and Article 7, paragraph 1, of the Statute and Article 3(1)(a) (cruel treatment) of the Geneva Conventions. In Count 14 of the Indictment it is charged that by his participation in these acts the accused committed a crime against humanity recognized by Article 5(i) (inhumane acts) and Article 7, paragraph 1, of the Statute.

264. Hase Icic and Husein Hodzic testified for the Prosecution as to paragraph 7. According to Hase Icic the events described in paragraph 7 took place on the evening after his own beating on the day of his arrival at Omarska or on the evening following, which would have been 8 or 9 July, if Hase Icic arrived on 7 July 1992, or 9 or 10 July if Hase Icic arrived on 8 July 1992. That night, Hase Icic heard the sound of beatings coming from in front of the white house. As he was lying on the floor of a room in the white house, on his back with his head and shoulders off the ground leaning against another prisoner, he heard people cursing as they approached his room. He recognized one of the voices. He then saw a person who was wearing a camouflage uniform, and another person, as they threw a badly beaten prisoner into the room. As the prisoner was thrown into the room, the person said: "You will remember, Sivac, that you cannot touch a Serb or say anything to a Serb." The next morning, Hase Icic recognized this prisoner as being Sefik Sivac, a Muslim. When the commander of the guard shift, Krkan, later came into the room and asked for the names of the people who were either dead or could not move, Hase Icic identified Sefik Sivac.

265. Husein Hodzic testified at trial that he was in a room from which Sefik Sivac was called out for the last time. Sefik Sivac had been beaten previously and when Husein Hodzic saw the dead body of Sefik Sivac later the next day, he stated that "it looked like anything but a body", his clothes were torn and the body was bloodied.

266. Hase Icic testified that it was the accused's voice that he recognized as people were approaching his room after he heard the sound of beatings coming from in front of the white house. He recognized the accused as being one of the persons who threw the badly beaten prisoner into his room. As the prisoner was thrown into his room, the accused said: "You will remember, Sivac, that you cannot touch a Serb or say anything to a Serb."

267. Hase Icic testified that he knew that the accused and Sefik Sivac had been friends at one time but were not on good terms before the war began because Sefik Sivac had thrown the accused out of his café. He did not otherwise state the basis for this opinion. However, direct testimony regarding the accused's relationship with Sefik Sivac was given by Witness AA, who knew the accused well. Witness AA testified that Sefik Sivac and the accused had a good relationship until shortly before the war, when they had an argument about politics in the Deluxe restaurant owned by Sefik Sivac in Kozarac, during which Witness AA was present. Witness AA testified that the accused had said that the area "would be a Greater Serbia, it would be theirs and that we, Muslims, will not be there, that there will be no place for them". Sefik Sivac then told the accused to leave the restaurant. Sefik Sivac and Mladen Tadic, the accused's brother, were especially good friends and the accused's elder daughter had often visited Sefik Sivac's daughter. Witness AA testified to have last seen Sefik Sivac on the first day of the attack on Kozarac.

268. On cross-examination, the Defence challenged Hase Icic's credibility, pointing out that the written account that he had prepared regarding his experiences in the Omarska camp stated only that he had heard the accused; it made no reference to him seeing the accused, as he testified at trial. However, that account was not a formal statement by him. It had been prepared by him in February 1993 on the medical advice of a physician who considered that he should write down his experiences during the conflict since he lived in an area where there were very few people from the former Yugoslavia with whom he could talk about what he had experienced. The account was used by the Defence in its cross-examination but it was not offered as an exhibit.

269. The accused testified, under solemn declaration, that he had never been at the Omarska camp. Further, the Defence offered as an alibi that at relevant times he was working as a traffic policeman at the Orlovci checkpoint and, during his time off, was in Prijedor, some 22 kilometres from the Omarska camp. Each of these two locations, the checkpoint and Prijedor, requires separate consideration so far as the accused's alibi is concerned and they will be extensively dealt with later in this Opinion and Judgment in considering the accused's alibi.

270. The Defence contends that the accused was mobilized on 16 June 1992, starting his work that day as a reserve policeman for the traffic police at the Orlovci checkpoint.

271. The daily logbook and duty lists show with respect to the Orlovci checkpoint that the accused was assigned to the Orlovci checkpoint on the following days relevant to these counts: on 7 July 1992, the accused was off duty from 7 a.m.; on 8 July the accused was assigned duty from 7 a.m. to 7 p.m.; on 9 July the accused was assigned duty from 7 p.m. until 7 a.m. on the following day; and on 10 July the accused was off duty all day from 8 a.m.

272. Testimony from Defence witnesses who spoke of the accused's presence at the Orlovci checkpoint will be described in that portion of this Opinion and Judgment devoted to a consideration of the accused's alibi.

273. The Defence further contends that, when off duty, he spent his time in Prijedor with his family or visiting friends. He stated he continued to live in Prijedor until the end of 1992. The testimony of other witnesses testifying on behalf of the Defence who stated they saw the accused in Prijedor and knew he was living there will be described in the course of examination of the accused's alibi.

274. The Indictment charges in paragraph 7 that the beating and death of Sefik Sivac occurred "around 10 July 1992". In regard to these events, Hase Icic testified that they happened on the evening following his own beating or the next evening. Hase Icic testified that he arrived at the Omarska camp on 7 or 8 July 1992 and that the beating he received there in the white house and which is the subject of paragraph 10 occurred on the evening of his arrival there. Thus the events that the Trial Chamber is here considering occurred on the night of either 8, 9 or 10 July 1992. The exact time of the night when these events occurred has not been given, however, Hase Icic testified that he was able to recognize the accused because of the lighting that was coming from the hallway; the same lighting that he described when he had been beaten a day or two earlier.

275. The Trial Chamber finds that Hase Icic's credibility is not affected by the minor discrepancies in the earlier account referred to above which he wrote himself in 1993 on medical advice. Having observed the demeanour of the witness while testifying, the Trial Chamber finds that Hase Icic is credible and trustworthy.

276. The records of service at the Orlovci checkpoint earlier referred to show that the accused has no specific alibi for the late evening and night of 8 or 10 July 1992. As will be observed later in the Opinion and Judgment, the Defence evidence as to off-duty days does no more than establish that the accused was generally resident in Prijedor. However, many witnesses have testified to seeing him outside of Prijedor at places other than the Orlovci checkpoint and to having seen him at the Omarska camp in July 1992. Thus, as will be discussed hereafter, the Trial Chamber rejects the Defence contention that the accused was somehow rendered largely immobile because of the fact that he did not own a car.

277. If it should be that it was on the night of 9 July 1992, rather than on 8 or 10 July, that the relevant beating of Sefik Sivac occurred, the records for the Orlovci checkpoint reflect that the accused was assigned duty there on 9 July from 7 p.m. until 7 a.m. the following day. Even if these records are accepted as accurately reflecting the shifts to which the accused was assigned, they can only establish the hours when the accused was meant to be on duty at the checkpoint; they do not of themselves establish his presence there throughout those hours.

278. The Trial Chamber bears in mind all that has been said and referred to in the later consideration of the accused's alibi. The Trial Chamber also contrasts the entirely general evidence of the accused and of Miroslav Brdar, his fellow traffic policeman, regarding the accused's constant presence at the checkpoint during duty hours with the very specific and precise evidence of Hase Icic, in particular, his evidence both generally as to the events of the night when Sefik Sivac was beaten and specifically as to the presence of the accused and what it was the accused said to the dying Sefik Sivac as he threw him into Hase Icic's room. The Trial Chamber recalls, too, the evidence of Witness AA regarding the heated argument that the accused had with Sefik Sivac when Sefik Sivac had him leave his restaurant.

279. Having observed the demeanour of the witnesses while testifying and considering all the relevant probative evidence offered by both parties, the Trial Chamber finds beyond reasonable doubt that around 10 July 1992, as charged in the Indictment, Sefik Sivac was beaten and that the accused was part of the group that threw Sefik Sivac onto the floor of a room in the white house after he had been beaten and that Sefik Sivac later died from these injuries. The Trial Chamber finds beyond reasonable doubt that these acts were committed in the context of the armed conflict. All that remains for consideration in relation to the beating of Sefik Sivac is whether the elements of each of the crimes as charged in Counts 12, 13 and 14 of the Indictment are satisfied and, as stated previously, this will be considered in a later section of the Opinion and Judgment when legal findings are made.

280. There is no direct testimony that the accused was present during the beating of Sefik Sivac. It will be necessary in the Legal Findings section of the Opinion and Judgment to consider the effect of Article 7, paragraph 1, of the Statute to determine whether the accused's culpability has been established beyond reasonable doubt.

D. Paragraph 8 of the Indictment

281. This paragraph concerns an incident alleged to have taken place at the Omarska camp. It reads as follows:

Around late July, 1992, behind the building known as the "white house" in Omarska camp, a group of Serbs from outside the camp, including Dusko TADIC, severely beat and kicked Hakija ELEZOVIC, Salih ELEZOVIC, Sejad SIVAC and other prisoners. Hakija ELEZOVIC survived the beating. Salih ELEZOVIC, Sejad SIVAC, and other prisoners were found dead in the same spot later that day.

It is then alleged that by his participation in these acts, the accused committed offences which are charged in three counts.

282. Counts 15, 16 and 17 of the Indictment charge the accused by reason of his participation in the acts described in it, respectively, with a grave breach of the Geneva Conventions recognized by Article 2(c) (wilfully causing great suffering or serious injury to body or health) and Article 7, paragraph 1, of the Statute; with a violation of the laws or customs of war recognized by Article 3 and Article 7, paragraph 1, of the Statute and Article 3(1)(a) (cruel treatment) of the Geneva Conventions; and with a crime against humanity recognized by Article 5(i) (inhumane acts) and Article 7, paragraph 1, of the Statute.

283. The evidence supporting these counts consists of the testimony of two witnesses, Samir Hodzic and Hakija Elezovic, both Muslims. Samir Hodzic was at the time a young man aged 21. While a prisoner in Omarska, to which he had been taken from his home in Trnopolje on 9 July 1992, he was placed in a small room in the white house crowded together with 26 others, with little ventilation. One of those others was Hakija Elezovic. Samir Hodzic was held in that small room for some days and was then moved to another room very shortly before being taken for interrogation. Before he was interrogated he had seen Hakija Elezovic being taken out for interrogation, being returned and then being taken out of the white house a second time. The witness never saw Hakija Elezovic again until they met in The Hague as witnesses.

284. Samir Hodzic testified that when he was returning to the white house after interrogation in the administration building, he was spoken to by a guard, was then made to sit on the grass some 10 metres from a group of men in uniform and after a while, having been asked where he came from and having said that he came from Trnopolje, was taken around to a rear corner of the white house where he saw four bodies face down and stacked one on top of another. He was ordered to turn the four bodies over and did so, recognizing the men as Muslims known to him and from the Trnopolje area. They included Salih Elezovic and Sejad Sivac, the former having a bullet or knife wound under his chin. He did not see the witness Hakija Elezovic, Salih Elezovic's father, among those four bodies. He said that he saw nothing else at the rear of the white house and would have seen anything had there been anything there to see but later said that he did not look there, "not once did I look behind the white house". While standing beside the four bodies, and having himself no shoes, he took off the shoes from Salih Elezovic's feet and went back to his room in the white house.

285. Samir Hodzic was finally taken from the Omarska camp to another camp in August 1992. Apart from an initial beating when he arrived in Omarska and the considerable suffering caused by the very cramped conditions in the small room in the white house, the witness was not otherwise mistreated in Omarska but suffered its very bad general conditions in common with other prisoners.

286. The evidence of the other witness, Hakija Elezovic, a man in his early fifties, about what appears to be the same incident also begins with events on 9 July 1992. On that day he and his son Samir were taken from their home near Trnopolje in an atmosphere of terror and violence, with individuals, including his son Samir, being taken out of a moving column of prisoners and shot where they stood as the column moved on. In all, the witness estimates that some 30 out of a column of about 300 were killed in this fashion on the way to the Trnopolje camp. When they reached Trnopolje they were taken in buses to the Keraterm camp, where the witness was held for some 10 days and severely beaten and kicked during interrogation, his ribs being broken so that he had difficulty in breathing. He was then taken to the Omarska camp where on arrival he was beaten again and sent to the white house. In the white house he was held in the same conditions in the same unventilated room as Samir Hodzic.

287. While in Omarska he was assaulted; he was made to kneel and bark like a dog, a gun-barrel was pushed into his mouth and the front teeth of his bottom jaw were broken in the process. Then he was taken for interrogation and on the way was beaten and had his front upper teeth kicked out. After his first interrogation he was called back again an hour later, on the way was hit and knocked down and then, instead of a second interrogation, was sent back in the direction of the white house. However, instead of entering the white house he was taken behind it where he says that some 10 soldiers were beating some 50 to 60 prisoners amongst tall grass. There was already a heap of bodies there and he saw his son, Salih, being beaten. He began to be kicked and his son cried out: "Let my old man go", and the son was then struck with a pistol; then he himself was struck a very severe blow on the neck and fell unconscious. When he came to, there were very many dead lying there, including his son and the veterinarian Sejad Sivac and others he recognized and named, including one Zuhdija Turkanovic, their bodies lying one on top of the other; he himself was lying near the bodies of his son and Sejad Sivac. The witness had a knife stab wound in his leg. Those who had been doing the beating had gone and prisoners, including Samir Hodzic and an Albanian prisoner named Bati, were loading bodies onto a truck full of bodies. Bati told him to lie there and that they would take him back to the white house. Samir Hodzic and Bati later did take Hakija Elezovic back to the white house and put him in a room there. While Samir Hodzic, who was barefooted, was loading his son Salih's body onto the truck, Hakija Elezovic saw him take the shoes off the feet of his dead son and put them on. Samir Hodzic spoke to him about taking his son's shoes and Hakija Elezovic told him to take them.

288. Two days later Hakija Elezovic was moved from the white house to the hangar and later to the Trnopolje camp from which he was ultimately taken by bus to Vlasic Mountain and then made his way to Bosnian government territory. As a result of his beatings he now suffers from headaches, has kidney complaints and a bad arm.

289. The conflict between portions of these two accounts is apparent. According to Samir Hodzic, he did not see Hakija Elezovic lying near the rear of the white house, did not load bodies onto a truck, did not talk to Hakija Elezovic about the shoes of the latter's son nor assist him to return to the white house. Instead, he says that he did not see Hakija Elezovic again after the latter was taken out for questioning the second time. A further conflict concerns the prisoner Zuhdija Turkanovic. After Hakija Elezovic regained consciousness behind the white house he describes Zuhdija Turkanovic's body as lying near him with other dead bodies while Samir Hodzic was loading bodies onto a truck. Samir Hodzic, however, apart from denying being there at all at that time, says that when he re-entered the white house after turning over the four dead bodies, Zuhdija Turkanovic was lying dying in the room to which he went. In a more detailed account of his friend Zuhdija Turkanovic's death in a prior statement which he had made, Samir Hodzic places it as occurring as a result of injuries Zuhdija Turkanovic received while being interrogated, this occurring before Samir Hodzic's own interrogation. Either version is in conflict with Hakija Elezovic's evidence that Zuhdija Turkanovic's body was lying near him at the back of the white house after he recovered consciousness and while Samir Hodzic was loading bodies onto a truck. Before determining whose evidence, if either, to accept where there is conflict, it will be appropriate to examine the evidence of these two witnesses concerning the accused.

290. Samir Hodzic, although much younger than the accused, knew him as a casual acquaintance whose café in Kozarac he had visited. At Omarska he first saw the accused when he was on his way back to the white house after his interrogation. The accused was one of the group of men in front of whom he was ordered to sit. He recognized the accused, whom he could see clearly, as a member of that group. As he was taken around the white house to where the four bodies were lying he passed only some three metres from the accused. The accused was wearing a mainly brown military camouflage uniform. In cross-examination the witness agreed that in a prior statement he had described the accused that day as having "light, shortly cut hair", and with some kind of infection, his face being red, and had said that he "did not have an opportunity to look at him or the guards from close quarters". The accused's hair is in fact black.

291. Hakija Elezovic had known the accused since 1991 when someone pointed out the accused to him and he then linked the face, which was familiar to him, with the name of Dule Tadic. He had been in his café in Kozarac once. His son, Salih, was a friend of the accused. When Hakija Elezovic was taken to the Keraterm prison camp and interrogated there he saw the accused, who was acting as bodyguard for the interrogator, and who kicked him to the floor with a karate kick in the chest and then kicked him on the back and chest as he lay there.

292. He later saw the accused at Omarska when he was taken to the back of the white house after his interrogation. The accused said to him: "Now you have come to the right place", and kicked him in the stomach and beat him, and also struck his son with a pistol. The accused was wearing a military camouflage uniform, had a baton and along with the soldiers was beating prisoners.

293. In cross-examination when it was put to him that he had said in evidence that Dusko Tadic had beaten him when he was taken around the back of the white house, the witness replied: "In Keraterm, it was Dusko who beat me, not in Omarska". However, he went on to say that the accused was with the group of people who were beating prisoners and he later again said that the accused beat him and his son, speaking of Omarska.

294. Neither of these two witnesses assigned a date to these events. However, a witness Ermin Strikovic, who was a friend of Sejad Sivac, one of the victims whose dead bodies were seen by Samir Hodzic beside a near corner of the white house, described the last calling-out of Sivac as occurring at 2.30 p.m. on 27 July 1992. That provides a date for these events.

295. If these events occurred in the afternoon of 27 July 1992, as the evidence of Ermin Strikovic states, the accused has no specific alibi. His checkpoint duty at Orlovci on that day began at 7 p.m. and if the accused had transport available to him he would have had ample time during that day to travel to Omarska from Prijedor, carry out the acts alleged and return in time to take up his checkpoint duties.

296. If a choice has to be made between the evidence of Samir Hodzic and that of Hakija Elezovic where there is a conflict, the evidence of Samir Hodzic is to be preferred. Hakija Elezovic was a man in his fifties who had had his only two sons murdered in his presence and had himself been very badly beaten on several occasions and as a result was suffering severe injuries when he was taken behind the white house. There he was again assaulted and became unconscious. In giving his evidence he was occasionally, perhaps understandably, somewhat confused. Samir Hodzic, on the other hand, a young man who had suffered relatively little by way of beatings and spoke of no resultant injuries, gave his evidence clearly and without hesitation. The fact that it emerged in cross-examination that in a prior statement he had misdescribed the colour of the hair of the man he identified as the accused does not affect the choice between his evidence and that of Hakija Elezovic where they conflict, nor affect recognition of the accused, whom he knew from peacetime days in Kozarac.

297. If, then, the evidence of Samir Hodzic is to be preferred to that of Hakija Elezovic where they are in conflict, that conflict only occurs after Hakija Elezovic, having been struck a severe blow on the neck and falling unconscious behind the white house, later regains consciousness there and gives his version of seeing the loading of dead bodies onto a truck and of his being helped back to the white house.

298. Disregarding that particular portion of the evidence of Hakija Elezovic, he otherwise gives eyewitness evidence of the attack by the accused on his son and, of course, on himself. His son's dead body is later identified by Samir Hodzic as being very close to the scene of that attack when, after encountering the accused and others in uniform sitting outside and to one side of the white house, he is taken by one of the uniformed men around the front of the white house to the other side where, at the rear, he is made to turn over four bodies, two of which he recognizes as those of Salih Elezovic and Sejad Sivac.

299. It is neither charged, nor is there sufficient evidence, of the killing of anyone by the accused. There is evidence, however, of the beating and kicking of Hakija Elezovic by the accused, of the beating by him of Salih Elezovic and other prisoners, and of participation by the accused in events which culminated in the death of Salih Elezovic.

300. The only evidence for the accused specifically relating to this paragraph consists of his denial of having ever visited the Omarska camp, implicit in it being, of course, a denial of any participation in the events alleged in paragraph 8.

301. A curious feature of the Prosecution evidence is that, whereas it is common ground as between the two witnesses that Samir Hodzic did acquire Salih Elezovic's shoes from his dead body, they differ inexplicably in how this came about. One or the other is clearly mistaken but the inconsistency is, viewed most favourably to the accused, no more than an instance of a badly muddled recollection of certain events by one of the witnesses. It certainly supports neither a theory of outright fabrication of evidence by these witnesses nor of their joint reconstruction of events. When the emotional trauma suffered by Hakija Elezovic due to the murder of his two sons and his own gross mistreatment is coupled with further mistreatment that day, culminating in unconsciousness, a muddled recollection of events occurring after regaining consciousness is perhaps not surprising.

302. This Trial Chamber concludes that it may accept the evidence of Hakija Elezovic as to his own beating and kicking by the accused and as to the beating of his son Salih by the accused, all occurring before the witness was knocked unconscious. On that evidence, combined with Samir Hodzic's subsequent sighting of the accused by the white house and his recognition of the two bodies beside the white house, this Trial Chamber is satisfied beyond reasonable doubt of the severe beating and kicking of Hakija Elezovic and of the beating of his son Salih Elezovic and other prisoners by the accused as alleged and that these acts were committed in the context of the armed conflict.

303. Since this Trial Chamber is satisfied beyond reasonable doubt that the accused severely beat and kicked Hakija Elezovic and severely beat Salih Elezovic those acts involved, because of their nature and consequences and on any meaning of those words, acts described in Counts 15, 16 and 17 of the Indictment respectively as "wilfully causing great suffering or serious injury to body and health", "cruel treatment" and "inhumane acts".

304. All that remains for consideration in relation to the beating of Hakija Elezovic and Salih Elezovic is whether the elements of each of these crimes as charged in Counts 15, 16 and 17 of the Indictment are satisfied and, as stated previously, this will be considered in a later section of this Opinion and Judgment when legal findings are made.

E. Paragraph 9 of the Indictment

305. This paragraph contains three counts and concerns events alleged to have occurred at the Omarska camp. It reads as follows:

Around the latter part of June or the first part of July, 1992, near the building known as the "white house," a group of Serbs from outside the camp, including Dusko TADIC, ordered prisoners, whose names are not known, to drink water like animals from puddles on the ground, jumped on their backs and beat them until they were unable to move. As the victims were removed in a wheelbarrow, TADIC discharged the contents of a fire extinguisher into the mouth of one of the victims.

It is then alleged that by his participation in these acts the accused committed offences charged in three counts.

306. Count 18 of the Indictment charges that by his participation in these acts the accused committed a grave breach recognized by Article 2(c) (wilfully causing great suffering or serious injury to body or health) and Article 7, paragraph 1, of the Statute. In Count 19 it is charged that by his participation in these acts the accused committed a violation of the laws or customs of war recognized by Article 3 and Article 7, paragraph 1, of the Statute and Article 3(1)(a) (cruel treatment) of the Geneva Conventions. In Count 20 it is charged that by his participation in these acts the accused committed a crime against humanity recognized by Article 5(i) (inhumane acts) and 7, paragraph 1, of the Statute.

307. The Prosecution called only one witness, Elvir Grozdanic, a Muslim, to testify to these events. While a prisoner at the Omarska camp Elvir Grozdanic was ordered to clean the hangar along with another inmate. As he walked out of the building through the door facing the white house on his way to the garbage containers near the kitchen, he saw from a distance of between 30 to 40 metres fellow-inmates in front of the white house. A group of people, including two men he knew as Dusko Knezevic and Jovic, were physically abusing these inmates. In addition to repeatedly jumping upon the inmates, they poured water on the grass and forced the inmates to pick the wet grass with their teeth and "to munch it and grunt as pigs do". He continued to walk toward the garbage containers near the kitchen. On his way he saw a Muslim man from Prijedor named Amir pushing a wheelbarrow containing a man who had been beaten up. Elvir Grozdanic could not tell if this man was still alive. Behind Amir he saw another man carrying a fire extinguisher in his left hand, with the hose in his right hand. Upon reaching the containers to throw the garbage away, he saw the barrow stop not far from the containers and the man carrying the fire extinguisher push its hose into the mouth of the man in the barrow. After reaching the containers and witnessing these events he headed back towards the hangar. On his way he saw Dusko Knezevic and Jovic continuing to beat the assembled inmates.

308. Although not testifying in relation to the events alleged in paragraph 9, several other witnesses testified to being personally, or seeing others being, jumped upon, beaten and forced to imitate animals while at the Omarska camp. Uzeir Besic saw a person dressed in uniform kicking, beating and jumping upon prisoners and Hakija Elezovic was beaten, forced to kneel down and bark like a dog. Emir Beganovic was kicked while lying on his stomach and was forced to drink water from the ground like a dog. The testimony of these witnesses is relevant in determining whether the events alleged in paragraph 9 actually occurred.

309. Elvir Grozdanic saw the accused on two separate days at the Omarska camp, one of which is relevant to the counts. On the day in question, he said, it was the accused who was walking behind Amir and who pushed the hose of the fire extinguisher into the mouth of the man in the barrow. He saw this from a distance of 50 metres and described the accused as having a beard and wearing a camouflage uniform. At this time he had known the accused for approximately 10 years, including a period in which he had received karate lessons from him twice a week as a boy, in addition to having seen him in Kozarac two or three times a month. He testified that the accused had a distinctive walk.

310. The Defence evidence, once again, consists of the accused's alibi together with his denial that he ever visited the Omarska camp. In support of this contention the Defence relied upon the accused often being seen at the checkpoint, the frequent spot checks conducted by his superior officer to ensure he was there and his lack of the right to use the police car for his own purposes. The Defence also contended that according to the Prosecution evidence the accused was not, at the time of the alleged offence, with the men who were allegedly beating inmates but was seen to be apart and separate from those men and closer to the administration building. As has been mentioned in relation to paragraph 6, Elvir Grozdanic had had an argument with the accused in Kozarac before the armed conflict and because of this the Defence questions the reliability of Elvir Grozdanic's testimony. Additionally, the Defence challenges his testimony by pointing out that if the accused had been looking specifically for Elvir Grozdanic, as the witness claimed had happened on the previous occasion that he saw the accused at the Omarska camp, then he would have been in great danger if he ventured within sight of the accused. It also asserts that there is no evidence that the body in the barrow was alive or that the fire extinguisher was discharged as alleged in paragraph 9. As a matter of law, it asserts that the mere insertion of a fire extinguisher hose into the mouth of a corpse does not constitute any of the offences charged.

4. Findings of Fact

311. As stated elsewhere in this Opinion and Judgment, many other Prosecution witnesses gave evidence that they had seen the accused at the Omarska camp in late June or early July 1992 which thus has a bearing on the accused's alibi and denial that he was ever at the camp, namely Saud Hrnic, Hamdija Kahrimanovic, Ziyad Jakupovic, Dzemal Deomic, Kemal Susic, Kasim Mesic, Witness R, Mehmedalija Huskic, Edin Mrkalj, Hasiba Harambasic, Emir Beganovic, Senad Muslimovic, Armin Kenjar, Mehmed Alic, Halid Mujkanovic, Muharem Besic, Husein Hodzic, Armin Mujcic, Hase Icic, Hakija Elezovic, Samir Hodzic and Emsud Velic.

312. The Defence contention that the accused was never at the Omarska camp and that, in any event, at the relevant time his duties with the traffic police precluded him from having committed the acts alleged in paragraph 9 of the Indictment is rejected by the Trial Chamber. Numerous credible witnesses have testified that they saw the accused at the camp and, as discussed in the alibi section of the Opinion and Judgment, the accused's assignment to the Orlovci checkpoint would not preclude him from carrying out what the Prosecution described as his "higher duty" as a traffic policeman to implement ethnic cleansing to achieve a Greater Serbia.

313. Accordingly, the Trial Chamber rejects the accused's alibi and his assertion that he was never at the Omarska camp. Additionally, despite Elvir Grozdanic having had an argument with the accused over a traffic incident in Kozarac and having seen the events from a great distance, the Trial Chamber finds that the accused was present on that day walking behind the man in the barrow and finds that he pushed the fire extinguisher hose into that man's mouth. However, it is not satisfied that certain factual requirements implicit in paragraph 9 have been fulfilled by the testimony of this witness. The criminal acts attributed to the accused include two separate although closely linked events: first, the physical ill-treatment inflicted upon the assembled inmates near the white house and, second, the discharge of the contents of a fire extinguisher into the mouth of one of the victims.

314. With regard to the allegation that the accused was a member of the group of Serbs beating the prisoners and forcing them to drink water from the ground like animals, Elvir Grozdanic did not name the accused as one of the individuals inflicting the beatings nor even as part of the group. He first noticed the accused in a separate area of the camp and although he testified that the man in the wheelbarrow was a victim of the beating, there is no evidence that he saw this man being beaten or ill-treated by the group in front of the white house. Additionally, Elvir Grozdanic did not mention having seen the accused in the group of people who were beating the assembled inmates when he was returning to the hangar.

315. As to the allegation that the accused discharged the contents of a fire extinguisher into the mouth of the man in the barrow, two factual deficiencies in the Prosecution case have been exposed. First, paragraph 9 specifically charges the accused with having actually discharged the contents of the fire extinguisher into the mouth of the man in the barrow. No evidence, however, has been furnished by the Prosecution of such discharge. Secondly, the Prosecution has failed to establish that the man was alive. When asked, Elvir Grozdanic specifically stated that he was not sure whether the man was alive or dead and there is no other evidence to suggest that there was any sign of life in him.

316. Accordingly, on the evidence as it stands, the Trial Chamber finds beyond reasonable doubt no more than that the accused was present at the Omarska camp that day, that he escorted a man in a barrow, that he inserted the hose of a fire extinguisher into that man's mouth and that the acts were committed in the context of an armed conflict. In the Legal Findings section of the Opinion and Judgment, the Trial Chamber will consider what offences, if any, have been committed.

F. Paragraph 11 of the Indictment

317. This paragraph concerns an incident alleged to have taken place at a junction on the main street of Kozarac. It reads as follows:

About 27 May 1992, Serb forces seized the majority of Bosnian Muslim and Bosnian Croat people of the Kozarac area. As Muslims and Croats marched in columns to assembly points in Kozarac for transfer to camps, Serb forces, including Dusko TADIC and Goran BOROVNICA, ordered Ekrem KARABASIC, Ismet KARABASIC, Seido KARABASIC and REDO FORIC from the column and shot and killed them.

It is then alleged that by his participation in these acts the accused committed offences charged in five counts.

318. Count 24 of the Indictment charges that by his participation in these acts the accused committed a grave breach as recognized by Article 2(a) (wilful killing) and Article 7, paragraph 1, of the Statute. In Count 25 it is charged that by his participation in these acts the accused committed a violation of the laws or customs of war recognized by Article 3 and Article 7, paragraph 1, of the Statute and Article 3(1)(a) (murder) of the Geneva Conventions. In Count 26 it is charged that by his participation in these acts the accused committed a crime against humanity recognized by Article 5(a) (murder) and Article 7, paragraph 1, of the Statute. Alternatively, in Count 27, it is charged that by his participation in these acts the accused committed a grave breach recognized by Article 2(c) (wilfully causing great suffering or serious injury to body or health) and Article 7, paragraph 1 of the Statute. Again, alternatively, in Count 28, it is charged that by his participation in these acts the accused committed a crime against humanity recognized by Article 5(i) (inhumane acts) and Article 7, paragraph 1, of the Statute.

319. Three witnesses were called by the Prosecution to give evidence regarding this incident: Ferid Mujcic, Salko Karabasic and Sulejman Besic. Additional witness testimony was offered by the Prosecution to establish the accused's presence in Kozarac on or about 27 May 1992.

320. All the three Prosecution witnesses, who are Muslims and who testified to the events alleged in paragraph 11, walked in a column of people from Vidovici to Kozarac on Wednesday 27 May 1992. The column consisted of unarmed men, women and children, the vast majority of whom were Muslims, and more people joined as they approached Kozarac. Once they arrived in Kozarac they were directed by Serb soldiers down the main street, Marsala Tita Street. There were military vehicles all around as well as soldiers. From their respective descriptions of the events that unfolded as they perceived them, their order of arrival at a kiosk at the corner of Marsala Tita Street and the road to Kalate, where the killings allegedly occurred, must have been as follows: first Salko Karabasic, second Ferid Mujcic, and, finally, Sulejman Besic.

321. Salko Karabasic left Vidovici at approximately 11.45 a.m. and arrived at the main street in Kozarac between noon and 1 p.m. He walked with the column down this street, past the old school and a well and arrived at the kiosk. As he passed by the kiosk he saw that his brother Ismet Karabasic and a man he knew, Redo Foric, had been taken out of the column and placed next to the kiosk. Then his brother Ekrem Karabasic was pulled out of the column and made to stand at the kiosk as a third person. When his son Seido Karabasic turned to look at Ekrem, Seido too was pulled out of the column and placed next to the kiosk with the others despite his father's efforts to hold on to him. After Seido a fifth man, Meho Muikan, was taken out of the column and the column continued to move on but was ordered to proceed slowly. As Salko Karabasic walked on he saw his brother Ismet standing with his hands against the kiosk but he did not say he heard any shots as he proceeded down Marsala Tita Street. Ismet Karabasic, Ekrem Karabasic, Redo Foric and Seido Karabasic have not been seen again since.

322. Ferid Mujcic, the next witness to approach the kiosk, was near the end of the column and as he walked past the old school and was close to the well he saw five persons already standing by the kiosk with three men standing behind them. The five were Ismet Karabasic, Ekrem Karabasic, Seido Karabasic, Redo Foric and a fifth person, whom he thinks was Fikret Alic. They were spread-eagled against the wall of the kiosk. He knew all of them and had a good view of them. He saw one of the three men who were standing behind these persons hit Ekrem Karabasic somewhere in the back with his rifle butt. When the column stopped at the junction of the road leading to Kalate, he saw that "they were transferring people", so he lifted his daughter, whom he was carrying, to his shoulder, tried to cover his face with his coat collar and moved to the middle of the column to avoid being recognized. Although by lifting his daughter to his shoulder he partially obstructed his view of what was happening, he was able to see Seido Karabasic, Redo Foric and another person, whom he thought was Fikret Alic, cross in front of the column to the other side of the road. He also did not say he heard any shots.

323. Sulejman Besic, the last of these three Prosecution witnesses to reach the kiosk, arrived there between 2.30 to 2.45 p.m. When the column stopped by the well, panic broke out and he saw people being taken out of the column and lined up against the kiosk. He stated that he knew those who were being taken out of the column: Ismet Karabasic, Ekrem Karabasic, Seido Karabasic and Redo Foric. They were lined up spread-eagled against the wall of the kiosk and then searched. He saw this because the column had split in two and the part in which he was had come to a stop. In addition to the four, another man was pulled out of the column, searched and then passed to a policeman who put him against a different wall "where the garden was". After that yet another young man, Zihad Majkovic, was pulled out, asked questions about one Hasan Didin and returned to the column. Then his column started to move slowly and as he came to the middle of the intersection he looked towards his left and saw six other people standing up against the wall by the Kula (the old tower). Suddenly there were two bursts of very loud "fire" and he looked towards his right and saw those who had been lined up by the kiosk falling. One of them remained standing for several seconds. A policeman who was standing by the side of the road then ordered the column to move faster and thereafter Sulejman Besic did not see what happened behind him. He said that at the time of the firing he was about five metres away from the kiosk.

324. As to the testimony of Ferid Mujcic and Sulejman Besic, a conflict is apparent. Ferid Mujcic testified that he saw three of the men lined up by the kiosk, Seido Karabasic, Redo Foric and the man he thought was Fikret Alic, being taken to the other side of the road whilst Sulejman Besic testified that, although he saw different men being taken across the road, he did see all the men lined up by the kiosk including Seido Karabasic and Redo Foric being shot. In clarification, the Prosecution asserts that the three men taken to the other side of the road must have been brought back. The Defence questions this speculative assertion as no evidence was presented to this effect. In addition, the Defence also questions the credibility of Sulejman Besic, the only one who alleges the killings, by referring to a previous statement made by him in which there was no mention of the accused being involved in killings. The Defence also asserts that Sulejman Besic was not truthful during cross-examination when he denied having had a conversation with Salko Karabasic just before the trial although the Trial Chamber had actually been informed by the Prosecution that there had been contact between the two. Further, the Defence argues that it would have been difficult for Sulejman Besic to have seen the persons being called out as well as being shot when he was the last of the three eyewitnesses in point of time to arrive at the scene. In reply, the Prosecution argues that Sulejman Besic, although behind Ferid Mujcic, could have been looking forward and to the side and thereby seen the men being pulled out while Ferid Mujcic did not see the men being called out but saw them later after they had already been pulled out and placed against the kiosk. The Defence also challenges Salko Karabasic's evidence that he saw Ekrem Karabasic being taken out of the column because in an earlier statement he indicated that he had been told about what had happened to Ekrem Karabasic by one Ika Karabasic.

325. All the Prosecution witnesses who testified to these events place the accused at the kiosk area and attribute to him an active role during the events that allegedly occurred.

326. According to Salko Karabasic, it was the accused who ordered Goran Borovnica to take his brother Ekrem Karabasic and son Seido Karabasic from the column and place them by the kiosk. At the time when Ekrem Karabasic and Seido Karabasic were taken out of the column, the accused was standing by the kiosk and Salko Karabasic passed within two-and-a-half to three metres from him. He also heard and recognized the accused's voice as he has known the accused since the latter was 15 years old. He was also a neighbour of the accused's parents-in-law in the village of Vidovici and had in fact sought refuge with them until 27 May 1992 when it was thought unsafe for them to harbour him any longer. When asked if he was certain it was the accused whom he saw in Kozarac on 27 May 1992 when Seido was taken out of line he replied that he was "thousand percent sure".

327. Ferid Mujcic, who has known the accused most of his life, testified that in addition to the men lined up with their arms spread out against the kiosk he also recognized three other people in the immediate area, namely the accused, Goran Borovnica and Milos Gajic. These were the three men standing behind the individuals lined up by the kiosk. The accused was standing approximately one to one-and-half metres behind Goran Borovnica, and behind the lined-up men. He saw Goran Borovnica act as if he were searching Ekrem Karabasic and then saw him hitting Ekrem Karabasic with his rifle somewhere in the back. When he first saw the accused that afternoon, he was next to the well and recognized the accused instantly and had a long enough view to see what was happening. Then, as he got closer to the kiosk, he saw the accused "very clearly as a person in front of me". The accused was standing by the well and facing the column and when Ferid Mujcic was asked if he were sure it was the accused he saw on that day he replied that he was "completely" sure.

