1 of 102 file cs WWork Ictysite milosevic trialc judgement 040616 htm Case No IT-02-54-T IN THE TRIAL CHAMBER Before Judge Patrick Robinson Presiding Judge O-Gon Kwon Judge Iain Bonomy Registrar Mr Hans Holthuis Decision 16 June 2004 PROSECUTOR v SLOBODAN MILOSEVIC __________________________________ DECISION ON MOTION FOR JUDGEMENT OF ACQUITTAL __________________________________ The Office of the Prosecutor Ms Carla Del Ponte Mr Geoffrey Nice Mr Dermot Groome Ms Hildegard Uertz-Retzlaff The Accused Mr Slobodan Milosevic Amici Curiae Mr Steven Kay QC Prof Timothy L H McCormack I GLOSSARY A Abbreviations and Acronyms B C S Abbreviation B C S English English Abbreviation BHS Bosnanski Hrvatski Srpski Bosnian Croatian Serbian B C S BCS BiH Bosna i Hercegovina Bosnia and Herzegovina BH DB drzavna bezbednost state security DB 20 03 2009 11 54 AM 2 of 102 file cs WWork Ictysite milosevic trialc judgement 040616 htm EU Evropska unija European Union EU EZ Evropska zajednica European Community EC FBiH Federacija Bosne i Hercegovine Federation of Bosnia and Herzegovina FBiH JATD Jedinica za antiteroristicko dejstvo delovanje Anti-Terrorist Operations Unit JATD JNA Jugoslovenska narodna armija Yugoslav People’s Army JNA JSO Jedinica za specijalne operacije Special Operations Unit JSO KMP ILC Komisija za medjunarodno pravo International Law Commission ILC LDK DSK Demokratski savez Kosova Democratic Alliance Democratic League of Kosovo LDK MKCK Medjunarodni komitet crvenog krsta International Committee of the Red Cross ICRC MKS ICC Medjunarodni krivicni sud International Criminal Court ICC MKSR Medjunarodni krivicni sud za Ruandu International Criminal Tribunal for Rwanda ICTR MUP Ministarstvo unutrasnjih poslova Ministry of the Interior MUP MVS Medjunarodni vojni sud International Military IMT Tribunal NATO Organizacija sjevernoatlantskog ugovora North Atlantic Treaty NATO Organisation OEBS OESS OSSE Organizacija za evropsku bezbednost i saradnju - S Organizacija za europsku sigurnost i suradnju - C Organizacija za sigurnost i suradnju u Europi - C Organization for Security and Co-operation in Europe OSCE 20 03 2009 11 54 AM 3 of 102 file cs WWork Ictysite milosevic trialc judgement 040616 htm OUN Organizacija ujedinjenih nacija naroda United Nations Organization UN UNO OVK UCK UÇK UCK Oslobodilacka vojska Kosova Kosovo Liberation Army KLA UCK UCK RS Republika Srpska Republika Srpska RS RSK SRK Republika Srpska Krajina Republic of Serbian Krajina RSK SAO Srpska autonomna oblast Serbian Autonomous District Region SAO SBZS Slavonija Baranja i zapadni Srem Slavonia Baranja and Western Srem SBWS SDA Stranka demokratske akcije Party for Democratic Action SDA SDK Sluzba drustvenog knjigovodstva Public Auditing Service SDK SDS Srpska demokratska stranka Serbian Democratic Party SDS SFRJ Socijalisticka Federativna Republika Jugoslavija Socialist Federal Republic of Yugoslavia SFRY SMB sivo-maslinasta boja olive drab uniform SMB SPGS Specijalni predstavnik generalnog sekretara Special Representative of the Secretary-General SRSG SPS Socijalisticka partija Srbije Socialist Party of Serbia SPS SRJ Savezna Republika Jugoslavija Federal Republic of Yugoslavia FRY SUP Sekretarijat unutrasnjih poslova Secretariat of the Interior SUP TO teritorijalna odbrana Territorial Defence TO UNPROFOR Zastitne snage Ujedinjenih nacija naroda United Nations Protection Force UNPROFOR UNTS Sporazumi Ujedinjenih naroda United Nations Treaty Series UNTS 20 03 2009 11 54 AM 4 of 102 file cs WWork Ictysite milosevic trialc judgement 040616 htm VJ Vojska Jugoslavije Vojska Savezne Republike Jugoslavije Yugoslav Army Army of the FRY Army of the Federal Republic of Yugoslavia JA VRS Vojska Republike Srpske Vojska bosanskih Srba Army of Republika Srpska Bosnian Serb Army VRS BSA VSO Vrhovni savet odbrane Supreme Defence Council SDC II INTRODUCTION A Procedural Background 1 On 7 April 2003 the Amici Curiae filed a motion seeking directions on their future role including the question as to whether they should file a motion pursuant to Rule 98bis of the Rules of Procedure and Evidence “Rules” at the close of the Prosecution case 1 On 27 June 2003 the Trial Chamber issued an order stating inter alia that “the amici curiae may submit a Motion pursuant to Rule 98 bis within seven days of the close of the Prosecution case” 2 2 Considerably later on 4 February 2004 the Prosecution filed an objection to the Amici Curiae filing a Rule 98 bis Motion on behalf of the Accused relying on a Separate Opinion of Judge Shahabuddeen concerning the right of the Amici Curiae to file applications on behalf of the Accused 3 The Trial Chamber disposed of the Prosecution Motion on 5 February 2004 stating that the Appeals Chamber itself had decided to consider an appeal brought by the Amici Curiae and in so doing proceeded on the basis they had locus standi that the filing by the Amici Curiae of a Motion pursuant to Rule 98 bis did not in any way prejudice the Prosecution nor infringe the interests of the Accused and that it was in the interests of justice as a whole for such a Motion to be brought 4 3 On 25 February 2004 the Prosecution closed its case and the Trial Chamber ordered inter alia that any motion under Rule 98 bis should be filed by the Accused or Amici Curiae by 8 March 2004 and that any Response by the Prosecution was to be filed by 22 March 2004 5 The Accused has not filed a motion under Rule 98 bis B The Rule 98 bis Motion 4 On 3 March 2004 the Amici Curiae filed their “Amici Curiae Motion for Judgement of Acquittal Pursuant to Rule 98bis” along with two confidential Annexes and a public Annex “Motion” On 23 March 2004 the Prosecution filed its confidential “Prosecution Response to Amici Curiae Motion for Judgement of Acquittal Pursuant to Rule 98 bis” “Response” 5 The Motion may be summarised as follows 1 The Prosecution has failed to establish the existence of an “armed conflict” in Kosovo prior to 24 March 1999 requiring parts of the Kosovo Indictment dependent on this legal precondition to be excised from that Indictment 6 2 The failure to establish that Croatia was a state before some time between 15 January and 22 May 1992 Consequently the conflict in Croatia was not international before that time and therefore all grave breaches counts in the Croatia Indictment 20 03 2009 11 54 AM 5 of 102 file cs WWork Ictysite milosevic trialc judgement 040616 htm which go to alleged crimes committed before these dates must be dismissed 7 3 There is no evidence that the Accused planned instigated ordered committed or otherwise aided and abetted in the planning preparation or execution of a genocide any genocidal acts or that he was complicit in such and that the mens rea requirement for establishing the crime of genocide is incompatible with the mens rea requirement for the third category of a joint criminal enterprise and command responsibility as alleged in the Bosnia Indictment 8 and 4 In relation to 185 separate allegations contained in the three Indictments there is no or insufficient evidence 9 6 The Response may be summarised as follows 1 In respect of the argument that the Prosecution has failed to establish there was an “armed conflict” in Kosovo prior to 24 March 1999 the evidence adduced by the Prosecution during the trial is sufficient if accepted to satisfy a trier of fact beyond reasonable doubt that an armed conflict existed in Kosovo at all times relevant to the Kosovo Indictment 10 2 In respect of the argument concerning the internationality of the conflict and the date on which Croatia became a state as of 8 October 1991 the conflict in Croatia can be said to be international in character in so far as Croatia can be said to have satisfied the criteria of statehood under general international law by this date 11 3 In respect of the argument concerning the lack of evidence that the Accused planned instigated ordered committed or otherwise aided and abetted or was complicit in the planning preparation or execution of a genocide there is evidence if accepted such that a trier of fact could convict The Prosecution submits that the mens rea requirement for establishing the crime of genocide is compatible with the mens rea requirement for the third category of a joint criminal enterprise and with command responsibility and relies on a recent Appeals Chamber Decision in support of this submission 12 and 4 In respect of some of the challenged allegations in the three Indictments it is conceded that there is no or insufficient evidence led to meet the legal standard required under Rule 98 bis and the Prosecution does not object to a judgment of acquittal being entered in respect of these allegations However many of the challenges to the Indictments are not conceded by the Prosecution 13 7 The Trial Chamber will now consider the Motion by the Amici Curiae and the Prosecution Response III APPLICATION OF RULE 98 BIS – THE LAW 8 Rule 98bis provides as follows Motion for Judgement of Acquittal A An accused may file a motion for the entry of judgement of acquittal on one or more offences charged in the indictment within seven days after the close of the Prosecutor’s case and in any event prior to the presentation of evidence by the defence pursuant to Rule 85 A ii B The Trial Chamber shall order the entry of judgement of acquittal on motion of an accused or proprio motu if it finds that the evidence is insufficient to sustain a conviction on that or those charges 9 The degree of proof necessary in a Rule 98bis Motion was settled by the Appeals Chamber in Prosecutor v Jelisic 14 where it confirmed its holding in Prosecutor v Delalic15 that the test for 20 03 2009 11 54 AM 6 of 102 file cs WWork Ictysite milosevic trialc judgement 040616 htm determining whether “the evidence is insufficient to sustain a conviction” is “whether there is evidence if accepted upon which a tribunal of fact could be satisfied beyond reasonable doubt of the guilt of the accused on the particular charge in question thus the test is not whether the trier of fact would in fact arrive at a conviction beyond reasonable doubt on the Prosecution evidence if accepted but whether it could” 16 or to put it as the Appeals Chamber later did in the same case a Trial Chamber should only uphold a Rule 98bis Motion if it is “entitled to conclude that no reasonable trier of fact could find the evidence sufficient to sustain a conviction beyond reasonable doubt ” 17 10 The test had of course been correctly stated prior to that decision by several Trial Chambers including this one whose approach to the question in Prosecutor v Kordic18 was cited with approval by the Appeals Chamber In the passage cited in Prosecutor v Jelisic the Chamber referred to the common law origin of Rule 98bis but also pointed out that that origin did not necessarily mean that this Rule was to be applied in the same way as proceedings for “no case to answer” in common law jurisdictions T he regime to be applied for Rule 98 bis proceedings is to be determined on the basis of the Statute and the Rules having in mind in particular its construction in the light of the context in which the Statute operates and the purpose it is intended to serve That determination may be influenced by features of the regime in domestic jurisdictions with similar proceedings but will not be controlled by it and therefore a proper construction of the Rule may show a modification of some of those features in the transition from its domestic berth 19 11 The main rationale for the “no case to answer” procedure is that an accused charged with a crime should not be called upon to answer that charge if at the end of the prosecution case there is insufficient evidence on which a jury acting reasonably could convict him Crucial to an understanding of the “no case to answer ” procedure in common law jurisdictions is the differing roles of the judge and jury in criminal trials the judge being the tribunal of law and the jury the tribunal of fact R v Galbraith20 illustrates the purpose and function of the procedure in the United Kingdom and for that matter in most common law jurisdictions 21 In discussing the two schools of thought as to the proper approach to be adopted by the judge at the close of the Crown’s case on a submission of “no case” Lord Lane C J said that “a balance has to be struck between on the one hand a usurpation by the judge of the jury’s functions and on the other the danger of an unjust conviction ” 22 Thus an essential function of the procedure is to ensure that at the end of the Prosecution’s case the jury is not left with evidence which cannot lawfully support a conviction otherwise it may bring in an unjust conviction 12 If there is a need in common law jurisdictions to ensure that the jury only considers evidence capable of sustaining a conviction it is also necessary to ensure that the judge in deciding a submission of “no case to answer” does not usurp the functions of the jury to determine issues such as the credibility and reliability of evidence The balance between the functions of the judge and the jury is reflected in the following passage from R v Galbraith 23 1 If there is no evidence that the crime alleged has been committed by the defendant there is no difficulty The judge will of course stop the case 2 The difficulty arises where there is some evidence but it is of a tenuous character for example because of inherent weakness or vagueness or because it is inconsistent with other evidence a Where the judge concludes that the prosecution evidence taken at its highest is such that a jury properly directed could not properly convict on it it is his duty on a submission being made to stop the case b Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness’s reliability or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence on which the jury could properly come to the conclusion that the defendant is guilty then the judge should allow the matter to be tried by the jury 13 The test whether there is evidence if accepted on which a Trial Chamber could convict will be applied on the following bases 20 03 2009 11 54 AM 7 of 102 file cs WWork Ictysite milosevic trialc judgement 040616 htm 1 Where there is no evidence to sustain a charge the Motion is to be allowed Although Rule 98 bis speaks of the sufficiency of evidence to sustain a conviction on a charge the Trial Chamber has in accordance with the practice of the Tribunal considered the sufficiency of the evidence as it pertains to elements of a charge whether set out in separate paragraphs or schedule items 2 Where there is some evidence but it is such that taken at its highest a Trial Chamber could not convict on it the Motion is to be allowed This will be the case even if the weakness in the evidence derives from the weight to be attached to it for example the credibility of a witness This is in accordance with the exception to the general principle in common law jurisdictions that issues of credibility and reliability must be left to the jury as the tribunal of fact 24 3 Where there is some evidence but it is such that its strength or weakness depends on the view taken of a witness’s credibility and reliability and on one possible view of the facts a Trial Chamber could convict on it the Motion will not be allowed This accords with the general principle in common law jurisdictions that a judge must not allow a submission of no case to answer because he considers the prosecution’s evidence to be unreliable 25 since by doing that he would usurp the function of the jury as the tribunal of fact 4 The determination whether there is evidence on which a tribunal could convict should be made on the basis of the evidence as a whole 26 5 Whether evidence could lawfully support a conviction must obviously depend on the