328. According to Sulejman Besic, it was the accused who gave orders to Goran Borovnica and called out the names of people to be pulled out of the column. Goran Borovnica had also pulled a man out of the column and passed him to a policeman who placed him against a different wall. After handing this man over to the policeman, Goran Borovnica walked back to the accused who was then standing at what had become the front part of the column as a result of the column dividing. Suddenly he heard "one long and one shorter burst" of fire and he looked to the right in the direction of the kiosk and saw the men lined up there falling and the accused and Goran Borovnica standing one-and-a-half to two metres behind them with their weapons pointing at the men. Sulejman Besic did not see any other men with weapons in the vicinity at that moment. He said he had a good, unobstructed view of the accused who was not more than five metres away.

329. The Prosecution also produced testimony which, although not concerned specifically with the events alleged in paragraph 11, bears upon the whereabouts of the accused on 27 May 1992.

330. Nasiha Klipic, who has known the accused almost her whole life and was married to a Muslim policeman, gave evidence that on 27 May 1992 she and her children joined a convoy of people who were moving towards Kozarac to surrender. They came to the intersection in Kozarac at about 2 p.m. and the column, from the intersection to the pastry shop, was about one or two kilometres long. There were soldiers, Serb policemen and tanks in the vicinity. Then they started towards Kozarusa in the direction of Prijedor. As they proceeded, she saw a Golf police car driven by Brane Bolta, a colleague of her policeman husband, moving in the opposite direction. The accused, wearing a camouflage uniform, was in the passenger seat and Goran Borovnica was also in the car. She saw the car for about one minute from a distance of less than one metre away and her view was unobstructed. About one to one-and-a-half hours later the convoy arrived at the tavern "Zikina" in Kozarusa. The column was being guarded by Serbs, a mixture of army and police personnel, who were "singling people out and killing them". When the convoy arrived at the Kozarusa bus station, right by the tavern, men aged 15 to 65 were separated from women and children and divided into three groups destined respectively for Omarska, Trnopolje and Keraterm, as she later discovered. She recognized several of the Serbs who were engaged in separating the people and these Serbs included the accused and Goran Borovnica. At that time she was about three to four metres away from the accused and nothing obstructed her view. She also heard the accused ask a policeman named Milos Preradovic where the civilians should be taken.

331. Nihad Seferovic, whose house was eight or nine houses away from the accused's and who has known the accused since childhood, gave evidence that he was in Kozarac on Sunday (which must have been 24 May 1992) when the attack began. He immediately fled to the hills in Besici but returned home in the evening to feed his birds and then went back to the hills. Approximately three days later, on the first day that people started to surrender (which must have been 27 May 1992), as he was returning home, he stopped at the orchard of a house across from the Serbian Orthodox church and saw about six Muslim policemen from Kozarac with their hands behind their necks standing in line in front of the church. He recognized four of these policemen and in front of them were the accused, Goran Borovnica, "Dule" and about 15 other Serb paramilitaries whom he did not recognize, the soldiers dressed in uniforms with weapons pointed at the Muslim policemen.

332. The Defence contends that when the conflict in Kozarac began the accused had fled to Banja Luka and thus could not have been in Kozarac on 27 May 1992 to commit the crimes alleged in these four counts. In support of this contention several witnesses were called by the Defence and their testimony is dealt with in the section relating to the accused's defence of alibi. As to the accused's absence from the Kozarac area on that particular day, the Defence called four witnesses, identified as Witnesses U, V, W and A, who were in the area on that day, to testify; their testimony requires individual consideration.

333. Witness U, who has known the accused for about 30 years, was in the front part of the column moving into Kozarac on 27 May 1992 arriving at the triangle around 8.15 to 8.30 a.m. and waiting there for one-and-a-half to two hours. He never saw the accused in his movement through Kozarac and at no stage during his progress from Rajkovici to Trnopolje did he see the accused. It came out in cross-examination that Witness U now lives in a house belonging to a Muslim which was assigned to him by a commission on which the accused used to sit in his capacity as the Secretary of the Local Commune.

334. Witness V has known the accused since his early childhood. He was a serving soldier stationed in Kozarac from 27 May 1992 until the end of June 1992, patrolling along Marsala Tita Street "from the cross-roads with the new Banja Luka/Prijedor road, up Marsala Tita Street, as far as the Mutnik Mosque". Witness V confirmed that he saw civilians being pulled out of a column and executed. However, this was an incident separate and distinct from that charged in this paragraph of the Indictment. Although he saw Goran Borovnica on Marsala Tita Street below the kiosk he at no point during his duties in Kozarac saw the accused.

335. Witness W, who was serving in the VRS when Kozarac was attacked, has known the accused for about 20 years and is related to the accused's wife. He was in Kozarac from 26 to 28 May 1992 and also saw the execution of a civilian in Kozarac during that time but did not see the accused during that period although during cross-examination he clarified that he was located in the northern part of Kozarac where he spent the night of 27 and 28 May 1992. It is to be noted that, during rebuttal, Prosecution witness Sakib Sivac testified that he once saw Witness W at the Keraterm camp calling people out and cursing the inmates' "balija mothers", remarking that "we can't live together anymore". Another Prosecution witness, Jusuf Arifagic, testified that he had known Witness W almost his whole life and recalled an incident when Witness W threatened to throw a grenade in front of the house of a Muslim because his brother was a member of the TO. He also recalled another incident in Kozarac when Witness W, whilst drunk in a bar, threatened to set off a grenade and had to be taken away by the police but returned the next day drunk and armed and threatening to avenge himself for having been reported to the police the previous day. He also testified that he saw Witness W visit the Keraterm camp some time in June or the beginning of July.

336. Witness A, who knows the accused "very well", testified about his long wait on 27 May 1992 from about 9.30 a.m. until about 6 p.m. at restaurant "Ziko" located about two kilometres from the junction of Kozarac where the road from Trnopolje crosses the Prijedor to Banja Luka road. He said in all of that time he did not see the accused and that he would have noticed the accused if he had been there.

337. It is the evidence of the Defence that from 23 May to 16 June 1992, apart from the three trips in the early part of June, when the accused visited Kozarac twice first on 1 June and then again sometime between 8 and 10 June and when he visited Trnopolje between these two trips to Kozarac around 4 or 5 June, he was in Banja Luka all the time and could not have been in Kozarac on 27 May 1992 when the alleged killings took place in the afternoon at the kiosk at the intersection of Marsala Tita Street and the road leading to Kalate. This is the effect of the evidence given by the accused, his wife Mira Tadic and his brother Ljubomir Tadic which is dealt with in the section dealing with the defence of alibi. The other Defence witnesses who happened to be at the scene on that day, namely Witnesses V and W, confirmed that killings were taking place on Marsala Tita Street although neither of them saw the accused there. Defence Witness U, who also testified to not having seen the accused on Marsala Tita Street, could not possibly have witnessed events which occurred in the afternoon when he was already at the bottom of the street on his way out of Kozarac between 8.30 to 9 a.m. Defence Witness A, who was also moving in a column down from the street next to the Orthodox church at the bottom of Marsala Tita Street between 8 and 8.30 a.m. before reaching the "Ziko" restaurant on that day, said that he did not see the accused at all but then he too certainly would not have been able to witness what happened at the kiosk that afternoon. The evidence of all or any one of these four Defence witnesses, who had passed through Marsala Tita Street, does not afford an alibi to the accused except to indicate that they did not happen to see the accused in Kozarac on that day while they were there.

338. This Trial Chamber accepts Nasiha Klipic as a witness of truth and her evidence clearly shows that the accused was in the vicinity of Kozarac on the afternoon of 27 May 1992. It also accepts witness Nihad Seferovic as a trustworthy witness. Both these witnesses have known the accused for a considerable period of time and although they did not see the events at the kiosk or the accused's participation therein, their evidence clearly indicates his presence in Kozarac on the day in question.

339. As to the accused's culpability, as stated earlier, it is clear that Salko Karabasic was the first in time to arrive at the intersection when he saw that his brother Ismet Karabasic and Redo Foric had already been singled out of the column and made to stand up against the kiosk. He then witnessed his other brother Ekrem Karabasic, his own son Seido Karabasic and Meho Muikan being taken out of the column by Goran Borovnica on the orders of the accused. Then the column was forced to march on and he saw and heard nothing of what happened at the kiosk afterwards. Ferid Mujcic, who appears to be the next eyewitness in point of time, said he saw Ismet Karabasic, Ekrem Karabasic, Seido Karabasic, Redo Foric and a fifth person at the scene, already singled out and lined up against the kiosk with the accused standing behind Goran Borovnica who was then standing near Ekrem Karabasic. He next saw Seido Karabasic, Redo Foric and the fifth person being taken across the road to the other side of the street and his portion of the column was forced to walk on. Sulejman Besic, who would appear to be the last of the eyewitnesses to come to the intersection, stated that when he reached the well just before the intersection his column was stopped and panic broke out and he witnessed Ismet Karabasic, Ekrem Karabasic, Seido Karabasic and Redo Foric being taken out of the column. The sketch which he marked at trial showed that at that time he had not yet crossed the mouth of the intersection or reached the kiosk. Then his column started to move slowly and as he came to the middle of the intersection looking at the backs of the four individuals, he glanced to his left and saw another group of people, six in number, already lined up against a wall at the intersection towards Kula. Then "all of a sudden" he heard a burst of firing, "one long burst and one shorter burst", and upon looking towards his right he saw the people lined up falling, although one of them stood unsteadily for several seconds; behind them were the accused and Goran Borovnica with "their weapons pointing towards these people". Those shot, he said, were Ismet Karabasic, Ekrem Karabasic, Seido Karabasic and Redo Foric. His column was then ordered to move faster.

340. In connection with the shooting and killing of these four men, the testimony of Sulejman Besic is crucial. For his account to be correct, that he saw these four men being called out and then later shot (by inference because he only heard the firing and saw the automatic rifles of the accused and Goran Borovnica pointing at their backs), he would have had to be ahead of Salko Karabasic and certainly ahead of Ferid Mujcic, who was too far back to have seen any calling-out but saw five individuals, Ismet Karabasic, Ekrem Karabasic, Seido Karabasic, Redo Foric and a fifth person, already standing with their arms against the wall of the kiosk. Sulejman Besic describes the four as being called out at the same time whereas it is clear from Salko Karabasic's evidence that there must have been a lapse of time between the two callings-out, i.e., the calling-out of Ismet Karabasic and Redo Foric, who had already been singled out, and the calling-out of Ekrem Karabasic, Seido Karabasic and Meho Muikan. If Sulejman Besic's account is to be believed, that he saw the calling-out of the four persons, Ismet Karabasic, Seido Karabasic, Ekrem Karabasic and Redo Foric at the same time and the hearing of the shooting of these four persons later, he must have been far ahead of Salko Karabasic and Ferid Mujcic to see the calling-out and yet far behind them in order to hear the shooting which Salko Karabasic and Ferid Mujcic did not hear. Sulejman Besic certainly could not have been both close enough to the front of the column to see all the four individuals being called out and also far enough to the rear to witness the shooting which was apparently out of earshot of Salko Karabasic and Ferid Mujcic, both of whom appeared credible and trustworthy. Sulejman Besic's factual description of the pulling-out of the four individuals and of the hearing of the gunfire does not at all accord with the accounts given by Salko Karabasic and Ferid Mujcic and cannot be accepted.

341. For the reasons given above, the Trial Chamber is not satisfied beyond reasonable doubt that the shooting and killing by the accused of the individuals at the kiosk occurred as alleged or in fact that the shootings did take place although it is fully satisfied as to the accused's participation at the scene in the calling-out of people from the moving column and that this occurred in the context of the armed conflict. In the Legal Findings section of the Opinion and Judgment, the Trial Chamber will consider what offences, if any, have been committed.

G. Paragraph 12 of the Indictment

342. This paragraph concerns incidents alleged to have taken place in the two small villages of Jaskici and Sivci. It reads as follows:

About 14 June 1992, armed Serbs, including Dusko TADIC, entered the area of Jaskici and Sivci in opstina Prijedor and went from house to house calling out residents and separating men from the women and children. The armed Serbs killed Sakib ELKASEVIC, Osme ELKASEVIC, Alija JAVOR, Abaz JASKIC and Nijaz JASKIC in front of their homes. They also beat Meho KENJAR, Adam JAKUPOVIC, Salko JASKIC, Ismet JASKIC, Beido BALIC, SEFIK BALIC, Nijas ELKASEVIC, and Ilijas ELKASEVIC and then took them from the area to an unknown location.

It is then alleged that by his participation in these acts the accused committed offences charged in six counts.

343. Counts 29, 30 and 31 charge the accused by reason of his participation in the acts alleged in paragraph 12 with, respectively, a grave breach of the Geneva Conventions recognized by Article 2(a) (wilful killing) and Article 7, paragraph 1, of the Statute; with a violation of the laws or customs of war recognized by Article 3 and Article 7, paragraph 1, of the Statute and Article 3(1)(a) (murder) of the Geneva Conventions; and with a crime against humanity recognized by Article 5(a) (murder) and Article 7, paragraph 1, of the Statute. Counts 32, 33 and 34 respectively charge the accused, in the form already familiar from earlier counts, with wilfully causing great suffering or serious injury to body or health, with cruel treatment and with inhumane acts.

344. There is considerable evidence regarding those events of 14 June 1992 coming from six witnesses, either surviving former residents of Jaskici and Sivci or who had sought refuge there. From that evidence it is clearly established that on 14 June 1992 Serb armed forces hostile to the Muslim inhabitants of those two villages went from house to house calling out the men, beating them and removing them to prison camps. In Jaskici, five men were killed.

345. After the attack on Kozarac, thousands of inhabitants of the area, almost all Muslim, fled to the countryside to the south, some seeking refuge in Jaskici and Sivci. The residents of those two villages were ordered to surrender all weapons and movement within the villages was restricted. Thereafter Serb forces frequently came to the villages, sometimes in search of particular fugitives, and once requiring local men to collect corpses from a nearby village. Then, early in June, Sivci was shelled briefly by tanks and on or about 10 June 1992 some houses and barns were burned down with the livestock still in them. Frequently the sound of shots were heard at night and the villagers lived in fear, many sleeping in their clothes lest they be ordered to leave their homes without warning, as indeed happened later to the men of the villages.

346. On 14 June 1992 both villages were attacked. In the morning the approaching sound of shots was heard by the inhabitants of Sivci and soon after Serb tanks and Serb soldiers entered the village. The houses were searched one by one and all the men were ordered out onto the road that ran through the village. There they were made to run along that road, hands clasped behind their heads, to a collecting point in the yard of one of the houses. On the way there they were repeatedly made to stop, lie down on the road and be beaten and kicked by soldiers as they lay there, before being made to get up again and run some distance further, where the whole performance would be repeated. Their wallets, identification cards and any valuables they had on them were taken from them as they lay on the road. In all some 350 men, mainly Muslims but including a few Croats, were treated in this way in Sivci.

347. On arrival at the collecting point, beaten and in many cases covered with blood, some men were called out and questioned about others, and were threatened and beaten again. Soon buses arrived, five in all, and the men were made to run to them, hands again behind the head, and to crowd on to them. They were then taken to the Keraterm camp.

348. The experience of the inhabitants of the smaller village of Jaskici, which contained only 11 houses, on 14 June 1992 was somewhat similar but accompanied by the killing of villagers. Like Sivci, Jaskici had received refugees after the attack on Kozarac but by 14 June 1992 many of those refugees had left for other villages. In the afternoon of 14 June 1992 gunfire was heard and Serb soldiers arrived in Jaskici and ordered men out of their homes and onto the village street, their hands clasped behind their heads; there they were made to lie down and were severely beaten. The village houses were searched to make sure that all men were accounted for. Then the men, other than three older men, were marched off in the direction of Kozarac and their families have never seen or heard of them again. When they had left, the women found the bodies of five men who had been shot, their corpses left to lie where they fell. Women and children were either initially ordered out with the men and then told to go back inside their houses or else were simply told to remain inside; in either case they were ordered not to look out to see what was happening to their menfolk.

349. Some of the distraught women in Jaskici left with their children and fled from the village later on 14 June 1992. Others remained behind; one in particular stayed in Jaskici until mid-July with her two young children until suddenly forced to leave by Serb soldiers on a few minutes notice. In the days after 14 June 1992 there were many visits to the village each day by Serb soldiers, who helped themselves to everything from tractors to liquor.

350. As soon as they dared to leave their houses, those who had remained after 14 June 1992, including two of the older men, sought to bury the bodies of the five men which had been left lying in the village. However, they faced threats, abuse and obstruction in doing so and were ultimately obliged to dig one common grave and bury the bodies there. At some subsequent date most, perhaps all, of the houses in Jaskici were substantially destroyed, only burnt-out ruins remaining.

351. The first of five witnesses who say they recognized the accused in these villages, Sakib Sivac, had known the accused since childhood, though as an acquaintance, rather than as a friend. On 14 June 1992, in Sivci, this witness had been made to leave his home and with other residents, hands behind his head, run down the village street, lie down, be beaten and kicked where he lay, get up and run again and so on, repeating this many times until he, with the others, reached a yard filled with some 300 prisoners, mainly Muslims, all of whom had been beaten. There they were questioned and threatened and, when the men of the village had been collected, were made to board buses. As Sakib Sivac approached a bus to board it, he recognized the accused standing on one side of its rear door and a man called Dragoje Cavic, whom he knew better than he knew the accused, standing on the other side; he had to pass between them and, as he sought to talk to Dragoje Cavic, the accused pushed him onto the bus. At that point he turned and looked the accused in the face. After boarding the crowded bus he was standing on the step and could still see the accused through the door of the bus, wearing a camouflage uniform and with a rifle, pistol and knife and perhaps handcuffs at his belt. The buses took the prisoners to the Keraterm camp.

352. Draguna Jaskic lived in Jaskici with her husband. She had known the accused and members of his family by sight for many years. On 14 June 1992 gunfire was heard and then soldiers came to her house and ordered everyone out. One soldier searched the house and the women and children were then ordered to return to the house while the men had to go onto the village street, with hands behind their heads. As the witness began to go inside she saw the accused, 20 metres away, bearded and wearing a camouflage uniform, together with another soldier, driving men of the village down the street towards her house and hitting them with a stick, one of the villagers with blood covering his face.

353. The group had reached the part of the street in front of her house and were some 10 metres away when she finally went inside her house, where she and the other women and children were told to lie down on the floor. The witness later got up and looked through the window and saw the accused and others beating the men of her family as they lay on the street and pouring water over those who had fainted. She saw the accused strike her father with a stick behind the neck as he tried to stand up. Her son then pulled her down onto the floor. She got up again later, looked through the window and saw that all the men were now running down the road with the accused, whose face she could see, beating a man; she was then some 12 metres away from him.

354. Later, when the men from the village had been taken away, she went out onto the street and saw five bodies which she recognized as men from her village though not from her family. Only three older men were left alive in the village. Later that day she went to the Trnopolje camp and eventually in a convoy to Bosnian government territory. She has never seen the men of her family since then, although she has made efforts to trace them.

355. When in May 1995 she was shown a display of photographs by an investigator from the Office of the Prosecutor which included a photograph of the accused, she said at the time that she did not recognize anyone. However, she testified that she in fact recognized the accused but was afraid to say so. She was later questioned again by an investigator from the Office of the Prosecutor and said she did not identify the accused because she was not sure it was he. She said, however, in evidence that she was sure she saw the accused beating a man in the village.

356. Subha Mujic is the sister of the last witness. She knew the accused by sight but had never spoken to him. She lived in a village near Jaskici and had fled from her own home to that of her sister when her own home was shelled and burnt down. She described the arrival of soldiers in Jaskici on 14 June 1992, the ordering out of everyone in her sister's house, the separation of men and women and the beating of the men from her sister's house by the accused, whom she recognized. The accused was bearded, wearing a camouflage uniform. When she went back inside she saw the accused still continuing to beat the men with a rifle and to kick them. They were lying on the street while being beaten and the accused ordered water to be poured over them and they were then led off down the street.

357. Her sister Draguna Jaskic was with her inside when she saw this beating and said to her that the accused was killing all the men of the family. Later she went outside and saw bodies in the village. She has never again seen the men who were taken from her house, despite her efforts to find them.

358. Zemka Sahbaz lived in a nearby village and went with her son and daughter to stay with her relatives in Jaskici when she felt threatened in her own village. She did not know the accused. On the day that soldiers came to Jaskici she was living with her children in a house across the street from that of Draguna Jaskic and ran outside when she heard gunfire. She saw from the steps leading up to the house a man in camouflage uniform leading another man, who came from Jaskici, by the scruff of the neck; that man had a bleeding nose. With the man in camouflage uniform was another man with blond hair who had a stick in his hand. She also saw men and women outside Draguna Jaskic's house lined up against a wall and a soldier with a gun there. The man in the camouflage uniform saw her, cursed and said that if the people in her house did not come out they would all be killed. He then fired his rifle in the air.

359. The witness re-entered her house and brought out those inside, being her 19-year-old son and a number of women. By that time the men from Draguna Jaskic's house were all lying down in the street. The man in the camouflage uniform nodded to the blond man, who started beating the men lying down. Then he told the women to go inside and her son to come with him. However, the witness followed her son to the street whereupon the man in the camouflage uniform threatened her with his rifle and her daughters took her inside. Later she went outside, saw blood and water on the street and in all five dead bodies, the same bodies as those seen by the witness Draguna Jaskic. She has not heard from her son since the day he was taken away.

360. In May 1995 the witness was shown a book of photographs of men and from it selected the photograph of the accused whom she recognized as the man in the camouflage uniform referred to in her evidence. In cross-examination the witness recalled that the man in the camouflage uniform was wearing a hat with a wide brim, "more like a shield" from the sun than a hat. She said of him: "I do not remember a beard, absolutely."

361. Senija Elkasovic lived in Jaskici and knows the accused but only in passing, whereas she knows his wife well, having grown up in the same village. On 14 June 1992 when the soldiers came to Jaskici they ordered her husband and the other men out of her house and told the women and children to remain inside and lie on the floor. One soldier entered the house. The witness glanced out of the window as she was going to lie down and saw the accused, wearing a camouflage uniform but with nothing on his head, in the yard of her house and was then again ordered by that soldier to lie down. She heard shouts from outside and shots and when the soldier left the house she looked out of the window and saw the soldiers and the men from her house moving down the street. Later she went outside and saw no one in the street; walking down the street she then saw two dead bodies with visible bullet wounds in the head. She collapsed and her father-in-law came to her and helped her back to her house. Later again, she saw two more bodies in the garden of her house, both shot in the head. The bodies she saw and recognized were those whom other witnesses also recognized. The witness has not since heard anything of her husband or of her other male relatives taken from her house.

362. Sena Jaskic did not see the accused in Jaskici but as the remaining Jaskici witness her evidence can be conveniently described here. She lived in Jaskici with her husband, a woodcutter. She did not know the accused. She described men in uniform entering Jaskici on 14 June 1992 while she was in the summer kitchen of her house with her husband, her two daughters and three refugees from other villages, a man and two women. Gunfire was heard at about 3 p.m. and two soldiers abruptly came to the kitchen door, ordered her husband and the other man to go with them to the road and the women and children to remain seated. The soldiers took the men out and beat her husband, cursing him as a Muslim and asked if there were others in the house, to which her husband said there were not.

363. Later, when all was quiet, she went down the road and saw two dead men lying there, being Osme and Sakib Elkasevic. She then returned home, packed a bag with clothes and fled the village with her children. She has never since seen either her husband or the other man who was taken from her house, despite looking everywhere for her husband, including consultation with international agencies.

364. The relevant date being 14 June 1992, the accused's evidence is that he was living continuously in Banja Luka without leaving it after returning on the evening of 4 June 1992 from the second of two visits which he made to Kozarac to collect possessions from his house and café and before his departure for Prijedor early on the morning of 15 June 1992.

365. In the later description in this Opinion and Judgment of the accused's alibi the various witnesses who testified to his presence in Banja Luka are named and the nature of their testimony is referred to. His alibi does not deal specifically with 14 June 1992 and, as discussed later, is generally unspecific as to date in respect of this period.

1. Subparagraph 4.1 of the Indictment

366. As was pointed out by the Defence, the description given by each of these several witnesses of the clothing worn by the accused at the time is not consistent and the clothing of the soldiers who entered Jaskici with the accused is described by some witnesses very differently from others and from the witness Sakib Sivac's description of those who entered Sivci. Also the photo-identification of the accused by Draguna Jaskic was unsatisfactory. However, it is to be noted that that photo-identification was also inappropriate and unnecessary when applied to Draguna Jaskic, who had known the accused by sight for many years past.

367. It is also true that the relatively minor role of the accused in Sivci, as described by the sole witness to the Serb entry into that village, contrasts with the important role he is said to have assumed in Jaskici according to some witnesses and with his major role in Kozarac when he attempted to restore it to activity after the attack on it and its substantial destruction. However, these apparent contrasts may be explicable on any one of a number of grounds. They may, for example, be due to no more than the Sivci witness happening upon the accused at a particular moment when he seemed to be engaged in the function of supervising the loading of prisoners onto buses, this at a time when there was little else left to do.

368. There are, in relation to this paragraph, four witnesses who had known the accused by sight in the years before 1992 and who recognized him from that prior knowledge; there is also a fifth witness who did not previously know him but who made a positive photo-identification. Their evidence is answered only by the evidence of the accused that he was continuously in Banja Luka from late May until 15 June 1992, apart from three absences on dates other than 14 June 1992, and by the evidence of his wife and others, unspecific as to date, that he was resident in Banja Luka.

369. This Trial Chamber concludes that it is satisfied beyond reasonable doubt that the Prosecution witnesses did indeed see the accused in Sivci and Jaskici on 14 June 1992, that he entered those two villages together with other armed men as alleged in paragraph 12 of the Indictment and in Sivci took part in the removal of separated men from that village to the Keraterm camp and in Jaskici took part in the calling-out of residents and the separation of men from women and children. It is further satisfied that the said group forcibly removed from the village of Jaskici the following men: Beido Balic, Sefik Balic, Munib Besic, Ilijas Elkasovic, Nijas Elkasovic, Hassan Jakupovic, Ismet Jaskic, Salko Jaskic, Senad Majdanac, Alija Nureski, Iso Nureski, Mirsad Nureski, Jasmin Sahbaz and Fehim Turkanovic, and that the accused participated in their removal and further that the accused beat Beido Balic, Sefik Balic, Ismet Jaskic, and Salko Jaskic.

370. Of the killing of the five men in Jaskici, the witnesses Draguna Jaskic, Zemka Sahbaz and Senija Elkasovic saw their five dead bodies lying in the village when the women were able to leave their houses after the armed men had gone; Senija Elkasovic saw that four of them had been shot in the head. She had heard shooting after the men from her house were taken away. Sena Jaskic saw two of the five dead bodies identified by the other three witnesses; the witness Subha Mujic also saw unidentified bodies in the village after the armed men had gone. That the armed men were violent is not in doubt, a number of these witnesses were themselves threatened with death by the armed men as the men of the village were being taken away. Apart from that, their beating of the men from the village, in some cases beating them into insensibility, as they lay on the road, is further evidence of their violence.

371. The group of armed men were relatively few in number and the accused was one of them and took an active part in the rounding up of men in the village; some witnesses described him as giving orders to others but the evidence for this is not strong. It may, however, be of some significance that of the group only the accused was known to the witnesses; it would seem that he alone came from the locality and, rather than giving orders, he may have been acting as guide to the locality and as to who lived in the village.

372. The village of Jaskici had been quiet before the armed men came; they arrived to the sound of gunfire, conducted with threats of death and great violence a search of the village, house by house, brutally beat the village men as they lay on the road and, when they left taking the village men with them, shots were heard and five dead men remained lying where they had been killed in the village.

373. This Trial Chamber is satisfied beyond reasonable doubt that the accused was a member of the group of armed men that entered the village of Jaskici, searched it for men, seized them, beat them, and then departed with them and that after their departure the five dead men named in the Indictment were found lying in the village and that these acts were committed in the context of an armed conflict. However, this Trial Chamber cannot, on the evidence before it, be satisfied beyond reasonable doubt that the accused had any part in the killing of the five men or any of them. Save that four of them were shot in the head, nothing is known as to who shot them or in what circumstances. It is not irrelevant that their deaths occurred on the same day and at about the same time as a large force of Serb soldiers and tanks invaded the close-by and much larger village of Sivci, accompanied by much firing of weapons. Again it is not irrelevant that the much larger ethnic cleansing operation conducted that day in Sivci involved a very similar procedure but with no shooting of villagers. The bare possibility that the deaths of the Jaskici villagers were the result of encountering a part of that large force would be enough, in the state of the evidence, or rather, the lack of it, relating to their deaths, to prevent satisfaction beyond reasonable doubt that the accused was involved in those deaths. The fact that there was no killing at Sivci could suggest that the killing of villagers was not a planned part of this particular episode of ethnic cleansing of the two villages, in which the accused took part; it is accordingly a distinct possibility that it may have been the act of a quite distinct group of armed men, or the unauthorized and unforeseen act of one of the force that entered Sivci, for which the accused cannot be held responsible, that caused their death.

374. The Trial Chamber is satisfied beyond reasonable doubt that the accused took an active part in the brutal and violent beating of four of those alleged in the Indictment to have been beaten as they lay on the road outside their houses: Beido Balic, Sefik Balic, Ismet Jaskic and Salko Jaskic. There is no evidence of the beating of Ilijas Elkasovic or Nijas Elkasovic. All that remains for consideration in relation to the beating of those four is whether the elements of each of these crimes as charged in Counts 32, 33 and 34 of the Indictment are satisfied and, as previously stated, this will be considered in a later section of the Opinion and Judgment when legal findings are made. There is no evidence of the beating of the other four villagers said in the Indictment to have been beaten.

375. The Trial Chamber is also satisfied beyond reasonable doubt that the armed group, including the accused, forcibly removed from their families and homes the 14 men earlier referred to, to a location then unknown to them. Of these 14 the Indictment charges the accused in respect of only six of them, being Salko Jaskic, Ismet Jaskic, Beido Balic, Sefik Balic, Nijas Elkasovic and Ilijas Elkasovic. It also charges the accused in respect of Meho Kenjar and Adam Jakupovic but no evidence was received with respect to these two men. Whether this forced removal involves any and if so which of the offences charged in these three counts will likewise be considered when legal findings are made.

376. In conclusion, three points should be noted. First, that although reference is made in paragraph 12 to the village of Sivci and evidence was given regarding the actions there of the Serb forces, including the accused, the only allegation appearing in the paragraph relevant to Sivci is the calling-out of residents and the separating of men from women and children. There is no allegation, although much evidence, of physical mistreatment of the people of that village. The evidence concerning the acts of the accused in Sivci is confined to his standing beside the door of a bus used to transport away the men of the village and pushing male villagers onto it after they had been called out and separated. In those circumstances, whether or not the act of calling-out residents and separating the men from others could itself constitute cruel treatment or inhumane acts, and whether any assistance given by the accused to others in relation to that act is direct or substantial, is considered when legal findings are made. Secondly, while there is evidence of the calling-out and separation in Jaskici of Ilijas Elkasovic and Nijas Elkasovic from women and children, there is no evidence of any beating of either of them. Lastly, as mentioned above, there was no evidence led as to the two other persons, Meho Kenjar and Adam Jakupovic, named in this paragraph of the Indictment.

H. Paragraph 4 of the Indictment

377. This paragraph concerns incidents alleged to have taken place at various locations in opstina Prijedor. It reads as follows:

Between about 23 May 1992 and about 31 December 1992, Dusko TADIC participated with Serb forces in the attack, destruction and plunder of Bosnian Muslim and Croat residential areas, the seizure and imprisonment of thousands of Muslim and Croats under brutal conditions in camps located in Omarska, Keraterm and Trnopolje, and the deportation and/or expulsion of the majority of Muslim and Croat residents of opstina Prijedor by force or threat of force. During this time, Serb forces, including Dusko TADIC, subjected Muslims and Croats inside and outside the camps to a campaign of terror which included killings, torture, sexual assaults, and other physical and psychological abuse.

After this introductory paragraph follows several subparagraphs in which the specific acts alleged are detailed.

(a) The events alleged

378. This subparagraph concerns events alleged to have taken place during and subsequent to the attack on Kozarac and its outlying villages. It reads as follows:

Between the dates of 24 to 27 May 1992, Serb forces attacked the village of Kozarac and other villages and hamlets in the surrounding area. Dusko TADIC was actively involved in the attack. His participation included firing flares to illuminate the village at night for the artillery and tank guns as the village was being shelled, and physically assisting in the seizure, collection, segregation and forced transfer to detention centres of the majority of the non-Serb population of the area during those first days. Dusko TADIC also took part in the killing and beating of a number of the seized persons, including: the killing of an elderly man and woman near the cemetery in the area of "old" Kozarac, the acts described in paragraphs 11 and 12 below, the beatings of at least two former policemen from Kozarac at a road junction in the village of Kozarac, and the beating of a number of Muslim males who had been seized and detained at the Prijedor military barracks.

379. Several witnesses testified to the acts alleged in subparagraph 4.1 and to the accused's role therein. There are essentially three aspects to this charge: the attack; the collection and forced transfer to detention camps; and the killings and beatings. Considerable evidence has been presented regarding the attack on Kozarac and the hamlets in the surrounding area. Many witnesses testified that the attack on Kozarac began with heavy shelling on 24 May 1992 after the expiration of an ultimatum demanding the surrender of weapons and a pledge of loyalty. Ample evidence was also presented that after the Muslims of Kozarac surrendered, beginning on 26 May 1992, long columns of civilians from the outlying areas, almost entirely non-Serb with the great majority consisting of Muslims, moved through the centre of Kozarac to collection centres where they were then separated and transferred to one of the three principal camps operating in the opstina: Omarska, Keraterm or Trnopolje. Many Muslim witnesses also testified to the fact that killings and beatings occurred during this period. As such, the issue in this subparagraph is the alleged role of the accused in these events.

380. A number of witnesses testified to the accused's participation in the attack on Kozarac and the outlying areas. Witness Q, who knew the accused, testified that he saw the accused in Kozarac between 8 and 9 p.m. on the day the attack started, 24 May 1992. He had been at home eating lunch when the attack started, quickly changed clothes and then went to the hospital to try and prepare it for attack. As he was leaving the hospital in the evening to check on his family he saw the accused and one Bosko Dragicevic jump over a fence and head toward some nearby gardens. Soon thereafter a flare was fired from the garden area in the direction of the hospital and shelling followed which greatly damaged the hospital. The Defence questioned the veracity of this witness by pointing out that in a prior statement he had stated that when he heard the shelling he waited at home for several hours and it was only in the evening when he left for the hospital that he saw the accused. This contrasted with his testimony before the Trial Chamber which indicated that he had been at the hospital and was on his way home when he saw the accused. When challenged he responded that it was possible that there was a mistake in the prior statement because he had only given a superficial account without regard to the real sequence of events whereas he had never given a fuller account in his life than his testimony in court. The Trial Chamber accepts this explanation and considers Witness Q to be a reliable witness.

381. Armin Mujcic, who has known the accused since childhood when he participated in the accused's karate training and later frequented the accused's café, was in Kozarusa when the attack began. On "the second day" he went towards Kozarac with the intention of joining the columns moving in from the northern part of Kozarac in the direction of the Banja Luka Road. In Kozarac he saw the accused in a camouflage uniform with Goran Borovnica on a tank which had been parked in Marsala Tita Street. There were other Serb soldiers accompanying a column of people towards the Banja Luka/Prijedor road and they were cursing at people passing by in columns.

382. Azra Blazevic, who has known the accused "superficially" since 1983 when she began practising veterinary medicine in Kozarac, saw the accused at the triangle in Kozarac town centre on 26 May 1992 at approximately 3 p.m. As she waited by the pastry shop someone called out, "there's Dule", and she looked around and noticed the accused crossing the street in the direction of the school. He was carrying a weapon and wearing a uniform. As the day was sunny she had a clear view of him, although she saw him for only a few seconds. She remembers this sighting because one Nihad Bahonjic, a Muslim ambulance driver, was at that time being taken away from Marsala Tita Street near the triangle by an unknown soldier and the only other person she knew in the area was the accused. She had also seen the accused in the days immediately before the attack. The Defence has challenged her recognition of the accused because of the "fleeting glance" she had of him and the remark uttered at that time signifying it was the accused. The Prosecution responded by pointing out that she was looking for a familiar face and that a fleeting glance of someone one knows can be perfectly reliable, according to the evidence of Dr. Wagenaar, the Defence expert witness. Earlier on 26 May 1992, around 10 a.m., and again in the afternoon of 27 May 1992, Witness S saw the accused at Keraterm. The Trial Chamber finds Azra Blazevic and Witness S to be reliable witnesses. Salko Karabasic, Ferid Mujcic and Sulejman Besic, who testified in detail regarding the events described in paragraph 11, all saw the accused on 27 May 1992 in Kozarac when their column of civilians moved down Marsala Tita Street towards locations for separation. As discussed in relation to that paragraph, the Trial Chamber accepts their testimony as to seeing the accused on that particular day calling out Muslim men from the column moving down the main street.

383. Additional evidence supporting the accused's role in the events relating to the attack on Kozarac comes from statements made by the accused himself. Kemal Susic testified that the accused told him after a meeting of the League of Peace, an organization attempting to avoid conflict in the Kozarac area, that Kozarac would be shelled and Witness AA testified that the accused said the area would be part of a Greater Serbia. Significantly, Mirsad Blazevic heard the accused say that he had "liberated Kozarac and nobody is going to take anything out of Kozarac, only over my dead body".

384. Evidence of the accused's role in the collection, selection and forced transfer of non-Serb civilians to detention camps is presented by several witnesses. Witness Q testified that when he returned to Kozarac on 26 May 1992 to check on his family, he saw a column of Muslims walking down Marsala Tita Street toward the triangle and from there they were directed first towards Prijedor and then towards Trnopolje and Sivci by the Serb police and army. He saw the accused by the triangle in Kozarac at this point. As previously noted, Azra Blazevic also testified to seeing the accused on that day carrying a weapon.

385. Nasiha Klipic, who has known the accused almost her whole life, stated in evidence that upon leaving Vidovici on 27 May 1992 she and her children joined a convoy of people who were moving towards Kozarac to surrender. As they came to the intersection in Kozarac at about 2 p.m. there were soldiers, Serb policemen and tanks in the vicinity. They headed for Kozarusa in the direction of Prijedor and on the way she saw a Golf police car driven by Brane Bolta, moving in the opposite direction with the accused, wearing a camouflage uniform, in the passenger seat. She had an unobstructed view of the car for about one minute from a distance of less than one metre away. About one to one-and-a-half hours later the convoy arrived at the "Zikina" tavern in Kozarusa. The column was being guarded by Serb army and police personnel who were "singling people out and killing them". When the convoy arrived at the Kozarusa bus station by the tavern, males aged 15 to 65 were separated from women and children and the men were divided into three groups destined respectively, as she later found out, for the Omarska, Trnopolje and Keraterm camps. She recognized several of the Serbs who were engaged in separating the people and these Serbs included the accused and Goran Borovnica. At that time she was about three to four metres away from the accused and her view was unobstructed. She also heard the accused ask a policeman named Milos Preradovic: "Where do I take these?" referring to those being rounded up. At that time the accused was bareheaded, dressed in a camouflage uniform and was armed with a pistol and an automatic rifle. As stated in relation to paragraph 11, the Trial Chamber accepts Nasiha Klipic as a truthful witness.

386. Mehmed Alic testified that he and his family joined the column of people in Kozarac to surrender to Serb forces on the morning of 26 May 1992. About 10 or 10.30 a.m. they arrived at the bus stop at Limenka where Serb soldiers had gathered and were separating Muslim men from women and children and placing the men on buses. As he waited by the side of the road at Limenka he saw the accused, wearing a camouflage uniform, passing by the bus in the company of Milos Balte and other policemen. Mehmed Alic was a friend of the accused's father, knew the Tadic family and his sons socialized with the accused. The Trial Chamber considers him to be a truthful witness.

387. The Trial Chamber has found beyond reasonable doubt that the accused entered the villages of Sivci and Jaskici together with other armed men as charged in paragraph 12. In Sivci, the accused took part in the removal of the men from that village, who had been separated from the women and children, to the Keraterm camp and, in Jaskici, took part in the calling-out of residents, the separation of men from women and children and the beating and removal of the men. Although the date of these events, 14 June 1992, falls outside of the dates listed in this subparagraph, it comes well within the time-frame prescribed in the prefatory paragraph: 23 May to 31 December 1992.

388. Much testimony has been heard concerning the various killing and beatings with which the accused is charged, including those specifically mentioned as well as others not elaborated upon. A notable exception was the charge of killing an elderly man and woman near the cemetery in the area of "old" Kozarac, specifically charged in this subparagraph, for which no evidence has been offered. The evidence concerning the killings at the kiosk described in paragraph 11 has been discussed above, the Trial Chamber finding that although it is satisfied beyond reasonable doubt that the accused was present at the kiosk on 27 May 1992 and was engaged in the calling-out of Ekrem Karabasic, Ismet Karabasic, Seido Karabasic and Redo Foric from the column of civilians, no reliable evidence was presented to satisfy the Trial Chamber beyond reasonable doubt that the accused killed these individuals.

389. In regard to the killings described in paragraph 12, as discussed above, the Trial Chamber accepts that in the village of Jaskici the five men, Sakib Elkasevic, Osme Elkasevic, Alija Javor, Abaz Jaskic and Nijaz Jaskic, were killed at the time of the presence of the group of armed men, of which the accused was part, in that village and further that this group forcibly removed Beido Balic, Sefik Balic, Munib Besic, Ilijas Elkasovic, Nijas Elkasovic, Hassan Jakupovic, Ismet Jaskic, Salko Jaskic, Senad Majdanac, Alija Nureski, Iso Nureski, Mirsad Nureski, Jasmin Sahbaz and Fehim Turkanovic. The Trial Chamber has already made a finding that the accused participated in the removal of these men and that he beat Beido Balic, Sefik Balic, Ismet Jaskic and Salko Jaskic.

390. With regard to the beatings of at least two former policemen from Kozarac at a road junction in Kozarac, the testimony of Witness Q is relevant. On 26 May 1992 he returned to Kozarac from his hiding place in the woods and as he headed towards his house he passed by the triangle between his house and the school when he saw 10 Muslim policemen standing in a line. With them were several Serbs, including the accused and Goran Borovnica, both of whom hit one of the policeman named Alic, the accused inflicting a "karate blow". He saw the policeman Alic stumble and fall as a result of the blow and Goran Borovnica grabbed him by the neck and pulled him back into the line. Witness Q watched for about 15 minutes from behind a house. It is to be noted that Witness Q's testimony only goes to establish the beating of one policeman, not two as charged in this subparagraph.

391. Regarding the beating of a number of Muslim males who had been seized and detained at the Prijedor military barracks, Uzeir Besic and Sead Halvadzic both testified to being beaten while they were held at the Prijedor military barracks in early June 1992; Uzeir Besic around 3 June 1992 and Sead Halvadzic around 8 June 1992. Uzeir Besic, a Muslim, testified that during the attack on Kozarac he hid in the woods with friends, all of whom were unarmed, until 31 May 1992 when he was captured by Serb forces. On 3 June 1992 he was eventually taken with two other young men to the Prijedor military barracks where they entered a building and were placed in the hallway facing the wall with Uzeir Besic farthest to the right. Soldiers then began to curse them and beat them on their backs and shoulders with batons, making him fall on his knees with his head facing to the right toward some offices down the hall. While he was on his knees he saw the accused come out of a room to his right and approach him as he headed towards the exit. As he passed, the accused kicked Uzeir Besic several times and then continued on his way out of the building. Uzeir Besic has known the accused since boyhood.

392. Sead Halvadzic had been a parachutist in the JNA and was posted in Serbia until 15 May 1992 when orders came that all soldiers of Bosnian origin had to be posted in Bosnia. He arrived in Banja Luka, later joined a resistance group of mostly Muslims and some Croats, was captured along with a friend on 6 June 1992 and was transferred to the Prijedor military barracks sometime after noon on 9 June 1992. He was taken to the first floor and left with another man while one of the guards went to get the Commander. Another guard came along and asked: "What are you Ustasa doing here?" He forced them to raise three fingers in a Serb salute and lined them up against the wall with their faces against the wall. Then another guard asked, "Tadic, do you see Ustasa", and then two military policemen entered, both dressed in camouflage uniforms with "white slings", one of whom was the man the guard had addressed as Tadic. Thereupon he was struck by a very hard "karate blow". The two men then proceeded to kick and beat him with batons and other items whilst he and the other men had to lean with three fingers against the wall. He was able for a short while to see the faces of the men who were beating him. The Commander then told them to stop the beating, saying: "Tadic, let those people alone", and one of the two replied, "They all have to, all their throats should be cut, that is the only way". They were then taken to a cell in the barracks where they were beaten again by a different group of soldiers and the next day they were taken to the Omarska camp. He had not known any man named Tadic prior to that day. He identified the accused through a photospread on 14 June 1996 as one of the two men who had physically abused him at the Prijedor barracks and asserted that prior to that time he had had not seen the image of the accused on television or any other media form. He stated that he was sure that the photograph he selected was of one of the people who had beaten him at the Prijedor barracks. As discussed in Section V of this Opinion and Judgment, the Trial Chamber has found the identification procedure to be valid. Although the Defence, by way of a preliminary objection, pointed out that the dates of these alleged events go beyond the time-frame of 24 to 27 May 1992 stated in this subparagraph, these events do fall within the time-frame prescribed in paragraph 4.

393. As for other killings, not specifically charged but relevant because of the use of the word "including" in this subparagraph, Nihad Seferovic testified that on the afternoon of 26 May 1992, on his way back home from the hills in Besici, he stopped at the orchard of a house across from the Serbian Orthodox church. In front of the church he saw approximately six Muslim policemen from Kozarac, including Edin Besic, Ekrem Besic, Emir Karabasic and one Osman with their hands behind their necks standing in line. In front of them were the accused, Goran Borovnica, "Dule" and about 15 other Serb paramilitaries who had weapons pointed at the Muslim policemen. He saw the accused pull two of the policemen, Osman and Edin Besic, out of the line and kill them by slitting their throats and stabbing each one several times. The Defence challenged the witness's ability to view clearly the events occurring in the churchyard. There is however, no evidence with regard to the killing of the old couple by the cemetery as alleged in this subparagraph.

(b) The case for the Defence

394. In support of the Defence assertion that the accused was not in Kozarac from 24 to 27 May 1992, the Defence called evidence to show that he was not there during the armed conflict and did not participate in the selection and transfer of civilians to collection centres. This evidence was discussed in relation to paragraph 11, where it was noted that Witnesses U, V, W and A did not see the accused in Kozarac on the days in question.

395. Witness U, who was in the front part of the column which passed through Kozarac on 27 May 1992, arrived at the triangle between 8.15 and 8.30 a.m. where he waited for one-and-a-half to two hours. During that time he did not see the accused. Witness V, who was in Kozarac on 27 May 1992 as a soldier, did not see the accused in Kozarac on that day. Similarly, Witness W was in Kozarac from 26 to 28 May 1992 and at no time saw the accused, although during cross-examination he clarified that he was stationed in the northern part of Kozarac where he spent the night of 27 and 28 May 1992. Witness A, who waited most of the day of 27 May 1992 at "Ziko's" restaurant before being transported along with 20 others to the Keraterm camp, did not see the accused at all during his long wait. Knowing the accused "very well" he stated that, had the accused been there, he would have recognized him. Additional Defence evidence concerning the events described in paragraphs 11 and 12 is described in relation to those paragraphs and requires no repetition.

396. As discussed in relation to paragraph 11 and in the section of the Opinion and Judgment addressing the accused's alibi, the Defence assertion that the accused was not in Kozarac at this time cannot be accepted. The evidence of the Defence witnesses who happened to be in the Kozarac area during the attack, namely Witnesses V, W, U and A attests only to their not having seen the accused in Kozarac when they were there. The Trial Chamber considers the Prosecution witnesses referred to as reliable witnesses and accepts their evidence that the accused was present in Kozarac during this period and actively participated in the attack on Kozarac and the surrounding areas and in the collection and forced transfer of civilians to detention centres.

397. The Trial Chamber finds beyond reasonable doubt that the accused participated in the calling-out of civilians as described in paragraph 11 of the Indictment as well as the calling-out, separation, beatings and forced transfer of civilians described in paragraph 12 of the Indictment. This Trial Chamber also finds beyond reasonable doubt that the accused beat a policeman named Alic on Marsala Tita Street in Kozarac; that he kicked Uzeir Besic and beat Sead Halvadzic while they were held at the Prijedor military barracks; and that he killed two policemen, Osman and Edin Besic, in front of the Serbian Orthodox church in Kozarac. All of these victims were Muslim. The Trial Chamber also finds that each of these acts was committed within the context of an armed conflict. All that remains for consideration in relation to these offences is whether the elements of the crime charged in Count 1 of the Indictment (persecution on political, racial and/or religious grounds) are satisfied and, as stated previously, this will be considered in a later section of the Opinion and Judgment when legal findings are made.

2. Subparagraph 4.2 of the Indictment

(a) The events alleged

398. This subparagraph concerns events alleged to have taken place at the Omarska, Keraterm and Trnopolje camps. It reads as follows:

Dusko TADIC was also seen on numerous occasions in the three main camps operating within opstina Prijedor: Omarska, Keraterm and Trnopolje. During the period between 25 May 1992 and 8 August 1992, TADIC physically took part or otherwise participated in the killing, torture, sexual assault, and beating of many detainees at Omarska camp, including: those acts set forth in paragraphs 5 through 10 below and other instances of torture and beating prisoners in the "white house", the "administration building", the "pista" and the main garage area. During the same period, in Keraterm camp, Dusko TADIC physically took part or otherwise participated in the beating of detainees and looting of their personal property and valuables, including, on more than one occasion, the mass beating of a number of detainees from Kozarac being confined in "Room 2".

399. The Trial Chamber has been presented with an overwhelming amount of evidence regarding the existence of the Omarska, Keraterm and Trnopolje camps. In addition, virtually every Prosecution witness attested to the horrendous conditions of the camps. Thus at issue in these subparagraphs is the role, if any, of the accused in these incidents.

400. The evidence supporting these charges, not including that substantiating the allegations contained in paragraphs 5 to 10 of the Indictment, includes the testimony of several witnesses who testified to seeing the accused at the Omarska, Keraterm or Trnopolje camps.

(i) Omarska

401. In addition to the testimony given in regard to the events charged in paragraphs 5 to 10 of the Indictment, 12 Prosecution witnesses testified that they saw the accused at the Omarska camp between May and August 1992. The first sighting of the accused was on 29 May 1992 by Hamdija Kahrimanovic, a Muslim who has known the accused since 1967 when he stayed in an apartment 15 to 20 metres from the accused's parents in Kozarac. Over the years while the father of the accused was alive, Hamdija Kahrimanovic saw the accused's father nearly every day. Hamdija Kahrimanovic's wife worked in the health clinic with Mira Tadic, the wife of the accused.

402. Hamdija Kahrimanovic arrived at the Omarska camp on 27 May 1992 and saw the accused twice during his time there. When he saw him on 29 May 1992 Hamdija Kahrimanovic was on the pista and the accused was standing 20-25 metres away in front of the administration building with two or three uniformed men. Hamdija Kahrimanovic testified that the accused was wearing standard camouflage clothing. In the middle of the following week, which would be between 2 and 4 June 1992, Hamdija Kahrimanovic again saw the accused. He was walking toward the administration building when he noticed the accused at approximately the same place he had seen him the previous week, again with two or three people. Hamdija Kahrimanovic testified that he had a clear view of him and that he was approximately 10 or 15 metres away.

403. Senad Muslimovic, a Muslim prisoner at the Omarska camp who was severely and frequently beaten during his time there, was the next witness to place the accused at Omarska. He testified that the accused, along with several others, beat him on two separate occasions. The first beating occurred after Senad Muslimovic was interrogated. After leaving the interrogation, during which he was beaten, Senad Muslimovic was on his way back to room 15 in the hangar building from a room above the kitchen. As he walked toward the hangar, he stole a look and saw men on the grass near the white house. Some of these men began to follow him and he sped up in a futile attempt to elude them. As he reached the door to the staircase, he felt a blow that made him fall on his hands and knees in the direction of the stairs. The accused came from behind and grabbed his hair, pulling left and right as if shaking him, turning him. He then saw a man who told him to kiss a beret that he was holding with a kokarda on it. Senad Muslimovic refused until the man hit him, causing him to fall against the kokarda and cut his lips. This was followed by a series of blows. He was hit on his head so strongly that he stumbled forward and then he was severely hit from several sides. At one point an object was thrown that hit him in the back. He somehow got up and managed to escape up the stairs. The second beating of Senad Muslimovic, which occurred on 18 June 1992, has been discussed in the portion of the Opinion and Judgment addressing paragraph 6 of the Indictment.

404. The Defence challenged the credibility of Senad Muslimovic's testimony as to the involvement of the accused on the basis that he may have seen media coverage of the arrest of the accused in Germany. In addition, the Defence implied that he may have followed news stories about the accused and that the passage of time between the events and his viewing of the photospread may have decreased his ability to identify the accused properly.

405. Edin Mrkalj, who worked as a policeman in Prijedor until 10 April 1992 and is a Muslim, also testified to receiving a beating by the accused. Edin Mrkalj was taken to the Omarska camp on 2 June 1992 and remained there until the camp was disbanded in August 1992. He had known the accused since 1991 when he met him in Prijedor through Emir Karabasic, his co-worker. After that occasion, he saw the accused several times prior to the conflict.

406. On 16 June 1992, at approximately 2 p.m., Edin Mrkalj and another inmate were taken to the first floor of the administration building for the purpose of transporting a dead body. When they got to the top of the stairs, they stopped with their heads down as was customary practice. He heard laughter, but could not see how many people were around him. The man standing next to him received a blow and fell down. Someone then put a rubber baton under Edin Mrkalj's throat in such a way that his head was forced up and he looked into the face of the accused, who was holding the baton. The accused then turned and hit him on his head. Edin Mrkalj testified that the accused asked him why he was there and what his occupation was, despite knowing that he had been a police officer. He answered and was told to stretch out his arms and hands. The accused then asked him which hand he used to write with, then began hitting him on that hand with the rubber baton. When the baton fell at one point, the accused told him to "pick up the baton and say, 'Here you are, sir' and 'Serb, Serb'". Edin Mrkalj stated that the accused then stuck the barrel of an automatic rifle in his mouth and began beating him on the head with a metal spring:

The barrel was in my mouth and I was receiving double blows with a rubber baton and with the metal spring. Now, rubber baton, one can still survive, somehow manage it, but not a metal spring. My head was bursting, blood was bursting. It was awful. My teeth were breaking. Everything was breaking. I cannot remember exactly which blow was the last one. The last one was really terrible. I have a feeling that Dusko Tadic at that moment had stepped backward. I do not know whether the barrel was out of my mouth at that moment or before that, but I received a terrible blow there and everything burst. I fell. I fainted.

407. While the accused hit him with the metal spring, another person hit Edin Mrkalj with a rubber baton. He lost consciousness for a period of time. He testified that, when he came to, the accused ordered him to hit a man who was lying down with a crushed head. "You could not identify a nose or eyes or any part of his body only blood, blood, blood." After he hit the man, two civilians with a camera arrived and walked toward them. Edin Mrkalj stated that the accused then told him to run downstairs and he somehow managed to return to his group.

408. Edin Mrkalj testified that he had several minutes in which to see the accused, who had on a blue police jacket and soldier's boots and was unshaven. As a result of these incidents, Edin Mrkalj testified that he has had three operations on his gums and mouth and he suffered damage to his hand from which he had just recovered in March or April 1996.

409. The Defence challenged the credibility of his testimony on the basis that in a prior statement he said that the accused at the time of this incident looked 40 years old and in court he did not make the observation to the effect that the accused appeared to have aged.

410. Mehmedalija Huskic testified that he encountered the accused at Omarska on 20 June 1992. Mehmedalija Huskic, a Muslim, lived in opstina Prijedor from birth mostly in the area of Kamicani, a largely Muslim area of approximately 1,000 households, 12 kilometres from Prijedor and 1 kilometre from Kozarac. He knew the accused from seeing him in the street and saw him often around town over the past 20 years. He arrived in Omarska on the Friday after the attack on Kozarac and remained there until 6 August 1992. While there, he was kept in the electrical workshop room. He testified that on or around 20 June 1992 he was in the electrical workshop after coming back from being taken to get his gun from his home. The accused came in, walked by the inmates who, pursuant to an order from someone, were standing at attention in two lines, went to the end of the room and sat on a wooden bench. The accused used gross language and verbally abused them, mentioning "Alija's name in a very gross context". The accused had a pistol in his hand and hit every second person on the head with the pistol. The witness was one of the ones hit, so he had an opportunity to observe the accused from about half a metre away. As he hit people on the head, the accused said: "You had a rifle." He then left the room. Mehmedalija Huskic testified that the accused was in camouflage attire, had an automatic rifle on his back and had a small beard of about a week's growth of hair. The witness stated that he observed the accused from a close distance during this incident for about three minutes and had no doubt as to his identity.

411. The Defence challenged Mehmedalija Huskic's credibility on the basis that, in a June 1995 statement, he stated that the man who came into the room was clean-shaven while at trial he testified that the accused had a small beard at that time. In addition, the prior statement alleged that the accused entered the room with two or three soldiers instead of one other soldier as he testified at trial. The Defence also noted that although this incident allegedly occurred only two days after the events charged in paragraph 6 of the Indictment, no other witness who was in the electrical workshop mentioned the presence of the accused in the room on that day. The testimony indicates that Armin Kenjar, Muharem Besic, Elvir Grozdanic, Ferid Mujcic, and Emsud Velic were held in the electrical workshop around this time and none of them mentioned the incident to which Mehmedalija Huskic refers in regard to the accused.

412. Ziyad Jakupovic, a Muslim who has known the accused from the time they were in primary school together, claims to have seen the accused on 21 or 22 June 1992 between 3 and 4 p.m. He was sitting in the white house, looking through the window of the first room to the right. He saw the accused in a group of three men coming from the direction of the pista and moving towards the white house. The accused was the closest to the white house of the three men. Although Ziyad Jakupovic had a clear view of him, he only saw him from the waist up due to his view being partially blocked by the windowsill. The accused was about seven to ten metres from him. Ziyad Jakupovic remembers this occasion because of his belief that people tended to kill those that they knew and his fear that the accused would recognize him. He testified that the accused had on the top part of a camouflage uniform like a shirt, with no cap, and was unshaven. Although he saw him only briefly, it was enough time to recognize him.

413. The remaining witnesses to the accused's presence at Omarska cannot pinpoint an exact date, although the testimony reveals that they each saw him between June and early August 1992. Ferid Mujcic, a Muslim from Kozarac, has known the accused for most of his life, although they did not socialize. In addition to seeing him on 18 June 1992, the day that Emir Karabasic and Jasmin Hrnic were called out, he saw the accused on a subsequent occasion moving from the administration building towards the white house when he was in line to go to lunch. The accused was accompanied by two men dressed in uniforms and the accused also had on a camouflage uniform with a pistol on his hip. No challenges were raised to this part of his testimony on cross-examination, although the Defence did question certain other elements of his testimony that related to paragraph 6 of the Indictment.

414. Another witness testified to seeing the accused at the Omarska camp at some point in late June 1992. This witness, Kemal Susic, was born in Kozarac and lived there on Marsala Tita Street until 1992. He is also a Muslim. His knowledge of the accused is indisputable; the accused was a pupil of his in school, he helped the accused gain access to the school gym for his karate lessons, his younger son helped the accused build the accused's house and café, and his uncle loaned him money to help complete his coffee bar. He also testified, as have many witnesses, to the distinctive gait of the accused. During the latter half of June 1992 Kemal Susic saw the accused, with a group of soldiers of the VRS, entering the administration building and walking upstairs. The accused wore camouflage trousers and an ordinary shirt with no jacket and was not carrying weapons. Kemal Susic testified that he had a good view of him in sunny weather.

415. Dzemal Deomic also knew the accused from their school days in Kozarac. Dzemal Deomic, a Muslim, saw him often in Kozarac and on one occasion had had a conversation with the accused about whether Dzemal Deomic could assist the accused with some work. At Omarska, Dzemal Deomic was held in the garage at the rear of the administration building during the first four weeks and while there he saw the accused during the month of June. He was standing in the front of the room, not much more than one metre from the door and less than one metre from the wall when he saw the accused through the open door eight to ten metres outside of the garage. Dzemal Deomic testified that the accused rode up slowly on a motor bike from the direction of Omarska town, from his left side, and a guard jumped out of an open van door and halted him. He stopped and talked to the soldier who was standing near the van. The witness then saw him approaching with a young soldier and feared that he might be seen, so he moved backwards to get as far away as he could inside the garage. The accused had a band on his head, was unshaven, was wearing a jacket with many pockets like a pilot's jacket and had an automatic rifle with a double chamber on his back.

416. Dzemal Deomic was later transferred to the white house, from which he twice saw the accused. The first time, he was in the corner next to the wall at the entrance to the second room on the right, crouching down when he saw the accused in the corridor through the glass of the closed door. However, Dzemal Deomic said that he only saw half of the face of the accused on this day. During the second sighting from the white house, Dzemal Deomic was in the same position although there were less people in the room with him at this time. Both of these sightings in the white house occurred in late June, July or early August 1992. The Defence argues that this witness's account is unreliable because the witness saw a picture of the outside of the garage in which it was raining, then incorporated the rain into his account of the occasion when he saw the accused on a motor bike, arguing that this shows great suggestibility.

417. Kasim Mesic, a Muslim who did not know the accused prior to his time at Omarska, saw the accused in July 1992 on the pista area with a notebook or book of some kind in his hand, immediately after a man had been murdered, talking to the guard who had shot the man. The corpse of the man was still visible when the accused arrived to talk with the guard. On another occasion, Kasim Mesic saw the accused upstairs in the administration building. Kasim Mesic was ordered to take a prisoner who could not walk on his own there for interrogation. As he passed a table at the top of the stairs, he saw the accused sitting on a chair with his feet on a table. Kasim Mesic did not know the accused but identified him from the photospread. Kasim Mesic testified that he was approximately two metres away and was forced to stand there for about 15 minutes, and had a good opportunity to view the accused, despite his orders to face the wall, because he kept stealing glances in the direction of the accused. He claimed to have never seen a picture of the accused prior to the investigator from the Office of the Prosecutor showing him the photospread.

418. In cross-examination, it was revealed that the day this witness saw the accused on the pista, he was bleeding from cuts on his face, which may have affected his vision. His sighting of the accused on the pista was also challenged on the basis that he and everyone there were forced to lie on their stomach thus allowing him only a fleeting glance of the accused from the corners of his eyes. In addition, the Defence suggested that Kasim Mesic was frightened because of the shooting and could have made a mistake about the identification.

419. Another Muslim from the Prijedor area, Nihad Haskic, testified that he saw the accused twice while at Omarska. Although he lived in Prijedor and Trnopolje, Nihad Haskic knew the accused because of the prominence of the accused's family. Nihad Haskic arrived in Omarska on 30 May 1992, spent his first night in the administration building and then was on the pista for nine or ten days before being transferred to the hangar. He first saw the accused during the time he was on the pista. There was a rumour spread among the inmates that the accused was there. Nihad Haskic looked over and saw the accused in a group of three or four guards in camouflage uniforms with weapons.

420. The second time he saw the accused was one to three days later, and Nihad Haskic was still on the pista. The accused was standing in a group, in a camouflage uniform, next to the administration building on the corner furthest from the white house and across from the hangar building. The members of the group were standing, pointing at something. Again, Nihad Haskic's attention was drawn to the group because of a rumour that the accused was in the camp. Both times he only glanced up but had enough time to recognize the accused. Nihad Haskic testified that he saw the back of someone whom he thought was the accused on another occasion but cannot confirm that it was him.

421. Saud Hrnic also saw the accused on the pista. As he was from Kozarac, he knew the accused although they were not friends. Saud Hrnic, who was a Muslim, had taken karate lessons with him. He arrived at Omarska around 8 June 1992 and remained there until 6 or 7 August 1992. He saw the accused only once while there, holding something resembling a paper file, standing on the pista near the administration building. He does not know whether the accused was moving or standing still, or whether he had a beard or was clean-shaven. When he saw the accused, Saud Hrnic was lying on his back with his head positioned towards the hangar on the right side facing the direction of the grass and the white house. He does not remember if there were any other persons standing with the accused, but there was nothing blocking his vision and it was a sunny day. As soon as he saw the accused, Saud Hrnic put his face toward the ground so that the accused would not see him.

422. Witness R, a Muslim, also places the accused at Omarska, although he is not sure of the date. He did not personally know the accused before but had seen him in the sports pages of the Kozarski Vjesnik newspaper on four or five occasions. The day he saw him at Omarska, Witness R was on the pista having a conversation with a man named Hrnic from Kozarac, when Hrnic said: "That is Dusko", and pointed. Hrnic bent down and Witness R looked toward the white house to see the accused coming out of it. He watched him, for a minute or two, walk in the vicinity of the white house. Witness R testified that he had a clear view of the accused's face and testified that the accused was wearing a multicoloured jacket the colour of the skin of a giraffe. The date of this sighting was sometime between 30 May and 6 August 1992, the dates that Witness R was present at Omarska. This event registered in Witness R's mind because of his recognition of the accused from the sports page of the newspaper. He testified that he was sitting between two flower tubs with an unobstructed view. However, it appears that Witness R may have spoken with a witness who had testified previously or to the Prosecution about that witness's testimony because, in response to a question, he stated that the flower tubs did not impair his view even though the question that had been put to him did not make that suggestion. This witness testified that Kera, the young man who was shot as testified to by Kasim Mesic, was killed in July 1992. Witness R testified that although he was also on the pista at this time in a position close to the white house, he did not see the accused that day even though he saw the guard who shot Kera and others approaching the guard.

423. Uzeir Besic, a Muslim who knew the accused prior to the outbreak of the conflict, testified that he also saw the accused while he was on the pista, sitting with his face toward the administration building. This was in the latter part of July 1992. On that occasion, he heard yells and shouts coming from behind the administration building. He looked in that direction and saw inmates coming from behind that building and also saw the accused with some soldiers. The prisoners on the pista were then ordered to lie down and those who had come from behind the administration building lay down beside them. They were moaning as if in pain. The witness then looked over at them and saw that they were being beaten and that the accused was hitting them and jumping on them. Their beating did not last long but Uzeir Besic looked two or three times at the accused while it was happening. Those prisoners were then ordered to stand up and go to the white house.

424. The Defence challenged the testimony of Uzeir Besic regarding the identification of the accused because Uzeir Besic had viewed a report of the arrest of the accused in Germany on television and, during his interrogation by the German police, he was shown a photograph of the accused.

a. The case for the Defence

425. The defence of the accused is that he was never at the Omarska camp. In support of this denial, the accused asserts that during the relevant times he was working at the Orlovci checkpoint, or at home, or with friends or family.

b. Findings of fact

426. Subparagraph 4.2 charges the accused with participation in killings, sexual assault, and beatings and torture in the white house, in the administration building, on the pista, and in the main hangar at the Omarska camp between 25 May and 8 August 1992 and incorporates the acts charged in paragraphs 5 to 10 of the Indictment. The Trial Chamber has already concluded that the Prosecution has proved beyond reasonable doubt certain of the charges alleged in paragraphs 6, 7, 8 and 10 of the Indictment. These findings support the conclusion that at the Omarska camp the accused participated in beatings in the white house and in the hangar before even reviewing the testimony of the witnesses just considered in regard to subparagraph 4.2 of the Indictment.

427. As the Prosecution has failed to present any evidence regarding the accused's participation in sexual assault and torture as alleged in this subparagraph, the allegations thus left for review are those that the accused participated in beatings in the administration building and on the pista. The Trial Chamber will now evaluate the evidence presented regarding these allegations.

428. Four of the above-named witnesses provide testimony as to the participation of the accused in beatings not charged elsewhere in the Indictment: Edin Mrkalj (administration building), Uzeir Besic (pista), Mehmedalija Huskic (hangar), and Senad Muslimovic (hangar). Edin Mrkalj, whom the Trial Chamber finds to be a credible witness, saw the accused on 16 June 1992 at approximately 2 p.m. in a blue police jacket. This testimony is consistent with that of Mira Tadic, who testified that the accused came home from his first day of duty in a blue police uniform. In addition, the Trial Chamber finds that the difference between the prior statement of Edin Mrkalj and his testimony at trial regarding the appearance of the accused is of no consequence considering his prior acquaintance with the accused and the insignificant nature of the difference. The Trial Chamber thus accepts the testimony of Edin Mrkalj that the accused beat him on 16 June 1992 in the administration building.

429. The Trial Chamber accepts Senad Muslimovic's testimony regarding the accused's beating of him on 11 June 1992.

430. Mehmedalija Huskic testified that the accused was in the Omarska camp on 20 June 1992. On this particular day, the Orlovci checkpoint records indicate that the accused was working from 3 p.m. to 9 p.m. and Advija Campara testified that the accused came to her apartment that morning. The accused confirmed this, stating that he received a key to that apartment that morning. Thus, the event alleged by Mehmedalija Huskic would have had to have taken place at some point after the accused left the apartment in Pecani and before he was to report for duty at the Prijedor police station at 2.30 p.m. as was, the accused testified, his customary practice. However, as discussed elsewhere in this Opinion and Judgment, the Trial Chamber finds that these records reflect only his assignment and not his actual presence at the checkpoint. More troublesome is the Defence challenge to the testimony of Mehmedalija Huskic on the basis that there were several other prisoners in the electrical room who testified at trial but who did not mention this incident. It is unlikely that, if the events occurred as described by Mehmedalija Huskic, these witnesses would not have seen the accused and accordingly referred to this incident during their testimony. Thus the Trial Chamber does not accept the testimony of Mehmedalija Huskic.

431. The testimony of Uzeir Besic suffers from the same infirmity in that no other witness testified to seeing the accused jump on the backs of prisoners on the pista despite the presence of many prisoners on the pista at that time. Thus the Trial Chamber does not accept the testimony of Uzeir Besic.

432. The second account given by Ferid Mujcic in regard to the incidents charged in paragraph 6 of the Indictment differed substantially from that of other witnesses. Based on this difference, the Trial Chamber does not accept fully his testimony.

433. Witness R's credibility is challenged by the Defence not because of his testimony regarding his sighting of the accused but because of his unsolicited statement that the flower tubs on the pista did not impede his view of the accused. The Trial Chamber concludes that perhaps this testimony was given because Witness R had spoken with a witness who gave testimony prior to him or to the Prosecution about that testimony. Witness R's denial that he discussed the trial with anyone at all reflects adversely upon his testimony. However, this incident is not sufficient to discredit his testimony fully and the Trial Chamber finds Witness R to be generally credible.

434. The accused's general denial of ever having been at the Omarska camp is rejected in view of the overwhelming credible testimony to the contrary. His assignment at the Orlovici checkpoint provides no conclusive alibi; rather it merely reflects his assignment there. The Defence evidence as to off-duty hours while living in Banja Luka and Prijedor is wholly unspecific as to dates and times and only establishes that he was generally resident there.

435. After observing the demeanour of the witnesses whom the Trial Chamber finds to be credible and considering all of the evidence for the Defence, the Trial Chamber finds beyond reasonable doubt that the accused took part in the beating of Edin Mrkalj and Senad Muslimovic in the administration building and the hangar building respectively and that these acts were committed in the context of an armed conflict.

(ii) Keraterm

436. The Prosecution also offered a considerable amount of testimony regarding the presence of the accused at the Keraterm camp. Witness S is a Muslim from Kozarac who knew the accused's father and often saw the accused in Kozarac. He testified that he saw the accused, with an unobstructed view from 30 metres away, on 26 May 1992 after 10 a.m. at the Keraterm entrance gate. He described the accused as dressed in a police uniform camouflage top and single-coloured trousers. He next saw the accused at Keraterm when he went for his second interrogation in the afternoon on 27 May 1992. The accused had his foot on a car and was with a taxi-driver from Prijedor. Witness S testified that he was approximately 20 metres away from the accused and had time to observe him. He also stated that buses were being unloaded and loaded with prisoners not more than five metres from the accused. On this occasion, the accused wore the same police uniform.

437. Sefik Kesic is a Muslim from Kamicani, a suburb of Kozarac. He was familiar with the accused as a resident of Kozarac. Sefik Kesic was taken to the Keraterm camp on approximately 15 June 1992. At Keraterm, the witness was held in Room 2. At some point during his first 10 days, he was called out of the room at approximately 9 p.m. A group of uniformed men came to the door and one of them asked if anyone wanted to get revenge on him or the other soldiers for all the beatings. None of the prisoners volunteered, so the guard pointed to two men and called for the first ten after those two to come out of the room. They walked outside and were put into a line and one guard, whom Sefik Kesic recognized as the accused, went from prisoner to prisoner asking questions and beating them. This guard reached Sefik Kesic, who looked at his face, and asked him his name, where he came from, and whether he had any weapons. When Sefik Kesic responded that he did not have any weapons, the accused said: "They all say that", and struck him in his chest. Sefik Kesic fell and the accused continued down the line of prisoners. After all of the prisoners had been beaten, they were taken back to the room. Sefik Kesic noted that the accused had on a multicoloured camouflage uniform. He testified that he could see the accused clearly despite it being dark because of a light from a vehicle that faced the building. The Defence challenged the accuracy of Sefik Kesic's testimony on the basis that he had withdrawn additional allegations of seeing the accused.

438. Hakija Elezovic, also a Muslim, testified that the accused kicked him during an interrogation at the Keraterm camp. Hakija Elezovic had known the accused by sight for five or six years prior to the conflict because the accused and his elder son were friends. On 9 July 1992 Hakija Elezovic's village was cleansed and its inhabitants were led to Trnopolje, then taken to Keraterm, where he stayed for about 10 days in Room 2 with over 500 people. While there, he was interrogated by Dragan Radakovic, the Director of the Kozarac National Park. During this interrogation, Hakija Elezovic testified, the accused appeared to be a bodyguard for Dragan Radakovic. While Dragan Radakovic questioned him, the accused kicked him, knocking him down, then came around the table and kicked him on the back and chest. Dragan Radakovic grinned and laughed as the accused beat him. The interrogation lasted approximately half an hour and the accused beat him for a few minutes during this time. He saw the accused clearly the entire time. He was wearing a police uniform and had a pistol and a short beard. As a result of the beatings that he suffered during his confinement, Hakija Elezovic's ribs were broken, his kidneys were injured and as a consequence of the beating, he suffers headaches and has difficulty breathing.

439. The Defence challenges this testimony on the basis that the witness is confused about whether he saw the accused at Keraterm as well as Omarska, or only at Omarska. As noted elsewhere in this Opinion and Judgment the context in which the testimony was given indicates that the witness was in fact stating that the accused beat him in both camps.

440. Witness Q grew up in Kozarac, is a Muslim, and has known the accused since childhood. Although the accused is older than he, they began to socialize about five years or so before the conflict, when the accused opened his café. They saw each other regularly for business and social purposes. As the outbreak of the conflict approached, the accused began to distance himself from Witness Q, who similarly stopped frequenting the accused's café because of the nationalistic Serbs who were often there. This witness was taken to Keraterm on 14 June 1992 and was put in Room 2 with 500 to 600 other prisoners.