applicable law of the Tribunal and the facts of each case The common law cannot be relied on to rule evidence as incapable of supporting a conviction if on the basis of Tribunal jurisprudence the evidence is to be considered as having that capacity Thus hearsay evidence generally inadmissible in common law jurisdictions is pursuant to Rule 89 C admissible the principal factor determining admissibility being the reliability of the evidence 27 Once admitted it is for a Trial Chamber to determine the weight to be attached to hearsay evidence 28 6 In view of the peculiarly common law origin of Rule 98bis and the well known difficulties to which its application has given rise in the work of the Tribunal the Trial Chamber considers it important to stress the point made both in Prosecutor v Kordic29 and Prosecutor v Jelisic 30 that a ruling that there is sufficient evidence to sustain a conviction on a particular charge does not necessarily mean that the Trial Chamber will at the end of the case return a conviction on that charge that is so because the standard for determining sufficiency is not evidence on which a tribunal should convict but evidence on which it could convict Thus if following a ruling that there is sufficient evidence to sustain a conviction on a particular charge the Accused calls no evidence it is perfectly possible for the Trial Chamber to acquit the Accused of that charge if at the end of the case it is not satisfied of his guilt beyond reasonable doubt 7 When in reviewing the evidence the Trial Chamber makes a finding that there is sufficient evidence that is to be taken to mean that there is evidence on which a Trial Chamber could be satisfied beyond reasonable doubt of the guilt of the accused IV CHALLENGES TO THE THREE INDICTMENTS A KOSOVO INDICTMENT 1 The Existence of an Armed Conflict in Kosovo prior to 24 March 1999 14 The Amici Curiae submit that in order for the Trial Chamber to have jurisdiction over crimes pursuant to Articles 3 and 5 of the Statute the crimes must have been committed in an armed conflict 31 They then go on to submit there was no evidence of an armed conflict in Kosovo in the FRY prior to 24 March 1999 that date being the commencement of the NATO bombing campaign 32 This submission is made against the background of the Kosovo Indictment which charges that at all relevant times “a state of armed conflict existed in Kosovo in the FRY” 33 a Law 20 03 2009 11 54 AM 8 of 102 file cs WWork Ictysite milosevic trialc judgement 040616 htm 15 It is settled in the International Tribunal’s jurisprudence that Article 3 violations of the laws or customs of war and Article 5 crimes against humanity of the Statute apply to acts committed in both internal and international armed conflicts 34 It is also settled that Article 3 is a general residual clause covering all serious violations of international humanitarian law not falling under Articles 2 4 or 5 of the Statute as well as violations of Common Article 3 of the Geneva Conventions which specifically applies to cases of armed conflict not of an international character 35 Both the Prosecution and the Amici Curiae agree as to the requirement of an armed conflict for Articles 3 and 5 of the Statute 36 16 The test for determining the existence of an armed conflict was set out in the Tadic Jurisdiction Appeals Decision “Tadic test” as follows A n 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 37 17 For the purposes of this Motion the relevant portion of the Tadic test which has been consistently applied within the Tribunal 38 is “protracted armed violence between governmental authorities and organized armed groups” This calls for an examination of 1 the organisation of the parties to the conflict and 2 the intensity of the conflict 39 18 The Trial Chamber makes the following observations on the Tadic test 19 First the Tadic test is not inconsistent with the ICRC’s Official Commentary to Common Article 3 of the Geneva Conventions of 12 August 1949 “ICRC Commentary ” 40 upon which the Amici Curiae appear to place reliance 41 In this regard the Trial Chamber observes that the ICRC Commentary is nothing more than what it purports to be i e a commentary and only has persuasive value The ICRC Commentary sets out a more extensive list of criteria than the Tadic test which may be considered when determining whether an armed conflict exists but the ICRC itself states that “these different conditions although in no way obligatory constitute convenient criteria” 42 as such the ICRC criteria are neither definitive nor exhaustive and Common Article 3 “should be applied as widely as possible” 43 20 Second and of greater significance the Tadic test is consistent with the ICC’s treatment of war crimes committed during armed conflict not of an international character Article 8 of the ICC Statute defines “war crimes” committed during armed conflict not of an international character as “violations of article 3 common to the Four Geneva Conventions of 12 August 1949” 44 but states that this definition “does not apply to situations of internal disturbances and tensions such as riots isolated and sporadic acts of violence or other acts of a similar nature” 45 “War crimes ” under Article 8 also include “ o ther serious violations of the laws and customs applicable in armed conflicts not of an international character” 46 but this definition “does not apply to situations of internal disturbances and tensions such as riots isolated and sporadic acts of violence or other acts of a similar nature It applies to armed conflicts that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups” 47 It thus can be seen that Article 8 is not only consistent with the Tadic test but also incorporates part of the Tadic Jurisdiction Appeals Decision into its own definition of “war crimes” 48 21 Third the Tadic test is consistent with Additional Protocol II to the Four Geneva Conventions 49 22 The Trial Chamber will now carry out an examination of both elements of the Tadic test with a view to ascertaining whether they have sufficient evidential support 20 03 2009 11 54 AM 9 of 102 file cs WWork Ictysite milosevic trialc judgement 040616 htm b Evidence of an armed conflict i Organisation of the KLA 23 The Amici Curiae submit that “ t he KLA did not constitute a sufficiently organised armed group under responsible command or an organised military force ‘ responsible for its acts acting within a determinate territory and having the means of respecting and ensuring respect for the Convention’” 50 However the Trial Chamber has considered the question of the degree of organisation of the KLA and found that there is in fact a sufficient body of evidence pointing to the KLA being an organised military force with an official joint command structure headquarters designated zones of operation and the ability to procure transport and distribute arms 24 Lord Ashdown visited the region in June 1998 51 The Yugoslav Government had refused Lord Ashdown a visa to enter Kosovo so he observed the operations of the KLA from the Albanian side of the border 52 He noted the extent of the KLA’s operations and witnessed an extensive passage of arms across the border and it appeared to him that “the KLA were well organised ” 53 Lord Ashdown called the village of Tropojë in Albania an “arms supermarket” weapons were brought up by probably criminal organisations and the KLA would send runners with orders of weapons 54 He thus concluded that the KLA was visible and organised had support and was exporting and collecting arms 55 Mr Buja became aware of the existence of the KLA in 1996 and began supporting it 56 In 1998 Mr Buja was given instructions by the KLA headquarters and he confirmed that during this time the KLA had an official structure 57 From June 1998 he became the commander of a subzone58 and in 1999 was the KLA Commander in Racak 59 Dr Rugova testified that the KLA began as individual groups but then unified and had a joint command by the end of 1998 and early 1999 60 Mr Merovci testified that in the course of 1998 and in the beginning of 1999 the KLA was an organised and commanded army 61 K6 testified that in 1996 the KLA was concentrated in Drenica in Kosovo and that he was aware of plans from 1991 to 1998 to eliminate the KLA especially in Drenica 62 25 On the basis of this evidence the Trial Chamber is satisfied that the conflict in Kosovo meets the first element of the Tadic test ii Intensity of the Conflict 26 The main purpose of the Tadic test is to distinguish an armed conflict from banditry unorganized and short-lived insurrections or terrorist activities all of which are not subject to international law 63 27 There is in fact a large body of evidence in support of the intensity of the conflict between the KLA and Serb forces prior to 24 March 1999 Much of the evidence cited by the Amici Curiae in the Trial Chamber’s view actually substantiates the case for the Prosecution that there was an armed conflict during the relevant times The Trial Chamber has considered the question of intensity of the conflict and found supporting evidence which will now be set out a Length or protracted nature of the conflict and seriousness and increase in armed clashes 28 K6 gave evidence that during 1996 and 1997 the KLA conducted many operations against the police including killing people who had been employees of the police and those who had cooperated with the police amounting to about 20 persons in 1997 64 Mr Aliu gave evidence about the killings and also commented that the “entire Albanian population mobilized” from the moment that the Jashari family was massacred 65 Mr Abrahams gave evidence that by February March 20 03 2009 11 54 AM 10 of 102 file cs WWork Ictysite milosevic trialc judgement 040616 htm 1998 50 ethnic Albanians all of whom were members of the Jashari family lost their lives in the village of Prekaz 66 Mr Abrahams testified that these killings “radicalized the Albanian population Up until that point the KLA was still a disorganized and somewhat mysterious organization” 67 K6 testified that after Drenica was attacked concrete plans for the elimination of the KLA were drawn up and sent to Jovica Stanisic in Serbia 68 Mr Buja testified that on 23 August 1998 there was a large scale offensive by Serbian forces against the villages of Racak Petrova and Mullopolc 69 Mr Elshani gave evidence of clashes in several areas around the town of Nagafc in Rahovec from 1998 to March 1999 70 General Maisonneuve and Colonel Ciaglinski testified about armed clashes that took place in early January 1999 before the Racak incident 71 General Maisonneuve detailed an incident near Racak in which three policemen were killed on 8 January 1999 by the KLA during an ambush on the timlje pass 72 Colonel Ciaglinski gave evidence of an incident concerning villages near Jablanica and Decani around 10 January 1999 where Serb forces launched a massive attack using heavy artillery against the villages from the Decani area towards Jablanica – they continued to shell the villages for two days 73 b Spread of clashes over the territory 29 K6 testified that the KLA conducted operations in Junik Decani Malisevo Orahovac Istok Obilic and alska Bajgora throughout 1998 74 Mr Abrahams also gave evidence that in May 1998 the KLA was definitely active in the Decani region and was bringing arms and supplies from Northern Albania and that in his estimation the Serbian and Yugoslav governments attempted to create a “cordon sanitaire in other words clearing the border” 75 Mr Kadriu testified that in June July 1998 there was a “very severe” conflict in the area of Drenica between the KLA and Serb forces and that the conflict was expanding 76 General Drewienkiewicz a member of the OSCE Department of Security in Sarajevo gave evidence that there had been much violence in the summer of 1998 in Decani and Malisevo in the west of Kosovo and then in Podujevo to the north of Pristina and that positions previously occupied by the VJ in the summer of 1998 and then vacated as a result of the October 1998 agreement were gradually occupied by the KLA 77 c Increase in number of governmental forces sent to Kosovo 30 Evidence was led that on 24 September 1998 a major Serbian offensive began to destroy the KLA in the triangle of municipalities timlje Suva Reka and Uro sevac and during several days Serbian soldiers policemen and paramilitaries poured into many villages in which the KLA was not active the offensive lasted until 4 October 1998 involving massive Serbian forces and special military and paramilitary groups 78 d Weapons used by both parties 31 Mr Buja gave evidence regarding the type of weaponry with which the KLA were equipped this included rifles guns and mortars 79 Mr Abrahams testified that by March 1997 700 000 arms were distributed or looted in Albania giving the KLA a new source of weapons contributing to its “rapid explosion” 80 32 On the basis of this evidence the Trial Chamber is satisfied that the conflict in Kosovo meets the second element of the Tadic test iii Other Submissions of the Amici Curiae 33 The Trial Chamber now addresses briefly the other submissions of the Amici Curiae a Organised under civil authority 20 03 2009 11 54 AM 11 of 102 file cs WWork Ictysite milosevic trialc judgement 040616 htm 34 It is asserted that the KLA did not act under the direction of an organised civil authority that was prepared to observe the ordinary laws of war 81 Although the Trial Chamber does not accept that the organisation of a group under civilian authority is a requirement for the existence of an armed conflict it considers that there is in fact sufficient evidence for a finding that the KLA acted under the direction of an organised civil authority 35 When Lord Ashdown was in Kosovo between 26-29 September 1998 he met with Dr Rugova who told him he Rugova was in control of the KLA and that the KLA would obey a cease-fire order from him – although Lord Ashdown did not entirely believe this because he considered Dr Rugova to have had control over the KLA through the LDK structure in villages but not the larger guerrilla movement 82 Lord Ashdown testified that he had spoken with several village representatives who accepted Dr Rugova as their leader 83 Lord Ashdown explained his understanding of the “three KLAs” 84 Colonel Ciaglinski gave evidence that around 15 March 1999 the KLA recognised its own police unit for the first time 85 According to Dr Rugova the KLA had a political representative who spoke for them a Mr Demaci 86 Mr Barani stated that in 1998 Mr Demaci was the political representative of the KLA and someone with whom he held talks to secure the release of two Serbs 87 Mr Bakalli a member of the delegation of Kosovo Albanian leaders who met with the Accused in April and May 1998 testified that while he did not have direct contact with KLA troops or commanders he was asked by Mr Demaci whom he described as the political representative of the KLA in Pristina to be his advisor and to give him his political ideas and views he also stated that the political representative of the KLA used to keep daily contacts with foreign diplomats 88 b Control over territory 36 It is also asserted that the KLA did not exercise and maintain control over a part of the territory of Kosovo so as to enable it to carry out sustained and concerted military operations rather the KLA’s attacks were sporadic 89 Here again while the Trial Chamber does not accept that such control of territory is a requirement for the existence of an armed conflict there is in fact evidence showing that the KLA was at times in 1998 and 1999 in sufficient control of certain territory in Kosovo to conduct sustained and concerted military actions 37 Mr Crosland testified that the KLA controlled 50 percent of the territory in Kosovo including three of the major roads across Kosovo early in the summer of 1998 90 Mr Crosland also referred to a small village called Crnoljevo just beyond Racak where the KLA had a quasi- control over a mountainous road that went up towards Dulje 91 Mr Merovci testified that in 1998 and the beginning of 1999 the KLA had various regions under its control 92 Mr Gerguri testified that in February 1999 the Serb army shelled Gornje Studime in the Vucitrn Municipality in Kosovo 93 because it was under KLA control 94 Mr Kabashi was a member of the KLA from 1997 until 25 March 199995 and testified that the entire town of Drenica was under the control of the KLA for a short while 96 The date that Drenica was under control of the KLA is not clear however it occurred prior to 24 March 1999 because between 1997 and 1999 Mr Kabashi found accommodation for people displaced from combat areas and the witness was only a member of the KLA until 25 March 1999 97 c Evidentiary weight of human rights reports 38 The Amici Curiae also assert that limited evidentiary weight should be given to human rights reports 98 In most cases human rights reports constitute hearsay evidence which is admissible under Rule 89 C provided it is relevant and reliable 99 Whether such evidence will be evidence on which the Trial Chamber could convict depends on a number of factors including the way in 20 03 2009 11 54 AM 12 of 102 file cs WWork Ictysite milosevic trialc judgement 040616 htm which the evidence was collected and presented the nature of the evidence for example how general or specific it is and whether it is the only evidence relating to a specific charge These reports must therefore be considered on a case by case basis 39 The Trial Chamber has not found it necessary to refer to human rights reports in this connection c Conclusion 40 The Trial Chamber therefore concludes that there is sufficient evidence of an armed conflict in Kosovo at the relevant times for the purposes of Rule 98bis 2 Deportation or Forcible Transfer 41 Article 2 g of the Statute makes unlawful deportation or transfer of a civilian a grave breach 100 Article 5 d of the Statute makes deportation a crime against humanity 101 Article 5 i which makes “other inhumane acts” a crime against humanity has been interpreted as including forcible transfer 102 42 Count 1 of the Kosovo Indictment charges the Accused with the offence of deportation as a crime against humanity while Count 2 charges him with forcible transfer under other inhumane acts Under the Croatia Indictment Count 14 charges the Accused with deportation as a crime against humanity Count 15 charges him with forcible transfer as an inhumane act a crime against humanity and Count 16 charges the Accused with unlawful deportation or transfer as a grave breach of the Geneva Conventions Count 16 of the Bosnia Indictment charges the Accused with deportation a crime against humanity Count 17 of that Indictment charges the Accused with the offence of forcible transfer as an inhumane act a crime against humanity and Count 18 charges him with unlawful detention or forcible transfer a grave breach of the Geneva Conventions 43 The Amici Curiae challenge the sufficiency of evidence in relation to specific allegations set out in the Kosovo and Bosnia Indictments The Trial Chamber deals with each of these allegations below in sections IV A 4 and IV C 2 of the Decision respectively The Amici Curiae do not challenge specific allegations in the Croatia Indictment but argue that the counts relating to deportation are only capable of being made out from the date on which Croatia became a state and had defined state borders across which civilians could be said to have been forcibly moved The Trial Chamber deals with this issue below in section IV B 1 of the Decision 44 The Amici Curiae and Prosecution differ in respect of some of the elements which constitute the offences of deportation and forcible transfer These arguments are set out in the relevant parts of this section below The Amici Curiae submit that there is sufficient evidence of forcible transfer but not deportation in respect of some allegations in the Indictments The Trial Chamber will now examine the law relating to the crimes of deportation and forcible transfer and then deal with the specific allegations of the Amici Curiae as to the insufficiency of the evidence a Law 45 Deportation has been described as “the forced displacement of persons by expulsion or other coercive acts from the area in which they are lawfully present across a national border without lawful grounds” 103 Forcible transfer has been described as a forced removal or displacement of people from one area to another which may take place within the same national borders 104 46 The Chamber will analyse those elements of the two crimes which are relevant to the Motion They are 1 cross border transfer 2 the involuntary nature of the movement and 20 03 2009 11 54 AM 13 of 102 file cs WWork Ictysite milosevic trialc judgement 040616 htm 3 the intent of the perpetrator i Cross border transfer 47 The Amici Curiae submit that deportation presumes transfer beyond state borders whereas forcible transfer relates to displacement within a state 105 The Prosecution submits that deportation does not require cross border transfer arguing that deportation is an umbrella term covering displacement both across borders and within a state 106 48 An examination of the history of the law on deportation and forcible transfer facilitates an understanding of its development and its current status a Nuremberg Military Tribunal 49 During World War II Germany carried out numerous acts of deportation of civilians under occupation 107 A vast number of Germans were expelled from their territory and homes 108 In the aftermath of the war deportation was included in the Charter of the International Military Tribunal as a crime against humanity giving the IMT jurisdiction over acts committed against persons of the same nationality as the principal offenders 109 Article 6 c of the Charter of the IMT established “deportation and other inhumane acts committed against any civilian population before or during the war” as crimes against humanity Similarly deportation of the civilian population was included as a crime against humanity in Control Council Law No 10 and Principle VI of the Nuremberg Principles 110 50 One accused Von Schirach was convicted of deportation as a crime against humanity for his part in the removal of tens of thousands of Jews from Vienna into the “Ghetto of the East” ghettos in Poland 111 51 In United States of America v Milch 112 a Control Council Law No 10 case it was held Displacement of groups of persons from one country to another is the proper concern of international law in as far as it affects the community of nations International law has enunciated certain conditions under which the fact of deportation of civilians from one nation to another during times of war becomes a crime D eportation of the population is criminal whenever there is no title in the deporting authority or whenever the purpose of the displacement is characterised by inhumane or illegal methods 113 52 The IMT therefore dealt with deportation as a crime involving cross border transfer It had no express jurisdiction to deal with forcible transfer although conceivably that crime could have been covered in the reference to “other inhumane acts” in Article 6 c of the Charter The Trial Chamber has found no reference to forcible transfer in the Nuremberg Judgement b Geneva Conventions 53 Following World War II the Geneva Conventions begin to make explicit and distinct references to deportation and forcible transfer 114 Article 49 of the Geneva Convention IV provides 115 Individual or mass forcible transfers as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country occupied or not are prohibited regardless of their motive 54 Then in 1977 Article 17 of Additional Protocol II to the Geneva Conventions 116 concerning violations of international humanitarian law in internal armed conflicts deals with the prohibition of the forced movement of civilians as follows 1 The displacement of the civilian population shall not be ordered for reasons related to the conflict unless the security of the civilians involved or imperative military reasons so demand 20 03 2009 11 54 AM 14 of 102 file cs WWork Ictysite milosevic trialc judgement 040616 htm 2 Civilians shall not be compelled to leave their own territory for reasons connected with the conflict 55 Article 17 builds on the provisions of Article 49 of Geneva Convention IV The first paragraph covers displacements of the civilian population within the territory of a State where a conflict is taking place 117 The second paragraph refers to the displacement of a population individuals and groups across state or territory borders It was intended that the article would cover situations where groups of civilians were subject to expulsion across the boundaries by armed forces or groups The term “territory” refers to the whole of the territory of a country 118 56 Thus although Additional Protocol II does not deal with the crimes of deportation and forcible transfer in express terms Article 17 paragraph 1 may be construed as referring to forcible transfer within the territory of a state i e internal displacement and paragraph 2 may be interpreted as referring to deportation outside the territory of a state i e external displacement c International Law Commission 57 In its 1996 Draft Code of Crimes Against the Peace and Security of Mankind the ILC dealt with crimes against humanity under Article 18 paragraph g which refers to “arbitrary deportation or forcible transfer of population” as a crime against humanity The Commentary to the Code would seem to distinguish between deportation and forcible transfer Whereas deportation implies expulsion from the national territory the forcible transfer of population could occur wholly within the frontiers of one and the same State 119 d Tribunal Jurisprudence 58 The jurisprudence of the Tribunal is not uniformly consistent in relation to the element of cross border movement although as will be seen the preponderance of case law favours the distinction based on destination 59 In Prosecutor v Krnojelac the Trial Chamber held that deportation requires the displacement of persons across a national border to be distinguished from forcible transfer which takes place within national boundaries 120 60 In Prosecutor v Krstic the Trial Chamber held that “both deportation and forcible transfer relate to the involuntary and unlawful evacuation of individuals from the territory in which they reside Yet the two are not synonymous in customary international law Deportation presumes transfer beyond State borders whereas forcible transfer relates to displacements within a State” 121 61 In relation to the requirement that a national border must be crossed for deportation to be established it was held in Prosecutor v Stakic122 that Article 5 d of the Statute must be read to encompass forced population displacements both across internationally recognised borders and de facto boundaries such as constantly changing frontlines which are not internationally recognised 123 Thus the definition of deportation of persons must include expulsion “from an area in which they are lawfully present to an area under the control of another party ” 124 The Trial Chamber relying on the ICC Statute and the Elements of Crimes 125 emphasised that the first element of forcible transfer and deportation as crimes against humanity is that the victims were deported or forcibly transferred to another state or location 126 The Trial Chamber held I t is clear that the Statute of the International Criminal Court does not require proof of crossing an international border but only that the civilian population was displaced This Trial Chamber is aware of the limited value of such a comparison when applied to acts that occurred prior to the establishment of the International Criminal Court However customary international law has long penalised forced population displacements and the fact that the Statute of the International Criminal Court has accepted the two terms ‘deportation’ and ‘forcible transfer’ in one and the same category only strengthens the view that what has 20 03 2009 11 54 AM 15 of 102 file cs WWork Ictysite milosevic trialc judgement 040616 htm in the jurisprudence been considered two separate crimes is in reality one and the same crime 127 62 In Prosecutor v Simic the Trial Chamber held that to establish deportation under Article 5 of the Statute the crossing of a national border must be proved 128 The Trial Chamber noted that the European Union recognised Bosnia and Herzegovina as an independent state on 6 April 1992 and therefore the transfer of population across Bosnia and Herzegovina’s borders after this date satisfied the requirement of crossing a national border 129 The Trial Chamber also referred with approval to the definitions in the Krnojelac and Blaskic cases 130 63 The Trial Chamber held that the legal values protected by deportation and forcible transfer are the “right of the victim to stay in his or her home and community and the right not to be deprived of his or her property by being forcibly displaced to another location” 131 and that the elements of deportation and forcible transfer are substantially the same except for the requirement that a national border must be crossed to establish deportation 132 64 In the Tribunal jurisprudence therefore Prosecutor v Stakic is the only case in which transfer across national borders is not treated as a requirement of the crime of deportation e Statute of the ICC 65 In the ICC Statute the terms deportation and forcible transfer appear to be given the same meaning Article 7 2 d provides Deportation or forcible transfer of population means forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present without grounds permitted under international law 66 One commentator after noting that the crime against humanity of deportation in the ICC Statute is said to apply regardless of the purpose of the deportation takes the view that in light of the common distinction between deportation as involving cross-border transfer and forcible transfer as relating to movement within a country it is likely that the common distinction between the two crimes was intended 133 Two other commentators who were involved in the preparatory work of the ICC Statute and Elements of Crimes assert that a clear distinction between the two crimes was intended The fourth and fifth inhumane acts “deportation” and “imprisonment” were clarified so as to exclude actions permissible under international law “Forcible transfer of population” was added as an alternative to “deportation” so as to encompass large-scale movements within a country’s borders 134 67 In the Trial Chamber’s view if this were the intention of the drafters of the ICC Statute it would be in line with customary international law However the Trial Chamber recognises that the correctness of this interpretation must be a matter of dispute since it contradicts what appears to be the plain meaning of Article 7 2 d f Conclusions 68 Having examined the foregoing strands of jurisprudence the Trial Chamber concludes that the distinction between deportation and forcible transfer is recognised in customary international law Deportation relates to involuntary transfer across national borders while forcible transfer relates to involuntary transfers within a state Article 7 2 d of the ICC Statute if it conflates the two crimes does not reflect customary international law 69 The Trial Chamber is persuaded by the reasoning