441. Witness Q stated that, in general, people knew of the accused's comings and goings at the Keraterm camp because he was from Kozarac. Towards the end of July 1992, approximately one month after Witness Q's arrival at Keraterm, new prisoners began to arrive from the Hambarine area. Five to seven days before their arrival, this witness heard someone say that the accused was coming and he moved from his normal position so he could see outside and, after seeing the accused, went immediately back to his place for fear of being detected. He testified that he saw the accused in a camouflage uniform, laughing and joking with the guards. Approximately a quarter of an hour later, he heard someone say that the accused was leaving. He looked out again and saw the accused leaving in a van with prisoners in it, headed toward Kozarac and Omarska.

442. The Defence challenged the credibility of Witness Q on the basis of an accusation that he belonged to a local force formed to defend Kozarac organized by Captain Sead Cirkin and was untruthful about this membership at trial, based on a prior statement he gave. The witness denies that he was a part of this group and contends that this statement was improperly translated and therefore not representative of his remarks at the time.

a. The case for the Defence

443. The accused denies ever having been at the Keraterm camp. By way of an alibi he asserts that during the times charged in the Indictment he was working as a traffic policeman at the Orlovci checkpoint and during periods when he was not assigned to those duties, he was in Banja Luka or Prijedor with family and friends.

b. Findings of fact

444. Witness S's sighting of the accused on 26 and 27 May 1992 is not contradicted by any other evidence presented to the Trial Chamber. Having observed the demeanour of this witness while testifying and considering the evidence of the Defence, the Trial Chamber finds him credible and accepts his testimony.

445. Sefik Kesic knew the accused well enough to recognize him from the close view that he had during the attack on the prisoners from Room 2. The Defence challenge to this witness, because he withdrew prior allegations of seeing the accused, does not affect his credibility. Indeed, the withdrawal of the other testimony reflects this witness's desire to testify only about that of which he is absolutely certain. Accordingly, the Trial Chamber accepts the testimony of Sefik Kesic in regard to the accused's beating of the men in Room 2 in June 1992.

446. The Trial Chamber also finds Hakija Elezovic to be a credible witness and accepts his account of the accused's presence in the Keraterm camp as well as the assault upon him. Finally, the Trial Chamber also finds Witness Q's testimony regarding the presence of the accused at the Keraterm camp to be credible, due to his prior knowledge of the accused and his demeanour while testifying, and accepts his testimony regarding the accused's presence at the Keraterm camp in mid- or late July 1992.

447. As with the accused's denial of ever having been at the Omarska camp, the denial is rejected in view of the overwhelming credible testimony to the contrary. His assignment at the Orlovci checkpoint provides no conclusive alibi; rather it merely reflects his assignment there. The Defence evidence as to off-duty hours while living in Banja Luka and Prijedor is wholly unspecific as to dates and times and only establishes that he was generally resident there.

448. The Trial Chamber accordingly concludes that the accused was present on several occasions at the Keraterm camp and finds that the Prosecution has proved beyond reasonable doubt that the accused took part in the beatings of the prisoners at Keraterm as charged in subparagraph 4.2 of the Indictment and that he took part in one mass beating of prisoners from Room 2. These acts were committed in the context of an armed conflict. In the absence of evidence to support the remaining charges, the Trial Chamber finds that the accused did not take part in the looting of valuables or personal property.

(iii) Trnopolje

449. Several Prosecution witnesses testified that they saw the accused at various locations in or around the Trnopolje camp, including inside the fenced area surrounding the school, dressed in uniform or civilian clothes and in conversation with the camp commander, between May and November 1992. These witnesses included Witness S, Nasiha Klipic, Eniz Besic, Mesud Arifagic, Mirsad Blazevic, Elvir Grozdanic, Jusuf Arifagic, Bahrija Denic, Vasif Gutic, Advija Campara and Nasiha Jakupovic.

a. The case for the Defence

450. The accused acknowledges visiting Trnopolje five times: once with Jozo Samardzija looking for the latter's sister during the summer of 1992; on 1 October 1992 as security detail for the local Red Cross, when he acted as a reserve policeman and stood by the bus to help the Red Cross with its activities; at the end of October 1992 to visit Adil Jakupovic; with his brother Ljubomir Tadic to look for a friend; and once as Secretary of the Local Commune to deliver Red Cross messages.

b. Findings of fact

451. Subparagraph 4.2 alleges in regard to the Trnopolje camp that the accused was seen there on numerous occasions; it does not charge him with taking or participating in any action while there. Since the accused admits to having gone to Trnopolje on several occasions and many credible witnesses described his presence in or around the camp on several occasions from 27 May 1992 to late November 1992, the Trial Chamber finds beyond reasonable doubt that the accused was indeed present in or around the Trnopolje camp during the relevant time period.

3. Subparagraph 4.3 of the Indictment

452. This subparagraph concerns alleged incidents of transfer and unlawful confinement in the Trnopolje camp. As originally charged, it read as follows:

During the period between 25 May 1992 and 31 December 1992, Dusko TADIC physically participated and otherwise assisted in the transfer to and unlawful confinement in Trnopolje camp of non-Serb persons from the Kozarac area. Additionally, during the period between September, 1992 and December, 1992, in Trnopolje camp or in the adjacent area, TADIC physically took part or otherwise participated in the killing of more than 30 detainees, including groups of male detainees executed near a white house adjacent to the camp and a group of male detainees executed in a plum orchard adjacent to the camp. TADIC also physically took part or otherwise participated in the torture of more than 12 female detainees, including several gang rapes, which occurred both in the camp and at a white house adjacent to the camp during the period between September, 1992 and December, 1992.

With the exception of the first sentence, the allegations contained in this paragraph were supported only by the testimony of Dragan Opacic, who was originally given the pseudonym "L". During trial, aspects of his testimony were revealed which led the Prosecution to state in open court that it did not consider Dragan Opacic a witness of truth and to submit a motion to withdraw these allegations. Thus the only remaining portion of this charge alleges: "During the period between 25 May 1992 and 31 December 1992, Dusko Tadic physically participated and otherwise assisted in the transfer to and unlawful confinement in Trnopolje camp of non-Serb persons from the Kozarac area." These remaining allegations are now subsumed in the charges in subparagraph 4.1, already discussed, which charges the accused in part with the "seizure, collection, segregation and forced transfer to detention centres" of non-Serbs in the Kozarac area. The Trial Chamber has already found beyond reasonable doubt that the accused participated in such acts.

(a) The role, if any, of the accused

453. The Trial Chamber has previously considered the testimony of witnesses relevant to this charge, including that of Armin Mujcic, Azra Blazevic, Witness Q and Nasiha Klipic. In addition, as noted in subparagraphs 4.2 and 4.4, numerous witnesses placed the accused at Trnopolje on several occasions.

(b) The case for the Defence

454. The evidence presented by the Defence in regard to this subparagraph is the same as that offered in regard to subparagraphs 4.1 and 4.2.

455. The Trial Chamber has already found beyond reasonable doubt that the accused played an active role in the moving of non-Serbs from the Kozarac area in columns through and out of Kozarac to assembly points and in their subsequent separation into categories by age and sex for transport to camps, including Trnopolje, all effected by force or the threat of force. Thus the Trial Chamber finds beyond reasonable doubt that the accused participated in the transfer to and in the initial confinement of non-Serbs in camps generally, and in the Trnopolje camp in particular, as charged in this subparagraph and that these acts were committed in the context of an armed conflict. However, the Trial Chamber finds that the accused did not take an active role in the continued confinement of non-Serbs in the Trnopolje camp.

4. Subparagraph 4.4 of the Indictment

456. This subparagraph concerns alleged participation in the seizure, selection and transportation of individuals for detention. It reads as follows:

Between 25 May and 31 December 1992, TADIC physically participated in the seizure and selection of individuals for detention in the camps and transported Muslims and Croats who had been seized, to the camps for detention. During the time he was engaged in this seizure, selection and transfer of non-Serbs to various detention centres, Dusko TADIC was aware that the majority of those detainees who survived detention would be deported from the territory of Bosnia-Herzegovina.

457. A substantial body of evidence has been presented and already summarized regarding the seizure, detention and ultimate deportation from opstina Prijedor of non-Serbs, and the use of the Trnopolje camp in particular for those selected for deportation. Evidence has been presented that the release of prisoners from camps was made conditional upon the signing of documents relinquishing all material goods and undertaking not to return to opstina Prijedor. The issue raised by this subparagraph is the role of the accused in these events.

458. Much of the evidence discussed in the previous subparagraphs concerns the accused's role in the seizure, selection and transfer of individuals from the Kozarac area. In particular, deportation from the Trnopolje camp was testified to by the following witnesses. Mustafa Mujkanovic, who has known the accused for "many, many years", testified that he saw the accused twice while at the Trnopolje camp. The first sighting was on or around 21 August 1992 when a convoy of buses was leaving the camp. The accused, who was wearing civilian clothes, was with Goran Borovnica and several others and they followed the convoy by car when it left. The witness saw the accused from a distance of 10 to 15 metres. His second sighting of the accused was on 1 October 1992 when the witness was evacuated by bus along with others for Karlovac in Croatia and the accused was on the road outside of the camp. Mesud Arifagic, who knew the accused "for as long as I have known myself", saw the accused at the Trnopolje camp four times and on the last of these sightings, on 1 October 1992 at about 8.30 a.m., saw him near buses which were there to remove prisoners from the camp. He walked past the accused on his way to board the bus which took him from Trnopolje to Karlovac in Croatia. Elvir Grozdanic testified that he saw the accused at the Trnopolje camp on the day that 1,600 people were evacuated to Karlovac. The accused, wearing a camouflage uniform, was standing, armed with a rifle, at the corner of the school fence watching. Jusuf Arifagic, who has known the accused since the witness started going to school, testified that when the Trnopolje camp was being dissolved in October 1992 he saw the accused as he was being evacuated along with a number of other people, enough to fill 33 to 35 buses, on 30 September or 1 October 1992. He saw the accused, who was leaning against the fence wearing a police uniform and armed with an automatic rifle, at around 10 or 11 a.m. Bahrija Denic, who has known the accused for about 20 years, saw the accused around noon on 1 October 1992 as the witness boarded a bus to leave the camp at Trnopolje. The accused was near the fence by the school, dressed in a sort of police uniform, about four to seven metres away from him. Additionally, Mirsad Blazevic, who knew the accused from Kozarac, saw the accused at the end of August entering the office of the local Red Cross and command headquarters in Trnopolje. The accused was wearing a camouflage uniform and carried an automatic rifle.

459. The accused's presence at the Trnopolje camp when the surviving prisoners were deported to Croatia is significant evidence with regard to the charge in this subparagraph. The question remains, however, whether when the accused was participating in the seizure and selection of non-Serbs, as established above, he knew that the majority of the prisoners who survived would be deported. His presence at the Trnopolje camp when thousands of prisoners were being removed is relevant in this regard, as is his description of himself in his work report as an "earnest SDS member and an enthusiastic supporter of the idea of creating Republika Srpska", both of which embrace the notion of an ethnically pure Serbian territory. Additionally, in his role as SDS President in Kozarac, he must have had knowledge of the SDS programme, which included the vision of a Greater Serbia. Witnesses including Witness AA provided evidence which not only showed that the accused knew of this goal but that he was an active supporter of it. Witness AA testified to an argument about politics that the accused had with Sefik Sivac shortly before the conflict in which the accused said that the area "would be a Greater Serbia, it would be theirs, and that we, Muslims, will not be there, that there will be no place for us there".

(a) The case for the Defence

460. Again, the defence is that the accused, apart from five visits to Trnopolje, was never at the camps and did not take part in any way whatsoever in the ethnic cleansing activities occurring in the region, a discussion of which need not be repeated here. As for challenges to Prosecution witnesses, the Defence for the most part relied on challenges presented within the context of other subparagraphs of paragraph 4 and other paragraphs of the Indictment.

(b) Findings of fact

461. Based on the presence of the accused at the Trnopolje camp when surviving prisoners were being deported, as well as his support both for the concept and the creation of a Greater Serbia, necessarily entailing, as discussed in the preliminary findings, the deportation of non-Serbs from the designated territory and the establishment of the camps as a means towards this end, the Trial Chamber is satisfied beyond reasonable doubt that the accused participated in the seizure, selection and transfer of non-Serbs to various camps and did so within the context of an armed conflict and that while doing so, he was aware that the majority of surviving prisoners would be deported from Bosnia and Herzegovina.

5. Subparagraph 4.5 of the Indictment

462. This subparagraph concerns alleged participation in the plunder and destruction of personal and real property of non-Serbs and reads as follows:

Concurrent with the attack and seizure of the non-Serb population of Kozarac and the surrounding area, the Serb forces plundered and destroyed the homes, businesses, and other property of non-Serbs. The seizure, transfer and detention of the non-Serb population and the plundering and destruction of their property continued for a number of weeks. During the period between 23 May and 31 August 1992, Dusko TADIC was aware of the widespread nature of the plunder and destruction of personal and real property from non-Serbs and was physically involved and otherwise participated in that plunder and destruction, including the plunder of homes in Kozarac and the looting of valuables from non-Serbs as they were seized and upon their arrival at the camps and detention centres.

463. The evidence from Prosecution and Defence witnesses alike supports the charge that Serb forces destroyed homes, businesses, and other property of non-Serbs and plundered private property. These witnesses, including the accused, all describe the widespread destruction and looting, as well as the near total destruction of Kozarac.

464. Despite copious testimony regarding the looting and destruction of Kozarac, evidence supporting the allegations regarding the accused's role in the destruction, plunder and looting is non-existent. Accordingly, the Trial Chamber finds that the accused did not commit the acts as charged in this subparagraph.

6. Discriminatory Grounds for the Acts Taken

(a) The acts were taken within a general context of discrimination

465. As discussed in the preliminary findings, after the take-over of Prijedor, the Prijedor Crisis Staff, at the direction of the ARK Crisis Staff, implemented a policy of discrimination against non-Serbs. Non-Serbs were fired from their jobs, particularly leadership positions for which they were no longer considered qualified, refused necessary documentation and their children were prevented from attending school. Travel outside of the opstina for non-Serbs was prevented and within the opstina severely restricted by means of a curfew and checkpoints. Daily searches were conducted in almost every apartment inhabited by non-Serbs, mosques and other religious and cultural institutions were targeted for destruction and the property of Muslims and Croats was seized. The main non-Serb settlements were surrounded, bombarded and invaded and, during these attacks, care was taken not to damage the property of Serbs.

466. Most of the non-Serb inhabitants of opstina Prijedor were sent to the camps, the horrors of which have already been recounted and, reminiscent of the Second World War, one witness testified to hearing that over 30 freight carriages with women and the elderly had been taken away in an unknown direction. Those who remained were required to wear white armbands to distinguish themselves and were continuously subject to harassment, beatings and worse, with terror tactics being common. Non-Serbs in opstina Prijedor were subjected to gross abuses, seemingly as a means of attaining the historical goal of a Greater Serbia. One witness, Vasif Gutic, testified to hearing the Trnopolje camp commander, Slobodan Kuruzovic, explain the Serb plan as being to reduce the number of Muslims in Prijedor to 10 percent or less, and then later reduced this to 2 percent or less. Radoslav Brdanin, the President of the ARK Crisis Staff, repeatedly publicised his position that the largest percentage of non-Serbs acceptable in the territory designated as Greater Serbia was 2 percent. The statement of Radislav Vukic, who was elected to high positions in the municipal SDS committee in Banja Luka, the regional board of the SDS and the SDS Main Board of Bosnia and Herzegovina, that children of mixed marriages "were good only for making soap", is reflective of the discriminatory environment against non-Serbs. Serbs who had not previously exhibited nationalistic tendencies were encouraged to accept the policy of discrimination through the use of propaganda, dissent against which was silenced, and acceptance of which was considered a necessity for advancement within the SDS. Those refusing to comply were branded traitors.

467. The abuses against non-Serbs were motivated by religious and political reasons. The curse directed at Muslims most often was the derogatory term, "balija", as well as "Fuck your Alija", referring to the SDA leader Alija Izetbegovic. These indicate the motivations of the perpetrators. Abuse was also directed towards Croats for political reasons. There was repeated testimony that men were forced to hold their hands in the three-finger Serb salute, which is a traditional Serb greeting and has meaning within the Serbian Orthodox church, and several witnesses testified that crosses were carved on men's bodies. Numerous witnesses testified to hearing discriminatory curses such as "balija mother", "Ustasa mother", and "Alija mother", usually in association with a beating. Many were required to sing Serb nationalistic songs and some of the camp guards wore the "Chetnik kokarda", the two-headed eagle described as equivalent to wearing a Nazi swastika. A few specific examples are sufficient to indicate the horrendous treatment inflicted on the non-Serb population of opstina Prijedor on the basis of religion and politics.

468. Uzeir Besic, a Muslim, testified that after he was beaten at the Prijedor military barracks, as discussed in regard to subparagraph 4.1, he was taken along with two others to the Keraterm camp where they were turned over to a Serb soldier named Zoran Zigic, who immediately asked their nationality. When they said that they were Muslims he ordered them to demonstrate how Muslims pray and to remove their trousers to see if they were circumcised, threatening that if they were not he would perform the operation. After they did so he beat them with the butt of his rifle and afterwards took them to Room 1. Uzeir Besic testified that he saw others being treated in the same manner and that he and others were called out and beaten and forced to sing Serbian songs.

469. Fikret Kadiric, commander of the police station in Prijedor until 1991 and thereafter commander of the Traffic Police in Prijedor until the take-over, testified that he was arrested in his apartment in Prijedor on 24 May 1992. He was taken to the first floor of the SUP and after a while he heard "beatings, screamings, shoutings, shooting". From the window he saw a tank with two soldiers going by from the direction of the post office towards the SUP, their hands raised in the three-finger Serb salute, shooting with automatic rifles. Then he saw two buses stop in front of the main entrance of the SUP and two soldiers got off and posted themselves on both sides of the bus doors. As the prisoners, all of who were Muslims, left the buses they were made to run into the SUP with their hands on the back of their heads. The SDS President, Simo Miskovic, dressed in civilian clothes, and Skondric Vaso, a police inspector from Sarajevo dressed in a uniform, and both armed, were at the entrance. He could hear curses, such as "Alija, fuck you, fuck your Ustasa mother", coming from the entrance of the SUP as well as screams of people in pain. Almost all the Serb police officials were in the SUP at the time. Later that evening he was taken from the SUP for interrogation, during which he was beaten from head to toe with rubber bats, wooden poles, a pistol, a knife and cables and tortured until he was rendered unconscious.

470. Suada Ramic, a Muslim, testified that she was raped at the Prijedor military barracks. After the rape she was bleeding terribly and went to the hospital where she was told by one of the doctors that she was approximately three to four months pregnant and that an abortion would have to be performed without anaesthetic because there was none. When this doctor asked another doctor for assistance, the second doctor started cursing, saying that "all balija women, they should be removed, eliminated", and that all Muslims should be annihilated, especially men. He cursed the first doctor for helping Muslims. Prior to the rape there had been no problems with her pregnancy. When she returned from the hospital she went to stay with her brother in Donja Cela, eventually returning to her apartment in Prijedor where she was subsequently raped for a second time by a former Serb colleague who had come to search her apartment. The next day she was taken to the Prijedor police station by a Serb policeman with whom she was acquainted through work. On the way he cursed at her, using ethnically derogatory terms and told her that Muslims should all be killed because they "do not want to be controlled by Serbian authorities". When she arrived at the police station she saw two Muslim men whom she knew, covered in blood. She was taken to a prison cell which was covered in blood and where she was raped again and beaten, afterwards being taken to the Keraterm camp. She recognized several prisoners at Keraterm, all of whom had been beaten up and were bloody. She was transferred to the Omarska camp where she often saw corpses and, while cleaning rooms, she found teeth, hair, pieces of human flesh, clothes and shoes. Women were called out nightly and raped; on five separate occasions she was called out of her room and raped. As a result of the rapes she has continuing and irreparable medical injuries. After Omarska she was taken to the Trnopolje camp and then returned to Prijedor, where she was often beaten.

471. Hase Icic, whose testimony is recounted in relation to paragraph 10 of the Indictment, testified that while at the Omarska camp he was forced along with other prisoners to lie on his stomach with his arms outstretched over his head with three fingers together in the Serb salute. If a prisoner's fingers were not in the correct position he was beaten by the guards with rifle butts and the prisoners were all made to shout: "Be a great Serb, you Serb." Some of the Serbs slashed the prisoners' clothes and cut crosses in prisoners' backs. He testified that at one point he was called out and forced to greet the group of Serbs by saying: "God be with you, heroes", before a noose was put around his neck and pulled as he was being beaten.

472. The testimony of these witnesses is not unique and their experiences reflect the horror suffered by non-Serbs who were subjected to such treatment simply because their religion or politics offended those who gained control of the region. A policy to terrorize the non-Serb civilian population of opstina Prijedor on discriminatory grounds is evident and that its implementation was widespread and systematic throughout, at the minimum, opstina Prijedor is apparent. The events described in paragraph 4 of the Indictment, which took place during and were not unrelated to the armed conflict, occurred within this context of discrimination.

(b) The discriminatory basis for the accused's actions

473. As discussed in the preliminary findings, the accused became more overtly nationalistic with the development of political parties. He was one of the first SDS members in opstina Prijedor and, in his own estimation, a trusted SDS member who was asked to run a crucial plebiscite in the Kozarac area. The accused was well versed in, and a supporter of, the SDS programme which advocated the creation of Republika Srpska as part of the plan for a Greater Serbia and, necessarily, the removal of the vast majority of the non-Serb population from the territory designated as Republika Srpska. Acceptance of this policy, and the discriminatory means to achieve it, was considered to be a requirement for advancement in the SDS. In this regard one witness testified that the plebiscite was regarded at the time as an extremely important event by the Serbs and by the SDS as, inter alia, it provided the basis for the creation of a Serb state in the territory of Bosnia and Herzegovina, and that responsibility for conducting the plebiscite would not be given to an SDS member who was unaware of its programme or who was not ideologically committed to its programme and certainly not in an area such as Kozarac, where Serbs were a minority.

474. As organizer of the plebiscite in Kozarac and President of the local SDS, the accused had knowledge of and supported the plan for a Greater Serbia. As already mentioned Witness AA heard the accused say before the conflict that there would be a Greater Serbia without the Muslims. He himself admits his knowledge and support for the plan when, in his work report, he describes himself as an enthusiastic supporter of the creation of Republika Srpska. This is in contrast to the impression given by several Defence witnesses, all of whom testified that they never heard the accused express nationalistic sentiments. The accused's version of his sentiments is further supported by Sofia Tadic, the accused's ex-sister-in-law. She testified to the accused's desire to name his child after Slobodan Milosevic and his statement that Slobodan Milosevic was the only real politician in the former Yugoslavia. The accused admits that he actively worked toward the creation of Republika Srpska when he wrote in his work report, "after all I have done since 1990, only wishing to contribute to the creation of our common country even when it implied risking my life and my family safety, after all I have done as activist and a representative to the Prijedor Municipal Assembly tragedy befell us all . . . ."

475. Evidence has been presented of the steps taken by the accused to foster division between the ethnic groups. Armin Kenjar testified that before the attack on Kozarac, in the course of his duties as a reserve policeman, he had verified that a complaint had been made against the accused claiming that the accused was seen in the vicinity of the Serbian Orthodox church with canisters of petrol with the probable intent of setting the church on fire. It is suggested that by this act the accused was attempting to place responsibility for the destruction of the church upon the non-Serb population and thereby foment dissension among the various ethnic groups in Kozarac. The accused supports this when, in his work report, he notes that several Serbs and Muslims began to boycott his café because he wanted to "disturb relations between ethnic groups". Several other witnesses testified to the accused's involvement with the Serb authorities responsible for implementing the SDS's discriminatory policies. Hamdija Kahrimanovic, who had known the accused for a very long time, testified that while he was in Prijedor from the first week of June 1992 until August 1992 he frequently saw the accused in the company of Simo Drljaca, Chief of the Prijedor police station after the take-over, often in front of the police station. Nasiha Klipic saw the accused at the SUP in mid- to late June 1992 with Adil and Nasiha Jakupovic and continued to see him in passing in the SUP, often with other Serb policemen.

476. The testimony of Sofia Tadic is relevant not only with regard to the accused's nationalism but also his growing anti-Muslim disposition. She testified that at one point the family was standing in the yard watching as people passed on their way to the mosque and the accused commented that "the balijas are going to the mosque". This growing disposition is supported by the testimony of other individuals with personal knowledge. The testimony of Hase Icic, discussed at length elsewhere, is of particular relevance in this regard. Concerning his own beating, the subject of paragraph 10 of the Indictment, Hase Icic testified that when he entered the "beating room" at Omarska he stood face to face with the accused who was part of the group of Serbs whom Hase Icic was forced to greet by saying: "God be with you, heroes", before being beaten. Hase Icic also testified in relation to paragraph 7 that while at the Omarska camp he heard sounds of beatings coming from in front of the white house. He heard people cursing as they approached his room and he recognized one of the voices as being that of the accused. He recognized the accused when he cursed at one of the victims in the same way as he had at Hase Icic himself during his own beating. He then saw the accused and another person as they threw the badly beaten prisoner into the room. As he was throwing the prisoner into the room the accused said: "You will remember, Sivac, that you cannot touch a Serb or say anything to a Serb." Hase Icic later recognized the prisoner as Sefik Sivac, a Muslim. Significantly, Witness AA testified that the accused and Sefik Sivac had had a good relationship until shortly before the war when they had an argument about politics in which the accused stated that the area "would be a Greater Serbia, it would be theirs and that we, Muslims, will not be there, that there will be no place for us there". Sead Halvadzic, another Muslim, testified that he recognized the accused, whom he had not known before that day, as one of two men who forced him to keep his three fingers raised in the Serb salute while he was beaten at the Prijedor military barracks. In response to an order to stop the beating, one of those two replied that his throat should be cut because he was Ustasa.

477. Based upon the testimony of witnesses whom the Trial Chamber considers to be credible the Trial Chamber finds beyond reasonable doubt that the accused committed the acts described in paragraph 4; when he did so he was aware of the policy of and discrimination against non-Serbs, and acted on the basis of religious and political grounds. It is also satisfied that these acts took place within and were not unrelated to the armed conflict.

IV. THE ACCUSED'S DEFENCE OF ALIBI

A. Introduction

478. The accused entered a plea of not guilty to all counts of the Indictment and by way of defence to each of the counts charged in the Indictment the accused, quite apart from distinct arguments of law, raises a defence of alibi in the sense that he says that he was elsewhere when each of those acts is said to have occurred.

479. Pursuant to Rule 67(A)(ii)(a) of the Rules, the Defence filed a Notification²⁸, and subsequently, an Amended Notification²⁹, of the Defence of Alibi. Further, the accused testified under solemn declaration that he had never been to the Omarska or Keraterm camps nor had he participated in ethnic cleansing in Kozarac. He testified that he had been to Trnopolje on five occasions but was never inside the camp.

480. The accused also gave statements to the German authorities after his arrest on 12 February 1994 (the First Statement, dated 11-12 October 1994) and to the Office of the Prosecutor of the International Tribunal on 9 and 10 May 1995 (the Second Statement) and on 21 and 22 December 1995 (the Third Statement). These statements, which bear on his alibi, were offered as evidence by the Prosecution, without objection by the Defence (Prosecution Exhibits 321, 366A, 366B).

481. In summary, the accused and numerous witnesses called for the Defence have said in evidence that from the afternoon of 23 May until 15 June 1992 he was living in Banja Luka, some 45 kilometres by road from Kozarac and somewhat further from Prijedor, making only four journeys from Banja Luka. Thereafter, until August 1993, he was living in Prijedor, until 1 August 1992 working as a reserve traffic policeman at a traffic checkpoint at Orlovci, some five or six kilometres from Prijedor on the road to Kozarac, then as a reserve policeman in Prijedor itself and from 15 August 1992 until November 1992 as a reserve policeman in Kozarac. On 15 August 1992 he was elected President of the Local Board of the SDS in Kozarac and appointed as Acting Secretary of the Local Commune of Kozarac. On 9 September 1992 he was elected Secretary of the Local Commune and this decision was implemented on 9 November 1992.

B. The Whereabouts of the Accused from 23 May to 15 June 1992

482. In the Amended Notification of Alibi, the Defence asserts that during his stay in Banja Luka from 23 May to 15 June 1992 he left it only for a visit to Kozarac on 30 May 1992, returning to Banja Luka the same day; a visit to the village of Babici and the town of Kozarac on 1 June 1992, returning on 2 June, and a visit to Trnopolje on 6 June. On 15 June 1992, when he left Banja Luka for Prijedor, he visited Kozarac again.

483. The period of the accused's residence in Banja Luka, from 23 May until 15 June 1992, is the subject of evidence by the accused, his wife, his sister-in-law Jelena Gajic, his brother Ljubomir Tadic, a neighbour Dragolje Balta, a former Kozarac neighbour Trivo Reljic and four friends who lived in Banja Luka, Nikola Petrovic, Bora Rakic, Witness X and Witness D.

484. The accused described his departure from Kozarac on the morning of 23 May 1992 and is supported by his neighbour, Trivo Reljic, who was also leaving Kozarac on that day and at the accused's request gave him a lift as far as Prijedor. In Prijedor the accused says that he visited his sister-in-law, Jelena Gajic, had a meal at her apartment and continued on his journey to his family in Banja Luka by train at noon. Jelena Gajic supports him in this account and there is evidence that a train did leave Prijedor for Banja Luka that day shortly after noon. The accused says that, on arrival in Banja Luka, he went briefly to his brother Ljubomir Tadic's house and then to the house where his wife, children and mother were living in Koste Jakica Street. Ljubomir Tadic supports him in this, as does his wife, Mira Tadic, who describes his arrival at the Koste Jakica Street house and their visiting and staying the night of 23 May 1992 at the house of Witness X. The accused and Witness X likewise describe this, the accused describing the long walk there with his sick mother and his wife and children, that they stayed there that night and part of the next day, 24 May 1992, later returning to the house in Koste Jakica Street.

485. All this occurred on the day before and the day of the attack on Kozarac, on 24 May 1992, and the witnesses identify the date by reference to that fact. There is no evidence to contradict the departure of the accused from Kozarac on 23 May 1992, his arrival in Banja Luka via Prijedor and his subsequent movements on that day.

486. As to 24 May 1992 the accused says he stayed at the house of Witness X until, towards the evening, he and his family returned to their home in Koste Jakica Street. Mira Tadic gives a similar account. Nikola Petrovic, however, says that the accused and his wife and children visited him and his wife on "the very day when the conflict broke out in Kozarac" and spent the whole afternoon there until evening, having a meal with them. However, apart from associating the visit with the attack on Kozarac, he is not otherwise clear about the date. This conflict is perhaps not important since it is only during the evening, not the day, of 24 May 1992 that the accused's whereabouts become significant since a Prosecution witness, Witness Q, said in evidence that he saw the accused with Bosko Dragicevic in Kozarac on the night of 24 May 1992 about 9 p.m. in the area from which a flare was fired in the direction of the hospital. That witness's evidence is itself in some respects in conflict with his own prior written statement and has already been referred to; however it does make relevant the whereabouts of the accused on the evening of 24 May 1992.

487. For the evening of 24 May 1992 and for the rest of the accused's stay in Banja Luka there is a lack of any specific Defence evidence as to his whereabouts at particular times on particular dates. The accused, without attributing precise dates or times, says that he spent the time, other than his four short absences already referred to, at the Koste Jakica Street house attempting to make the house more habitable, visiting the authorities in Banja Luka, arranging for a job as a traffic policeman in the Prijedor area and visiting friends and relatives. His wife's evidence is not more specific; she says that he spent each night at home with her and their children. The same is the case with the evidence of his brother Ljubomir Tadic, who says that he had had drinks with the accused at cafés in Banja Luka most evenings, and with the evidence of those friends in Banja Luka who testified to meetings with the accused. All the evidence is essentially unspecific and does no more than establish that the accused was generally resident in Banja Luka until 15 June 1992. A number of Prosecution witnesses have given evidence of seeing the accused in Kozarac and its vicinity on particular occasions during this period and the accused's alibi that he remained in Banja Luka during the whole period, never leaving it, apart from his four short absences, has to depend essentially upon his own evidence and that of his wife Mira Tadic and his brother Ljubomir Tadic.

488. The accused's testimony before the Trial Chamber for the period up to 15 June 1992 does not wholly accord with his Amended Notification of Alibi. The accused testified that he first returned to Kozarac on 1 June, not 30 May 1992, accompanied by his brother Ljubomir. They left by train around 5 or 6 a.m., arrived in Omarska and went on foot to the village of Timarci to the home of Milenko Timarac who had worked as a waiter in the accused's café. The accused then went to the headquarters of the local Crisis Staff in Lamovita and there obtained a certificate to purchase fuel for Milenko Timarac's car and they drove to the Tadic family house in Kozarac. They took some equipment from the accused's café and two rifles from his house, a hunting rifle that belonged to his brother, Mladen, and an automatic rifle that the accused had received from a deserter from the army. He left the hunting rifle with Milenko Timarac and took the automatic rifle with him, he and his brother hitchhiking in a lorry from the village of Timarci around 5 or 6 p.m. and returning to Banja Luka the same day. The accused testified that on this trip he wore civilian clothes and Ljubomir Tadic gave him a camouflage coverall when they got back to Banja Luka because they were told it was dangerous to move around without a uniform.

489. Ljubomir Tadic testified and confirmed the accused's testimony regarding their first trip to Kozarac. He testified, however, that he carried the automatic rifle for the accused and entered the number for the rifle on a blank certificate he had received from the TO unit to which he was assigned.

490. Mira Tadic testified that she thought the accused and his brother went to Kozarac by car, perhaps Ljubomir's, on the first visit, and returned the same day.

491. The accused testified that his second departure from Banja Luka was on 6 June 1992 when he went to Trnopolje camp with Jovo Samardzija, an old friend of his father, who was looking for his sister whom he believed to be there. They went by train and returned to Banja Luka the same day. The accused said he was wearing the yellow multicoloured uniform his brother had given him over civilian clothes and took his automatic rifle with him. During this visit to the "collection centre", as he described it, he greeted and kissed neighbours he knew.

492. Jovo Samardzija, a retired JNA officer, testified that the accused went with him to the "collection centre" at Trnopolje a month after the fighting had started. He stated, contrary to the accused's description of what he was wearing, that the accused was wearing the old JNA uniform known as an "SMB uniform" due to its colour. He stated that the accused talked with guards who were from opstina Prijedor and the accused had lunch with some of them.

493. Mira Tadic testified and confirmed the account of the accused regarding his trip to Trnopolje with Jovo Samardzija.

494. The accused testified that he made a second trip to Kozarac around 8 or 9 June 1992, not on 1 and 2 June as stated in his Amended Notification of Alibi. He stated that he went with his brother Ljubomir Tadic by train to Omarska and got a ride in a "military jeep type vehicle" to the vicinity of Timarci. They spent the night with Milenko Timarac who the next day drove the accused and his brother to Omarska where they rented a lorry and were driven to Kozarac, loaded some goods from Ljubomir Tadic's business and from the accused's café and home, and were driven back to Banja Luka in the lorry.

495. Mira Tadic testified and confirmed the accused's account of his second trip to Kozarac which she described as occurring a couple of days after his first trip there.

496. Ljubomir Tadic likewise confirmed the accused's account of their second visit to Kozarac, placing it as occurring seven or eight days after their first visit. On this visit, he also wore a camouflage uniform and carried a pistol that had been given to him by his father. He stated that on their return they were not stopped on the Kozarac/Banja Luka road because the driver was wearing a uniform.

497. In his First Statement the accused gave different information to the German police in regard to his trips to Kozarac and as to his clothing. He stated that between 23 May 1992 and until 16 or 18 July 1992 (sic) he did not return to Kozarac. At trial, the accused testified that by that statement he meant that he slept in Banja Luka during this period.

C. The Whereabouts of the Accused from 15 June to 31 December 1992

498. The accused's Amended Notification of Alibi states that the accused lived in Prijedor during this period of time. It asserts that he was on duty as a reserve policeman at the Orlovci checkpoint from 16 June 1992 until 1 August 1992. It states that the accused visited Kozarac on 15 and 18 June, 15 July and 15 August 1992 when he was appointed as the Acting Secretary of the Local Council (or Commune). Thereafter the accused visited Kozarac frequently. From 13 September until 6 November 1992 it states that he was on duty as a reserve policeman and worked as the Secretary of the Local Council of Kozarac and during this period, from 13 September until 20 September, he conducted patrols from the police station of Kozarac in the area of Vidovici. On 2 November he visited Trnopolje. Finally, from 7 November 1992 until 31 December 1992, it states that he worked for the Local Council at Kozarac.

499. The accused's whereabouts between 15 June and 17 June 1992 was the subject of much contention and discrepancy. The accused testified that he reported for duty on 15 June and was mobilized into the traffic police on 16 June, his first day on duty at the Orlovci checkpoint. He stated that he had travelled to Prijedor alone on a Monday and met his cousin, Radovan Vokic, who spoke with the commander of the traffic police to obtain an assignment for the accused. The accused also testified that on 15 June he received a certificate, which was tendered in evidence as an exhibit (Prosecution Exhibit 332), from the Chief of Police of Prijedor, Simo Drljaca, to travel from Prijedor to Kozarac and back to transport firewood. A friend allowed him on that day to use his truck to transport goods from his café and home in Kozarac and they took them to be stored at the home of his aunt, Sava Vokic, in Palanciste. He testified that he spent the night of 15 June with Radovan Vokic and that some days later he arranged for an apartment in Pecani, a suburb of Prijedor, to be given to him, as a traffic policeman, by the local Crisis Staff. He moved into the apartment on 27 June; he and his family lived there throughout 1992 and on into 1993. He stated that he returned to Banja Luka to pick up his wife although he was not certain of the exact date. However, he was certain that after his first day's duty at the Orlovci checkpoint on 16 June 1992 he went to Banja Luka, getting a ride in a truck that was going towards Serbia, and picked up his wife. He and his wife then returned to Prijedor by train and together spent the night of 17 June at the home of Martin Dzaja. He also spent the night with the Dzaja family in Prijedor on three or four subsequent occasions.