in Prosecutor v Simic which is based on the premise that the values protected by both crimes are substantially the same namely the “right of the victim to stay in his or her home and community and the right not to be deprived of his or her property by being forcibly displaced to another location” 135 The Appeals Chamber in Prosecutor 20 03 2009 11 54 AM 16 of 102 file cs WWork Ictysite milosevic trialc judgement 040616 htm v Krnojelac expresses this same principle The prohibition against forcible displacements aims at safeguarding the right and aspiration of individuals to live in their communities and homes without outside interference The forced character of displacement and the forced uprooting of the inhabitants of a territory entail the criminal responsibility of the perpetrator not the destination to which these inhabitants are sent 136 In terms of these values there is no detriment to a victim if the crime of deportation is confined to transfer across borders because if it is established that he has not been so transferred then he is protected by the prohibition against forcible transfer which applies to involuntary movements within national borders In other words the values so properly identified by the Trial Chamber in Prosecutor v Simic of a right to remain in one’s home and community are protected irrespective of whether deportation only takes place if there is transfer across borders ii Involuntary Nature of the Movement 70 Another critical element of both crimes is the involuntary character of the displacement The question arises as to what vitiates the voluntary nature of the movement 71 The Amici Curiae submit that movements across borders based on an individual’s free will to leave are lawful 137 The Prosecution submits that the essential element is that the movement is involuntary in nature and the relevant persons had no real choice 138 72 In Prosecutor v Krnojelac the Appeals Chamber held that it is the absence of genuine choice that makes displacement unlawful Similarly it is impossible to infer genuine choice from the fact that consent was expressed where the circumstances deprive the consent of any value 139 73 The Trial Chamber in Prosecutor v Krstic relied on the definition of the term “forcibly” in the Elements of Crimes of the ICC In Prosecutor v Simic the Trial Chamber referred to this definition It was noted that the essential element is that the displacement be involuntary in nature that “the relevant persons had no real choice” 140 as noted by the Trial Chamber in Prosecutor v Krnojelac an apparent consent induced by force or threat of force should not be considered to be real consent 74 Whether a person would have wished to leave the area absent circumstances of discrimination or persecution may also be considered as indicative of a person’s will A lack of genuine choice may be inferred from inter alia threatening and intimidating acts that are calculated to deprive the civilian population of exercising its free will such as the shelling of civilian objects the burning of civilian property and the commission of – or the threat to commit –other crimes “calculated to terrify the population and make them flee the area with no hope of return” 141 75 In Prosecutor v Naletilic Martinovic the Trial Chamber noted that the jurisprudence of the Tribunal supports the proposition that the term “forcible ” should not be restricted to physical coercion 142 In Prosecutor v Kunarac the Appeals Chamber held that the coercive circumstances made “true consent not possible” 143 76 The determination as to whether a transferred person had a “real choice” has to be made in the context of all the relevant circumstances and on a case by case basis 144 iii Intent of the Perpetrator 77 The Amici Curiae submit that the forces of FRY and Serbia must be proved to have deportation as their objective and the victim to have acted as a consequence of their acts or conduct 145 The Prosecution however submits that no specific intent of the perpetrator is required for deportation 20 03 2009 11 54 AM 17 of 102 file cs WWork Ictysite milosevic trialc judgement 040616 htm to be a crime against humanity 146 all that is required is that the perpetrator either directly intended that the victims would leave or acted in the awareness of the substantial likelihood that this would occur as a consequence of their action 147 The Prosecution also submits that the forces of FRY and Serbia in fact intended that the victims leave Kosovo and thus a determination of the destination intended by the perpetrator is unnecessary 148 78 The Trial Chamber is of the opinion that in relation to forcible transfer or deportation there must be evidence of an intent to transfer the victim from his home or community it must be established that the perpetrator either directly intended that the victim would leave or that it was reasonably foreseeable that this would occur as a consequence of his action If as a matter of fact the result of the removal of the victim is the crossing of a national border then the crime of deportation is committed if there is no such crossing the crime is forcible transfer 79 The crimes of deportation and forcible transfer have the same elements except in relation to destination b Application of the law 80 The Trial Chamber sets out in the relevant sections below its findings as to the sufficiency of evidence in respect of the specific allegations of deportation and forcible transfer raised by the Amici Curiae In respect of the Kosovo Indictment the findings are set out in the following section IV A 4 In respect of the Bosnia Indictment the findings are set out in section IV C 2 In respect of the Croatia Indictment the findings are set out at section IV B 2 3 Methodology for dealing with submissions of no or insufficient evidence 81 The Amici Curiae have made submissions that 185 separate allegations in the three Indictments are either unsupported by any evidence at all or are insufficiently supported by evidence such that a Trial Chamber could find the allegations established beyond reasonable doubt The Trial Chamber in addition to examining the evidence cited by the Amici Curiae and Prosecution in support of their submissions has carried out its own independent examination of all the evidence led in the case The decisions set out in the table below concern the submissions relevant to the Kosovo Indictment The same methodology will be applied to submissions concerning the Croatia and Bosnia Indictments 82 The table sets out the specific reference to the Kosovo Indictment The Trial Chamber then summarises the submissions of the parties which it has examined in detail The specific findings of the Trial Chamber are then set out succinctly The final column of the table shows the evidence supporting its conclusions This evidence may not be exhaustive of the evidence relating to the charges 4 Specific Challenges to the Kosovo Indictment Indictment Reference Count 1 para 63 a i DEPORTATION Nogavac Amici Curiae Submissions The Amici Curiae submit that there is no evidence of deportation from Nogavac Motion at pp 21-25 paras 39-51 Prosecution Submissions The Prosecution submits that there is sufficient evidence and cites Mr Elsani Mr Hoti Mr Popaj and Mr Krasniqi Response at paras 87-95 Trial Evidence Chamber’s Examined Decision The Trial Chamber finds that there is sufficient evidence to support this allegation Mr Hoti Ex 105 partially under seal statement dated 19 May 1999 T 20 03 2009 11 54 AM 18 of 102 file cs WWork Ictysite milosevic trialc judgement 040616 htm The Motion 3590-3593 is not Mr Popaj allowed Ex 225 partially under seal statement dated 14 June 1999 T 6669 Mr Elshani T 787-822 Mr Avdyli a k a Mr Krasniqi Ex 227 partially under seal statement dated 4 April 1999 and statement dated 5 October 2001 T 6731 Count 1 para 63 i The Amici Curiae submit that there is DEPORTATION no direct evidence of deportation or Gnjilane Gjilan forcible transfer in Prilepnica Përlepnicë relation to town Prilepnica Përlepnicë and no evidence concerning the mosque at Vlastica or of destruction throughout the municipality Motion at pp 25-28 paras 52-60 The Prosecution concedes that no direct evidence of deportation or forcible transfer was led in relation to Prilepnica Përlepnicë but submits that Ex 106 contains sufficient material to support the allegations made about this village Response at paras 96-103 The Trial Chamber finds that there is sufficient evidence to support this allegation The Motion is not allowed Exhibit 106 OSCE Report As Seen As Told at pp 200-205 Count 1 para 63 j The Prosecution submits that there is sufficient evidence except with respect to Papaz where the Prosecution concedes no witness explicitly testified about the The Trial Chamber finds that there is sufficient evidence to support this allegation Mr Bucaliu T 2040 T 2106 DEPORTATION Urosevac Ferizaj The Amici Curiae submit that there is no evidence of shelling and or attacking the villages of Biba Bibe Muhadzer Prelez Prelez I Mr Shabani T 1512-1602 Professor Riedlmayer Ex 88 K5 T 5521-5565 20 03 2009 11 54 AM 19 of 102 file cs WWork Ictysite milosevic trialc judgement 040616 htm Muhaxhereve Raka Rakaj Papaz and Varos Selo Varosh Motion at pp 28-29 paras 61-63 village although The Motion villages nearby are is not mentioned The allowed Prosecution also relies upon Ex 106 to support these allegations Response at paras 104-109 Mr Florim Krasniqi Ex 138 partially under seal statement dated 23 April 1999 T 4476-4477 Mr Nebihu T 4507 Ex 139 partially under seal statement dated 2 May 1999 and addendum dated 20 November 2001 Exhibit 106 OSCE Report As Seen As Told at pp 200-205 Ex 83 Kosovo Atlas at p 12 Count 1 para 63 k DEPORTATION Kacanik The Amici Curiae submit that there is insufficient evidence provided by the witnesses heard as to the involuntariness of movement across a state border Motion at pp 29-30 paras 64-67 The Prosecution submits that there is sufficient evidence and cites Mr Hazbi Loku Mr Isuf Loku Mr Raka and Mr Lami Mr Vishi Response at pp 40-42 note 215 paras 110-111 The Trial Chamber finds that there is sufficient evidence to support this allegation The Motion is not allowed Mr Hazbi Loku T 1924-1950 Mr Isuf Loku Ex 144 partially under seal statement dated 11 June 1999 Mr Raka Ex 125 partially under seal 20 03 2009 11 54 AM 20 of 102 file cs WWork Ictysite milosevic trialc judgement 040616 htm statement dated 26 November 1999 Mr Lami Ex 135 partially under seal statement dated 14 July 2000 Mr Vishi Ex 137 partially under seal statement dated 18 October 1999 Count 1 para 63 l DEPORTATION Decan Decani Counts 3-4 para 66 e MURDER Dakovica Gjakove 134a Ymer Grezda Street The Amici Curiae submit that there is insufficient evidence to support this allegation Motion at pp 30-31 paras 68-70 The Amici Curiae submit that there is no direct evidence and that the evidence that was adduced constitutes hearsay evidence and is insufficient to support these allegations Motion The Prosecution submits that there is sufficient evidence and cites K-20 and Ex 106 Response at para 112 The Prosecution concedes that no direct evidence was adduced with respect to these allegations but relies upon Ex 106 and forensic exhumation evidence to support these allegations The Trial Chamber finds that there is sufficient evidence to support this allegation The Motion is not allowed K-20 T 2514 The Trial Chamber finds that there is sufficient evidence to support this allegation The Motion is not Dr Baccard T 5265 Ex 159 168 Ex 106 OSCE Report As Seen As Told Mr Peraj Ex 143 partially under seal statement dated 18 April 2000 and addendum dated 15 February 2002 T 4659-4663 Exhibit 145 Human Rights 20 03 2009 11 54 AM 21 of 102 file cs WWork Ictysite milosevic trialc judgement 040616 htm at pp 31-33 paras 71-75 Response at pp 42-43 paras 113-115 allowed Watch Report Under Orders Ex 106 OSCE Report As Seen As Told Mr Peraj Ex 143 partially under seal statement dated 18 April 2000 and addendum dated 15 February 2002 T 4659-4663 Count 5 para 68 c PERSECUTIONS Prizren The Amici Curiae submit that there is insufficient evidence and that the general hearsay evidence adduced is insufficient to support the allegation Motion at pp 33-35 paras 76-79 The Prosecution submits that there is sufficient evidence and cites Mr Beqiraj Ex 145 and Mr Abrahams Response at pp 43-45 paras 116-119 The Trial Chamber finds that there is sufficient evidence to support this allegation The Motion is not allowed Mr Beqiraj Ex 103 T 3506-3537 Ex 106 OSCE Report As Seen As Told Ex 145 Human Rights Watch Report Under Orders Mr Thaci T 4558-4567 Ex 140 partially under seal statement dated 13 November 1999 20 03 2009 11 54 AM 22 of 102 file cs WWork Ictysite milosevic trialc judgement 040616 htm Mr Abrahams T 6091-6092 K-31 Ex 267 under seal statement dated 16 October 1999 B CROATIA INDICTMENT 1 International Armed Conflict – Croatian Statehood 83 The Amici Curiae contend that in respect of the grave breaches counts in the Croatia Indictment the Prosecution must prove that an armed conflict was international at all relevant times 149 It is the Prosecution’s case that the armed conflict was international from 8 October 1991 which is the date on which Croatia’s declaration of independence became effective 150 The Amici Curiae however submit that the conflict only became international at a point in time between 15 January 1992 when Croatia was recognised by the European Community and 22 May 1992 when it became a member of the United Nations 151 84 The Appeals Chamber in the Tadic Jurisdiction Appeal Decision held that an international armed conflict is required for Article 2 of the Statute to apply that is there must be a conflict involving two or more states in other words the Article does not apply to a civil war 152 Article 2 of the Statute deals with grave breaches of the Geneva Conventions of 1949 If the submission of the Amici Curiae is correct those counts of the Croatia Indictment that deal with grave breaches covering the period from 8 October 1991 and a point in time between 15 January 1992 and 22 May 1992 would have to be dismissed Accordingly it is necessary to determine whether Croatia was a state or became a state on 8 October 1991 as argued by the Prosecution or whether it only became a state at some time between 15 January 1992 and 22 May 1992 as contended by the Amici Curiae a Definition of a State 85 The best known definition of a state is the one provided by Article 1 of the Montevideo Convention which provides as follows The State as a person of international law should possess the following qualifications a a permanent population b a defined territory c government and d capacity to enter into relations with other States 153 86 These four criteria have been used time and again in questions relating to the creation and formation of states In fact reliance on them is so widespread that in some quarters they are seen as reflecting customary international law Thus one commentator says “It has become common practice to regard this provision of the Montevideo Convention a regional treaty as a crystallization of the state of customary international law and it has exercised great influence on the way in which the legal characteristics of statehood have been understood since” 154 While the Trial Chamber does not feel obliged to determine the question of the status of the criteria as customary international law it feels sufficiently confident to rely on them as reflecting well-established core principles for 20 03 2009 11 54 AM 23 of 102 file cs WWork Ictysite milosevic trialc judgement 040616 htm the determination of statehood In that regard the Trial Chamber observes that although other criteria have been developed for determining