500. Mira Tadic testified that the accused went to Prijedor on 15 June 1992 by train. He returned to Banja Luka on the evening of 16 June dressed in the police uniform of dark-blue trousers, a dark-blue blouse and a light-blue shirt. She said he stayed the night in Banja Luka and they left together the next morning, 17 June, at 6 a.m. by train for Prijedor, he to his duty as a traffic policeman, she to enquire about work at the Prijedor hospital. A Defence witness, Drogolub Savic, testified that the train trip took one to one and a half hours. Train schedules for 23 May and 15 June 1992 were admitted into evidence showing arrivals in Prijedor at 6.42 a.m. and 6.48 a.m. respectively (Defence Exhibit 79). Mira Tadic said that she reported for work at the hospital but that since she was not needed she did not actually begin work there until August. She testified that they spent the night with Martin and Mileva Dzaja and that she returned the next day to Banja Luka. She did not return to Prijedor again until 23 June 1992 when she cleaned the apartment in Pecani. Finally, she returned once again on 27 June 1992 with her children and mother-in-law and moved into the apartment.

501. Ljubomir Tadic testified that the accused remained living in Banja Luka until 16 June 1992, the date of the general mobilization called for in the Autonomous Region of Krajina. He later stated, upon questioning by Defence counsel, that the accused could have gone to Prijedor on 15 June 1992. While at Ljubomir's apartment, the accused had spoken by telephone to Dusan Jankovic, the Chief of Police in Prijedor, on the day before the mobilization, and was told to come to Prijedor immediately. Ljubomir Tadic testified that he did not accompany the accused to Prijedor when the latter was mobilized into the traffic police, contrary to what the accused said in his Second and Third Statements.

502. In his First Statement, to the German police, the accused stated that he was mobilized on 16 June 1992 and drafted into the reserve unit of the traffic police. He said that on that date he was in Banja Luka and spent that night with Radovan Vokic and subsequent nights at the home of the Dzaja family. In his Second Statement, to the Office of the Prosecutor, the accused again stated that he was mobilized on 16 June 1992 and came to Prijedor on that morning with his brother Ljubomir, was told to report for duty the next day and repeated that he spent that night in Prijedor with Radovan Vokic and subsequent nights in Prijedor with the Dzaja family. In his Third Statement, the accused reiterated that he had gone to Prijedor on 16 June 1992 with his brother and was then mobilized into the traffic police. He stated that thereafter they went to a café-bar restaurant to meet a neighbour and after some time his brother returned to Banja Luka. He further stated that he spent two nights, on 16 and 17 June, with the Vokic family. On 17 June he went with Radovan Vokic in an official car to the police station in Prijedor. In none of these statements did he mention what he described in his evidence: his return to Banja Luka after his first day of service at the checkpoint, his journey next day back to Prijedor with his wife and her presence in Prijedor on that, and the subsequent, day.

503. From 16 June until 1 August 1992 the alibi evidence relies upon records of the accused's service as a traffic policeman at the Orlovci checkpoint. Specific dates which are relevant, because they coincide with dates on which it is alleged that the accused committed the acts charged against him, are referred to in dealing with specific charges. However, some general remarks about the Orlovci checkpoint, the records relating to service at that checkpoint and the accused's movements during the period covered by those records are necessary.

504. The accused was from 17 June 1992 resident in Prijedor while working at the checkpoint until 26 June often at the home of friends, the Dzaja family, or of his cousin Radovan Vokic, and from 27 June onwards, when his family joined him from Banja Luka, living in an apartment in the suburb of Pecani. The Orlovci checkpoint was in 1992 one of four under the authority of the Prijedor traffic police of which the Defence witness Duro Prpos was commander. The checkpoint was situated some five or six kilometres to the east of Prijedor on the main Prijedor/Banja Luka road. It was manned by three traffic policemen and the military authorities also maintained a checkpoint there, manned by two or three military policemen. The task of the civilian traffic police at their checkpoint was described by Duro Prpos as being to control civilian traffic in the area, ensuring that traffic took place in an unhindered manner, and that control was exercised over the participants in traffic, as well as over freight that was being transported. The checkpoint was manned 24hours a day in three shifts. The length of shifts varied from some seven to twelve or more hours and there would be whole days off duty. Conflicting evidence was given as to details of service at this checkpoint. The accused says that on each day that he was rostered for duty he would report to police headquarters in Prijedor half an hour before the beginning of his shift. There he would join the two other members of his shift, take the police car, in which the previous shift had returned to Prijedor from the checkpoint, and drive to the checkpoint, remaining there with the police car during the hours of his shift and returning in that car to the Prijedor police station at the end of the shift, there handing over the car to the next shift. He said that he had regular duties at the checkpoint from 16 June 1992, always went to work, was never absent, and did not want to displease the persons in charge since that could result in his being sent to the front line.

505. The other two members of the accused's shift were Miroslav Brdar and Miroslav Cvijic, of whom only the former, who was in command of the shift, gave evidence. Miroslav Brdar in his evidence confirmed the accused's account of meeting outside the Prijedor police station, where he, Miroslav Brdar, would get the day's orders from Duro Prpos and they would then drive to the checkpoint in a dark-blue Golf car with police markings, keep the car there, and return in it to Prijedor at the end of the shift, where the next shift would take it over. He said that the accused worked on his shift and worked regularly, that the records reflect that the accused served at the checkpoint every day that he was assigned there, that the accused could not be absent for long periods during his assignment and that they did not sleep while on duty. Both he and the accused said that all members of the shift had to remain at the checkpoint during their tour of duty and that the car could not be used by them save for the journey from and to Prijedor since petrol usage and mileage travelled were strictly controlled. They both said that Duro Prpos would make frequent unscheduled visits to the checkpoint to make sure that they were present and Duro Prpos confirmed this. Further, when asked about the location of the checkpoint, this witness testified that it was on the old Banja Luka road. All other witnesses testified that the checkpoint was on the new Banja Luka road. Finally, Miroslav Brdar testified that he did not know Zoran Cvijic who, according to Duro Prpos, was working under his supervision in the office right next to his. The witness testified that he socialized with the accused when off duty in Prijedor.

506. Duro Prpos describes the shift routine rather differently. He says that only sometimes was a car available to take the members of the shift to the checkpoint and bring them back again and that "very often there was no such vehicle available so they had to get there on their own one way or another", in which case they would not report first at the Prijedor police station but would go directly to the checkpoint. Either police vehicles, generally Golfs, or private cars were used by the traffic police. Duro Prpos would make a daily check of the checkpoints "to make sure they were coming on time". Zeljko Maric, another traffic policeman who also served on the Orlovci checkpoint, described the routine more in accordance with the description by Duro Prpos than with the tightly structured routine described by the accused and Miroslav Brdar. When asked whether "after you finished your shift you went home, did you?", Zeljko Maric replied: "It depends at what time it would be", and clarified that by saying: "There were points in time when we would not go home, when we were supposed to go to the police station to see whether there were other tasks and duties awaiting us, and there were other times when we would normally go home after our shift."

507. Four other witnesses testified to seeing the accused at the Orlovci checkpoint. However, their testimony does no more than establish that he was on occasions present there. Radoslavka Lukic lived quite close to the checkpoint. She is remotely related to the accused's wife and says she saw the accused on duty there several times a week during the latter part of June and July 1992 when, from about 20 June, she worked in Prijedor. The accused often visited her to have a cup of coffee, sometimes bringing a colleague with him, and would often stop a vehicle going towards Prijedor for her so that she could get a ride in it to Prijedor on her way to work. So too Nada Vlacina, who had known the accused and his family for some years, testified that she often saw the accused at the checkpoint from the second half of June. Her mother-in-law lived nearby and, in the absence of public transport, the accused would stop a car and get her and her children a ride back to her home in Prijedor when she was returning from visits to her mother-in-law. Rajko Karanovic drove a truck delivering food for the troops in Kozarac and would very often see the accused in June and early July as he passed several times a day through the checkpoint and would leave food for the traffic police there. The evidence of these three witnesses can do no more than establish that the accused was on occasions present at the Orlovci checkpoint. Dragoje Jankovic, who is a cousin of the accused, testified that he saw the accused on duty at the Orlovci checkpoint in May 1992. This testimony cannot be accepted since the records do not show an assignment before 17 June 1992 and the Defence does not contend otherwise.

508. The most substantial evidence of the accused's service at the Orlovci checkpoint consists of shift records kept at the Prijedor headquarters of the traffic police. They comprise a daily logbook entitled "Official Duty Plan" (Defence Exhibit 66), duty lists for the months of June, July and August 1992 (Defence Exhibits 63-65) and pay records (Defence Exhibits 75 and 77).

509. The daily logbook was written out one day in advance by a policeman who acted as a clerk, after the commander had determined the shifts. It would then be verified by the commander, Duro Prpos, and a copy put on the bulletin board so that policemen would know their shift times. If a rostered policeman failed to report for duty his name was to be crossed out and recorded as absent and the name of his replacement would be inserted. The name of the accused first appears in the daily logbook on 16 June 1992 as rostered for the Orlovci checkpoint together with those of Miroslav Brdar and Miroslav Cvijic. This daily logbook records the accused and his two colleagues as working at the checkpoint on various shifts during the period from 16 June until 3 August 1992.

510. The second series of records, the duty lists, were filled out after the duty had been completed, based on the information in the daily logbook and reports from the shift leaders, and show the actual time spent on duty by individual traffic policemen day by day at particular checkpoints; if a policeman did not attend when rostered this was to be reported by the shift leader and be appropriately recorded in the duty list. The duty lists record the accused as present at the Orlovci checkpoint with his two colleagues at various times from 16 June until 1 August 1992. The third series of records derive from the accounting service of the public security service and record the payment to police according to the time served by them. They record payment to the accused for his service as traffic policeman during the months of June, July and August 1992.

511. The daily logbook and duty lists were said by Duro Prpos to have been kept in a safe at the police station as official records and to show correctly the times spent on duty by the traffic policemen. He said that the leader of the shift was required to prepare a report and that, at the checkpoint itself, a record was kept on a daily basis. These latter records were not offered in evidence.

512. Even accepting these shift records as genuine and as correctly establishing the shifts worked by the accused at the Orlovci checkpoint, they, of course, only record the hours when he was meant to be on duty at the checkpoint; they do not of themselves establish his presence there throughout those hours. Miroslav Brdar said that the accused never absented himself during his hours on duty at the checkpoint and the accused gave evidence to the same effect, that he was never absent from duty and never left the Orlovci checkpoint during his shift. There was also evidence, both from the accused and from Miroslav Brdar, that during off-duty hours traffic police were obliged to remain at home on call if needed, the police station having their home telephone numbers, and that no one could travel around the countryside without express permission. The accused said that if there were occasion to leave home during off-duty hours one had to call and inform the policeman on duty as to where one would be "because our duty was to be present at the address where we lived".

513. As to both hours on duty and off duty, the accused's alibi, as it relates to his employment as a traffic policeman, depends entirely both upon acceptance of the evidence that there was strict compliance with what is said to have been the requirement of service as traffic police and upon the assumption that the authorities did not in fact allow or, perhaps, encourage the accused to engage in activities during hours of duty which would more directly serve the cause of ethnic cleansing than his remaining at the Orlovci checkpoint. The Prosecution submits that assignment to duty at a checkpoint would not foreclose the accused engaging in the overriding objective of the Prijedor police at the time, that is, taking part in and facilitating the persecution of non-Serbs which the Prosecution calls a "higher duty".

514. In fact, as it happens, the hours during which the records show the accused as being on duty at the Orlovci checkpoint rarely coincide with dates and times of day or night during which the offences alleged in the Indictment are said to have occurred. When they do, the weight to be given to the evidence of presence at the checkpoint is examined when dealing in detail with the relevant paragraph of the Indictment. As to off-duty hours, mere membership of the traffic police cannot avail the accused of an alibi for those hours since, even accepting that he was required to be available on call, the evidence for the accused suggests that, as long as he informed the police station where he was going to be, he could absent himself from his Prijedor home.

515. According to Radoslavska Lukic there was in force at the time of the accused's checkpoint service a curfew for civilians from 9 p.m. until 6 a.m., which prevented movement on the roads during those hours; that, combined with the fact that the traffic police had authority only over civilian traffic and that fuel for civilian vehicles was in very short supply, suggests, according to the Prosecution, that there would be little need indeed for five men, the accused and his two colleagues and two military policemen, to all remain at the checkpoint, especially during night-time.

516. The accused says that he did not possess a vehicle of his own during 1992 and that during his months of checkpoint duty he never used the police vehicle assigned to the checkpoint except on journeys between Prijedor and the checkpoint. However, Zeljko Maric testified that while a traffic policeman at the Orlovci checkpoint he, Zeljko Maric, drove the checkpoint police vehicle to Omarska. There is also evidence, some already referred to, of the accused providing transportation for others by getting them lifts in cars he stopped when they passed through the checkpoint and of the accused also availing himself of lifts in the vehicles of others. It was common practice to seek lifts in the vehicles of others and it would no doubt be relatively easy for a traffic policeman to do so. Mira Tadic testified that the accused usually returned from Kozarac to Prijedor after work as Secretary of the Kozarac Local Commune by hitchhiking or getting a ride in Goran Babic's vehicle. Zeljko Maric stated that he saw the accused passing through the checkpoint in different vehicles after the accused had stopped working at the Orlovci checkpoint but did not know whether the accused was driving or was a passenger. There is also testimony, much of it offered by the accused himself, of his renting or borrowing trucks, using his brother's vehicle, hitchhiking, and taking the train and bus to various destinations and at least one witness for the Prosecution testified to seeing the accused and Goran Borovnica in a police car on 27 May 1992, before the accused was "mobilized" into the traffic police. Distances are not great, even Banja Luka is only some 45 kilometres from Kozarac and the Omarska camp is only some 20 kilometres from the Orlovci checkpoint. Travel from Prijedor to Omarska village by train takes only some twenty minutes and the camp was some two kilometres out of the village.

517. As to the accused's off-duty hours, Jelena Gajic, sister of the accused's wife, testified that in Prijedor they "would see each other often after mid-June". Nada Vlacina said that she started visiting the Tadic family in Prijedor, visiting regularly in the second half of July. Witness D testified that she met the accused and his wife in Prijedor when they were looking for accommodation, that they later settled in Prijedor and that she then saw the Tadic family "very often, every week, several times, it depended". She saw them in their apartment in Pecani and they would also come to see her family. Mira Tadic confirmed that she, the accused, her children, and her mother-in-law moved into their apartment in Prijedor, allocated to them by the Prijedor Crisis Staff, on 27 June 1992 and that when the accused was off duty, he was either at home or with their friends, the Vlacina family and the Sobot family, and that he did not spend any periods away from home at that time. The accused's brother, Ljubomir Tadic, testified that he visited his brother in Prijedor three times between 16 June and 6 or 7 July 1992.

518. The Prosecution called Munevera Kulasic as a witness who confirmed that the accused moved into the apartment at Pecani. She is the sister-in-law of Hasan Tulundzic, a Muslim who, until the Serb take-over of Prijedor, had been the Chief of Police in Prijedor and was the former occupant of this apartment. The witness described it as a "quite big apartment, about 80 square metres, and very nicely decorated, with embroidered table cloths and a silver table set." The Tulundzics had left Prijedor in May 1992 and the witness's aunt, mother and a sister, as well as the witness, were occupying it when, on 20 June 1992, civilian policemen called and told them they had to leave the apartment, but did not insist upon it. Later, representatives from the Ljubija mine company, which officially owned the apartment, called and then the accused entered, dressed in a camouflage uniform. The accused ordered the representatives from the Ljubija mine company to leave, which they did. The accused then ordered the witness and her relatives to leave the apartment immediately, a brief inventory was taken and the witness, her handicapped sister and her elderly mother packed their belongings and in 15 minutes left the apartment. When she was leaving the witness says that she saw the accused put a note on the door that stated: "Dusko Tadic".

519. After the conclusion of the accused's duty at the Orlovci checkpoint in August 1992 he spent some time partly off duty in Prijedor and partly on duty as a policeman at locations in the town until, on 7 August 1992, he was transferred from the traffic police to a police station at Prijedor where he served until 8 September 1992. He, at the same time, was working from mid-August with the Local Commune of Kozarac while still residing in Prijedor. His periods of duty in Prijedor as a policeman are recorded in a manner similar to his service at the Orlovci checkpoint. Then in September 1992 he began work with the Kozarac police while also working for the Local Commune of Kozarac, both the police and the Local Commune being located in the same building, a school building, in Kozarac. No written record of the hours or days that he worked as a policeman in Kozarac were tendered. Although he continued to live with his family in Prijedor from September 1992 until the end of the year, the accused's work was exclusively in Kozarac, during which period he served as the Secretary of the Local Commune and the President of the Local Branch of the SDS. During this time he visited Trnopolje a number of times but was, he says, otherwise wholly engaged with affairs in the Kozarac region, sometimes sleeping overnight in Kozarac but usually returning home to his family in Prijedor.

520. Tomislav Dasic testified that from early October until early December 1992 the accused frequently worked with him and a third person in a team as a Commission responsible for making an inventory of property in the Kozarac area, where many houses had been destroyed or damaged during the attack on the town, to determine their availability for occupancy. The accused travelled with him by car from Prijedor to Kozarac, normally leaving at about 8 a.m. and arriving in Kozarac by 8.30 or 9 a.m. and they usually worked throughout the day. The witness stated that the accused was appointed to the Commission because he was the head of the Local Commune. However, he was unspecific as to the dates when they worked together and no records of this work were tendered.

521. Stojan Smoljic testified that he met the accused when he came to Kozarac as a Serb refugee from Jajca in October 1992. He stated that he saw the accused every day between October and November 1992 and that the accused would leave Kozarac by bus for Prijedor around 2 or 3 p.m.

522. Witness Y worked with the accused at the police station in Kozarac from August to November 1992. He testified that the accused ceased to work in the police station in November 1992. Thereafter, the accused worked in Kozarac for the Local Commune and wore civilian clothes, usually a coffee-coloured leather jacket and jeans or black trousers.

523. Joso Popovic testified that he came as a refugee from Velika Kladusa to Kozarac. He served as Vice-President of the Local SDS Committee when the accused was the President and became its President and Secretary when the accused left Kozarac in 1993. During the autumn of 1992 he saw the accused almost every day; the accused was working either out of the elementary school building in Kozarac or on locations somewhere within the commune.

524. The accused testified that he was at Trnopolje on four occasions on official business in addition to the visit he made with Jovo Samaradzija. He went to Trnopolje sometime in October 1992 as a reserve policeman with Goran Babic, commander of the police station in Kozarac, and other policemen, as a security detail for the Red Cross when refugees were going to Karlovac. In his First Statement he had told the German police that he was assigned to safeguard the work of the Red Cross and the buses transporting Muslim refugees from Trnopolje. The accused testified he also went to Trnopolje with his brother, but could not recall the date. He also went to Trnopolje with Joso Popovic in connection with his duties as Secretary of the Local Commune to get messages from refugees. Also, towards the end of 1992 he went there to meet Adil Jakupovic and his wife. The accused stated that on no occasion did he go into the school building at Trnopolje but stayed in the street outside.

525. Adil and Nasiha Jakupovic both testified that the accused came to Trnopolje with a man who identified himself as being from Velika Kladusa who wanted to "swap" his house for the Jakupovic's home. Other witnesses testified that they saw the accused several times at Trnopolje including Advija Campara, who stated she saw him over 20 times inside the camp, sometimes coming from the school at the Trnopolje camp. Witness Y, who served as a policeman with the accused in Kozarac and was elected as a representative of the settlers from Velika Kladusa, testified that the policemen in Kozarac had no jurisdiction in Trnopolje and did not "dare to go down there because that was another police detachment there that covered Trnopolje".

526. In his First Statement, in response to a question as to whether he owned a camouflage uniform or other military uniform, the accused replied: "No. No as far as the camouflage uniform goes", and added that "during my activity at Orlovci during the day-time, I wore blue trousers and a short-sleeved, light-blue shirt, also with the police insignia and at night, I also wore a jacket. Now this is the uniform of the police unit I was serving with".

527. However, Miroslav Brdar, who was the chief of the shift to which the accused was assigned at the Orlovci checkpoint, testified that the accused wore a camouflage uniform. Also, Zeljko Maric, another policeman assigned to the Orlovci checkpoint, testified that in June or July 1992 the traffic police received camouflage uniforms.

528. The accused denies ever being at the Omarska or Keraterm camps. The Defence offered the testimony of two witnesses in regard to Omarska. Witness Z testified that he was a guard at the Omarska "collection centre" from 5 June until August 1992, there to protect the people who were inside and to guard against others breaking into the camp, and that he never saw the accused at the Omarska camp while he was on guard. He testified that he was on duty for 12 hours and then free for 24 hours. However, his guard post was 500 to 600 meters from the Omarska buildings, he never went into the buildings at the camp, never stopped anyone from entering, could not identify anyone there because of the distance he was from the camp and would not be able to recognize anyone coming in a vehicle to the camp because his guard post was some distance from the road. Witness A, who is a non-Serb, testified that he was held at the Omarska camp from 27 May to 16 June 1992 and never saw the accused during that period. However, although he had lived in Kozarac since 1969, he could not recall seeing anyone he knew in the camp during that period; he saw no guards he knew and no persons he knew in the room in which he was placed. The only person he did recognize was someone named Melo whom he saw when the buses were being loaded on 27 May 1992. While he was at the Omarska camp he testified that people were called out by name from the rooms in which he was placed but he did not recall the names of any of these prisoners. These two witnesses, because of the nature of their evidence, add very little to the strength of the alibi evidence.

V. EVIDENTIARY MATTERS

529. During the course of proceedings, both before and during trial, a number of issues arose relating to procedure or to evidence. These concerned: (i) the access to evidence; (ii) the lack of specificity of the charges; (iii) the need for corroboration; (iv) victims of the conflict as witnesses; (v) the impact of pre-trial media coverage on testimony; (vi) the question of identification evidence; (vii) the effect of the apparently false evidence of one Prosecution witness; and (viii) the use of hearsay evidence. The Trial Chamber will deal with each of these in turn.

A. Access to Evidence

530. A difficulty encountered by both parties has been their limited access to evidence in the territory of the former Yugoslavia, due in no small part to the unwillingness of the authorities of the Republika Srpska to cooperate with the International Tribunal. While witnesses called by the Prosecution, mainly Muslims and former residents of Bosnia, were now living in Western European or North American countries, most Defence witnesses, almost all Serb, were still resident in Republika Srpska.

531. A number of steps have been taken by the International Tribunal to assist the parties. A video-conferencing link from a secure location in the territory of the former Yugoslavia was established so that numerous Defence witnesses otherwise unable or unwilling to give evidence were able to do so. The identities were suppressed of a number of Defence and Prosecution witnesses who sought it as a condition of giving evidence and some testimony was given in closed session or with special steps taken to conceal their identity from the public. Some Defence witnesses, concerned about coming to the seat of the International Tribunal to testify, were granted safe conduct against arrest or other legal process against them by the Prosecutor of the International Tribunal while present to testify in The Hague. These steps did appear to alleviate the inherent difficulties of the situation.

B. The Lack of Specificity of the Charges

532. As appears from the Indictment, in some of its paragraphs it is charged that the offence in question occurred "around" or "about" a particular date. This is the case in all paragraphs charging offences other than paragraphs 4, 5, 6, 8 and 9. However, neither paragraphs 5 or 9 are relevant to this discussion; the counts relating to paragraphs 5 were withdrawn at the commencement of the Prosecution case and, in the case of paragraph 9, it becomes irrelevant because of the conclusion that this Trial Chamber has reached on the charges made in that paragraph. In paragraphs 6 and 8 relatively short periods of time were stated and, in fact, for each of these paragraphs the exact date of occurrence of the acts alleged was established by the Prosecution evidence in its case-in-chief. Paragraph 4, which alleges persecution, does of its nature encompass a considerable period of time, involving acts that are widespread or systematic. However, several of its subparagraphs do incorporate other paragraphs of the Indictment for which specific dates were given or established in evidence or which themselves refer to dates with greater specificity.

533. At the close of the Prosecution case the Trial Chamber adjourned for three weeks at the request of the Defence to allow it additional time for the preparation of its case. The difficulty of establishing an alibi defence for those paragraphs that cover long periods of time is appreciated. In regard to those paragraphs, a major cause of difficulty for the Defence lies, however, in the very special character of its alibi defence, which not only has to extend over many months but also does not involve anything like total absence from the region where the offences are alleged to have occurred. Instead, it only asserts that the accused, although present within the region, was not involved in any of the activities alleged in the Indictment, but was instead leading his own quite innocent life and living with his family. Such a defence does not readily afford a complete answer to charges in the Indictment, since it cannot be expected, even in the most favourable circumstances, to provide anything like a 24-hour, day-by-day and week-by-week account of the accused's whereabouts. Favourable circumstances did apply to an extent to the period during which the accused served as a traffic policeman at the Orlovci checkpoint since written records exist of that service. However, even in the case of this period, and despite these written records, the accused's alibi for that period is, as has already been shown, far from conclusive.

534. Whereas the Prosecution is bound to prove each of the elements of the offence charged, to specify and prove the exact date of an offence is not required when the date or time is not also an element of the offence. While it is usual to allege and prove the date on which the offence charged is asserted to have been committed, the date is not material unless it is an essential part of the offence³⁰. The date may be of the essence of an offence if an act is criminal only if done, or only if the consequences of the act manifest themselves, within a certain period of time, or if the date is an essential ingredient of the offence, or if a statute of limitations or its equivalent applies³¹. However, in none of the offences here alleged was the date or time of the essence. For the foregoing reasons the events charged and the evidence adduced by the Prosecution was sufficiently precise and lack of specificity did not result in any denial of the accused's right to a fair trial.

C. Corroboration

535. The Defence contends that in the civil law, as distinct from the common law, some degree of independent causal corroboration of evidence is required. This unus testis, nullus testis (one witness is no witness) rule, the Defence submits, should be applied in cases before this International Tribunal in order to meet what it said were "fair and settled standards of proof" rather than developing what were somewhat extravagantly described as "ad hoc standards to enable it (the Tribunal) to convict".

536. The general principle which the Rules require the Trial Chamber to apply is that any relevant evidence having probative value may be admitted into evidence unless its probative value is substantially outweighed by the need to ensure a fair trial³². Rule 96(i) alone deals with the issue of corroboration, and then only in the case of sexual assault, where it says that no corroboration is to be required. The function of this Sub-rule is stated in An Insider's Guide to the International Criminal Tribunal for the Former Yugoslavia by Virginia Morris and Michael P. Scharf³³. It is explained that this Subrule accords to the testimony of a victim of sexual assault the same presumption of reliability as the testimony of victims of other crimes, something long denied to victims of sexual assault by the common law. Thus what the Sub-rule certainly does not do is to justify any inference that in cases of crimes, other than sexual assault, corroboration is required. The proper inference is, in fact, directly to the contrary.

537. Quite apart from the effect of the Rules, it is not correct to say that in present day civil law systems corroboration remains a general requirement. The determinative powers of a civil law judge are best described by reference to the principle of free evaluation of the evidence: in short, the power inherent in the judge as a finder of fact to decide solely on the basis of his or her personal intimate conviction³⁴. This wide discretionary power is subject to a limited number of restrictions. However, the principle reflected in the Latin maxim unus testis, nullus testis, which requires testimonial corroboration of a single witness's evidence as to a fact in issue, is in almost all modern continental legal systems no longer a feature.

538. As early as 1864 the Cour de Cassation in France held that French Courts were not obliged to apply the principle of unus testis, nullus testis³⁵. Indeed, the Belgian Cour de Cassation has held that when a judge evaluates the evidentiary value of witness statements "there are no provisions in the law which make it impossible for the judge to found his decision on the sole basis of the declarations of the victim"³⁶. In former times, German judges could consider a fact as proved only if, for example, the accused had confessed to the offence or if two impeccable witnesses had testified, the testimony of one witness being only "half a proof". However, no such restriction exists today limiting the freedom of assessment of evidence by a judge³⁷. Article 342.2 of the Code of Criminal Procedure of the Netherlands, which explicitly forbids the court to base a conviction on the basis of the testimony of only one witness, is an exception to the prevailing approach in the civil law. However, the Hoge Raad has interpreted this provision very narrowly so that any corroborative evidence, whether or not direct testimonial evidence or otherwise, supporting the testimony of the single witness to the alleged acts may suffice in the formation of the judge's personal intimate conviction³⁸. Civil law codes enacted in this century, well after the unus testis, nullus testis principle had disappeared from most civil law jurisprudence, have not dealt further with this principle which cannot be found in them. According to Miguel Fenech, writing on the Spanish Code of Criminal Procedure³⁹:

It is important to note that the testimonial evidence has to be appreciated independently of the number of witnesses, and as there exists no rules concerning the matter it is possible that one witness is worthy of more credit than a number of witnesses, and it has to be said that, in most cases, the testimonial evidence must be seen in relation to other pieces of evidence which should contribute to evaluation of the testimonial evidence⁴⁰.

Similarly, this principle does not exist in Marxist legal systems, including those of the former Yugoslavia and China, which largely follow the civil law principle of the freedom of evaluation of evidence.

539. It follows that there is no ground for concluding that this requirement of corroboration is any part of customary international law and should be required by this International Tribunal.

D. Victims of the Conflict as Witnesses

540. Each party has relied heavily on the testimony of persons who were members of one party or other to the conflict and who were, in many cases, also directly made the victims of that conflict, often through violent means. The argument has been put by the Defence that, while the mere membership of an ethnic group would not make a witness less reliable in testifying against a member of another ethnic group, the "specific circumstances of a group of people who have become victims of this terrible war . . . causes questions to be raised as to their reliability as witnesses in a case where a member of the victorious group, their oppressors, is on trial".

541. The reliability of witnesses, including any motive they may have to give false testimony, is an estimation that must be made in the case of each individual witness. It is neither appropriate, nor correct, to conclude that a witness is deemed to be inherently unreliable solely because he was the victim of a crime committed by a person of the same creed, ethnic group, armed force or any other characteristic of the accused. That is not to say that ethnic hatred, even without the exacerbating influences of violent conflict between ethnic groups, can never be a ground for doubting the reliability of any particular witness. Such a conclusion can only be made, however, in the light of the circumstances of each individual witness, his individual testimony, and such concerns as the Defence may substantiate either in cross-examination or through its own evidence-in-chief.

E. Pre-trial Media Coverage and the Infection of Testimonial Evidence

542. Attention was drawn during the course of the trial to the impact of pre-trial media reporting of events in opstina Prijedor and of the indictment and arrest of the accused. In particular, the Defence directed the attention of the Trial Chamber to media coverage in areas to which many refugees from the former Yugoslavia have fled since the events in question. To some extent, this issue related to the reliability of identification witnesses who had not known the accused prior to the conflict. For example, of the 20 television programmes about this case which were considered in a survey of which evidence was given, 15 carried the picture of the accused for at least a part of the report. This is an issue which will be addressed below.

543. Beyond issues of identification, it was the submission of the Defence that this coverage potentially affected the trustworthiness or reliability of testimony given by Prosecution witnesses generally. By contrast, a number of Prosecution witnesses denied having seen reports; many said that they were not interested in seeing reports of events in the former Yugoslavia as they did not wish to relive their experiences. Some of the print media reports noted in another survey of which evidence was given on behalf of the Defence did not contain any reference to the accused. In that survey a large number of newspaper articles and reports in some way relating to the accused were reported on but, of the 83 articles cited, only 12 carried photographs and some articles proved not to be specifically about the accused in another survey of which evidence was given on behalf of the Defence (Defence Exhibit 101). Further, none of the reports published or television programmes shown were the native language of the witnesses.

544. In all trials, the potential impact of pre-trial media coverage is a factor that must be taken into account in considering the reliability of witnesses, and where this aspect was raised in cross-examination of witnesses, it has been taken into account in the evaluation of their testimony.

F. Identification Evidence

545. Where, as here, an accused's defence, arguments of law apart, consists of an alibi, evidence of visual identification of the accused assumes great significance. This Trial Chamber heard much such evidence from witnesses, many of whom had either known the accused since childhood or from long acquaintance with the accused in the Kozarac area, together hereafter referred to as recognition witnesses. In the case of four witnesses, to whom the accused was previously unknown by sight, they had identified him from a collection of 13 photographs in a photospread, shown to them by the Prosecution before giving evidence (Prosecution Exhibits 242, 243, 255, 294); they are hereafter referred to as identification witnesses. Both classes of witnesses identified the witness in court by way of dock identification.

546. The Defence challenged the identifications made by all these witnesses. The Trial Chamber places little weight upon mere dock identification; the circumstances attendant upon such identification, with the accused seated between two guards in the courtroom, require the Trial Chamber to assess the credibility of each witness independently of that identification. The credibility accorded to the testimony of each such witness as to recognition or identification has been considered in the course of this Opinion and Judgment. This portion of the Opinion and Judgment is concerned, however, with the evidence of the four identification witnesses who were involved in the photospread procedure. In fact the photospread procedure was also undertaken, quite unnecessarily, by Draguna Jaskic who had known the accused for very many years and was, therefore a recognition witness. What follows accordingly does not apply to her evidence regarding the accused.

547. The expert Defence witness, Dr. Willem A. Wagenaar, gave evidence regarding identification generally and, in particular, concerning photospread procedure. He was acknowledged by both parties as expert in the field. The Trial Chamber accepts his very substantial approval of the format of the photospread itself which, he said, in his opinion would afford witnesses a wholly unbiased opportunity to identify the accused, his only qualification being that the 12 men other than the accused, the "foils", should prove to be of the same ethnic background as the accused. It emerged in evidence that with three exceptions this was the case; nine of the foils were from or were born in former Yugoslavia. The Trial Chamber accepts the suitability of the foils and accordingly of the photospread itself.

548. There remains the procedure employed in showing the photospread to the four witnesses. No written directions were given to the officer who conducted the procedure in the case of three of the four witnesses; written guidelines were supplied to the other officer, who attended to the fourth witness, Senad Muslimovic. These guidelines were not produced in evidence and neither of the two officers was called as a witness on this issue.

549. What is known of the procedure adopted by these two officers comes from the evidence of the Prosecution chief investigator, Robert Reid, who was not present at any of the procedures but described what he had been told by those officers as to the procedure they had adopted. That procedure, if accurately described to the chief investigator and then accurately recounted by him in evidence, was generally, although not in every detail, in accordance with what Dr. Wagenaar regarded as satisfactory. Dr. Wagenaar stated in evidence that it was a fair conclusion to say that more would have to be known about the procedure in fact adopted in order to determine the value to be given to the four photospread identifications and yet stated that only if there were gross violations of his suggested procedure would the identification be invalid.

550. In the absence of evidence from the officers who conducted the photospread procedure the Trial Chamber has had recourse to the evidence of the four witnesses themselves as to that procedure, a less satisfactory course in view of the relative brevity of that evidence. However, having examined that evidence, in each case it does not suggest any gross violation of what are said to be proper procedures nor any such impropriety in the procedure as would of itself cause the witness to select the photograph of the accused in preference to any of the other 12 photographs shown to him or her. In the outcome, and despite the absence of evidence of that degree of perfection of procedure which might have been established had the officers who conducted the photospread procedure given evidence, the Trial Chamber is satisfied that the four witnesses utilized an unbiased identification procedure to select the photograph of the accused as the person they described as committing the acts to which they testified.

551. The Defence contended that, since the photospread procedures were all conducted after the much-publicized commencement of this trial, some four years after the witnesses had last seen the accused, and following the widespread display of his photograph in newspapers and on television, which each of them denied having seen, and also in view of the testimony of Dr. Wagenaar, reliance should not be placed on their identification.

552. The Trial Chamber rejects this submission in view of the convincing testimony of these witnesses that they had not seen any such media pictures of the accused before being shown the photospread. It is true that each of them knew very well that it was for the purpose of this trial that they were looking through the photospread, and that for this and other reasons, all that Dr. Wagenaar would wish by way of procedure was not complied with; for instance, the witnesses were apparently not asked in advance to give their own description of the accused so that it might be compared with the particular photograph which they selected from the photospread. However, despite what has been said to be these defects in procedure, the Trial Chamber accepts the four witnesses' identification of the accused.

G. Testimony of Dragan Opacic

553. During the course of this trial the truthfulness of the testimony of one witness, Dragan Opacic, first referred to as Witness L, was attacked and ultimately, on investigation, the Prosecution disclaimed reliance upon that witness's evidence. The Defence contends that this incident is but one instance of a quite general failure by the Prosecution to test adequately the truthfulness of the evidence to be presented against the accused, instead simply accepting as true the evidence given against a single Serb accused by a whole array of Muslim witnesses.

554. Two points should be made in regard to this submission. First, the provenance of Dragan Opacic was quite special. Apparently, of all the witnesses, he was the only one who came to the notice of the Prosecution as proffered as a witness by the authorities of the Republic of Bosnia and Herzegovina in whose custody he then was. The circumstances surrounding his testimony were, accordingly, unique to him; the fact that his evidence came to be acknowledged as untruthful casts no light on the evidence of other Prosecution witnesses, none of whom share his provenance. Secondly, this Trial Chamber does not consider that either what occurred with Dragan Opacic, or what emerged in the case of any other witnesses, demonstrate any relevant or blameworthy lack of diligence on the part of the Prosecution such as should, of itself, lead the Trial Chamber to discount the reliability of any particular testimony, other, of course, than that of Dragan Opacic.