statehood some of which are referred to in the Motion 155 the Montevideo provisions may be characterized as the criteria in relation to which there is least dispute although of course their application to particular situations may give rise to differing views 87 The Trial Chamber does not consider it productive to engage in a discussion of the relative merits of the declaratory and constitutive theories of recognition in relation to the creation and formation of states 156 Its conclusion however is that the formation of states is a matter that is regulated by law that is the criteria of statehood are laid down by law 157 That law in the Trial Chamber’s view is reflected in the four criteria set out in the Montevideo Convention Both parties have relied on those criteria It is the opinion of the Trial Chamber that in the circumstances of this case these criteria form the appropriate test to determine whether Croatia was a state prior to 15 January 1992 158 88 The Montevideo Convention’s definition of a state is consistent with the definition by the Arbitration Commission of the International Conference on the Former Yugoslavia “Badinter Commission” in its Opinion No 1 The Badinter Commission considered that “the State is commonly defined as a community which consists of a territory and a population subject to an organised political authority that such a State is characterised by sovereignty” 159 89 Both the Prosecution and the Amici Curiae have referred to the Opinions of the Badinter Commission 160 In fact the Prosecution has relied upon the Opinions to conclude that Croatia was a state as of 8 October 1991 161 The Amici Curiae on the other hand have submitted that the Arbitration Commission’s opinions are of limited legal relevance 162 90 The Badinter Commission’s mandate was to arbitrate differences submitted to it by the relevant authorities 163 It consisted of jurists three of whom were Presidents of the constitutional courts of their countries including its President Robert Badinter who was the President of the Constitutional Council of France 164 The Trial Chamber notes that at the time when Opinion No 11 which deals with Croatian statehood was issued the Badinter Commission also included an eminent international lawyer in the person of Jose Maria Ruda a former President of the International Court of Justice and Elizabeth Palm a Judge of the European Court of Human Rights 165 91 The Amici Curiae contend that the Badinter Commission was not independent 166 However the Trial Chamber has examined the instrument that created the Badinter Commission167 and has found nothing therein to indicate that it was subject to direction from any Member State of the European Community the European Community itself or any political entity Moreover the Trial Chamber has found nothing to suggest that the Badinter Commission was not independent in carrying out its work 92 Although the Badinter Commission was clearly not a judicial body the Trial Chamber views it as a body of independent and competent jurists and considers its Opinions as material on which it may as appropriate draw in its determination of the question of Croatian statehood 93 The Trial Chamber now proceeds to an examination of the criteria of statehood to determine whether Croatia met those criteria on 8 October 1991 or at a later date i Population 94 With regard to this criterion in relation to which the Amici Curiae have made no specific submission there does not appear to be much controversy The Prosecution submits that Article 1 20 03 2009 11 54 AM 24 of 102 file cs WWork Ictysite milosevic trialc judgement 040616 htm of the Constitution of Croatia dated 22 December 1990 addresses this point 168 That Article states “The Republic of Croatia is a unitary and indivisible democratic and social State Power in the Republic of Croatia derives from the people and belongs to the people as a community of free and equal citizens The people shall exercise this power through the election of representatives and through direct decision making” 169 The Prosecution has also referred to the evidence given by Mr arinic that “Croatia is a national state of the Croatian people and a state of all other nations and minorities who are citizens of the Republic of Croatia” and that “minorities” included Serbs 170 95 The Trial Chamber finds that at 8 October 1991 Croatia had a permanent population ii Defined Territory 96 It is settled that the entity claiming to be a state must be in control of a certain area although practice indicates that it is not necessary that its boundaries be defined For example Israel was admitted to the UN at a time when her borders were disputed 171 and Albania was recognised by a number of states despite a lack of settled frontiers 172 Moreover it appears to be settled that claims to the territory as a whole or a part thereof do not affect the question of statehood 173 Therefore claims by the Serbs to SAO Krajina Western Slavonia Dubrovnik SAO SBWS would not by themselves be adverse to the emergence of the Croatian state 97 The Amici Curiae have not made any specific submission on this question their main point being that the Croatian government did not exercise effective control over its entire territory 174 98 On the other hand the Prosecution has advanced a number of submissions in support of Croatian statehood on 8 October 1991 These submissions are as follows 1 There must be a reasonably stable political community and this must be in control of a certain area 175 2 Past practice shows that the existence of fully defined frontiers is not required and that what matters is the effective establishment of a settled community 176 3 During examination-in-chief and cross-examination the fact that there was a defined Croatian territory was not disputed 177 4 Maps used during the testimony of witnesses defined Croatian territory and usually followed the Republican borders within the SFRY 178 5 The Serbian leadership including the Accused did not dispute the existence of a Croatian territory but rather pursued the redistribution of territories in Croatia based on ethnic principle 179 6 In October 1991 official SFRY documentation recognised both “the territory of the Republic of Croatia” and “the Republic of Croatia” 180 7 Due to the foregoing the republican borders of Croatia became international frontiers 181 99 The Trial Chamber finds in the material referred to in the Prosecution submissions enough evidence of a defined Croatian territory 100 The Badinter Commission in Opinion No 3 concluded that except where otherwise agreed former boundaries became frontiers protected by international law 182 This conclusion was based on the uti posseditis principle of respect for territorial status quo 183 The Badinter Commission also relied on 20 03 2009 11 54 AM 25 of 102 file cs WWork Ictysite milosevic trialc judgement 040616 htm the principle that all external frontiers must be respected that boundaries between inter alia Croatia and Serbia may not be altered except by agreement freely arrived at 184 Later in Opinion No 11 the Badinter Commission found that Croatia became a state on 8 October 1991 185 101 The Trial Chamber concludes that there is evidence of a defined Croatian territory as of 8 October 1991 iii Government 102 The existence of an effective government is an important criterion of statehood 186 It is here that the Amici Curiae make their strongest point They contend that the Croatian government had “insufficient control over a substantial part of its territory for it to be considered an independent State The armed conflict was still ongoing in many areas of Croatia” 187 There is evidence of an ongoing conflict in the SAO Krajina Western Slavonia Dubrovnik and SAO SBWS However the Amici Curiae have not sought to say what percentage of Croatian territory is represented by those areas in respect of which they submit there was insufficient control The Prosecution has referred to evidence that in August 1991 Croatia had control over 70 to 75 percent of its territory and that 25 to 30 percent was under Serb control This evidence came from General Agotic Mr Kriste and two maps 188 103 The Prosecution also submits that the principle of effective control should not be calculated in strictly mathematical terms but rather that the critical criterion is the sway the government holds over its territory and population and that there is enough evidence of that factor 189 104 The Trial Chamber observes a certain inconsistency in relation to the submission of the Amici Curiae that Croatia had “insufficient control over a substantial part of its territory” 190 even if the Amici Curiae are correct that Croatia did not become a state until some time between its recognition by the EC Member States on 15 January 1992 and its admission to the United Nations on 22 May 1992 it is clear that Croatia was still not in control of a substantial part of its territory at that time Thus by their own reasoning Croatia would not have been a state in the period between 15 January 1992 and 22 May 1992 105 Even if the test is a strict mathematical calculation as distinct from the sway the government holds over the territory and population as argued by the Prosecution 191 the Trial Chamber holds that the evidence cited by the Prosecution shows sufficient control by the Croatian government over its territory to satisfy the requirement of an effective government 106 Moreover the Prosecution has also referred to evidence showing that Croatia had an effectively functioning government by 8 October 1991 with ministerial personnel 192 and other personnel being sent to represent the government at meetings including some with international institutions 193 as well as the performance of a variety of other government functions 194 Further admitted exhibits evidence the adoption of significant legislation 195 107 The Badinter Commission considered that the form of internal political organisation and the constitutional provisions were relevant factors in determining the government’s sway over the population and territory 196 108 The Trial Chamber is satisfied that there is evidence of Croatia having an effective government as of 8 October 1991 iv Capacity to enter into International Relations – Independence 109 Independence is generally regarded as the decisive criterion of statehood and the best evidence of it 20 03 2009 11 54 AM 26 of 102 file cs WWork Ictysite milosevic trialc judgement 040616 htm is the capacity to enter into international relations 197 110 Croatia declared its independence on 25 June 1991 but was requested by the ministerial “troika” of the European Community to postpone implementation of its declaration for three months from 7 July 1991 which was the date of the Common Declaration on Peaceful Solution of the Yugoslav Crisis “Brioni Declaration” 198 Croatia declared its independence on 8 October 1991 199 111 The Amici Curiae have made no submissions on this point But there is an abundance of evidence adverted to by the Prosecution in support of Croatia’s independence on 8 October 1991 This evidence includes 1 The Presidents of Serbia and Croatia entered into bilateral negotiations 200 2 Representatives of Croatia entered into negotiations with international observers and signed resulting agreements such as the Brioni Declaration on 8 July 1991 and the “Igalo agreement” on 17 September 1991 201 and 3 The Croatian government was accepted by the EU and UN Commissions and representatives around 8 October 1991 202 112 In the Trial Chamber’s view further evidence of Croatia’s independence by 8 October 1991 may be gathered albeit indirectly from the breakdown of the SFRY which resulted in the cessation of control over the affairs of Croatia The evidence of the breakdown of the federal government comes from a number of sources including the then President of the SFRY Mr Mesic 203 and the then Prime Minister of the SFRY Mr Markovic 204 On 16 March 1991 the Accused appeared on television saying that Yugoslavia ceased to function and Serbia did not recognise any decision made by the Presidency 205 113 In relation to the question of Croatia’s independence the Badinter Commission said that the suspension of the declaration of independence ceased to have effect on 8 October 1991 and only then did Croatia break all links with the organs of the SFRY and become a sovereign state in international law 206 114 The Trial Chamber therefore finds that there is evidence of Croatia’s independence by 8 October 1991 b Conclusion 115 The Trial Chamber concludes that there is sufficient evidence that Croatia was a state by 8 October 1991 for the purposes of Rule 98 bis and therefore dismisses the Motion with respect to the grave breaches counts relating to the period between 8 October 1991 and 22 May 1992 2 Specific Challenges to the Croatia Indictment 116 The Amici Curiae submit that should the Trial Chamber accept that Croatia was not a state as of 8 October 1991 the Accused would be entitled to have a judgement of acquittal entered in respect of counts 17 22 25 and 28 which charge the Accused with grave breaches of the Geneva Conventions and which allegedly took place before Croatia became a state and therefore before the conflict became international As set out immediately above the Trial Chamber has found that Croatia was a state at 8 October 1991 and therefore the relevant grave breaches counts will not be dismissed Indictment Amici Curiae Prosecution Trial Evidence 20 03 2009 11 54 AM 27 of 102 file cs WWork Ictysite milosevic trialc judgement 040616 htm Reference Submissions Submissions Chamber’s Decision Examined Count 1 para 36 l The Amici Curiae submit that there is insufficient evidence to support these allegations Motion at paras 102-103 The Prosecution submits that there is sufficient evidence and that the relevant evidence for each of the four named villages is set out below but makes no reference to where such evidence can be found in its Response Response at para 155 The Trial Chamber finds that there is sufficient evidence to support these allegations The Motion is not allowed Mr Kraljevic T 25411 Ex 516 tab 1 statement dated 8 November 1995 and addendum dated 17 June 2003 tab 2 PERSECUTIONS Sarengrad Bapska Nadin and Bruska Mr Babic T 12855 13065 13400 13405-13406 Ex 326 tab 11 Mr Miljanic Ex 501 statement dated 25 July 1996 at para 11 and addendum dated 19 June 2003 T 24318 Ms Denona Ex 576 statement dated 25 September 1996 at pp 2 4 Counts 2-5 para 40 The Amici Curiae submit that there is insufficient EXTERMINATION evidence of MURDER AND who killed 43 persons in WILFUL KILLING Bacin on 21 October 1991 Bacin and no evidence to support the remainder of the allegation Motion at paras 105-107 The Prosecution concedes that no eye-witnesses to the killings gave evidence but submits that there is sufficient evidence to sustain the allegation citing one survivor C-1141 and the pattern of evidence adduced through Mr Babic and Mr The Trial Chamber finds that there is sufficient evidence to support these allegations The Motion is not allowed C-1141 T 11913 11921-11928 11930-11940 11944 11965 11970-11977 11981-11982 11989-11990 Ex 344 under seal Colonel Grujic T 17282-17283 Ex 402 tabs 6-10 Mr Josipovic Ex 521 statement dated 20 03 2009 11 54 AM 28 of 102 file cs WWork Ictysite milosevic trialc judgement 040616 htm Josipovic Response at paras 157-162 10 November 2000 and addendum dated 7 11 March 2002 Dr Strinovic T 17910 Ex 409-410 Mr Babic T 13649 Counts 2-5 para 41 The Amici Curiae concede EXTERMINATION that there is MURDER AND evidence of attacks on WILFUL KILLING Saborsko Poljanak and Saborsko Poljanak Lipovanic by and Lipovanic the JNA TO and Martic’s police but submit that there is insufficient evidence that