H. Hearsay

555. The use of hearsay evidence was debated at length before this Trial Chamber in an interlocutory motion in this case and was ruled upon in the Decision on the Defence Motion on Hearsay⁴¹. Since that Decision may be consulted directly, all that need be said of it here is that it concluded that the mere fact that particular testimony was in the nature of hearsay did not operate to exclude it from the category of admissible evidence.

556. In the course of this trial, and despite that Decision, objection was occasionally taken to the acceptance of certain hearsay evidence. However, these objections were not usually sustained and the testimony in question was admitted into evidence and assessed in the usual way for its probative value pursuant to Rule 89.

VI. APPLICABLE LAW

A. General Requirements of Articles 2, 3 & 5 of the Statute

557. Having considered the evidence offered at trial, it is now appropriate to discuss the law relating to the offences charged.

558. The competence of this International Tribunal and hence of this Trial Chamber is determined by the terms of the Statute. Article 1 of the Statute confers power to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991. The Statute then, in Articles 2, 3, 4 and 5, specifies the crimes under international law over which the International Tribunal has jurisdiction. In the present case, only Articles 2, 3 and 5 are relevant. It is not in dispute that the offences as alleged in the Indictment satisfy the requirements of time and place imposed by Article 1 and, as will be seen, each of the rules of customary international humanitarian law to which the Indictment directs the Trial Chamber is concerned with serious violations of that body of law.

559. Each of the relevant Articles of the Statute, either by its terms or by virtue of the customary rules which it imports, proscribes certain acts when committed "within the context of" an "armed conflict". Article 2 of the Statute directs the Trial Chamber to the grave breaches regime of the Geneva Conventions which applies only to armed conflicts of an international character and to offences committed against persons or property regarded as "protected", in particular civilians in the hands of a party to a conflict of which they are not nationals⁴². Article 3 of the Statute directs the Trial Chamber to those sources of customary international humanitarian law that comprise the "laws or customs of war". Article 3 is a general provision covering, subject to certain conditions, all violations of international humanitarian law which do not fall under Article 2 or are not covered by Articles 4 or 5. This includes violations of the rules contained in Article 3 common to the Geneva Conventions ("Common Article 3"), applicable to armed conflicts in general, with which the accused has been charged under Article 3 of the Statute⁴³. Article 5 of the Statute directs the Trial Chamber to crimes against humanity proscribed by customary international humanitarian law. By virtue of the Statute, those crimes must also occur in the context of an armed conflict, whether international or non-international in character. An armed conflict exists for the purposes of the application of Article 5 if it is found to exist for the purposes of either Article 2 or Article 3⁴⁴.

560. Consequently, it is necessary to show, first, that an armed conflict existed at all relevant times in the territory of the Republic of Bosnia and Herzegovina and, secondly, that the acts of the accused were committed within the context of that armed conflict and for the application of Article 2, that the conflict was international in character and that the offences charged were committed against protected persons.

1. Existence of an Armed Conflict

561. According to the Appeals Chamber Decision, the test for determining the existence of such a conflict is that

an armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State⁴⁵.

(a) Protracted armed violence between governmental forces and organized armed groups

562. The test applied by the Appeals Chamber to the existence of an armed conflict for the purposes of the rules contained in Common Article 3 focuses on two aspects of a conflict; the intensity of the conflict and the organization of the parties to the conflict. In an armed conflict of an internal or mixed character, these closely related criteria are used solely for the purpose, as a minimum, of distinguishing an armed conflict from banditry, unorganized and short-lived insurrections, or terrorist activities, which are not subject to international humanitarian law⁴⁶. Factors relevant to this determination are addressed in the Commentary to Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Convention I, ("Commentary, Geneva Convention I")⁴⁷.

563. The parties to the conflict in the area of opstina Prijedor and the main parties to the conflict in Bosnia and Herzegovina as a whole were the Government of the Republic of Bosnia and Herzegovina and the Bosnian Serb forces, the latter controlling territory under the banner of the Republika Srpska and, at least before 19 May 1992, supported by or under the command of the JNA. The Government of the Republic of Bosnia and Herzegovina was also in conflict with various Bosnian Croat forces supported by the Government of Croatia. The Republic of Bosnia and Herzegovina was admitted as a State member of the United Nations, following decisions adopted by the Security Council and the General Assembly⁴⁸, on 22 May 1992, two days before the shelling and take-over of Kozarac. It was the de jure State against which the Bosnian Serb forces were in revolt. Even before that date, the Republic of Bosnia and Herzegovina was an organized political entity, as one of the republics of the Socialist Federal Republic of Yugoslavia, having its own republican secretariat for defence and its own TO.

564. The territory controlled by the Bosnian Serb forces was known initially as the "Serbian Republic of Bosnia and Herzegovina" and renamed Republika Srpska on 10 January 1992. This entity did not come into being until the Assembly of the Serbian People of Bosnia and Herzegovina proclaimed the independence of that Republic on 9 January 1992. In its revolt against the de jure Government of the Republic of Bosnia and Herzegovina in Sarajevo, it possessed, at least from 19 May 1992, an organized military force, namely the VRS, comprising forces formerly part of the JNA and transferred to the Republika Srpska by the Federal Republic of Yugoslavia (Serbia and Montenegro). These forces were officially under the command of the Bosnian Serb administration located in Pale, headed by the Bosnian Serb President, Radovan Karadzic. The Bosnian Serb forces occupied and operated from a determinate, if not definite, territory, comprising a significant part of Bosnia and Herzegovina, bounded by the borders of the Republic of Bosnia and Herzegovina on the one hand, and by the front-lines of the conflict between the Bosnian Serb forces and the forces of the Government of the Republic of Bosnia and Herzegovina and the forces of the Bosnian Croats, on the other.

565. In opstina Prijedor, hostilities did not cease following the withdrawal from the territory of Bosnia and Herzegovina of the JNA on 19 May 1992. As has been seen, areas to the south-west of the town of Prijedor were attacked by Bosnian Serb armed forces in late May 1992 following the clash between Serbs and Muslims at the Muslim-manned checkpoint in Hambarine referred to earlier, in which there were casualties on both sides. Then, on 24 May 1992, the predominantly Muslim town of Kozarac was attacked by Bosnian Serb forces, with an artillery bombardment which lasted until 26 May 1992 and extended to surrounding Muslim villages. As a result of this shelling many dwellings were destroyed, over 800 inhabitants were killed and the remainder, including those from surrounding Muslim villages, were expelled, the town and its vicinity being then occupied by Bosnian Serb forces. Similarly, the two villages of Jaskici and Sivci and their inhabitants were attacked by armed Bosnian Serbs on 14 June 1992 with like consequences. It is with the attacks upon Kozarac and these Muslim villages and all that ensued for their inhabitants that the Indictment is concerned.

566. In considering the conflict relating to the events in opstina Prijedor, the Trial Chamber is not, however, bound to confine its attention to the immediate area of that opstina or to the time of the alleged offences but may consider the ongoing conflict between the Government of the Republic of Bosnia and Herzegovina and the Bosnian Serb forces in its entirety. As the Appeals Chamber pointed out, "the temporal and geographical scope of both internal and international armed conflicts extends beyond the exact time and place of hostilities."⁴⁹ Even after these attacks, until the Dayton Peace Agreement was concluded and notwithstanding various cease-fire agreements entered into in various parts of Bosnia and Herzegovina, no general cessation of hostilities had occurred there or elsewhere in the territory of the former Yugoslavia. The ongoing conflicts before, during and after the time of the attack on Kozarac on 24 May 1992 were taking place and continued to take place throughout the territory of Bosnia and Herzegovina between the Government of the Republic of Bosnia and Herzegovina, on the one hand, and, on the other hand, the Bosnian Serb forces, elements of the VJ operating from time to time in the territory of Bosnia and Herzegovina, and various paramilitary groups, all of which had occupied or were proceeding to occupy a significant portion of the territory of that State.

567. The intensity of the conflict has ensured the continuous involvement of the Security Council since the outbreak of fighting in the former Yugoslavia. As early as 25 September 1991, considering that the situation in the former Yugoslavia constituted a threat to international peace and security, the Security Council invoked Chapter VII of the Charter of the United Nations to declare a total arms embargo on the region⁵⁰. After that time, the Security Council took numerous steps to maintain international peace and security in the region, including the imposition of economic sanctions on the Federal Republic of Yugoslavia (Serbia and Montenegro) for its involvement in the conflict in Bosnia and Herzegovina⁵¹ and the establishment of this International Tribunal⁵².

568. Having regard then to the nature and scope of the conflict in the Republic of Bosnia and Herzegovina and the parties involved in that conflict, and irrespective of the relationship between the Federal Republic of Yugoslavia (Serbia and Montenegro) and the Bosnian Serb forces, the Trial Chamber finds that, at all relevant times, an armed conflict was taking place between the parties to the conflict in the Republic of Bosnia and Herzegovina of sufficient scope and intensity for the purposes of the application of the laws or customs of war embodied in Article 3 common to the four Geneva Conventions of 12 August 1949, applicable as it is to armed conflicts in general, including armed conflicts not of an international character.

(b) Use of force between States

569. Applying what the Appeals Chamber has said, it is clear from the evidence before the Trial Chamber that, from the beginning of 1992 until 19 May 1992, a state of international armed conflict existed in at least part of the territory of Bosnia and Herzegovina. This was an armed conflict between the forces of the Republic of Bosnia and Herzegovina on the one hand and those of the Federal Republic of Yugoslavia (Serbia and Montenegro), being the JNA (later the VJ), working with sundry paramilitary and Bosnian Serb forces, on the other. While the forces of the VJ continued to be involved in the armed conflict after that date, the character of the relationship between the VJ and the Bosnian Serb forces from that date, and hence the nature of the conflict in the areas with which this case is concerned, is discussed in the consideration of Article 2 of the Statute. It suffices for the moment to say that the level of intensity of the conflict, including the involvement of the JNA or the VJ in the conflict, was sufficient to meet the requirements for the existence of an international armed conflict for the purposes of the Statute.

570. For evidence of this it is enough to refer generally to the evidence presented as to the bombardment of Sarajevo, the seat of government of the Republic of Bosnia and Herzegovina, in April 1992 by Serb forces, their attack on towns along Bosnia and Herzegovina's border with Serbia on the Drina River and their invasion of south-eastern Herzegovina from Serbia and Montenegro. That the hostilities involved in this armed conflict extended into opstina Prijedor is also clear and is evidenced by the military occupation and armed seizure of power in the town of Prijedor itself on 30 April 1992 by JNA forces, aided by Bosnian Serb members of the police and administration and, following an unsuccessful revolt, their subsequent expulsion by force of arms of the majority of the non-Serb inhabitants from, and the bombardment and substantial destruction of, Stari Grad, the old, predominantly Muslim, section of Prijedor. These attacks were part of an armed conflict to which international humanitarian law applied up until the general cessation of hostilities.

571. However, the extent of the application of international humanitarian law from one place to another in the Republic of Bosnia and Herzegovina depends upon the particular character of the conflict with which the Indictment is concerned. This depends in turn on the degree of involvement of the VJ and the Government of the Federal Republic of Yugoslavia (Serbia and Montenegro) after the withdrawal of the JNA on 19 May 1992. That issue will be dealt with in Section VI. B of this Opinion and Judgment.

2. Nexus between the Acts of the Accused and the Armed Conflict

572. The existence of an armed conflict or occupation and the applicability of international humanitarian law to the territory is not sufficient to create international jurisdiction over each and every serious crime committed in the territory of the former Yugoslavia. For a crime to fall within the jurisdiction of the International Tribunal, a sufficient nexus must be established between the alleged offence and the armed conflict which gives rise to the applicability of international humanitarian law.

573. In relation to the applicability of international humanitarian law to the acts alleged in the Indictment, the Appeals Chamber has held that:

Even if substantial clashes were not occurring in the Prijedor region at the time and place the crimes allegedly were committed - a factual issue on which the Appeals Chamber does not pronounce - international humanitarian law applies. It is sufficient that the alleged crimes were closely related to the hostilities occurring in other parts of the territories controlled by the parties to the conflict⁵³.

For an offence to be a violation of international humanitarian law, therefore, this Trial Chamber needs to be satisfied that each of the alleged acts was in fact closely related to the hostilities. It would be sufficient to prove that the crime was committed in the course of or as part of the hostilities in, or occupation of, an area controlled by one of the parties. It is not, however, necessary to show that armed conflict was occurring at the exact time and place of the proscribed acts alleged to have occurred, as the Appeals Chamber has indicated, nor is it necessary that the crime alleged takes place during combat, that it be part of a policy or of a practice officially endorsed or tolerated by one of the parties to the conflict, or that the act be in actual furtherance of a policy associated with the conduct of war or in the actual interest of a party to the conflict; the obligations of individuals under international humanitarian law are independent and apply without prejudice to any questions of the responsibility of States under international law⁵⁴. The only question, to be determined in the circumstances of each individual case, is whether the offences were closely related to the armed conflict as a whole.

574. In any event, acts of the accused related to the armed conflict in two distinct ways. First, there is the case of the acts of the accused in the take-over of Kozarac and the villages of Sivci and Jaskici. Given the nature of the armed conflict as an ethnic war and the strategic aims of the Republika Srpska to create a purely Serbian State, the acts of the accused during the armed take-over and ethnic cleansing of Muslim and Croat areas of opstina Prijedor were directly connected with the armed conflict.

575. Secondly, there are the acts of the accused in the camps run by the authorities of the Republika Srpska. Those acts clearly occurred with the connivance or permission of the authorities running these camps and indicate that such acts were part of an accepted policy towards prisoners in the camps in opstina Prijedor. Indeed, such treatment effected the objective of the Republika Srpska to ethnically cleanse, by means of terror, killings or otherwise, the areas of the Republic of Bosnia and Herzegovina controlled by Bosnian Serb forces. Accordingly, those acts too were directly connected with the armed conflict.

576. he Trial Chamber now turns to the specific provisions of the Statute, and the sources of customary international law to which they direct this Trial Chamber, in order to determine whether the acts of the accused violated any of these provisions. To the extent required, the connection of the acts of the accused to the events in question will be discussed further in the following sections.

B. Article 2 of the Statute

1. The Customary Status of Article 2

577. Article 2 of the Statute provides that the "International Tribunal shall have the power to prosecute persons committing or ordering to be committed grave breaches of the Geneva Conventions of 12 August 1949", and there follows a list of the specific crimes proscribed. Implicit in the Appeals Chamber Decision is the conclusion that the Geneva Conventions are a part of customary international law, and as such their application in the present case does not violate the principle of nullum crimen sine lege⁵⁵.

2. Status of the Victims as "Protected Persons"

(a) Introduction

578. According to the Appeals Chamber, the Statute specifically restricts the prosecution of grave breaches to those committed against "persons or property protected under the provisions of the relevant Geneva Conventions"⁵⁶. In this case, each of the victims of the crimes alleged to have been committed by the accused were civilians caught up in the ongoing armed conflict in the Republic of Bosnia and Herzegovina. Some of the victims were in towns and villages captured by the VRS, while others fell victim to the acts of the accused while detained at one of the camps established in opstina Prijedor to facilitate the ethnic cleansing of that area. As such, their status under the Geneva Conventions is governed by the terms of Article 4 of Geneva Convention Relative to the Protection of Civilian Persons in Time of War ("Geneva Convention IV"), which defines those civilians who fall under the protection of that Convention ("protected persons") as follows:

Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals⁵⁷.

The central question is thus whether at all relevant times the victims of the accused were in the hands of "a Party to the conflict or Occupying Power of which they are not nationals". Implicit in this expression is a threefold requirement. The first and second requirements are that the victims be "in the hands of" a "Party to the conflict or Occupying Power". The third is that the civilian victims not be nationals of that Party or Occupying Power.

(b) Were the victims in the hands of a party to the conflict?

579. As previously discussed, the Republika Srpska was a party to the conflict in the Republic of Bosnia and Herzegovina opposed to the Republic's secession from the Socialist Federal Republic of Yugoslavia. While the victims in the camps at Omarska, Keraterm and Trnopolje were in the hands of the armed forces and authorities of the Republika Srpska, the expression "in the hands of" is not restricted to situations in which the individual civilian is physically in the hands of a Party or Occupying Power. As the Commentary to Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Convention IV, ("Commentary, Geneva Convention IV") explains:

The expression "in the hands of" is used in an extremely general sense. It is not merely a question of being in enemy hands directly, as a prisoner is. The mere fact of being in the territory of a party to the conflict or an occupied territory implies that one is in the power, or "hands", of the Occupying Power. It is possible that this power will never actually be exercised over the protected person: very likely an inhabitant of an occupied territory will never have anything to do with the Occupying Power or its organizations. In other words, the expression 'in the hands of" need not necessarily be understood in the physical sense; it simply means that the person is in territory under the control of the Power in question⁵⁸.

Consequently, those persons who found themselves in territory effectively occupied by a party to the conflict can be considered to have been in the hands of that party. However, given that the take-over of opstina Prijedor began before the JNA withdrawal on 19 May 1992 and was not completed until after that date, the exact date when the victims of the acts of the accused fell into the hands of the opposing armed forces is highly relevant to an assessment of their status under international humanitarian law.

580. Most of the victims of the accused's acts within the opstina Prijedor camps with whom the Trial Chamber is concerned in this case were, prior to the occurrence of the acts in question, living in the town of Kozarac or its surrounds or in the villages of Sivci and Jaskici. In some instances, the exact date and place when some of the victims of the acts of the accused fell into the hands of forces hostile to the Government of the Republic of Bosnia and Herzegovina is not made clear. Whether or not the victims were "protected persons" depends on when it was that they fell into the hands of the occupying forces. The exact moment when a person or area falls into the hands of a party to a conflict depends on whether that party has effective control over an area⁵⁹. According to Georg Schwarzenberger, in International Law as applied by International Courts and Tribunals, the law relating to belligerent occupation:

. . . applies only to invaded territory, but not to the whole of such territory. It does not extend to invaded enemy territory in which fighting still takes place or to those parts of it which the territorial sovereign may have abandoned, but in which the invader has not yet established his own authority.
. . . [I]n invaded territory which is not yet effectively occupied, the invader is bound merely by the limitations which the rules of warfare stricto sensu impose. The protection which the civilian population in such areas may claim under international customary law rests on the continued application in their favour of the standard of civilisation in all matters in which this does not run counter to the necessities of war. Those of the provisions of Geneva Red Cross Convention IV of 1949 which are not limited to occupied territories add further to this minimum of protection⁶⁰.

In the case of opstina Prijedor, only parts of the opstina, including the main population centre of Prijedor town, were occupied on or before 19 May 1992. In relation to the citizens of Kozarac and other Muslim-controlled or dominated areas of opstina Prijedor, they fell into the hands of the VRS upon their capture by those forces on or after 27 May 1992. That is not, however, to say that, because some parts of opstina Prijedor were not controlled by the VRS until 27 May 1992, there was not an effective occupation of the remainder of opstina Prijedor. This point is made clear, for example, by the British Manual of Military Law, which states:

The fact that there is a defended place or zone still in possession of the national forces within an occupied district does not make the occupation of the remainder invalid, provided that such place or defended zone is surrounded and effectively cut-off from the rest of the occupied district⁶¹.

581. In any event, for those persons in opstina Prijedor who were in territory occupied prior to 19 May 1992 by Bosnian Serb forces and JNA units, their status as "protected persons", subject to what will be said about the relationship between the VRS and the Government of the Federal Republic of Yugoslavia (Serbia and Montenegro) below, ceased on that date. As Schwarzenberger points out:

In accordance with its territorial and temporal limitations, the law of belligerent occupation ceases to apply whenever the Occupying Power loses effective control the occupied territory. Whether, then, this body of law is replaced by the laws of war in the narrower sense or by the law of the former territorial sovereign, depends on the fortunes of war⁶².

582. On 15 May 1992 the Security Council, in resolution 752 of 1992⁶³, demanded that all interference from outside Bosnia and Herzegovina by units of the JNA cease immediately and that those units either be withdrawn, be subject to the authority of the Government of the Republic of Bosnia and Herzegovina, or be disbanded and disarmed. Subject to what will be said below regarding the relationship between the JNA or the VJ and the Government of the Federal Republic of Yugoslavia (Serbia and Montenegro), on the one hand, and the VRS and the Republika Srpska on the other, by 19 May 1992 the Government of the Federal Republic of Yugoslavia (Serbia and Montenegro) had lost or given up effective control over opstina Prijedor and most other parts of the Republic of Bosnia and Herzegovina. As each of the crimes alleged to have been committed by the accused occurred after 19 May 1992, the question to which the Trial Chamber now turns, having clearly determined that the victims were at all relevant times in the hands of a party to the conflict, is whether, after that date and at all relevant times, those victims were in the hands of a party to the conflict or occupying power of which they were not nationals.

583. In making this assessment, the Trial Chamber takes notice of two facts. The first is the conclusion inherent in the Appeals Chamber Decision and in the statements of the Security Council in relation to the conflict in the former Yugoslavia that that conflict was of a mixed character, and the Appeals Chamber's implicit deference to this Trial Chamber on the issue of whether the victims were "protected persons" in the present case⁶⁴. It is thus for the Trial Chamber to characterize the exact nature of the armed conflict, of which the events in opstina Prijedor formed a part, when applying international humanitarian law to those events. The second fact is the nature of the conflict in the Republic of Bosnia and Herzegovina as understood by the parties to that conflict, which was made clear by the signing, on 22 May 1992, just two days before the attack on Kozarac, of an agreement by the representatives of Alija Izetbegovic (President of the Republic of Bosnia and Herzegovina and the SDA), Radovan Karadzic (President of the SDS) and Miljenko Brkic (President of the Croatian Democratic Community) to abide by the substantive rules of armed conflict not of an international character prescribed by Common Article 3 of the Geneva Conventions. It was also agreed, on the basis of paragraph 3 of Common Article 3, to apply certain provisions of the full Geneva Convention regime concerning international conflicts. This agreement was supported by the ICRC⁶⁵. In accordance with the terms of Common Article 3, the signing of such agreements does not in any way affect the legal status of the parties to the conflict and does not in any way affect the independent determination of the nature of that conflict by this Trial Chamber.

(i) Applicable legal test

584. The armed forces of the Republika Srpska, and the Republika Srpska as a whole, were, at least from 19 May 1992 onwards, legal entities distinct from the VJ and the Government of the Federal Republic of Yugoslavia (Serbia and Montenegro). However, as a rule of customary international law, the acts of persons, groups or organizations may be imputed to a State where they act as de facto organs or agents of that State. One may speak of imputability as "the result of the intellectual operation necessary to bridge the gap between the delinquency of the organ or official, and the attribution of breach and liability to the State."⁶⁶ In this case, the acts of the armed forces of the Republika Srpska, although nationals of the Republic of Bosnia and Herzegovina, after 19 May 1992 in relation to opstina Prijedor may be imputed to the Federal Republic of Yugoslavia (Serbia and Montenegro) if those forces were acting as de facto organs or agents of that State for that purpose or more generally. Were the Trial Chamber to make this imputation it would not be concerned further with questions of State responsibility for those acts; the Trial Chamber would conclude that the civilian victims of the accused's acts were "protected persons" within the meaning of Geneva Convention IV as persons in territory occupied by a Party to the conflict of which they are not nationals. This principle of customary international law is also to be found in Article 29 of Geneva Convention IV, which provides:

The Party to the conflict in whose hands protected persons may be, is responsible for the treatment accorded to them by its agents, irrespective of any individual responsibility which may be incurred⁶⁷.

The Commentary, Geneva Convention IV, to this Article further clarifies this provision:

The nationality of the agents does not affect the issue. That is of particular importance in occupied territories, as it means that the occupying authorities are responsible for acts committed by their locally recruited agents of the nationality of the occupied country⁶⁸.

This approach to the problem finds implicit support in the discussion of the Security Council's view of the nature of the armed conflict by the Appeals Chamber⁶⁹. Such a situation is not restricted to circumstances in which the foreign Power has occupied a certain territory and then recruits local agents. As will be seen, the relationship of de facto organs or agents to the foreign Power includes those circumstances in which the foreign Power "occupies" or operates in certain territory solely through the acts of local de facto organs or agents.

585. The particular problem of applying general principles of international law relating to State responsibility for de facto organs or agents to the specific circumstance of rebel forces fighting a seemingly internal conflict against the recognized government of a State, but dependent on the support of a foreign Power in the continuation of that conflict, was considered by the International Court of Justice ("Court") in the Case Concerning Military and Paramilitary Activities in and Against Nicaragua, (Nicar. v U.S.) (Merits)⁷⁰, ("Nicaragua case"). That case was concerned ultimately with the responsibility of a State for the breach, inter alia, of rules of international humanitarian law, while the instant case is concerned ultimately with the responsibility of an individual for the breach of such rules. However, in the Nicaragua case, as in the instant case, the Court was also concerned with the intermediate question as to which part of international humanitarian law to apply to the relevant conduct. In determining the legal obligations of the United States towards Nicaragua, including international humanitarian law obligations, the Court effectively concluded that the conflict was of a mixed character. According to the Court:

The conflict between the contras' forces and those of the Government of Nicaragua is an armed conflict which is "not of an international character". The acts of the contras towards the Nicaraguan Government are therefore governed by the law applicable to conflicts of that character; while the actions of the United States in and against Nicaragua fall under the legal rules relating to international conflicts⁷¹.

Considering whether the acts of the contras, being the rebel forces opposed to the Government of Nicaragua, could be imputed to the United States the Court asked

whether or not the relationship of the contras to the United States Government was so much one of dependence on the one side and control on the other that it would be right to equate the contras, for legal purposes, with an organ of the United States Government, or as acting on behalf of that Government⁷².

In concluding that the United States had not exercised sufficient control "in all fields as to justify treating the contras as acting on its behalf"⁷³, the Court set a particularly high threshold test for determining the requisite degree of control on the part of the United States. On the facts of that case, the Court took the view that:

. . . United States participation, even if preponderant or decisive, in the financing, organizing, training, supplying and equipping of the contras, the selection of its military or paramilitary targets, and the planning of the whole of its operation, is still insufficient in itself, on the basis of the evidence in the possession of the Court, for the purposes of attributing to the United States the acts committed by the contras in the course of their military or paramilitary operations in Nicaragua. All forms of United States participation mentioned above, and even the general control by the respondent State over a force with a high degree of dependency on it, would not in themselves mean, without further evidence, that the United States directed or enforced the perpetration of the acts contrary to human rights and humanitarian law alleged by the applicant State. Such acts could well be committed by members of the contras without the control of the United States. For this conduct to give rise to legal responsibility of the United States, it would in principle have to be proved that that State had effective control of the military or paramilitary operations in the course of which the alleged violations were committed⁷⁴.

586. However, the facts of the Nicaragua case and this case are very different, and especially so in two important respects. First, the VRS was an occupying force, rather than just a raiding army. Many of the violations in this case were committed in camps run by the local authorities of the Republika Srpska without any VJ involvement and with relatively little involvement of those parts of the VRS formerly part of the JNA. However, the camps into which Muslim and Croat civilians were driven following the VRS's offensive operations in opstina Prijedor were located in territory occupied by the VRS. Consequently, if the requisite degree of command and control by the VJ, and hence the Federal Republic of Yugoslavia (Serbia and Montenegro), over the VRS is established for the purposes of imputing the acts of those forces operating in opstina Prijedor or the VRS as a whole to the Federal Republic of Yugoslavia (Serbia and Montenegro), those persons can still be said to be in the hands of a party to the conflict of which they are not nationals within the meaning of Article 4 of Geneva Convention IV and hence for the purposes of applying international humanitarian law to the instant case.

587. Secondly, prior to the withdrawal of forces of the Federal Republic of Yugoslavia (Serbia and Montenegro) on or before 19 May 1992, Bosnian Serb troops served in the ranks of the JNA, and were transferred into the newly-formed VRS after that date. Thus, unlike the Nicaragua case in which the Court considered whether the contra forces had, over time, fallen into such a sufficient state of dependency and control vis-à-vis the United States that the acts of one could be imputed to another, the question for this Trial Chamber is whether, after 19 May 1992, the Federal Republic of Yugoslavia (Serbia and Montenegro), by its withdrawal from the territory of the Republic of Bosnia and Herzegovina and notwithstanding its continuing support for the VRS, had sufficiently distanced itself from the VRS so that those forces could not be regarded as de facto organs or agents of the VJ and hence of the Federal Republic of Yugoslavia (Serbia and Montenegro).

588. Consequently, the Trial Chamber must consider the essence of the test of the relationship between a de facto organ or agent, as a rebel force, and its controlling entity or principal, as a foreign Power, namely the more general question whether, even if there had been a relationship of great dependency on the one side, there was such a relationship of control on the other that, on the facts of the instant case, the acts of the VRS, including its occupation of opstina Prijedor, can be imputed to the Government of the Federal Republic of Yugoslavia (Serbia and Montenegro)⁷⁵. That is not to say, however, that it is for the Defence to disprove such a relationship between Bosnian Serb forces and the JNA or VJ. It remains the task of the Prosecution to prove that the nature of the relationship between the VRS and the Government of the Federal Republic of Yugoslavia (Serbia and Montenegro), and between the VRS and the VJ in particular, was of such a character. In doing so it is neither necessary nor sufficient merely to show that the VRS was dependent, even completely dependent, on the VJ and the Federal Republic of Yugoslavia (Serbia and Montenegro) for the necessities of war. It must also be shown that the VJ and the Federal Republic of Yugoslavia (Serbia and Montenegro) exercised the potential for control inherent in that relationship of dependency or that the VRS had otherwise placed itself under the control of the Government of the Federal Republic of Yugoslavia (Serbia and Montenegro).

(ii) The creation of the VRS and the transfer of responsibility to the VRS by the JNA/VJ in May 1992

589. The details of the creation of the VRS in May 1992 have already been dealt with in Section II. A. 7 of this Opinion and Judgment but its principal features may be restated. As a response to Security Council resolution 752, from 15 May 1992 JNA soldiers born in Bosnia and Herzegovina who were serving in JNA units in Serbia or Montenegro were ordered to report to, and place themselves at the disposal of, JNA units in Bosnia and Herzegovina, while those born elsewhere were to report to JNA units in Serbia or Montenegro. However, this was not applied in the case of many officers and non-commissioned officers not of Bosnian extraction who remained in Bosnia and Herzegovina in units which became part of the VRS. In addition, the Federal Republic of Yugoslavia (Serbia and Montenegro) transferred to VRS units most of the matériel which had been withdrawn from Slovenia and Croatia.

590. The occupation of Kozarac and of the surrounding villages was part of a military and political operation, begun before 19 May 1992 with the take-over of the town of Prijedor on 29 April 1992, aimed at establishing control over the opstina which formed part of the land corridor of Bosnian territory linking the Federal Republic of Yugoslavia (Serbia and Montenegro) with the so-called Republic of Serbian Krajina in Croatia. The town of Kozarac lay on the supply route running through this corridor. The attack on Kozarac was carried out by elements of an army Corps based in Banja Luka. This Corps, previously a Corps of the old JNA, became part of the VRS and was renamed the "Banja Luka" or "1st Krajina" Corps after 19 May 1992 but retained the same Commander, Lieutenant-General Talic, a Bosnian Serb. It relied for logistics, as previously, on the Rear Service Base at Banja Luka, commanded, as previously, by Colonel Selak, a Bosnian Muslim.

591. The actual assault on Kozarac was carried out by units centred around what was formerly the JNA 343rd Mechanised Brigade from Prijedor but which later became the VRS 43rd Brigade. These units included 'Light Brigades' (Bosnian Serb paramilitary forces) from Sanski Most and Bosanski Dubica. In command of the units of the 43rd Mechanised Brigade forces involved in the assault was Major Radmilo Zeljaja, apparently a Bosnian Serb, the Deputy Brigade Commander and Brigade Chief of Staff. According to one witness, Major Zeljaja was closely linked to the SDS in 1991 and 1992. In overall command of the 43rd Mechanised Brigade and the officer commanding the military operation against Kozarac was Colonel Arsic, a former JNA officer and a Bosnian Serb. Colonel Arsic was a member of the Municipal Assembly of Prijedor and had also become closely linked to the SDS over time in the period prior to 19 May 1992.

592. Despite being Bosnian Serbs, such officers as Lieutenant-General Talic and Colonel Arsic, as with other officers of the 1st Krajina Corps, continued to receive their salaries from the Government of the Federal Republic of Yugoslavia (Serbia and Montenegro) and the pensions of those who in due course retired were paid, and in 1996 were still being paid, by that Government. At a briefing of officers concerned with logistics, General Dukic, then of the VRS but who had, until 18 May 1992, been Chief of Staff of the Technical Administration of the JNA in Belgrade, announced that all active duty members of the VRS would continue to be paid by the federal government in Belgrade, which would continue to finance the VRS, as it had the JNA, up to the same numerical strength of officers as were registered on 19 May 1992.

593. Excluding the Rear Service Base troops, the 1st Krajina Corps numbered some 100,000 troops, expanded from its JNA peacetime strength of 4,500. These forces included or were supplemented by various paramilitary forces. Prior to May 1992 the JNA had played a significant role in the training and equipping of Bosnian Serb paramilitary forces. In 1991 and on into 1992 the Bosnian Serb and Croatian Serb paramilitary forces cooperated with and acted under the command and within the framework of the JNA. These forces included Arkan's Serbian Volunteer Guard and various forces styling themselves as Chetniks, a name which, as has been seen, is of significance from the fighting in the Second World War against the German, Italian and Croat forces in Yugoslavia. Some were even given training in the compounds of the 5th JNA Corps in Banja Luka. The reliance placed on such forces by the JNA reflected a general manpower shortage. According to one witness, "whilst the JNA was prepared to use its artillery in operations, it relied on paramilitary groups to go into built up areas and to act as a substituted infantry". Air support was given to such paramilitary forces which continued into 1992. Evidence was also presented that the Serbian Security Service had been directing at least one paramilitary leader, Vojislav Seselj, in the disposition of his forces in 1991 and 1992.

594. Many former JNA officers not of Bosnian Serb extraction remained in the command structure of the 1st Krajina Corps, especially in the combat units. General Kadijevic, writing of the role of the JNA in Bosnia and Herzegovina, recounts how "the units and headquarters of the JNA formed the backbone of the army of the Serb Republic (Republic of Srpska) complete with weaponry and equipment" and adds that "first the JNA and later the army of the Republic of Srpska, which the JNA put on its feet, helped to liberate Serb territory, protect the Serb nation and create the favourable military preconditions for achieving the interests and rights of the Serb nation in Bosnia and Herzegovina by political means . . . ." (Prosecution Exhibition 30.) According to Colonel Selak, while it would usually have been illegal for a soldier or officer to fight for any force other than the VJ, those non-Bosnian Serb officers who remained to serve with the VRS considered themselves to be on temporary assignment, and thus able to remain. This was done despite the shortage of trained officers in the JNA at that time.

595. It can be seen then that the JNA played a role of vital importance in the establishment, equipping, supplying, maintenance and staffing of the 1st Krajina Corps, as it did with other VRS units. However, that in itself is not enough; it is also necessary to show, as the Court required of Nicaragua in proving control by the United States over the contras, that the Government of the Federal Republic of Yugoslavia (Serbia and Montenegro) continued to exercise effective control over the operations of the VRS, after the transfers of men and matériel on or before 19 May 1992.

(iii) Relationship of the VRS to the Federal Republic of Yugoslavia (Serbia and Montenegro) after 19 May 1992

596. Of particular concern to the issue of control over events after 19 May 1992 in the Banja Luka area generally, and opstina Prijedor in particular, are the circumstances surrounding the Commander of the 1st Krajina Corps, Lieutenant-General Talic, the former Commander of the 5th Corps who, unlike many of his subordinates and as previously noted, is a Bosnian Serb. His importance to all of the operations of the 1st Krajina Corps cannot be overstated. Colonel Selak testified that reports and requests had to be filed with the Corps Commander before any troop movements occurred and that a strong degree of oversight was exercised at Corps level in regard to the activities of subordinate units. The attack on Kozarac, in common with all combat activities, would necessarily have had to be approved, in accordance with military command procedures, by Lieutenant-General Talic, who alone could order the commitment of 1st Krajina Corps units to combat.

597. What command or influence, if any, was exercised over Lieutenant-General Talic? Militarily, the 1st Krajina Corps was under the authority of the Main Staff of the VRS in Pale, to which all reports were directed. According to Colonel Selak, there was no change in the everyday running of logistics operations after 19 May 1992. In relation to the question of command and control he noted that the flow of logistics for the Corps after that date went through VRS Chief of Staff and the Main Staff of the VRS in Pale, rather than direct to Belgrade or through any JNA structure such as the Headquarters of the 2nd Military District (formerly in Sarajevo). In command of the VRS Main Staff was General Mladic, Lieutenant-General Talic's superior and a fellow Bosnian Serb. No evidence was led by the Prosecution as to the relationship between these two men. As a disciplined general officer, however, it can only be presumed, without further evidence, that Lieutenant-General Talic acted in accordance with the orders of the VRS Main Staff when they were issued. At the political level, all that the evidence discloses is that Lieutenant-General Talic was a member, by virtue of his military post, of the ARK Crisis Staff, a creation of the Republika Srpska. Indeed, Colonel Selak testified that Lieutenant-General Talic coordinated with the Crisis Staff and acted on their requests, such as the request to open a military corridor to Serbia.

598. This leads the Trial Chamber to a consideration of two relationships of especial importance to the question which this Trial Chamber must determine. The first is the relationship of General Mladic, and hence the VRS Main Staff, to Belgrade. The Trial Chamber has already considered the overwhelming importance of the logistical support provided by the Federal Republic of Yugoslavia (Serbia and Montenegro) to the VRS. The only evidence which the Prosecution was able to adduce as to the command and control relationship between the VRS Main Staff and Belgrade was that provided by Colonel Selak. He said, speaking of a Prosecution exhibit displaying a link between the Main Staffs of the VRS and VJ after 18 May 1992 (Prosecution Exhibit 174):

[T]here was no real chain of command because officially the Commander of the army of the Republika Srpska was Colonel General Ratko Mladic. So this [link] is just pro forma because other relations between the Chief of Staff, the main staff of the Yugoslav Army and the main staff of the army of the Republika Srpska were not really existing but, in fact, they did co-ordinate.