Serb forces killed all remaining inhabitants found when they entered the villages Motion at para 108 The Prosecution submits that there is sufficient evidence citing the pattern of evidence adduced through Mr Babic and exhumations adduced through Mr Marjanovic Response at paras 163-168 The Trial Chamber finds that there is sufficient evidence to support these allegations The Motion is not allowed Mr Babic T 13064-13069 Mr Marjanovic T 25010-25014 25021-25033 Ex 511 C-1220 T 11561 11589-11600 11602-11603 11609-11610 Mr Vukovic Ex 479 tab 1A public redacted version statement dated 20 January 2001 and addendum dated 18 June 2003 T 23713 C-1230 T 23724-23726 Ex 480 tab 2A public redacted version statement dated 28 February 2001 Colonel Grujic T 17254 Ex 401-403 General Agotic T 23236 20 03 2009 11 54 AM 29 of 102 file cs WWork Ictysite milosevic trialc judgement 040616 htm Ms Bicanic Ex 519 statement dated 20 January 2001 T 25533-25537 Counts 2-5 para 50 The Amici Curiae 1 EXTERMINATION submit that MURDER AND hearsay evidence was WILFUL KILLING produced by the Prosecution in Detention facility in the form of a the police building in letter in support Dalj of the allegation 2 concede there is evidence that 9 of the 11 persons listed in the Indictment were later exhumed 3 but submit that there is no direct eye-witness evidence that these persons were shot and buried by members of the TO of the SAO SBWS led by Zeljko Raznatovic Arkan Motion at paras 109-111 The Prosecution submits that there is sufficient evidence that the eleven victims named in the Indictment were murdered by members of the TO of the SAO SBWS led by Arkan Response at paras 169-172 Counts 2-5 para 51 The Amici Curiae submit EXTERMINATION that there is MURDER AND insufficient evidence WILFUL KILLING because there is no eye-witness Detention facility in evidence with the police building in respect to these Dalj allegations The only evidence is The Prosecution submits that there is sufficient evidence and cites Dr Strinovic Mr Rastija and Colonel Grujic Response at paras 173-177 The Trial Chamber finds that there is sufficient evidence to support these allegations The Motion is not allowed C-013 T 15170-15171 15187-15200 15304 15345-15349 Ex 375 tabs 1-2 Ex 376 under seal Mr Sutalo Ex 520 statement dated 17 April 1999 and addendum dated 18 June 2003 T 25550 25575 Colonel Grujic T 17290-17318 Ex 401-403 C-025 T 14132-14137 The Trial Chamber finds that there is sufficient evidence to support these allegations The Motion is not allowed Dr Strinovic T 17944-17945 C-025 Ex 356 under seal 357 358 under seal C-013 T 15193-15199 Ex 375 376 20 03 2009 11 54 AM 30 of 102 file cs WWork Ictysite milosevic trialc judgement 040616 htm hearsay in the form of an Official Note from the Ministry of Interior which refers to 12 dead bodies being removed from a room at the detention facility not 28 as alleged in the Indictment and does not clarify whether these individuals were civilians or Croats Motion at paras 112-114 Counts 2-5 para 53 The Amici Curiae submit EXTERMINATION that there is MURDER AND insufficient evidence with WILFUL KILLING respect to the alleged murder Training centre of of Marija Senasi the TO in Erdut Motion at paras 115-117 under seal statement dated 17 May 1999 377 Mr Rastija Ex 629 deceased witness statement dated 1 March 2002 Colonel Grujic T 17292-17314 Ex 401-403 C-037 Ex 327 tab 4 The Prosecution submits that there is sufficient evidence with respect to each of the allegations and cites C-020 Response at paras 178-184 The Trial Chamber finds that there is sufficient evidence to support these allegations The Motion is not allowed C-020 T 12165-12182 Ex 347 partially under seal B-071 T 18403-18404 Ex 416 tab 3 Mr Milanovic Ex 549 tab 7 Colonel Grujic T 17292-17318 Ex 401-403 C-057 Ex 607 Counts 2-5 para 55 The Amici Curiae submit EXTERMINATION that there is MURDER AND insufficient evidence to WILFUL KILLING support these allegations i e Vukovar that the alleged actions were taken pursuant to a request by Goran Hadzic The Prosecution submits that there is sufficient evidence to support the allegations because a reasonable inference can be drawn from exhumation The Trial Chamber finds that there is sufficient evidence to support these allegations The Motion is not allowed Colonel Grujic T 17290-17297 Ex 401-403 C-1175 Ex 517 under seal T 25483 25485-25487 25513 Mr Dulovic T 11649-11913 20 03 2009 11 54 AM 31 of 102 file cs WWork Ictysite milosevic trialc judgement 040616 htm and the means by which the alleged victims were killed Motion at paras 118-121 evidence adduced through Colonel Grujic and Dr Strinovic and the evidence of C-1175 and C-1071 that the story of one of these victims can stand for the story of all Response at paras 185-188 B-071 Ex 416 tab 3 T 18403-18404 Dr Strinovic Ex 409-410 tab 45 C-1071 Ex 518 tab 1 under seal statement dated 10 May 2001 T 25506 Counts 2-5 para 56 The Amici Curiae submit EXTERMINATION that there is MURDER AND insufficient evidence to WILFUL KILLING support these allegations TO training centre in Motion paras Erdut 122-124 The Prosecution submits that there is sufficient evidence and cites Colonel Grujic and Mr Sutalo Response at p 71 notes 356-357 para 189 The Trial Chamber finds that there is sufficient evidence to support these allegations The Motion is not allowed Colonel Grujic Ex 401-403 T 17292-17318 Counts 2-5 para 57 The Amici Curiae submit EXTERMINATION that the MURDER AND evidence of C-1162 is WILFUL KILLING insufficient to support this TO training centre in allegation Erdut Motion at paras 125-129 The Prosecution submits that there is sufficient evidence and cites C-1162 and Colonel Grujic Response at paras 190-194 The Trial Chamber finds that there is sufficient evidence to support these allegations The Motion is not allowed Colonel Grujic Ex 401-403 T 17292-17318 Mr Sutalo Ex 520 T 25540 B-071 Ex 416 tab 3 T 18403-18404 C-1162 Ex 481 partially under seal statement dated 10 June 1999 and addendum dated 17 June 2003 B-071 Ex 416 tab 3 Ms Albert Ex 631 statement dated 17 December 1998 Counts 2-5 para 58 The Amici Curiae submit EXTERMINATION that there is MURDER AND insufficient The Prosecution submits that there is sufficient The Trial Chamber finds that there is sufficient Colonel Grujic Ex 401-403 T 17292-17318 20 03 2009 11 54 AM 32 of 102 file cs WWork Ictysite milosevic trialc judgement 040616 htm evidence to support this allegation and TO training centre in its level of Erdut detail Motion at paras 130-131 WILFUL KILLING evidence and cites Dr Strinovic Response at paras 195-198 evidence to support these allegations The Motion is not allowed C-020 Ex 346 under seal 347 partially under seal T 12177-12179 B-071 Ex 416 tab 3 Dr Strinovic T 17955 The Amici Curiae submit that there is 1 UNLAWFUL no direct CONFINEMENT evidence IMPRISONMENT regarding the TORTURE AND existence INHUMANE ACTS organisation and leadership Military barracks in of this particular Kumbor in detention Montenegro facility 2 no evidence regarding alleged offences committed there and 3 no evidence that it was run by the JNA Motion at paras 132-136 The Prosecution concedes that this allegation is unsupported by evidence Response at paras 199-201 The Trial Chamber finds that there is insufficient evidence to support these allegations The Motion is allowed Colonel Grujic Ex 401- 403 T 17292-17318 Counts 6-13 para 64 f The Prosecution concedes that this allegation is unsupported by evidence Response at paras 202-203 The Trial Chamber finds that there is insufficient evidence to support these allegations The Motion is allowed Colonel Grujic Ex 401-403 T 17292-17318 Counts 6-13 para 64 b The Amici Curiae submit that there is UNLAWFUL insufficient CONFINEMENT evidence IMPRISONMENT because 1 TORTURE AND Colonel Grujic INHUMANE ACTS was only asked one question by Military barracks in the Prosecution Zrenjanin in Serbia and 2 no evidence was adduced regarding a who established and subsequently ran the facility and b whether General Marinovic Ex 374 statement dated 7 August 2000 C-1149 T 24267-24268 20 03 2009 11 54 AM 33 of 102 file cs WWork Ictysite milosevic trialc judgement 040616 htm any offences were committed at this camp Motion at paras 137-138 Counts 6-13 para 64 h The Amici Curiae submit that there is no UNLAWFUL direct evidence CONFINEMENT regarding the IMPRISONMENT existence TORTURE AND conditions INHUMANE ACTS organisation or possible crimes Prison in Knin SAO committed at Krajina the prison Motion at paras 139-140 The Prosecution submits that there is evidence to support this allegation and cites Mr Babic who testified that he received information from inter alia his Minister of Justice Risto Matkovic that there were two prisons in Knin where non-Serbs were detained Response at paras 204-205 The Trial Chamber finds that there is insufficient evidence to support these allegations The Motion is allowed Colonel Grujic Ex 401-403 T 17306 Counts 6-13 para 64 j The Amici Curiae submit that there is UNLAWFUL insufficient CONFINEMENT evidence IMPRISONMENT because no TORTURE AND evidence was INHUMANE ACTS adduced that this facility was Police buildings and administered by the hangar near the the JNA and railway station in Mr Sutalo Dalj SAO SBWS expressly testified to the contrary Motion paras 139-140 The Prosecution submits that there is sufficient evidence and cites C-013 who testified regarding the co-operation between the JNA the local Serb TO and the SAO SBWS government led by Goran Hadzic in the SAO SBWS region Response at paras 206-210 The Trial Chamber finds that there is sufficient evidence to support these allegations The Motion is not allowed C-013 T 14148 15127-15128 15148-15151 15158 15169-15172 15234-15236 15300 Counts 6-13 para 64 p The Prosecution submits that there is sufficient evidence but concedes that The Trial Chamber finds that there is insufficient evidence to support these UNLAWFUL CONFINEMENT IMPRISONMENT The Amici Curiae submit that there is no evidence as to the police station in Mr Babic T 13067 C-037 T 10452-10453 10851-10858 Ex 332 under seal statement dated 4 May 2002 C-1175 T 25464-25469 Mr Sutalo Ex 520 statement dated 17 April 1999 and addendum dated 18 June 2003 T 25576-25578 C-1126 Ex 485 tab 2A public redacted version statement dated 13 February 20 03 2009 11 54 AM 34 of 102 file cs WWork Ictysite milosevic trialc judgement 040616 htm TORTURE AND Opatovac INHUMANE ACTS operating as a detention Police station in facility Motion Opatovac SAO at paras SBWS 144-145 C-1126 was the allegations The only witness to Motion is testify about allowed detention and mistreatment in Opatovac Response at paras 211-214 1996 and addendum dated 18 June 2003 T 23762-23777 Counts 17-20 para 71 The Amici Curiae submit the following Motion at paras 146-154 The Prosecution submits the following Response at paras 215-224 Celija – no evidence only reference to a mass grave site found at this location Celija – concession that there is no evidence to support the allegation Mr Kraljevic Ex 516 tab 1 statement dated 8 November 1995 and addendum dated 17 June 2003 tab 2 Sarengrad – insufficient evidence citing C-1136 Sarengrad and Bapska – sufficient evidence of heavy shelling by the JNA citing Mr Kraljevic WANTON DESTRUCTION AND PLUNDER OF PUBLIC OR PRIVATE PROPERTY SAO SBWS Celija Sarengrad and Bapska SAO Krajina Nadin and Bruska Bapska – no evidence Nadin – insufficient Nadin – evidence citing sufficient C-061 and evidence citing Mr Miljanic Bruska – and Mr Babic insufficient and evidence citing Ms Denona Bruska – sufficient evidence citing Ms Denona and Mr Babic The Trial Chamber finds that there is insufficient evidence with respect to Celija but sufficient evidence with respect to Nadin Sarengrad Bruska and Bapska The Motion is allowed with respect to Celija but not allowed with respect to Nadin Sarengrad Bruska and Bapska Mr Babic T 13064-13066 13400 13405-13406 Mr Miljanic Ex 501 statement dated 25 July 1996 and addendum dated 19 June 2003 Ms Denona Ex 576 statement dated 25 September 1996 Mr Sutalo Ex 520 statement dated 17 April 1999 and addendum dated 18 June 2003 T 25575 Colonel Grujic T 17290-17301 C BOSNIA INDICTMENT 1 Genocide and Complicity in Genocide a The Motion 20 03 2009 11 54 AM 35 of 102 file cs WWork Ictysite milosevic trialc judgement 040616 htm 117 The Amici Curiae submit 1 There is no evidence that the Accused possessed the “special intent” required to commit the crime of genocide 207 however no concessions or admissions are made in relation to proof of the crime of genocide at this stage in the proceedings 208 2 There has been no evidence of acts and or conduct of the Accused which could be interpreted as declarations of an intention to commit genocide 209 3 The crimes in Schedules A B and C of the Bosnia Indictment if proved do not provide evidence of the specific intent for the crime of genocide by their scale or context which was primarily territorial in nature 210 4 There is no evidence that the Accused planned instigated ordered committed or otherwise aided and abetted in the planning preparation or execution of genocide or any genocidal acts 211 5 There is no evidence that the crime of genocide was within the object of the alleged joint criminal enterprise and the special intent required for genocide is not compatible with the mens rea requirement for a conviction pursuant to the third category of joint criminal enterprise the Prosecution must prove that the Accused possessed the specific intent required for genocide before a conviction can be entered 212 6 The specific intent requirement of genocide cannot be reconciled and is not compatible with the simple mens rea requirement of command responsibility 213 7 In the alternative there is insufficient evidence that the Accused exercised “effective control” over the perpetrators of the alleged crime of genocide Furthermore there is no evidence that 1 a subordinate to the Accused killed individual Bosnian Muslims or Bosnian Croats with the intent to destroy them as a group and 2 the Accused “knew or had reason to know” that a subordinate was about to commit genocide or had done so and failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators 214 8 In relation to Count 2 complicity in genocide there is no evidence that the Accused knowingly aided or abetted one or more persons to commit genocide 215 b The Law i The Required Intent 118 The definition of genocide in Article 4 2 of the Statute is taken verbatim from Article II of the 1948 Genocide Convention 216 It provides as follows 2 Genocide means any of the following acts committed with intent to destroy in whole or in part a national ethnical racial or religious group as such a killing members of the group b causing serious bodily or mental harm to members of the group c deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part d imposing measures intended to prevent births within the group e forcibly transferring children of the group to another group 119 The intent required for genocide has been referred to as “special intent” “specific intent” or dolus specialis terms which have been used interchangeably to describe the intent to destroy in whole or in part a national ethnical racial or religious group as such 217 Thus for the enumerated acts proscribed in Article 4 2 of the Statute to constitute genocide it has to be proved that in addition 20 03 2009 11 54 AM 36 of 102 file cs WWork Ictysite milosevic trialc judgement 040616 htm to the criminal intent accompanying the underlying offence e g killing the perpetrator also intended to destroy in whole or in part a protected group 218 120 While it is not impossible to have express evidence of the required intent most usually the intent will have to be inferred from the evidence In Prosecutor v Jelisic the Appeals Chamber held that in the absence of direct evidence proof of specific intent may be inferred from a number of facts and circumstances such as the general context the perpetration of other culpable acts systematically directed against the same group the scale of atrocities committed the systematic targeting of victims on account of their membership of a particular group or the repetition of destructive and discriminatory acts 219 121 The Prosecution has conceded that “there is little direct evidence to that precise effect such as a specific order to commit genocide signed by the Accused or a confession by him” 220 However the Prosecution submits that the Trial Chamber must look at all the facts and circumstances proved in the Prosecution case and that “if a sufficient number of circumstances can be objectively identified that together demonstrate a coherent series of actions on the part of the Accused a reasonable tribunal of fact would be entitled to draw the necessary inference that the Accused did intend the destruction of part of the Bosnian Muslim group” 221 122 The Prosecution submits that “the inferences from the crime-base evidence together with evidence of the actings and role of the Accused himself allow the Trial Chamber at this stage to hold that the Accused did possess the requisite intent to destroy in whole or in part a national ethnical racial or religious group as such” 222 123 Genocide is a discriminatory crime in that for the crime to be established the underlying acts must target individuals because of their membership of a group The perpetrator of genocide selects and targets his victims because they are part of a group that he seeks to destroy 223 This means that the destruction of the group must have been sought as a separate and distinct entity 224 According to the International Law Commission “the action taken against individual members of the group is the means used to achieve the ultimate objective with respect to the group” 225 As held by the Trial Chamber in Prosecutor v Sikirica Whereas it is the individuals that constitute the victims of most crimes the ultimate victim of genocide is the group although its destruction necessarily requires the commission of crimes against its members that is the individuals belonging to that group 226 124 It is the material destruction of the group which must be intended and not the destruction of its identity As noted by the International Law Commission in 1996 As clearly shown by the preparatory work for the Convention the destruction in question is the material destruction of a group either by physical or by biological means not the destruction of the national linguistic religious cultural or other identity of a particular group 227 125 Since the acts in Article 4 2 of the Statute are only required to be committed with an intent to destroy the protected group it is clear that the actual destruction of the group need not take place However the extent of the actual destruction if it does take place will more often than not be a factor from which the inference may be drawn that the underlying acts were committed with the specific intent to destroy in whole or in part a specific group as such 228 126 What matters for the purpose of the legal requirements of genocide is the aim that the perpetrator intends to achieve In its Advisory Opinion on the Legality of Nuclear Weapons 229 the International Court of Justice examined whether the deployment of atomic armaments could be considered genocide The Court noted that “the prohibition of genocide would be pertinent if the recourse to nuclear weapons did indeed entail the element of intent towards a group as such” in 20 03 2009 11 54 AM 37 of 102 file cs WWork Ictysite milosevic trialc judgement 040616 htm order to determine whether the intent to commit genocide is present “due account of the circumstances specific to each case” must be considered 230 ii Determination of Intent to Destroy Part of a Group 127 Perhaps more complex is the question of how much of a group a perpetrator must intend to destroy in order to meet the legal requirements of genocide as distinct from how much of the group must physically be destroyed One of the earliest academic commentators on the Genocide Convention Nehemiah Robinson argues that genocide is aimed at destroying “a multitude of persons of the same group ” as long as the number is “substantial” 231 128 The United Nations Expert Study on Genocide considered that the term “in part ” implied “a reasonably significant number relative to the total of the group as a whole or else a significant section of the group such as its leadership” 232 Dealing with the same question the International Law Commission observed that it is not necessary to intend to achieve the complete annihilation of a group from every corner of the globe None the less the crime of genocide by its very nature requires the intention to destroy at least a substantial part of a particular group 233 129 This interpretation is also reflected in the Judgements of the International Criminal Tribunal for Rwanda In Prosecutor v Kayishema Ruzindana the Trial Chamber found that the phrase “in part” required “the intention to destroy a considerable number of individuals who are part of the group” 234 Similarly in Prosecutor v Bagilishema the Trial Chamber considered that “the intention to destroy must target at least a substantial part of the group” 235 130 In Prosecutor v Jelisic the Trial Chamber held that genocide must involve the intent to destroy a “substantial” part of a group 236 As to the exact determination of what would amount to a “substantial part” the same Trial Chamber observed that a targeted part of a group would be classed as substantial either because the intent sought to harm a large majority of the group in question or the most representative members of the targeted community 237 131 Similarly in Prosecutor v Sikirica the Trial Chamber held that the intent to destroy a group may be established if the destruction is related to a significant section of the group such as its leadership 238 132 However the operative requirement is that of substantiality and the intention to destroy a significant section of the group such as its leadership is not an “independent consideration” 239 but an element that may establish that requirement In Prosecutor v Krstic the Appeals Chamber held In addition to the numeric size of the targeted portion its prominence within the group can be a useful consideration If a specific part of the group is emblematic of the overall group or is essential to its survival that may support a finding that the part qualifies as substantial within the meaning of Article 4 240 c Territorial Scope of the Bosnia Indictment 133 Before proceeding to examine the Motion it is necessary to determine the geographical area to which the charges of genocide relate 134 Paragraph 32 of the initial Bosnia Indictment dated 22 November 2001 lists in a non-exhaustive manner the territories in respect of which the Accused is charged with genocide it charges the Accused with “ the destruction in whole or in part of the Bosnian Muslim and Bosnian Croat national ethnical racial or religious groups as such in territories within Bosnia and Herzegovina including Bijelina Bosanski Novi Bosanski Samac Bratunac Brcko Doboj Foca Sarajevo 20 03 2009 11 54 AM 38 of 102 file cs WWork Ictysite milosevic trialc judgement 040616 htm Ilijas Kljuc Kotor Varos Sarajevo Novi Grad Prijedor Rogatica Sanksi Most Srebrenica Visegrad Vlasenica and Zvornik” 241 135 However in its Pre-Trial Brief submitted on 31 May 2002 pursuant to Rule 65ter the Prosecution indicated that it would not seek to prove that genocide was committed against the Bosnian Croats and that it intended to proceed to prove the crime of genocide only in respect of seven municipalities Bosanski Novi Br cko Kljuc Kotor Varos Prijedor Sanski Most and Srebrenica 242 Thus the areas in respect of which the Prosecution would seek to prove genocide were confined to the seven named territories 136 In the amended Bosnia Indictment of 22 November 2002 the territories of Zvornik and Bratunac were expressly deleted as territories on which the Prosecution relied to establish genocide 243 137 In its Response to the Motion the Prosecution submitted that it had led evidence on four municipalities Brcko Sanski Most Prijedor and Srebrenica 244 Thus the specific areas to be considered for the crime of genocide were further limited But the Prosecution also submits in a footnote that there is “limited evidence” in relation to Kotor Varos Kljuc and Bosanski Novi 245 It asserts that genocidal acts were perpetrated in other municipalities “in fact wherever required to implement the strategic objective of the SDS leadership” 246 and that there is sufficient evidence of crimes within the meaning of Article 4 2 of the Statute in municipalities other than the identified four including Zvornik and Bratunac 247 The Prosecution also refers to other evidence e g in relation to Bijeljina and Teslic 248 that it submits supports its case that genocide was committed in a number of other municipalities However Teslic is not referred to either in the initial or amended Indictments or in the Pre-Trial Brief as a territory on which the Prosecution relies to establish genocide 138 In the light of this history of the Bosnia Indictment and the Prosecution submissions thereon relating to genocide the Trial Chamber will consider genocide in the following territories in Bosnia and Herzegovina Brcko Prijedor Sanski Most Srebrenica Bijeljina Kotor Varos Kljuc and Bosanski Novi “the specified territories” d Analysis of the Motion 139 The Chamber recalls the analysis set out in Part III of this Decision and its conclusion that “sufficient evidence” is evidence upon which a Trial Chamber could be satisfied beyond reasonable doubt of the guilt of the Accused in relation to a specific allegation in the amended Bosnia Indictment Essentially the Motion challenges the sufficiency of the Prosecution’s evidence in respect of Count 1 which charges the Accused with genocide and Count 2 which charges the Accused with complicity in genocide The specific submissions in the Motion are set out above 249 140 The Prosecution submits that the Accused participated in a joint criminal enterprise the objective of which was the destruction of the Bosnian Muslim group in that part of the territory of Bosnia and Herzegovina intended to be included in the Serbian state 250 According to the Prosecution members of that joint criminal enterprise included the Bosnian Serb leadership notably Radovan Karadzic and Ratko Mladic 251 141 The Chamber proposes to examine the Motion by considering the following questions 1 Is there evidence upon which a Trial Chamber could be satisfied beyond reasonable doubt that the Accused was a participant in a joint criminal enterprise the aim and intention of which was to destroy in whole or in part the Bosnian Muslims as a group 2 Is there evidence upon which a Trial Chamber could be satisfied beyond reasonable doubt that 20 03 2009 11 54 AM 39 of 102 file cs WWork Ictysite milosevic trialc judgement 040616 htm the Accused was a participant in a joint criminal enterprise to commit other crimes than genocide and it was reasonably foreseeable to him that as a consequence of the commission of that crime genocide in whole or in part of the Bosnian Muslims as a group would be committed by other participants in the joint criminal enterprise and it was committed 3 Is there evidence upon which a Trial Chamber could be satisfied beyond reasonable doubt that the Accused aided and abetted in the commission of the crime of genocide in whole or in part of the Bosnian Muslims as a group 4 Is there evidence upon which a Trial Chamber could be satisfied beyond reasonable doubt that the Accused was complicit in the commission of the crime of genocide in whole or in part of the Bosnian Muslims as a group 5 Is there evidence upon which a Trial Chamber could be satisfied beyond reasonable doubt that the Accused knew or had reason to know that persons subordinate to him were about to commit or had committed genocide in whole or in part of the Bosnian Muslims as a group and he failed to take the necessary measures to prevent the genocide or to punish the perpetrators thereof 142 In the sections of the Decision that deal with evidence the Trial Chamber will set out the evidence whether from witnesses or documents in a summary form without reflecting its own analysis of that evidence The Trial Chamber’s analysis of the evidence is set out in sections headed “finding” In the evidence section therefore there is nothing that reflects the view of the Trial Chamber it is simply a summarised narration of the evidence with sources referenced The evidence may not be exhaustive of all the evidence supporting the charges in Counts 1 and 2 i Is there evidence upon which a Trial Chamber could be satisfied beyond reasonable doubt that the Accused was a participant in a joint criminal enterprise whose intention was to destroy in whole or in part the Bosnian Muslims as a group 143 An analysis of this question “First Question” calls for an examination of the following issues a Whether a Trial Chamber could be satisfied beyond reasonable doubt that there existed a joint criminal enterprise the aim and intention of which was to destroy in whole or in part the Bosnian Muslims as a group and whether genocide was in fact committed and b Whether there is evidence upon which a Trial Chamber could be satisfied that the Accused was a participant in the joint criminal enterprise described in a and that he shared the intent of its participants a Whether a Trial Chamber could be satisfied beyond reasonable doubt that there existed a joint criminal enterprise the aim and intention of which was to destroy in whole or in part the Bosnian Muslims as a group and whether genocide was in fact committed 144 The Prosecution asserts that in those municipalities identified in the Bosnia Indictment a significant section of the Bosnian Muslim groups namely their leadership as well as a substantial number of members of the groups as a whole were targeted 252 According to the Prosecution the evidence supports a finding that there was a systematic pattern according to which municipalities in Bosnia and Herzegovina targeted for inclusion in the Serbian state were taken over by the Bosnian Serbs and that a systematic pattern developed according to which Serb forces set the framework for the commission of and committed genocidal and persecutory crimes 253 i Evidence relating to the takeover of municipalities Existence of a Plan or Policy for the Takeover of Municipalities Variant A and B 20 03 2009 11 54 AM 40 of 102 file cs WWork Ictysite milosevic trialc judgement 040616 htm 145 Around 20 December 1991 B-024 attended a meeting of the RS Assembly which was held at the Holiday Inn Hotel in Sarajevo also in attendance were deputies of the RS Assembly and Presidents of the Municipal Boards along with Radovan Karadzic Momcilo Krajisnik and Biljana Plavsic of the SDS 254 They identified precise steps to be taken within the respective municipalities in order to establish Bosnian Serb control 255 The Presidents of the Municipal Boards of the SDS Party were given a document outlining actions to be taken in times of crisis 256 There were two plans Plan A applied to municipalities in which the Serbs had a majority and Plan B applied to municipalities in which the Serbs were a minority 257 There is little variance between the two plans except that Plan A emphasised the need to respect the rights of nations and Plan B emphasised the need to rally together