Coordination is not the same as command and control. The only other evidence submitted by the Prosecution was that, in addition to routing all high-level VRS communications through secure links in Belgrade, a communications link for everyday use was established and maintained between VRS Main Staff Headquarters and the VJ Main Staff in Belgrade. No further evidence was led by the Prosecution on the nature of this relationship.

599. What then of the second relationship, namely that between the SDS (and hence the Republika Srpska) and the Government of the Federal Republic of Yugoslavia (Serbia and Montenegro)? Unlike the situation confronted by the Court in the Nicaragua case, where the United States had largely selected and installed the political leaders of the contras⁷⁶, in the Republika Srpska political leaders were popularly elected by the Bosnian Serb people of the Republic of Bosnia and Herzegovina. Indeed, as previously noted, the independence of the Republika Srpska itself was declared at a vote of the Assembly of the Serbian People of Bosnia and Herzegovina on 9 January 1992. The Assembly and its leaders played a role in the overall conduct of the war both in the Republic of Bosnia and Herzegovina and beyond, in addition to the supply of paramilitary forces to supplement the fighting strength of the new VRS units, which forces took part in the military operations in opstina Prijedor.

600. In the absence of sufficient direct evidence as to the exercise of command and control by Belgrade, the question is one as to the appropriate inference or inferences of fact which the Trial Chamber can and should draw from the evidence presented before it; should it be inferred that the necessary degree of effective control was exercised by the Federal Republic of Yugoslavia (Serbia and Montenegro), over the military operations of the armed forces of the Republika Srpska? If so, despite the changes in the command structure of the Bosnian Serb forces in the period after 19 May 1992, and in particular the establishment of a separate armed force, the VRS, on or after that date, the appropriate conclusion would be that the VRS was nothing more than a de facto organ or agent of the Government of the Federal Republic of Yugoslavia (Serbia and Montenegro).

601. Two factors seemed of considerable weight to the case of the Prosecution in drawing such an inference. The first is the transfer to the 1st Krajina Corps, as with other units of the VRS, of former JNA officers who were not of Bosnian Serb extraction from their equivalent postings in the relevant VRS unit's JNA predecessor. Secondly, there is the continuing payment of salaries, to Bosnian Serb and non-Bosnian Serb officers alike, by the Government of the Federal Republic of Yugoslavia (Serbia and Montenegro). It seems clear to the Trial Chamber that the officers of non-Bosnian Serb extraction were sent as "volunteers" on temporary, if not indefinite, assignment to the VRS. In that sense, they may well be considered agents of the Government of the Federal Republic of Yugoslavia (Serbia and Montenegro)⁷⁷. In the Nicaragua case, by contrast, no evidence was led to the effect that United States personnel operated with or commanded troops of the contras on Nicaraguan territory. As Judge Ago, formerly the Special Rapporteur to the International Law Commission on State Responsibility, explained in the course of his Separate Opinion in the Nicaragua case:

[T]he negative answer returned by the Court to the Applicant's suggestion that the misdeeds committed by some members of the contra forces should be considered as acts imputable to the United States of America is likewise in conformity with the provisions of the International Law Commission's draft [i.e., Article 8 read together with Article 11]. It would indeed be inconsistent with the principles governing the question to regard members of the contra forces as persons or groups acting in the name and on behalf of the United States of America. Only in cases where certain members of those forces happened to have been specifically charged by United States authorities to commit a particular act, or to carry out a particular task of some kind on behalf of the United States, would it be possible so to regard them. Only in such instances does international law recognize, as a rare exception to the rule, that the conduct of persons or groups which are neither agents nor organs of a State, nor members of its apparatus even in the broadest acceptation of that term, may be held to be acts of that State. The Judgment, accordingly, takes a correct view when, referring in particular to the atrocities, acts of violence or terrorism and other inhuman actions that Nicaragua alleges to have been committed by the contras against the persons and property of civilian populations, it holds that the perpetrators of these misdeeds may not be considered as having been specifically charged by United States authorities to commit them unless, in certain concrete cases, unchallengeable proof to the contrary has been supplied⁷⁸.

The Trial Chamber does not consider that this assists the Prosecution. First, in relation to the attack on Kozarac and the running of the detention camps specifically, no evidence of the involvement of non-Bosnian Serb officers has been presented. Secondly, even if the attack on Kozarac and the running of the camps had been carried out under the orders of such officers within the 1st Krajina Corps, on the evidence presented to this Trial Chamber such orders could only be considered as having originated with, been at the behest of, or been issued under the authority of, the Corps Commander, Lieutenant-General Talic. Consequently, any operations commanded by such officers, although they may be considered as instances in which, to paraphrase Judge Ago, 'certain members of the VRS happened to have been specifically charged by Federal Republic of Yugoslavia (Serbia and Montenegro) authorities to commit a particular act, or to carry out a particular task of some kind', without evidence of orders having been received from Belgrade which circumvented or overrode the authority of the Corps Commander, those acts cannot be said to have been carried out "on behalf of" the Federal Republic of Yugoslavia (Serbia and Montenegro). Consequently, this Trial Chamber must consider the inferences which should be drawn in relation to either the 1st Krajina Corps or the VRS as a whole.

602. In relation to the second factor of importance put to the Trial Chamber by the Prosecution, it is clear from the evidence presented that the pay of all 1st Krajina Corps officers, and presumably of all senior VRS Commanders as former JNA officers, continued to be received from Belgrade after 19 May 1992. It has been said that, in most circumstances relating to individuals, payment may be equated with control⁷⁹. Even so, given that the Federal Republic of Yugoslavia (Serbia and Montenegro) had taken responsibility for the financing of the VRS, most of which consisted of former JNA soldiers and officers, it is a fact not to be wondered at that such financing would not only include payments to soldiers and officers but that existing administrative mechanisms for financing those soldiers and their operations would be relied on after 19 May 1992. In the circumstances of the time, continuity of command structures, logistical organization, and strategy and tactics were as much matters of convenience as of military necessity. As to the financing of the VRS as a whole, such evidence, without more, as with the direct relationship established in the Nicaragua case between financing of contra activities against the Government of Nicaragua by the United States and the nature and intensity of those activities, establishes nothing more than the potential for control inherent in the relationship of dependency which such financing produced.

603. The Trial Chamber turns again to the relationship of the VRS and the Republika Srpska as a whole to the VJ and the Federal Republic of Yugoslavia (Serbia and Montenegro). It is clear from the evidence that the military and political objectives of the Republika Srpska and of the Federal Republic of Yugoslavia (Serbia and Montenegro) were largely complementary. The Federal Republic of Yugoslavia (Serbia and Montenegro), heavily engaged as it had been in activities in Croatia against the forces of the Croatian Army, was concerned with maintaining a supply corridor running from Serbia through northern Bosnia (which included opstina Prijedor) to the Serbian Krajina in Croatia. The SDS political leadership of the Republika Srpska and their senior military commanders no doubt considered the success of the overall Serbian war effort as a prerequisite to their stated political aim of joining with Serbia and Montenegro as part of a Greater Serbia, unifying as it would the territories in which Serbs lived in the former Yugoslavia. This was also the desire of the majority of the Bosnian Serb people, who feared, rightly or wrongly, their fate in the hands of a State controlled or dominated by other ethnic groups.

604. In that sense, there was little need for the VJ and the Government of the Federal Republic of Yugoslavia (Serbia and Montenegro) to attempt to exercise any real degree of control over, as distinct from coordination with, the VRS. So long as the Republika Srpska and the VRS remained committed to the shared strategic objectives of the war, and the Main Staffs of the two armies could coordinate their activities at the highest levels, it was sufficient for the Federal Republic of Yugoslavia (Serbia and Montenegro) and the VJ to provide the VRS with logistical supplies and, where necessary, to supplement the Bosnian elements of the VRS officer corps with non-Bosnian VJ or former JNA officers, to ensure that this process was continued. In particular, the relationship between the Main Staff of the VRS and the Main Staff of the VJ cannot, on the evidence presented before this Trial Chamber, be said to involve anything more than a general level of coordination consonant with their relationship as allied forces in the Serbian war effort.

605. Thus, while it can be said that the Federal Republic of Yugoslavia (Serbia and Montenegro), through the dependence of the VRS on the supply of matériel by the VJ, had the capability to exercise great influence and perhaps even control over the VRS, there is no evidence on which this Trial Chamber can conclude that the Federal Republic of Yugoslavia (Serbia and Montenegro) and the VJ ever directed or, for that matter, ever felt the need to attempt to direct, the actual military operations of the VRS, or to influence those operations beyond that which would have flowed naturally from the coordination of military objectives and activities by the VRS and VJ at the highest levels. In sum, while, as in the Nicaragua case, the evidence available to this Trial Chamber clearly shows that the "various forms of assistance provided" to the armed forces of the Republika Srpska by the Government of the Federal Republic of Yugoslavia (Serbia and Montenegro) was "crucial to the pursuit of their activities" and, as with the early years of the contras' activities, those forces were almost completely dependent on the supplies of the VJ to carry out offensive operations, evidence that the Federal Republic of Yugoslavia (Serbia and Montenegro) through the VJ "made use of the potential for control inherent in that dependence", or was otherwise given effective control over those forces and which it exercised, is similarly insufficient.

606. It is of course possible, on or in spite of the evidence presented, to view the acts of the JNA and the Government of the Federal Republic of Yugoslavia (Serbia and Montenegro) on or about 19 May 1992 as nothing more than a cynical and intentional creation of the objective factors necessary to distance themselves from direct legal responsibility for the acts of the armed forces of the Republika Srpska, while doing everything to ensure that the material factors necessary to ensure the successful continuation of the armed conflict to achieve the same military and political goals were kept in place. Even if the legal effect of creating such objective factors, which caused no small amount of difficulty to the JNA and the Government of the Federal Republic of Yugoslavia (Serbia and Montenegro), could be vitiated by reason of some fraudulent intention, which this Trial Chamber doubts, that is not the only nor the most reasonable conclusion open on the evidence presented. There is, in short, no evidence on which this Trial Chamber may confidently conclude that the armed forces of the Republika Srpska, and the Republika Srpska as a whole, were anything more than mere allies, albeit highly dependent allies, of the Government of the Federal Republic of Yugoslavia (Serbia and Montenegro) in its plan to achieve a Greater Serbia from out of the remains of the former Yugoslavia. The continued, indirect involvement of the Government of the Federal Republic of Yugoslavia (Serbia and Montenegro) in the armed conflict in the Republic of Bosnia and Herzegovina, without the ability to impute the acts of the armed forces of the Republika Srpska to the Government of the Federal Republic of Yugoslavia (Serbia and Montenegro), gives rise to issues of State responsibility beyond the scope and concern of this case.

1. Requirements of Article 3 of the Statute

607. The Trial Chamber is, by majority with the Presiding Judge dissenting, of the view that, on the evidence presented to it, after 19 May 1992 the armed forces of the Republika Srpska could not be considered as de facto organs or agents of the Government of the Federal Republic of Yugoslavia (Serbia and Montenegro), either in opstina Prijedor or more generally. For that reason, each of the victims of the acts ascribed to the accused in Section III of this Opinion and Judgment enjoy the protection of the prohibitions contained in Common Article 3, applicable as it is to all armed conflicts, rather than the protection of the more specific grave breaches regime applicable to civilians in the hands of a party to an armed conflict of which they are not nationals, which falls under Article 2 of the Statute. Such a conclusion is, of course, without prejudice to the position of those citizens of the Republic of Bosnia and Herzegovina who found themselves in the hands of forces of the JNA before 19 May 1992 or in the hands of forces of the VJ after that date, whether in the territory of the Republic of Bosnia and Herzegovina or elsewhere, or to those citizens of the Republic of Bosnia and Herzegovina in the hands of units of the VRS which, from time to time, may have fallen under the command and control of the VJ and of the Government of the Federal Republic of Yugoslavia (Serbia and Montenegro).

608. The consequence of this finding, as far as this trial is concerned, is that, since Article 2 of the Statute is applicable only to acts committed against "protected persons" within the meaning of the Geneva Conventions, and since it cannot be said that any of the victims, all of whom were civilians, were at any relevant time in the hands of a party to the conflict of which they were not nationals, the accused must be found not guilty of the counts which rely upon that Article, namely Counts 5, 8, 9, 12, 15, 18, 21, 24, 27, 29 and 32.

C. Article 3 of the Statute

609. Article 3 of the Statute directs the Trial Chamber to the laws or customs of war, being that body of customary international humanitarian law not covered by Articles 2, 4 or 5 of the Statute. As previously noted, that body of law includes the regime of protection established under Common Article 3 applicable to armed conflicts not of an international character, as a reflection of elementary considerations of humanity, and which is applicable to armed conflicts in general⁸⁰. Two aspects must be considered. First, there are the requirements imposed by Article 3 of the Statute for the inclusion of a law or custom of war within the jurisdiction of this International Tribunal. Secondly, there are the additional requirements for the applicability of the proscriptive rules contained in paragraph 1 of Common Article 3 in addition to the elements of the proscribed acts contained therein.

610. According to the Appeals Chamber, the conditions that must be satisfied to fulfil the requirements of Article 3 of the Statute are:

(i) the violation must constitute an infringement of a rule of international humanitarian law;
(ii) the rule must be customary in nature or, if it belongs to treaty law, the required conditions must be met;
(iii) the violation must be "serious", that is to say, it must constitute a breach of a rule protecting important values, and the breach must involve grave consequences for the victim . . . ; and
(iv) the violation of the rule must entail, under customary or conventional law, the individual criminal responsibility of the person breaching the rule⁸¹.

Those requirements apply to any and all laws or customs of war which Article 3 covers.

611. In relation to requirements (i) and (ii), it is sufficient to note that the Appeals Chamber has held, on the basis of the Nicaragua case, that Common Article 3 satisfies these requirements as part of customary international humanitarian law⁸².

612. While, for some laws or customs of war, requirement (iii) may be of particular relevance, each of the prohibitions in Common Article 3: against murder; the taking of hostages; outrages upon personal dignity, in particular humiliating and degrading treatment; and the passing of sentences and the carrying-out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilised peoples, constitute, as the Court put it, "elementary considerations of humanity", the breach of which may be considered to be a "breach of a rule protecting important values" and which "must involve grave consequences for the victim"⁸³. Although it may be possible that a violation of some of the prohibitions of Common Article 3 may be so minor as to not involve "grave consequences for the victim", each of the violations with which the accused has been charged clearly does involve such consequences.

613. Finally, in relation to the fourth requirement, namely that the rule of customary international humanitarian law imposes individual criminal responsibility, the Appeals Chamber held in the Appeals Chamber Decision⁸⁴ that

customary international law imposes criminal liability for serious violations of common Article 3, as supplemented by other general principles and rules on the protection of victims of internal armed conflict, and for breaching certain fundamental principles and rules regarding means and methods of combat in civil strife.

Consequently, this Trial Chamber has the competence to hear and determine the charges against the accused under Article 3 of the Statute relating to violations of the customary international humanitarian law applicable to armed conflicts, as found in Common Article 3.

2. Conditions of Applicability of the Rules Contained in Common Article 3

614. The rules contained in paragraph 1 of Common Article 3 proscribe a number of acts which: (i) are committed within the context of an armed conflict; (ii) have a close connection to the armed conflict; and (iii) are committed against persons taking no active part in hostilities. The first and second of these requirements have already been dealt with above. Consequently, the Trial Chamber turns to the third requirement.

615. The customary international humanitarian law regime governing conflicts not of an international character extends protection, from acts of murder, torture and other acts proscribed by Common Article 3, to:

Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause . . . without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria . . . .

This protection embraces, at the least, all of those protected persons covered by the grave breaches regime applicable to conflicts of an international character: civilians, prisoners of war, wounded and sick members of the armed forces in the field and wounded sick and shipwrecked members of the armed forces at sea. Whereas the concept of "protected person" under the Geneva Conventions is defined positively, the class of persons protected by the operation of Common Article 3 is defined negatively. For that reason, the test the Trial Chamber has applied is to ask whether, at the time of the alleged offence, the alleged victim of the proscribed acts was directly taking part in hostilities, being those hostilities in the context of which the alleged offences are said to have been committed. If the answer to that question is negative, the victim will enjoy the protection of the proscriptions contained in Common Article 3.

616. It is unnecessary to define exactly the line dividing those taking an active part in hostilities and those who are not so involved. It is sufficient to examine the relevant facts of each victim and to ascertain whether, in each individual's circumstances, that person was actively involved in hostilities at the relevant time. Violations of the rules contained in Common Article 3 are alleged to have been committed against persons who, on the evidence presented to this Trial Chamber, were captured or detained by Bosnian Serb forces, whether committed during the course of the armed take-over of the Kozarac area or while those persons were being rounded-up for transport to each of the camps in opstina Prijedor. Whatever their involvement in hostilities prior to that time, each of these classes of persons cannot be said to have been taking an active part in the hostilities. Even if they were members of the armed forces of the Government of the Republic of Bosnia and Herzegovina or otherwise engaging in hostile acts prior to capture, such persons would be considered "members of armed forces" who are "placed hors de combat by detention". Consequently, these persons enjoy the protection of those rules of customary international humanitarian law applicable to armed conflicts, as contained in Article 3 of the Statute.

1. The Customary Status in International Humanitarian Law of the Prohibition Against Crimes Against Humanity

617. For the purposes of the application of the rules of customary international humanitarian law contained in Common Article 3, this Trial Chamber finds, in the present case, that: (i) an armed conflict existed at all relevant times in relation to the alleged offences; (ii) each of the victims of the acts charged was a person protected by those provisions being a person taking no active part in the hostilities; and (iii) the offences charged were committed within the context of that armed conflict. Accordingly, the requirements of Article 3 of the Statute are met.

D. Article 5 of the Statute

618. The Appeals Chamber Decision discusses Articles 2 and 3 of the Statute at some length. In contrast, the discussion of Article 5 is confined to the requirement of a link to an armed conflict as provided in the Statute and thus now requires further discussion in considerable detail. The notion of crimes against humanity as an independent juridical concept, and the imputation of individual criminal responsibility for their commission, was first recognized in Article 6(c) of the Nürnberg Charter (Annex to the Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis (London Agreement) ("Nürnberg Charter")⁸⁵), which granted the International Military Tribunal for the Trial of the Major War Criminals ("Nürnberg Tribunal") jurisdiction over this crime⁸⁶. The term "crimes against humanity", although not previously codified, had been used in a non-technical sense as far back as 1915 and in subsequent statements concerning the First World War and was hinted at in the preamble to the 1907 Hague Convention in the so-called "Martens Clause"⁸⁷. Thus when crimes against humanity were included in the Nürnberg Charter, although it was the first technical use of the term, it was not considered a novel concept⁸⁸. Nevertheless a new category of crime was created⁸⁹.

619. The decision to include crimes against humanity in the Nürnberg Charter and thus grant the Nürnberg Tribunal jurisdiction over this crime resulted from the Allies' decision not to limit their retributive powers to those who committed war crimes in the traditional sense but to include those who committed other serious crimes that fall outside the ambit of traditional war crimes, such as crimes where the victim is stateless, has the same nationality as the perpetrator, or that of a state allied with that of the perpetrator. The origins of this decision can be found in assertions made by individual governments, the London International Assembly and the United Nations War Crimes Commission⁹⁰.

620. Unlike the crime of aggression⁹¹ and war crimes⁹², the Trial of the Major War Criminals before the International Military Tribunal⁹³ ("Nürnberg Judgment") does not delve into the legality of the inclusion of crimes against humanity in the Nürnberg Charter and the pre-existence of the prohibition⁹⁴, noting only that "from the beginning of the War in 1939 War Crimes were committed on a vast scale, which were also Crimes against Humanity"⁹⁵. Thus the inclusion of crimes against humanity in the Nürnberg Charter was justified by their relation to war crimes, the gaps in the traditional definition of which it was designed to fill, the customary nature of which is described⁹⁶. Additionally, the Nürnberg Judgment noted that, in regard to the law to be applied, the Nürnberg Charter was decisive and binding on the Nürnberg Tribunal⁹⁷ and that it "is the expression of international law existing at the time of its creation; and to that extent is itself a contribution to international law"⁹⁸. On the basis of the Nürnberg Charter the prohibition against crimes against humanity, and the attribution of individual criminal responsibility for their commission, was also contained in the Charter of the International Military Tribunal for the Far East of 19 January 1946 ("Tokyo Charter")⁹⁹ and in Law No. 10 of the Control Council for Germany ("Control Council Law No. 10")¹⁰⁰, which were utilised for additional prosecutions for atrocities committed during the Second World War.

621. The prohibition of crimes against humanity was subsequently affirmed by the General Assembly in its resolution entitled Affirmation of the Principles of International Law recognized by the Charter of the Nürenberg Tribunal¹⁰¹ and thereafter confirmed in the Principles of International Law Recognized in the Charter of the Nürenberg Tribunal and in the Judgement of the Tribunal ("Nürenberg Principles"), adopted by the International Law Commission in 1950 and submitted to the General Assembly¹⁰², Principle VI.c of which provides that a crime against humanity is punishable as a crime under international law. The attribution of individual criminal responsibility for the commission of crimes against humanity, as it was applied by the Nürnberg Tribunal, was also approved in Principle I of the Nürenberg Principles, which provides that "[a] person who commits an act which constitutes a crime under international law is responsible therefore and liable to punishment".

622. The customary status of the Nürnberg Charter, and thus the attribution of individual criminal responsibility for the commission of crimes against humanity, was expressly noted by the Secretary-General¹⁰³. Additional codifications of international law have also confirmed the customary law status of the prohibition of crimes against humanity, as well as two of its most egregious manifestations: genocide and apartheid¹⁰⁴.

623. Thus, since the Nürnberg Charter, the customary status of the prohibition against crimes against humanity and the attribution of individual criminal responsibility for their commission have not been seriously questioned. It would seem that this finding is implicit in the Appeals Chamber Decision which found that "[i]t is by now a settled rule of customary international law that crimes against humanity do not require a connection to international armed conflict"¹⁰⁵. If customary international law is determinative of what type of conflict is required in order to constitute a crime against humanity, the prohibition against crimes against humanity is necessarily part of customary international law. As such, the commission of crimes against humanity violates customary international law, of which Article 5 of the Statute is, for the most part, reflective. As stated by the Appeals Chamber: "[T]here is no question . . . that the definition of crimes against humanity adopted by the Security Council in Article 5 comports with the principle of nullum crimen sine lege."¹⁰⁶

2. Conditions of Applicability

624. Article 5 of the Statute grants the International Tribunal subject-matter jurisdiction over crimes against humanity and there follows a list of the specific offences proscribed.

625. The Indictment charges the accused with 10 counts of crimes against humanity. In each case the accused is charged under the appropriate head of Article 5 of the Statute as well as Article 7, paragraph 1. In order to prove that the accused committed the crimes alleged, both the conditions of applicability for crimes against humanity as well as the specific elements of each offence must be established. It is the common conditions of applicability for crimes against humanity that are the subject of this section.

626. Article 5 of the Statute grants the International Tribunal jurisdiction to prosecute crimes against humanity only "when committed in armed conflict" (whether international or internal) and they must be "directed against any civilian population". These conditions contain within them several elements. The Prosecution argues that the elements of crimes against humanity are: (1) that the accused committed one of the acts enumerated in Article 5; (2) the acts were committed during an armed conflict; (3) at the time of the commission of the acts or omissions there was an ongoing widespread or systematic attack directed against a civilian population; and (4) the accused knew or had reason to know that by his acts or omission, he was participating in the attack on the population. The Defence for the most part agrees with these elements, although it argues that: (1) the crimes must be committed in an armed conflict; and (2) the attack must be widespread and systematic. The Trial Chamber's determination of the conditions of applicability, as elaborated below, is that, first, "when committed in armed conflict" necessitates the existence of an armed conflict and a nexus between the act and that conflict. Secondly, "directed against any civilian population" is interpreted to include a broad definition of the term "civilian". It furthermore requires that the acts be undertaken on a widespread or systematic basis and in furtherance of a policy. The Report of the Secretary-General and the interpretation of several Security Council members reveal the additional requirement that all relevant acts must be undertaken on discriminatory grounds. Finally, the perpetrator must have knowledge of the wider context in which his act occurs.

(a) When committed in armed conflict

627. Article 5 of the Statute, addressing crimes against humanity, grants the International Tribunal jurisdiction over the enumerated acts "when committed in armed conflict". The requirement of an armed conflict is similar to that of Article 6(c) of the Nürnberg Charter which limited the Nürnberg Tribunal's jurisdiction to crimes against humanity committed "before or during the war", although in the case of the Nürnberg Tribunal jurisdiction was further limited by requiring that crimes against humanity be committed "in execution of or in connection with" war crimes or crimes against peace¹⁰⁷. Despite this precedent, the inclusion of the requirement of an armed conflict deviates from the development of the doctrine after the Nürnberg Charter, beginning with Control Council Law No. 10, which no longer links the concept of crimes against humanity with an armed conflict. As the Secretary-General stated: "Crimes against humanity are aimed at any civilian population and are prohibited regardless of whether they are committed in an armed conflict, international or internal in character."¹⁰⁸ In the Statute of the International Tribunal for Rwanda the requirement of an armed conflict is omitted, requiring only that the acts be committed as part of an attack against a civilian population¹⁰⁹. The Appeals Chamber has stated that, by incorporating the requirement of an armed conflict, "the Security Council may have defined the crime in Article 5 more narrowly than necessary under customary international law"¹¹⁰, having stated earlier that "[s]ince customary international law no longer requires any nexus between crimes against humanity and armed conflict . . . Article 5 was intended to reintroduce this nexus for the purposes of this Tribunal."¹¹¹ Accordingly, its existence must be proved, as well as the link between the act or omission charged and the armed conflict.

(i) The existence of an armed conflict

628. The Appeals Chamber, as discussed in greater detail in Section VI. A of this Opinion and Judgment, stated that "an armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State."¹¹² Consequently, this is the test which the Trial Chamber has applied and it has concluded that the evidence establishes the existence of an armed conflict.

(ii) The nexus between the act or omission and the armed conflict

629. The next issue which must be addressed is the required nexus between the act or omission and the armed conflict. The Prosecution argues that to establish the nexus necessary for a violation of Article 5 it is sufficient to demonstrate that the crimes were committed at some point in the course or duration of an armed conflict, even if such crimes were not committed in direct relation to or as part of the conduct of hostilities, occupation, or other integral aspects of the armed conflict. In contrast the Defence argues that the act must be committed "in" armed conflict.

630. The Statute does not elaborate on the required link between the act and the armed conflict. Nor, for that matter, does the Appeals Chamber Decision, although it contains several statements that are relevant in this regard. First is the finding, noted above, that the Statute is more restrictive than custom in that "customary international law no longer requires any nexus between crimes against humanity and armed conflict"¹¹³. Accordingly, it is necessary to determine the degree of nexus which is imported by the Statute by its inclusion of the requirement of an armed conflict. This, then, is a question of statutory interpretation.

631. The Appeals Chamber Decision is relevant to this question of statutory interpretation. In addressing Article 3 the Appeals Chamber noted that where interpretative declarations are made by Security Council members and are not contested by other delegations "they can be regarded as providing an authoritative interpretation" of the relevant provisions of the Statute¹¹⁴. Importantly, several permanent members of the Security Council commented that they interpret "when committed in armed conflict" in Article 5 of the Statute to mean "during a period of armed conflict"¹¹⁵. These statements were not challenged and can thus, in line with the Appeals Chamber Decision, be considered authoritative interpretations of this portion of Article 5.

632. The Appeals Chamber, in dismissing the Defence argument that the concept of armed conflict covers only the precise time and place of actual hostilities, said: "It is sufficient that the alleged crimes were closely related to the hostilities occurring in other parts of the territories controlled by the parties to the conflict"¹¹⁶. Thus it is not necessary that the acts occur in the heat of battle. The foregoing supports a narrow interpretation of the required nexus to an armed conflict. This interpretation is further supported by Virginia Morris and Michael P. Scharf who note in regard to the inclusion of the requirement "in armed conflict" that "[t]his limitation is temporal rather than substantive in character, as indicated by the phrase 'when committed in armed conflict'. This phrase does not require any connection with a war crime or any substantive connection to an armed conflict."¹¹⁷

633. On the basis of the foregoing the Trial Chamber accepts, with some caveats, the Prosecution proposition that it is sufficient for purposes of crimes against humanity that the act occurred in the course or duration of an armed conflict. The first such caveat, a seemingly obvious one, is that the act be linked geographically as well as temporally with the armed conflict. In this regard it is important to note that the Appeals Chamber found that:

the temporal and geographic scope of both internal and international armed conflicts extends beyond the exact time and place of hostilities.
. . . .
International humanitarian law applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached; or, in the case of internal conflicts, a peaceful settlement is achieved. Until that moment, international humanitarian law continues to apply in the whole territory of the warring States or, in the case of internal conflicts, the whole territory under the control of a party, whether or not actual combat takes place there.¹¹⁸

634. Secondly, the act and the conflict must be related or, to reverse this proposition, the act must not be unrelated to the armed conflict, must not be done for purely personal motives of the perpetrator. This is further discussed below in regard to the level of intent required.

(b) Directed against any civilian population

635. The requirement in Article 5 that the enumerated acts be "directed against any civilian population" contains several elements. The inclusion of the word "any" makes it clear that crimes against humanity can be committed against civilians of the same nationality as the perpetrator or those who are stateless, as well as those of a different nationality. However, the remaining aspects, namely the definition of a "civilian" population and the implications of the term "population", require further examination.

(i) The meaning of "civilian"

636. That the prohibited act must be committed against a "civilian" population itself raises two aspects: what must the character of the targeted population be and how is it to be determined whether an individual victim qualifies as a civilian such that acts taken against the person constitute crimes against humanity?

637. The Statute does not provide any guidance regarding the definition of "civilian" nor, for that matter, does the Report of the Secretary-General. The Prosecution in its pre-trial brief argues that the term "civilian" covers "all non-combatants within the meaning of common Article 3 to the [Geneva] Conventions" because of the finding that the language of Common Article 3 reflects "elementary considerations of humanity" which are "applicable under customary international law to any armed conflict"¹¹⁹. The Defence agrees that "civilians" under Article 5 covers all non-combatants, arguing however that the concept of "non-combatants" is not always clear in application. The Defence notes that particularly in situations such as that in Bosnia and Herzegovina, "where groups are mobilising without necessarily being under the direct control of the central government," there is a "grey area" between combatants and non-combatants. Thus the Defence concludes that the notion of non-combatants may not be sufficiently defined to determine in all cases whether the victims were civilians.

638. Regarding the first aspect, it is clear that the targeted population must be of a predominantly civilian nature. The presence of certain non-civilians in their midst does not change the character of the population.¹²⁰

639. The second aspect, determining which individual of the targeted population qualify as civilians for purposes of crimes against humanity, is not, however, quite as clear. Common Article 3, the language of which reflects "elementary considerations of humanity" which are "applicable under customary international law to any armed conflict"¹²¹, provides that in an armed conflict "not of an international character" Contracting States are obliged "as a minimum" to comply with the following: "Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely . . . ." Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims in International Armed Conflicts (Protocol I)¹²² defines civilians by the exclusion of prisoners of war and armed forces, considering a person a civilian in case of doubt. However, this definition of civilians contained in Common Article 3 is not immediately applicable to crimes against humanity because it is a part of the laws or customs of war and can only be applied by analogy. The same applies to the definition contained in Protocol I and the Commentary, Geneva Convention IV, on the treatment of civilians, both of which advocate a broad interpretation of the term "civilian". They, and particularly Common Article 3, do, however, provide guidance in answering the most difficult question: specifically, whether acts taken against an individual who cannot be considered a traditional "non-combatant" because he is actively involved in the conduct of hostilities by membership in some form of resistance group can nevertheless constitute crimes against humanity if they are committed in furtherance or as part of an attack directed against a civilian population.

640. In this regard the United Nations War Crimes Commission stated in reference to Article 6(c) of the Nürnberg Charter that "[t]he words 'civilian population' appear to indicate that 'crimes against humanity' are restricted to inhumane acts committed against civilians as opposed to members of the armed forces . . ."¹²³. In contrast, the Supreme Court of the British zone determined that crimes against humanity were applicable in all cases where the perpetrator and the victim were of the same nationality, regardless of whether the victim was civilian or military¹²⁴. Similarly, the possibility of considering members of the armed forces as potential victims of crimes against humanity was recognized as early as 1946¹²⁵. The Commission of Experts Established Pursuant to Security Council Resolution 780 ("Commission of Experts") observed: "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."¹²⁶ The Commission of Experts then provided an example based on the situation in the former Yugoslavia and concluded: "A Head of a family who under such circumstances tries to protect his family gun-in-hand does not thereby lose his status as a civilian. Maybe the same is the case for the sole policeman or local defence guard doing the same, even if they joined hands to try to prevent the cataclysm."¹²⁷

641. Precisely this issue was considered in the case of Fédération Nationale des Déportés et Internés Résistants et Patriotes and Others v. Barbie (Barbie case)¹²⁸. In this case the Chambre d'accusation of the Court of Appeal of Lyons ordered that an indictment for crimes against humanity be issued against Klaus Barbie, head of the Gestapo of Lyons during the Second World War, but only for "persecutions against innocent Jews", and held that prosecution was barred by the statute of limitations for crimes committed by Barbie against combatants who were members of the Resistance or whom Barbie thought were members of the Resistance, even if they were Jewish, because these acts could only constitute war crimes and not crimes against humanity¹²⁹. The order of the examining magistrate along the same lines was confirmed by the Cour d'Assises and an appeal was lodged. On appeal the Cour de Cassation quashed and annulled the judgment in part, holding that members of the Resistance could be victims of crimes against humanity as long as the necessary intent for crimes against humanity was present¹³⁰. As the court stated, "[n]either the driving force which motivated the victims, nor their possible membership of the Resistance, excludes the possibility that the accused acted with the element of intent necessary for the commission of crimes against humanity."¹³¹ Thus, according to the Cour de Cassation, not only was the general population considered to be one of a civilian character despite the presence of Resistance members in its midst but members of the Resistance themselves could be considered victims of crimes against humanity if the other requisite elements are met.

642. While instructive, it should be noted that the court in the Barbie case was applying national legislation that declared crimes against humanity not subject to statutory limitation, although the national legislation defined crimes against humanity by reference to the United Nations resolution of 13 February 1946, which referred back to the Nürnberg Charter (law of 26 December 1964¹³²; and the fact that a crime against humanity is an international crime was relied upon to deny the accused's appeal on the bases of disguised extradition¹³³ and an elapsed statute of limitations¹³⁴.

643. Despite the limitations inherent in the use of these various sources, from Common Article 3 to the Barbie case, a wide definition of civilian population, as supported by these sources, is justified. Thus the presence of those actively involved in the conflict should not prevent the characterization of a population as civilian and those actively involved in a resistance movement can qualify as victims of crimes against humanity. As noted by Trial Chamber I of the International Tribunal in its Review of the Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence in The Prosecutor v. Mile Msksic, Miroslav Radic, and Veselin Sljivancanin ("Vukovar Hospital Decision")¹³⁵, although crimes against humanity must target a civilian population, individuals who at one time performed acts of resistance may in certain circumstances be victims of crimes against humanity¹³⁶. In the context of that case patients in a hospital, either civilians or resistance fighters who had laid down their arms, were considered victims of crimes against humanity¹³⁷.

(ii) The meaning of "population"

644. The requirement in Article 5 of the Statute that the prohibited acts must be directed against a civilian "population" does not mean that the entire population of a given State or territory must be victimised by these acts in order for the acts to constitute a crime against humanity. Instead the "population" element is intended to imply crimes of a collective nature and thus exclude single or isolated acts which, although possibly constituting war crimes or crimes against national penal legislation, do not rise to the level of crimes against humanity¹³⁸. As explained by this Trial Chamber in its Decision on the Form of the Indictment, the inclusion in Article 5 of the requirement that the acts "be 'directed against any civilian population' ensures that what is to be alleged will not be one particular act but, instead, a course of conduct."¹³⁹ The purpose of this requirement was clearly articulated by the United Nations War Crimes Commission when it wrote that:

Isolated offences did not fall within the notion of crimes against humanity. As a rule systematic mass action, particularly if it was authoritative, was necessary to transform a common crime, punishable only under municipal law, into a crime against humanity, which thus became also the concern of international law. Only crimes which either by their magnitude and savagery or by their large number or by the fact that a similar pattern was applied at different times and places, endangered the international community or shocked the conscience of mankind, warranted intervention by States other than that on whose territory the crimes had been committed, or whose subjects had become their victims.¹⁴⁰

Thus the emphasis is not on the individual victim but rather on the collective, the individual being victimised not because of his individual attributes but rather because of his membership of a targeted civilian population. This has been interpreted to mean, as elaborated below, that the acts must occur on a widespread or systematic basis, that there must be some form of a governmental, organizational or group policy to commit these acts and that the perpetrator must know of the context within which his actions are taken, as well as the requirement imported by the Secretary-General and members of the Security Council that the actions be taken on discriminatory grounds.

a. The widespread or systematic occurrence of the acts

645. The Prosecution argues that the term "population" in Article 5 contemplates that by his actions the accused participated in a widespread or systematic attack against a relatively large victim group, as distinct from isolated or random acts against individuals. The Defence, while generally in agreement, argues that in order to constitute a crime against humanity the violations must be both widespread and systematic.

646. While this issue has been the subject of considerable debate, 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. Either one of these is sufficient to exclude isolated or random acts. The Report of the Secretary-General stipulates that crimes against humanity "refer to inhumane acts of a very serious nature . . . committed as part of a widespread or systematic attack against any civilian population"¹⁴¹. The Defence points to the fact that later in that same paragraph the Secretary-General states that in the conflict in the former Yugoslavia rape occurred on a "widespread and systematic" basis as support for its proposition that both widespreadness and systematicity are required. However, in the Trial Chamber's view, this passage is no more than a reflection of the situation as the Secretary-General saw it, as was the well-known finding by the Nürnberg Tribunal that "[t]he persecution of the Jews at the hands of the Nazi Government has been proved in the greatest detail before the Tribunal. It is a record of consistent and systematic inhumanity on the greatest scale."¹⁴²

647. In addition to the Report of the Secretary-General numerous other sources support the conclusion that widespreadness and systematicity are alternatives. For example, Trial Chamber I came to this conclusion in the Vukovar Hospital Decision. ¹⁴³ The Report of the Ad Hoc Committee on the Establishment of a Permanent International Criminal Court provides that crimes against humanity "usually involved a widespread or systematic attack against the civilian population rather than isolated offences"¹⁴⁴. Article 18 of the International Law Commission Draft Code of Crimes Against the Peace and Security of Mankind¹⁴⁵ ("I.L.C. Draft Code") requires that the act be committed "in a systematic manner or on a large scale" and explicitly states that these are two alternative requirements. Similarly in its 1994 Report the International Law Commission stated that "the definition of crimes against humanity encompasses inhumane acts of a very serious character involving widespread or systematic violations aimed at the civilian population", although it also stated that "[t]he hallmarks of such crimes lie in their large-scale and systematic nature", and that the "particular forms of unlawful acts (murder, enslavement, deportation, torture, rape, imprisonment etc.) are less crucial to the definition [sic] the factors of scale and deliberate policy."¹⁴⁶ Despite this seeming inconsistency the prevailing opinion was for alternative requirements, as is evident from the article addressing crimes against humanity in the 1991 Report of the International Law Commission which was entitled "Systematic or mass violations of human rights"¹⁴⁷.

648. It is therefore the desire to exclude isolated or random acts from the notion of crimes against humanity that led to the inclusion of the requirement that the acts must be directed against a civilian "population", and either a finding of widespreadness, which refers to the number of victims, or systematicity, indicating that a pattern or methodical plan is evident, fulfils this requirement. As explained by the commentary to the I.L.C. Draft Code:

(3) The opening clause of this definition establishes the two general conditions which must be met for one of the prohibited acts to qualify as a crime against humanity covered by the present Code. The first condition requires that the act was "committed in a systematic manner or on a large scale". This first condition consists of two alternative requirements. . . Consequently, an act could constitute a crime against humanity if either of these conditions is met.

The commentary to the I.L.C. Draft Code further explains these requirements and their origins. It states:

The first alternative requires that the inhumane acts be committed in a systematic manner meaning pursuant to a preconceived plan or policy. The implementation of this plan or policy could result in the repeated or continuous commission of inhumane acts. The thrust of this requirement is to exclude a random act that was not committed as part of a broader plan or policy. The Nürnberg Charter did not include such a requirement. None the less the Nürnberg Tribunal emphasized that the inhumane acts were committed as part of the policy of terror and were "in many cases . . . organized and systematic" in considering whether such acts constituted crimes against humanity.
(4) The second alternative requires that the inhumane acts be committed on a large scale meaning that the acts are directed against a multiplicity of victims. This requirement excludes an isolated inhumane act committed by a perpetrator acting on his own initiative and directed against a single victim. The Nürnberg Charter did not include this second requirement either. None the less the Nürnberg Tribunal further emphasized that the policy of terror was "certainly carried out on a vast scale" in its consideration of inhumane acts as possible crimes against humanity. . . . The term "large scale" in the present text . . . is sufficiently broad to cover various situations involving multiplicity of victims, for example, as a result of the cumulative effect of a series of inhumane acts or the singular effect of an inhumane act of extraordinary magnitude¹⁴⁸.

649. A related issue is whether a single act by a perpetrator can constitute a crime against humanity. A tangential issue, not at issue before this Trial Chamber, is whether a single act in and of itself can constitute a crime against humanity. This issue has been the subject of intense debate, with the jurisprudence immediately following the Second World War being mixed. The American tribunals generally supported the proposition that a massive nature was required¹⁴⁹, while the tribunals in the British Zone came to the opposite conclusion, finding that the mass element was not essential to the definition, in respect of either the number of acts or the number of victims and that "what counted was not the mass aspect, but the link between the act and the cruel and barbarous political system, specifically, the Nazi regime"¹⁵⁰. Clearly, 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"¹⁵¹. The decision of Trial Chamber I of the International Tribunal in the Vukovar Hospital Decision is a recent recognition of the fact that a single act by a perpetrator can constitute a crime against humanity. In that decision the Trial Chamber stated:

30. Crimes against humanity are to be distinguished from war crimes against individuals. In particular, they must be widespread or demonstrate a systematic character. However, as long as there is a link with the widespread or systematic attack against a civilian population, a single act could qualify as a crime against humanity. As such, an individual committing a crime against a single victim or a limited number of victims might be recognized as guilty of a crime against humanity if his acts were part of the specific context identified above¹⁵².

Additional support is found in national cases adjudicating crimes arising from the Second World War where individual acts by perpetrators were held to constitute crimes against humanity¹⁵³.

b. The necessity of discriminatory intent

650. Another related issue is whether the widespread or systematic acts must be taken on, for example, racial, religious, ethnic or political grounds, thus requiring a discriminatory intent for all crimes against humanity and not only persecution. The law in this area is quite mixed. Many commentators and national courts have found that some form of discriminatory intent is inherent in the notion of crimes against humanity, and thus required for the "inhumane acts" group, as well as persecution, because the acts are taken against the individual as a result of his membership in a group that is for some reason targeted by the perpetrator¹⁵⁴.

651. This requirement of discrimination was not contained in the Nürnberg Charter, which clearly recognized two categories of crimes against humanity: those related to inhumane acts such as murder, extermination, enslavement and deportation; and persecution on political, racial or religious grounds. Nor can support for this position be found in Control Council Law No. 10, as well as cases taken on the basis of this law, such as those concerning medical experiments where criminal medical experiments on non-German nationals, both prisoners of war and civilians, including Jews and "asocial" persons were considered war crimes and crimes against humanity, as was the program of euthanasia for "incurables" which was extended to the Jews¹⁵⁵. Likewise, the Tokyo Charter does not contain this requirement. The analysis of the Nürnberg Charter and Judgment prepared by the United Nations shortly after the trial of the major war criminals stated:

It might perhaps be argued that the phrase "on political, racial or religious grounds" refers not only to persecutions but also to the first type of crimes against humanity. The British Chief Prosecutor possibly held that opinion as he spoke of "murder, extermination, enslavement, persecution on political racial or religious grounds". This interpretation, however, seems hardly to be warranted by the English wording and still less by the French text. . . . Moreover, in its statement with regard to von Schirach's guilt the Court designated the crimes against humanity as "murder, extermination, enslavement, deportation, and other inhumane acts" and "persecutions on political, racial or religious grounds"¹⁵⁶.

652. Additionally this requirement is not contained in the Article on crimes against humanity in the I.L.C. Draft Code nor does the Defence challenge its exclusion in the Prosecution's definition of the offence. Significantly, discriminatory intent as an additional requirement for all crimes against humanity was not included in the Statute of this International Tribunal as it was in the Statute for the International Tribunal for Rwanda¹⁵⁷, the latter of which has, on this very point, recently been criticised¹⁵⁸. Nevertheless, because the requirement of discriminatory intent on national, political, ethnic, racial or religious grounds for all crimes against humanity was included in the Report of the Secretary-General¹⁵⁹, and since several Security Council members stated that they interpreted Article 5 as referring to acts taken on a discriminatory basis¹⁶⁰, the Trial Chamber adopts the requirement of discriminatory intent for all crimes against humanity under Article 5. Factually, the inclusion of this additional requirement that the inhumane acts must be taken on discriminatory grounds is satisfied by the evidence discussed above that the attack on the civilian population was conducted against only the non-Serb portion of the population because they were non-Serbs.

c. The policy element

653. As mentioned above the 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. Traditionally this requirement was understood to mean that there must be some form of policy to commit these acts. As explained by the Netherlands Hoge Raad in Public Prosecutor v. Menten¹⁶¹:

The concept of 'crimes against humanity' also requires - although this is not expressed in so many words in the above definition [Article 6(c) of the Nürnberg Charter]- that the crimes in question form a part of a system based on terror or constitute a link in a consciously pursued policy directed against particular groups of people¹⁶².

Importantly, however, such a policy need not be formalized and can be deduced from the way in which the acts occur. Notably, if the acts occur on a widespread or systematic basis that demonstrates a policy to commit those acts, whether formalized or not. Although some doubt the necessity of such a policy the evidence in this case clearly establishes the existence of a policy.

654. An additional issue concerns the nature of the entity behind the policy. The traditional conception was, in fact, not only that a policy must be present but that the policy must be that of a State, as was the case in Nazi Germany. The prevailing opinion was, as explained by one commentator, that crimes against humanity, as crimes of a collective nature, require a State policy "because their commission requires the use of the state's institutions, personnel and resources in order to commit, or refrain from preventing the commission of, the specified crimes described in Article 6(c) [of the Nürnberg Charter]"¹⁶³. While this may have been the case during the Second World War, and thus the jurisprudence followed by courts adjudicating charges of crimes against humanity based on events alleged to have occurred during this period, this is no longer the case. As the first international tribunal to consider charges of crimes against humanity alleged to have occurred after the Second World War, the International Tribunal is not bound by past doctrine but must apply customary international law as it stood at the time of the offences. In this regard the law in relation to crimes against humanity has developed to take into account forces which, although not those of the legitimate government, have de facto control over, or are able to move freely within, defined territory. The Prosecution in its pre-trial brief argues that under international law crimes against humanity can be committed on behalf of entities exercising de facto control over a particular territory but without international recognition or formal status of a de jure state, or by a terrorist group or organization. The Defence does not challenge this assertion, which conforms with recent statements regarding crimes against humanity.

655. For example, Trial Chamber I of the International Tribunal stated in relation to crimes against humanity in its Review of the Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence in Prosecutor v. Dragan Nikolic: "Although they 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."¹⁶⁴ The I.L.C. Draft Code is more explicit in this regard. It contains the requirement that in order to constitute a crime against humanity the enumerated acts must be "instigated or directed by a Government or by any organization or group". The commentary clarifies that by stating:

This alternative is intended to exclude the situation in which an individual commits an inhumane act while acting on his own initiative pursuant to his own criminal plan in the absence of any encouragement or direction from either a Government or a group or organization. This type of isolated criminal conduct on the part of a single individual would not constitute a crime against humanity. . . . The instigation or direction of a Government or any organization or group, which may or may not be affiliated with a Government, gives the act its great dimension and makes it a crime against humanity imputable to private persons or agents of a State¹⁶⁵.

Thus, according to the International Law Commission, the acts do not even have to be directed or instigated by a group in permanent control of territory. It is important to keep in mind that the 1996 version of the I.L.C. Draft Code contains the final text of the article on crimes against humanity adopted by the International Law Commission¹⁶⁶, which was established pursuant to General Assembly resolution 174 (II) and whose members are elected by the General Assembly. Importantly, the commentary to the draft articles of the Draft Code prepared by the International Law Commission in 1991, which were transmitted to Governments for their comments and observations, acknowledges that non-State actors are also possible perpetrators of crimes against humanity. It states that

[i]t is important to point out that the draft article does not confine possible perpetrators of the crimes [crimes against humanity] to public officials or representatives alone . . . the article does not rule out the possibility that private individuals with de facto power or organized in criminal gangs or groups might also commit the kind of systematic or mass violations of human rights covered by the article; in that case, their acts would come under the draft Code¹⁶⁷.

Similarly, the United States Court of Appeals for the Second Circuit recently recognized that "non-state actors" could be liable for committing genocide, the most egregious form of crimes against humanity, as well as war crimes¹⁶⁸. Therefore, although a policy must exist to commit these acts, it need not be the policy of a State.

656. As discussed above in relation to the nexus, the act must not be unrelated to the armed conflict. This contains two aspects. First, it is the occurrence of the act within the context of a widespread or systematic attack on a civilian population that makes the act a crime against humanity as opposed to simply a war crime or crime against national penal legislation, thus adding an additional element, and therefore in addition to the intent to commit the underlying offence the perpetrator must know of the broader context in which his act occurs. Secondly, the act must not be taken for purely personal reasons unrelated to the armed conflict.

657. Regarding the first aspect, the knowledge by the accused of the wider context in which his act occurs, the approach taken by the majority in R. v. Finta¹⁶⁹ in Canada is instructive. In that case the majority decided that "[t]he mental element required to be proven to constitute a crime against humanity is that the accused was aware of or wilfully blind to facts or circumstances which would bring his or her acts within crimes against humanity. However, it would not be necessary to establish that the accused knew that his actions were inhumane."¹⁷⁰ While knowledge is thus required, it is examined on an objective level and factually can be implied from the circumstances. Several cases arising under German penal law following the Second World War are relevant in this regard. In a case decided by the Spruchgericht at Stade, Germany, the accused, who had been stationed near the concentration camp at Buchenwald, was assumed to have known that numerous persons were deprived of their liberty there on political grounds¹⁷¹. In addition, it is not necessary that the perpetrator has knowledge of exactly what will happen to the victims and several German cases stressed the fact that denunciations, without more, constitute crimes against humanity¹⁷². One case in particular is relevant. In that case two accused in 1944 informed the police that the director of the company for which they both worked had criticised Hitler. After the denouncement the director was arrested, temporarily released and then arrested again and brought to a concentration camp. Both of the accused were acquitted due to a lack of "mens rea" as they had not had either a concrete idea of the consequences of their action or an "abominable attitude". However, the Obersten Gerichthofes ("OGH") remanded the case to the trial court, finding that a crime against humanity does not require either a concrete idea of the consequences or an "abominable attitude"¹⁷³.

658. As for the second aspect, that the act cannot be taken for purely personal reasons unrelated to the armed conflict, while personal motives may be present they should not be the sole motivation for the act. Again one of the German cases arising from the Second World War is relevant. In that case the accused had denounced his wife for her pro-Jewish, anti-Nazi remarks. The OGH found it sufficient that with the purpose of separating from his wife the accused had ensured that the Gestapo knew about her anti-Nazi remarks and that the connection between the action of the accused and the "despotism of the Nazi Regime" was established because the victim was denounced for her anti-Nazi attitude. The OGH found that he had committed a crime against humanity because his behaviour fitted into the plan of persecution against Jews in Germany and that although his intent was only to harm this one individual, it was closely related to the general mass persecution of the Jews.¹⁷⁴

659. Thus if the perpetrator has knowledge, either actual or constructive, that these acts were occurring on a widespread or systematic basis and does not commit his act for purely personal motives completely unrelated to the attack on the civilian population, 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, know that his act fits in with the attack and the act must not be taken for purely personal reasons unrelated to the armed conflict.

1. The Customary Status of Article 7, Paragraph 1

660. As discussed, this Trial Chamber has found that an armed conflict existed in the territory of opstina Prijedor at the relevant time and that an aspect of this conflict was a policy to commit inhumane acts against the civilian population of the territory, in particular the non-Serb population, in the attempt to achieve the creation of a Greater Serbia. In furtherance of this policy these inhumane acts were committed against numerous victims and pursuant to a recognisable plan. As such the conditions of applicability for Article 5 are satisfied: the acts were directed against a civilian population on discriminatory grounds, they were committed on both a widespread basis and in a systematic fashion pursuant to a policy and they were committed in the context of, and related to, an armed conflict.

E. Individual Criminal Responsibility Under Article 7, Paragraph 1

661. The Report of the Secretary-General states that "all persons who participate in the planning, preparation or execution of serious violations of international humanitarian law in the former Yugoslavia contribute to the commission of the violation and are, therefore, individually responsible."¹⁷⁵ Article 7 of the Statute, entitled Individual criminal responsibility incorporates this concept by providing that "[a] person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 5 of the present Statute, shall be individually responsible for the crime."

662. Accordingly, the International Tribunal has jurisdiction to try a person who participates in crimes against humanity, grave breaches of the Geneva Conventions, violations of the laws or customs of war or genocide in any one of several capacities. However, this provision, which the International Tribunal has not yet interpreted, does not specify the necessary degree of participation but first the objective basis for such individual responsibility as a matter of customary international law must be determined since the International Tribunal is only empowered to apply international humanitarian law that is "beyond any doubt customary law".¹⁷⁶

663. Certain types of conduct during armed conflict have been criminalised by the international community since at least the fifteenth century¹⁷⁷. In more modern times, the movement to abolish war that coalesced after the First World War resulted in the determination to reform the law of war and to make war conducted in contravention of international norms an international crime with a component of individual responsibility¹⁷⁸. After the First World War, the Preliminary Peace Conference of Paris created a Commission to investigate the responsibility for the war. On 29 March 1919 this Commission submitted its findings in a report that was unanimously adopted, although with reservations by the American and Japanese representatives¹⁷⁹. These findings included a provision addressing individual criminal responsibility for breaches of the laws and customs of war. The Commission recommended that "all persons belonging to enemy countries, however high their position may have been, without distinction of rank, including chiefs of States, who have been guilty of offences against the laws and customs of war or the laws of humanity, are liable to criminal prosecution."¹⁸⁰ This position was confirmed by several countries in the 1919 Paris Peace Treaty, which formally adopted the principle that any person could be tried and punished for violations of the laws of war by military courts of the adversary¹⁸¹.

664. The concept that an individual actor can be held personally responsible and punished for violations of international humanitarian law was first enunciated by the Nürnberg and Tokyo trials after the Second World War. Article 6 of the 1945 Nürnberg Charter called for individual responsibility for crimes against peace, violations of the laws or customs of war, and crimes against humanity¹⁸².

665. Similarly, the Military Tribunals in occupied Germany enforced the Charter's principles under the terms of Article II, 2 of Control Council Law No. 10, which states:

Any person without regard to nationality or the capacity in which he acted, is deemed to have committed a crime as defined in paragraph 1 of this Article, if he was (a) a principal or (b) was [sic] an accessory to the commission of any such crime or ordered or abetted the same or (c) took a consenting part there in or (d) was connected with plans or enterprises involving its commission or (e) was a member of any organisation or group connected with the commission of any such crime . . . .¹⁸³

Noting that the fact "[t]hat international law imposes duties and liabilities upon individuals as well as upon States has long been recognized"¹⁸⁴, the court found punishment for individuals appropriate for violations of international law¹⁸⁵. Moreover, it is well recognized that

[t]he principle of individual responsibility and punishment for crimes under international law recognized at Nuremberg is the cornerstone of international criminal law. This principle is the enduring legacy of the Nuremberg Charter and Judgement which gives meaning to the prohibition of crimes under international law by ensuring that the individuals who commit such crimes incur responsibility and are liable to punishment.¹⁸⁶

666. The concept of direct individual criminal responsibility and personal culpability for assisting, aiding and abetting, or participating in, in contrast to the direct commission of, a criminal endeavour or act also has a basis in customary international law. For example, Article 4(1) of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment¹⁸⁷ uses the phrase "complicity or participation in torture", and Article III of the International Convention on the Suppression and Punishment of the Crime of Apartheid cites as criminally culpable those who "participate in, directly incite, or conspire in [, or] . . . [d]irectly abet, encourage or cooperate in the commission of the crime."¹⁸⁸ The prosecutions following the Second World War confirm this, revealing that participation in this way could entail culpability.

667. For example, in the French war crimes trials after the Second World War, complicity was a basis for criminal culpability. In the Trial of Wagner and Six Others, the Acte d'Accusation and the judgment state the relevance of the French penal code to the charge and the sentence. Article 59 of the Code Pénal applicable at that time stated that "[t]he accomplices to a crime or a delict shall be visited with the same punishment as the authors therefor, excepting where the law makes other provisions" and Article 60, defined as an accomplice:

Any person who, by gifts, promises, threats, abuse of power or authority, or guilty machinations or devices, has instigated a crime or delict or given orders for the perpetration of a crime or delict; any person who has supplied the arms, tools or any other means that have been used in the commission of the crime or offence, knowing that they would be so used; or who has wittingly aided or assisted the author or authors of the crime or offence in any acts preparatory to, of facilitating its perpetration, or in its execution.

With one exception, all the accused in that trial were charged with complicity as opposed to primary involvement¹⁸⁹.

668. Likewise, in the Trial of Martin Gottfried Weiss and 39 Others, ("Dachau case"), the accused were charged with acting in "pursuance of a common design to commit acts hereinafter alleged as members of the staff of the Dachau Concentration Camp", and the allegation was that they did "wilfully, deliberately and wrongfully aid, abet and participate in the subjection of civilian nations. . . ."¹⁹⁰ Finally, the Norwegian and the Netherlands war crimes laws explicitly made punishable complicity in war crimes and the British law also had such provisions.¹⁹¹

669. The foregoing establishes the basis in customary international law for both individual responsibility and of participation in the various ways provided by Article 7 of the Statute. The International Tribunal accordingly has the competence to exercise the authority granted to it by the Security Council to make findings in this case regarding the guilt of the accused, whether as a principal or an accessory or otherwise as a participant.

2. Parameters of Individual Responsibility

(a) Arguments of the parties

670. In the present case, the Prosecution argues that Article 7, paragraph 1, of the Statute draws the boundaries of individual responsibility very widely:

The language of Article 7(1) and the Secretary-General's comments reflect the modern trend to move away from very technical definitions about the degree of culpability, and instead move us to focus on whether the accused's actions in any way incurred criminal liability . . . [T]he relative degree of culpability is a matter for sentencing should you reach findings of guilt.

Citing the Mauthausen Concentration Camp Trail (Trial of Hans Alfuldisch and Six Others) ("Mauthausen case")¹⁹², the Prosecution argues that any assistance, even as little as being involved in the operation of one of the camps, is sufficient for the Trial Chamber to find participation in a crime. The Prosecution urges the Trial Chamber to follow the example of the Australian common law, under which, the Prosecution asserts, the most marginal act of assistance or encouragement can amount to an act of complicity in the crime, and avers that "aiding and abetting includes all acts of assistance by words, by acts, by encouragement, support or again by presence". The Prosecution contends that, in regard to Count 1 charging persecution, the presence of the accused when viewed in light of the surrounding events is sufficient to find that he assisted in the various illegal acts given that "the accused's presence as a member of a group that is furthering the persecution of non-Serbs certainly assists and encourages that crime". In regard to the remaining counts, it argues that the accused is criminally responsible for the deaths of and other actions against the victims regardless of whether he directly committed any of the illegal acts or only aided and abetted, in this broad sense, their commission. The Prosecution also contends that the accused is liable if he took part in earlier acts and thereafter remained present, never withdrawing from the subsequent acts, since the continued presence of the accused gave both support and encouragement to the other members of his group and thereby aided them in the commission of the illegal acts.

671. The Defence argues that the term "participation" is used in the Indictment in two ways: as a basic fact, and as a qualification of the legal degree of involvement. According to the Defence, participation has not the almost unrestricted meaning given to it by the Prosecution and it is erroneous to assert that contributing "in any manner whatsoever", regardless of one's specific role, to the commission of the illegal act makes one personally responsible. Instead, the Defence argues, one is only culpable if one participates by planning, instigating, ordering, committing or otherwise aiding and abetting in the execution. Specific to the accused in this case, the Defence asserts that physical involvement or inclusion with the Serb forces who committed crimes does not in itself establish the commission of the crime. The Defence also differentiates between the direct participation of a perpetrator and the less direct participation of an aider or abettor, stating that "furthering or facilitating a crime committed by someone else is not punishable if one does not realise that the other commits or will commit a crime, or if the [commission of the offence] was not a likely consequence of the [act] in which the accused participated". In response to the Prosecution's reliance on the Mauthausen case, the Defence says that because the court there held that the accused's involvement in the camp was proof of a direct and substantial contribution to the crimes committed, that case does not set any different standard.

672. The Defence further contends that physical presence without acting in concert is not aiding and abetting, and proof of an accused's presence near the scene of a crime without any further proof of involvement does not establish a criminal responsibility under Article 7. It notes that Australian law on aiding and abetting is not part of customary international law and that there is a definite distinction between culpability in the case of common crimes tried in national jurisdictions and culpability in an international jurisdiction for violations of international humanitarian law because such violations usually concern persons acting under abnormal circumstances such as war and in which the mere presence of an accused at the time of commission of a crime can and should be viewed differently. Accordingly, the Defence argues, presence should at least be proved to be significant to the commission of the crime, the evidence of the significance of presence should not be speculative but substantiated, and there must be a significant causal relation between the commission of the crime and the accused's presence deriving either from a prior agreement or because of the influence of his presence. The Defence argues that the Prosecution's position would require a finding of deliberate participation even if the only proof consisted of several sightings of an accused in the area of the commission of the crime even without any proof of involvement.

(b) Participation as a basis of liability

673. Where it is found in regard to the charges in the Indictment that the accused directly engaged in the actions alleged, the application of Article 7, paragraph 1, poses little problem. However, the Trial Chamber has found that, as to certain paragraphs of the Indictment, the accused did not directly commit some of the offences there charged but was present at the time of, or otherwise involved in, their commission. In regard to these instances, the Trial Chamber must determine whether the conduct of the accused that the Prosecution has proved beyond reasonable doubt sufficiently connects the accused to the crime such that he can be found criminally culpable pursuant to the Statute.

674. The most relevant sources for such a determination are the Nürnberg war crimes trials, which resulted in several convictions for complicitous conduct. While the judgments generally failed to discuss in detail the criteria upon which guilt was determined, a clear pattern does emerge upon an examination of the relevant cases. First, there is a requirement of intent, which involves awareness of the act of participation coupled with a conscious decision to participate by planning, instigating, ordering, committing, or otherwise aiding and abetting in the commission of a crime. Second, the prosecution must prove that there was participation in that the conduct of the accused contributed to the commission of the illegal act.

(i) Intent

675. The requirement that there be intent before being held culpable for a criminal act is supported by the case of Werner Rohde and Eight Others, in which the British Military Court held that if an accused took part with another man with the knowledge that the other man was going to kill, then he was as guilty as the one doing the actual killing¹⁹³. Again, in the Trial of Joseph Altstötter and Others ("Justice case"), the fact that the accused had specific knowledge was treated as essential. The judgment repeatedly confirmed this, stating that the various people charged knew or had knowledge, or must be assumed to have had knowledge, of the Nacht und Nebel plan, of Hitler and his associates' use of the German legal system, and of the plans or schemes for racial persecution. In several places, the judgment presumed knowledge on the part of an accused¹⁹⁴. Similarly, in the United States of America v. Wilhelm List ("Hostage case")¹⁹⁵, the court noted that to find the accused guilty, "we shall require proof of a causative, overt act or omission from which a guilty intent can be inferred before a verdict of guilty will be pronounced. Unless this be true, a crime could not be said to have been committed unlawfully, wilfully, and knowingly as charged in the Indictment."¹⁹⁶

676. As noted in the Justice case, knowledge and intent can be inferred from the circumstances. In the Mauthausen case, the United States Military Tribunal, after finding all 61 accused guilty, stated in its special findings that the state of the camp where detainees were murdered en masse in gas chambers "was of such a criminal nature as to cause every official, governmental, military and civil, and every employee thereof, whether he be a member of the Waffen SS, Allgemeine SS, a guard, or civilian, to be culpably and criminally responsible". This finding was based on the determination that "it was impossible for a governmental, military or civil official, a guard or a civilian employee, of the Concentration Camp Mauthausen, combined with any or all of its by-camps, to have been in control of, been employed in, or present in, or residing in, the aforesaid Concentration Camp Mauthausen, combined with any or all of its by-camps, at any time during its existence, without having acquired a definite knowledge of the criminal practices and activities therein existing."¹⁹⁷ Thus the court inferred knowledge on the part of the accused, and concluded that the staff of the concentration camp was guilty of the commission of a war crime based on this knowledge and their continued participation in the enterprise¹⁹⁸.

677. Although intent founded on inherent knowledge, proved or inferred, is required for a finding of guilt, the Trial Chamber need not find that there was a pre-arranged plan, to which the accused was a party, to engage in any specific conduct. In the Justice case, in regard to the defendant Joel who was not alleged to have been directly responsible for the death or ill-treatment of specified persons, the prosecution sought to prove that he was related to a scheme or system which had a criminal outcome. The tribunal saw as essential proof that he had knowledge of others' acts that were done in furtherance of the Nacht und Nebel plan, as well as evidence of deliberate action¹⁹⁹. However, it did not require proof that Joel was party to a prior arrangement or agreement to take part in any particular behaviour.

(ii) Direct contribution

678. As the Justice case reveals, intent involving requisite knowledge alone is not enough; there must also be a deliberate act if an accused is to be held criminally culpable and this deliberate act must directly affect the commission of the crime itself. In the Nürnberg Judgment on the charges against defendant Kaltenbrunner, the court declined to find the accused guilty of the charge of crimes against peace for waging aggressive war because the evidence against him did not "show his direct participation in any plan to wage such a war"²⁰⁰. The Judge-Advocate's statement in the Trial of Franz Schonfeld and Nine Others by a British Military Court explained the law of parties being "concerned" in the commission of a crime:

Those who are present at the commission of an offence, and aid and abet its commissions, are principals in the second degree.

The presence of a person at the scene of the crime may be actual in the sense that he is there, or it may be constructive. It is not necessary that the party should be actually present, an eye-witness or ear witness to the transaction; he is, in construction of law, present, aiding and abetting, with the intention of giving assistance, if he is near enough to afford it should occasion arise. . . . There must also be a participation in the act; for even if a man is present whilst a felony is committed, if he takes no part in it and does not act in concert with those who commit it, he will not be a principal in the second degree, merely because he did not endeavour to prevent the felony. It is not necessary, however, to prove that the party actually aided in the commission of the offence; if he . . . was in such a situation as to be able readily to come to their assistance, the knowledge of which was calculated to give additional confidence to his companions, he was, in contemplation of law, present aiding and abetting²⁰¹.

It is difficult to determine whether this statement, which relies heavily on English law, was adopted by the court given that the court did not state its reasons for deciding as it did. Despite this reliance on municipal law, the statement is instructive in this instance: "In the present state of vagueness prevailing in many branches of the law of nations, even given the fact that there are no binding precedents in International Law, such introduction therein of tested concepts from municipal systems is all to the good, provided that they are recognized to be in amplification of, and not in substitution for, rules of International Law."²⁰²

679. Although the court in that case neither accepted nor rejected the Judge-Advocate's statement, other cases show that direct contribution does not necessarily require the participation in the physical commission of the illegal act. That participation in the commission of the crime does not require an actual physical presence or physical assistance appears to have been well accepted at the Nürnberg war crimes trials, as was the concept that mere presence at the scene of the crime without intent is not enough.²⁰³

680. In the Trial of Burn Tesch and Two Others ("Zyklon B case"), in the British Military Court, the suppliers of poison gas, normally used to kill vermin but in fact used to kill inmates of concentration camps, were charged with a war crime. The charge stated that they "in violation of the laws and usages of war did supply poison gas used for the extermination of allied nationals interned in concentration camps well knowing that the said gas was to be so used" between 1941 and 1945²⁰⁴. It was the prosecution's contention that the accused put the means of committing the crime of extermination in the hands of the concentration camp officials, and thus they were also war criminals²⁰⁵. The Judge-Advocate summed up the necessary proofs as follows: "first, that Allied nationals had been gassed by means of Zyklon B; secondly, that this gas had been supplied by [the defendants]; and thirdly, that the accused knew that the gas was to be used for the purpose of killing human beings."²⁰⁶ The court ultimately sentenced the two people to death after finding that they arranged for the supply of lethal gas to concentration camps and were aware of the purpose for which it would be used²⁰⁷. The court necessarily must have made the determination that without the supply of gas the exterminations would not have occurred in that manner, and therefore that the actions of the accused directly assisted in the commission of the illegal act of mass extermination.

(iii) Required extent of participation

681. The remaining question for consideration is the amount of assistance that must be shown before one can be held culpable for involvement in a crime. As one commentator noted, mere presence seems not enough to constitute criminally culpable conduct, "[b]ut what further conduct would constitute aiding and abetting the commission of war crimes or some accessory responsibility is not known with sufficient exactitude for 'line-drawing' purposes"²⁰⁸. Again, a review of certain post-Second World War cases is instructive despite their failure to establish specific criteria.

682. In the Dachau case before the United States Military Tribunal, wherein the accused were charged with acting in pursuance of a common design to participate in the "subjection of" the inmates to "cruelties and mistreatments", the court noted that in order to prove the allegations against each accused, the prosecution had to prove: (1) a system of ill-treatment at the camp that included the crimes listed in the charges; (2) awareness on the part of each accused of the system; and (3) that each accused "encouraged, aided and abetted or participated" in enforcing this system²⁰⁹. The main issue of contention was as to the third element. Noting that the evidence was such that the conditions of the concentration camp were inevitably produced by the way in which it was run and since every accused was at one time a member of its staff, the court found each of them culpable, and sentenced 36 of the 40 defendants to death and the others to varying terms of hard labour²¹⁰. The guilt of each accused was established either by showing that his duties in themselves were in execution or administration of the illegal system or that, although the duties in themselves were not illegal, the accused performed them in an illegal manner²¹¹. Thus, in this case, the court required a finding of direct involvement in what was determined to be the illegal act of participating in the running of the camp.

683. The Mauthausen case, also before the United States Military Tribunal, involved similar facts though with much higher casualty figures given the practice of mass extermination by use of a gas chamber. There the court made the determination previously quoted regarding knowledge of criminal practices and activities, and declared:

[t]hat any official, governmental, military or civil . . . or any guard or civil employee, in any way in control of or stationed at or engaged in the operation of the Concentration Camp Mauthausen, or any or all of its by-camps in any manner whatsoever, is guilty of a crime against the recognized laws, customs and practices of civilised nations and the letter and spirit of the laws and usages of war, and by reason thereof is to be punished²¹².

The court thus found all 61 defendants charged guilty. While this finding suggests that the camp personnel were found guilty based upon the presumption that they had knowledge of the abhorrent conditions at the camp, Mauthausen and Dachau do not support the Prosecution's position. Unlike these cases, the accused has not been charged nor has the Prosecution proved, that the accused was engaged in the operation of the camps.

684. In another case focusing on poison gas, Robert Mulka, a camp commander at Auschwitz, was convicted of being an accessory in the murder of approximately 750 persons in the Auschwitz Trials before a German court²¹³. This finding was based on the determination that he was involved in procuring Zyklon B gas, constructing gas ovens, arranging for trucks to transport inmates to the gas chambers, and alerting the camp bureaucracy as to the imminent arrival of transports. In this same trial, Karl Hocker, who succeeded Robert Mulka as adjutant camp commander, was convicted of complicity in joint murder by receiving and passing on teletypes detailing the imminent arrival of Hungarian prisoners to the camp, who were later killed there²¹⁴.

685. In the Trial of Otto Sandrock and Three Others ("Almelo case")²¹⁵, the defendants were charged with the commission of a war crime for killing a prisoner of war and a Dutch civilian. This trial, which was conducted by the British Military Court, invoked Regulation 8(ii) of the Royal Warrant of 14 June 1945 as amended by Royal Warrant of 4 August 1945, which provided:

Where there is evidence that a war crime has been the result of concerted action upon the part of a unit or group of men, then evidence given upon any charge relating to that crime against any member of such unit or group, may be received as prima facie evidence of the responsibility of each member of that unit or group for that crime . . . .

The Judge-Advocate ruled that each of the defendants knew that they were going to the woods for the purpose of killing the victims and that "[i]f people were all present together at the same time, taking part in a common enterprise which was unlawful, each one in their own way assisting the common purpose of all, they were all equally guilty in law."²¹⁶ Based in part on this knowledge, the court found all concerned in each shooting guilty, including the one that stayed in the car to prevent strangers from disturbing the two who were engaged in killing the victims; presence, knowledge and intent to assist was sufficient to establish guilt.

686. Other examples include the following cases. In United States v. Kurt Goebell et al ("Borkum Island case"), civilians brutalised and killed United States pilots who were paraded through the streets in 1944. Some of the members of the German guard who stood by as civilians injured and killed the pilots were convicted along with the commander who ordered the parading of the troops, the Burgomeister, and the four civilians who took part in the event²¹⁷. In this case, the lack of action on the part of the guards and commander amounted to a sufficient degree of participation for the purposes of criminal liability.

687. In Gustav Becker, Wilhelm Weber and 18 Others,²¹⁸> tried before the French Permanent Military Tribunal, the two primary defendants were convicted for their conduct regarding illegal arrests and ill-treatment, and 17 of the remaining defendants were convicted as their accomplices. Each of the accused were found guilty of the death of victims on the basis of Article 309 of the French Penal Code "caus[ing] death without intent to inflict it", even though their treatment of the victims occurred in France and the ultimate deaths occurred in Germany. The French war crimes trials contain other examples of complicity including an accused, Ferrarese, who was condemned to death on the charge of having caused the arrest, detention and torture of innocent French inhabitants by virtue of his denouncing several French citizens involved in the resistance movement whom were later arrested and tortured, and some of who were deported²¹⁹. Similarly, a Nazi party administrator, who created and submitted lists to arresting authorities and reported French youths who rejected his attempts to get them to join the German army and who were then arrested, interned and forcibly drafted, with their families deported to Germany, was convicted and given five years imprisonment for aiding and assisting in the arrest and deportation. Denunciation in and of itself was not a war crime unless, by giving information, the informant became a party to or an accomplice in the commission of a war crime: "This condition is fulfilled if circumstances constituting complicity are present, e.g. if the informer knew that his action would lead to the commission of a war crime and either intended to bring about this consequence or was recklessly indifferent with regard to it. This decision was applied by the War Crimes Commission in numerous instances."²²⁰ Thus not only does one not have to be present but the connection between the act contributing to the commission and the act of commission itself can be geographically and temporally distanced.