with larger Serbian territories to protect the Serbian population 258 146 During the 50th session of the RS Assembly held in April 1995 Radovan Karad zic acknowledged the Variant A and Variant B Plans stating “In the moment the war began in the municipalities where we were in the majority we had municipal power held it firmly controlled everything In the municipalities where we were in the minority we set up secret government municipal boards municipal assemblies and presidents of executive boards You will remember the A or B variant In the B variant where we were in the minority – 20 percent 15 percent – we had to set up a government and a brigade a unit no matter what size but there was a detachment with a commander” 259 147 Six Strategic Goals were approved at the 16th session of the RS Assembly in May 1992 as a guide for Serbian unification within the following four years 260 These steps were 1 separation from the other two national communities and a separation of states 2 establishment of a corridor between Semberija and Krajina 3 establishment of a corridor in the Drina Valley 4 establishment of a border on the Una and Neretva rivers 5 division of Sarajevo into Serbian and Muslim parts and 6 establishment of access of RS to the sea 261 Brcko 148 The municipality of Brcko is located in north-eastern Bosnia and Herzegovina The population in Brcko municipality in 1991 was approximately 72 926 with around 31 186 43 percent of the population being of Muslim ethnicity 262 In 1997-1998 the population of Brcko RS was approximately 20 752 with around 546 2 6 percent of the population being of Muslim ethnicity 263 In 1997-1998 the population of Rahic Ravne Brcko FBiH was 12 871 with around 10 023 77 9 percent of the population being of Muslim ethnicity 264 149 There was a JNA garrison located in Brcko and Mr Gasi whose garden overlooked the JNA garrison noticed that from 1990 to 1992 many JNA arms and convoys of military personnel passed through Brcko some of which remained at the JNA garrison 265 The witness also saw a similar build-up in the Serb villages around Brcko while no such build-up occurred in Muslim villages 266 Checkpoints along the roads outside the town began to appear from mid-1991 to the spring of 1992 manned by JNA military police and civilian police from Brcko 267 150 Members of the SDS issued an ultimatum in the parliament of the municipality of Brcko that Brcko should be partitioned into a Serb municipality of Brcko a Croatian municipality of Brcko and a Muslim municipality of Brcko 268 The SDS stated that the partitioning had to be accomplished by 4 May 1992 and that after this date no negotiations would be possible 269 151 The takeover of Brcko municipality began on 30 April 1992 with the detonation of two bridges over the Sava River 270 Mr Ramic testified that the bombing of the bridges caused many casualties because approximately 150 people were crossing at the time 271 A few minutes after the first bridge 20 03 2009 11 54 AM 41 of 102 file cs WWork Ictysite milosevic trialc judgement 040616 htm was destroyed the railway bridge was also detonated 272 These events caused panic in the town 273 152 B-1405 testified that while detained in the house of a Muslim in Brcko by Simo Radovanovic a k a “Captain” who was a member of the Red Berets from Serbia she worked like a servant and was used as an object of sexual gratification Also during this time the witness overheard Simo Radovanovic saying “Oh we didn’t know that there would be so many people on that bridge at the time ” 274 153 Captain Rade Bozic of the JNA told Mr Gasi that he was responsible for the operation and that he regretted it due to the civilian casualties 275 About a month before the takeover Mr Gasi saw JNA helicopters landing at the JNA garrison out of which emerged individuals wearing red berets and “olivey” green camouflage uniforms 276 Later Captain Bozic told the witness that the men were “members of those special units of the JNA and under direct command of Captain Dragan’s soldiers that came from Serbia” 277 154 On 1 May 1992 Captain Petrovic appeared on television to inform the people that “the army unit the military police force security” of which he said he was the Captain “had been given the mandate to take over the control of Brcko within 48 hours” 278 On 3 May 1992 Mr Gasi saw soldiers with all kinds of uniforms JNA camouflage reserve regular on the streets On 4 or 6 May 1992 two JNA airplanes bombed Muslim and Croat parts of town 279 155 On 7 May 1992 Mr Gasi witnessed executions of civilians in the town of Br cko 280 These executions were perpetrated by soldiers wearing camouflage uniforms of an olive-grey colour and a man in a blue police uniform 281 On 12 May 1992 the witness saw men in camouflage SMB uniforms in front of the Galeb Hotel guarding dead bodies in civilian clothing 282 156 While detained at Luka Camp from 27 May to 7 June 1992 Mr Gasi also saw bodies being unloaded from refrigerated meat trucks and then buried in a mass grave with a bulldozer by soldiers in camouflage grey and olive-green uniforms 283 Although the witness did not see any JNA personnel killing anyone he did see Ranko Cesic who belonged to the JNA and who was wearing a camouflage uniform of the JNA kill two men 284 157 After the destruction of the bridges on 30 April 1992 B-1011 was detained in the Posavina Hotel where he saw four dead bodies that were dressed in civilian clothes and appeared to have been recently killed 285 There were 25 detainees and the witness saw Jelisic beat some of them 286 Sadik Ljaljic an older Muslim man from Brcko was beaten and when he complained was separated out from the group and shot 287 The detainees were lined-up on the terrace of the hotel and then the witness and some others were taken from the hotel to the SUP building As the witness was entering the SUP building he heard a burst of gunfire coming from where the detainees had been lined-up on the terrace 288 He saw Jelisic standing in front of the group and he had a firearm in his hands The men who had been lined-up on the terrace had fallen to the ground and were lying haphazardly as if they had been executed The witness was able to identify by name six of the persons who had been standing with him on the terrace of the Posavina Hotel and to describe seven others None of the people in the group has ever been seen again 289 158 B-1407 testified that he witnessed what he thought were paramilitaries escorting prisoners from the SUP building Jelisic was among these paramilitaries These prisoners were shot in the vicinity of the SUP building 290 159 Many Muslim men of Brcko were detained in Luka Camp in May and June 1992 291 Witnesses gave testimony describing the manner in which these detainees were transported by bus to Luka 20 03 2009 11 54 AM 42 of 102 file cs WWork Ictysite milosevic trialc judgement 040616 htm Camp in Brcko 292 The number of detainees incarcerated there varied on a daily basis and B-1408 estimated that the number of detainees could have been up to 1 500 at any given time 293 The conditions and treatment to which the detainees at Luka Camp were subjected were terrible and included regular beatings rapes and killings 294 Jelisic personally participated in these beatings and executions 295 160 One of the detainees was B-1408 who was transferred to Luka Camp on 8 May 1992 with about four or five busloads of other detainees 296 When they disembarked from the buses all their personal belongings including identification papers were taken from them they were then placed in “the hangar” 297 Many of the detainees were called out beaten and executed – Jelisic personally participated in beatings with batons sticks and electric and telephone cables 298 B-1408 saw men from eselj’s or Arkan’s group kill a Serb who had tried to help a Muslim flee the former Yugoslavia later that night the soldiers killed the Muslim who was an active member of the SDA 299 161 At Luka Camp B-1408 and other detainees were forced to remove the bodies which typically had marks of beatings and gunshot wounds to the back of the head 300 The witness personally moved about 12 to 15 bodies and saw approximately 100 bodies stacked up like firewood at Luka camp each day a refrigerated meat truck from the local Bimeks Company in Brcko would come to take away the dead bodies 301 On another occasion Jelisic said around noon “Well I’ve killed seven people so far I’m going to kill another eight and that will do for the day” 302 162 Around 3 or 4 May 1992 B-1450 a female Bosnian Muslim was taken to Luka Camp where she saw about 50 men forced to line up against a wall and heard someone yell “Ready” she heard many gun shots and saw bodies falling down to the ground 303 Subsequently the witness was taken out of the camp to Sava River and raped at knifepoint 304 163 Mr Gasi described the brutal treatment to which the detainees were subjected 305 The witness saw on one occasion the killing of at least two people who were detained at Luka Camp One of the perpetrators of these killings was one of the witness’s former Serb neighbours named Ranko esic 306 According to the witness Jelisic was among the people who physically abused men detained at Luka Camp 307 The witness was forced to help dispose of corpses at Luka Camp into the River Sava 308 164 Mr Ramic who was involved in the formation of the SDA and elected Mayor of Brcko in 1990 estimated that out of the 1991 pre-conflict population of Brc ko 87 000 most of the population fled after the hostilities began leaving about 10 000 of whom about 3 000 were Bosniak 309 Of the 3 000 Bosniaks who remained about 2 000 were either killed or missing 310 The plan of the SDS was to reduce the Bosniak population down to the level of 10 percent including Bosniaks and Croats 311 165 Mr Ramic stated that on 3 May 1992 thirty young people at least three of whom were members of a Muslim youth organisation encouraging young people to become SDA members were killed Jelisic participated in these killings 312 The witness testified about the political structure of Brcko and identified by name prominent Bosniaks from Brcko and members of the SDA who were killed on the first day of the conflict 313 166 B-1408 who was detained with others at the Laser Bus Company testified about an incident on 6 or 7 May 1992 when a man showed up with two others wearing masks with slits for their eyes 314 The man stated “Muslims in case you didn’t know my name is Jelisic nicknamed Adolf I’ve 20 03 2009 11 54 AM 43 of 102 file cs WWork Ictysite milosevic trialc judgement 040616 htm killed 80 Muslims so far and I’ll finish all of you too” 315 People were then called out by their surnames and beaten because their names were recognised as belonging to those who had been organisers of the SDA The witness remembers the surname “Causevic” as one of these names 316 Although the witness was not certain he testified that he thought some people were taken to Luka Camp because they were members of the SDA 317 167 On 15 May 1992 B-1411 who was a member of the SDA was brought to the office in Luka Camp and interrogated by Jelisic who accused the witness of being an extremist 318 Jelisic asked the witness about various people including the Ramic brothers one of whom was the Mayor of Brcko and the other the President of the SDA 319 Jelisic accused the witness of being a member of the Patriotic League and accused the SDA of hiding weapons in the basement of the mosque the witness admitted that he was a member of the SDA but denied the rest 320 168 During the interrogation B-1411 saw Jelisic circle the names of three people on a list and order them to be brought into the office 321 When the three Bosnian Muslims between 20 to 25 years of age were brought to the office Jelisic interrogated them beat one of them and then took them out of the office 322 The witness heard gunshots and screaming 323 Sanski Most 169 In 1991 the population of Sanski Most was about 50 293 with around 22 830 45 4 percent of the population being of Muslim ethnicity 324 In 1997-1998 the population of Sanski Most RS was 1 114 with around three members 0 2 percent of the population being of Muslim ethnicity 325 During the same period the population of Sanski Most FBiH was 16 341 with around 15 586 95 4 percent of the population being of Muslim ethnicity 326 170 In early April 1992 the 6th Light Partisan Brigade was transferred from Croatia to Sanski Most with mortars rocket launchers and a B1 gun 327 The operation in Sanski Most began on 26 May 1992 328 B-108 testified that the speech of Radovan Karadzic in which he instructed people to be prepared to take over the SDK decisively accurately reflects the events in Sanski Most 329 171 In the weeks afterwards no attention was paid to ensuring respect for the rights of other nationalities as required by Variant A document 330 Almost all non-Serbs were removed from positions of authority 331 172 Subsequent to the beginning of operations there was evidence submitted regarding the killing of Muslim civilians by Bosnian Serb forces 332 Mr Begic testified that on 31 May 1992 about 20 men including the witness were told they were being taken to Vrhpolje Bridge 333 All the men were shot as they were forced to jump off the bridge – the witness was the only one to survive 334 B-1044 testified that at the end of May 1992 he was told by a Serbian neighbour that all the male inhabitants of the small hamlet of Begici in Kljevci had been killed 335 173 B-1611 testified that on 31 May 1992 a group of about 30 people including children took refuge in a garage in Merdanovici 336 When soldiers entered the village three of them approached the garage started shooting at the garage and demanded that everyone come out 337 Husein Merdanovic an unarmed civilian exited the garage and attempted to tell the soldiers that women and children were inside but was instantly killed 338 The Serb soldiers continued to fire with rifles into the garage 339 The witness fled the garage and hid about 15 or 20 metres away where she was able to see several dead and wounded bodies of women and children 340 The witness then fled to a 20 03 2009 11 54 AM 44 of 102 file cs WWork Ictysite milosevic trialc judgement 040616 htm neighbour’s house 341 She later learned that the other people in the garage were dead including her sister 342 174 B-108 testified that in June 1992 more than 25 Muslims were killed during the cleansing-operations on the Sana bridge in Vrhopolje and that 19 Muslims were killed in Kenjani village 343 In addition the witness received an assignment from Colonel Ancic to remove the entire civilian population in Podbrize in early June 1992 344 The entire civilian population was taken to the Krings Hall and then transported by bus in the direction of Bihac 345 The witness first saw Arkan’s men in Sanski Most in September 1995 Arkan’s men withdrew one month later after the Federation’s forces attacked on 10 October 1995 During the one month period when Arkan’s men were in Sanski Most many Muslim civilians were killed – to the witness’s knowledge 60 or 70 people in the village of Sasina 346 175 Civilians of Sanski Most were detained under inhumane conditions in the Krings Factory at Betonirka garages and at the Sports hall 347 The commander of the prison was from the police station and the men were detained on the authority of the SDS 348 All those detained in the Sports Hall and garages were detained on the basis of the criteria laid down by the SDS 349 176 Mr Muhic testified that about 1 000 people including men women and children were detained in a Sports hall in June of 1992 in the centre of Sanski Most350 B-108 testified that they were detained under absolutely inhumane conditions 351 They did not have the minimum requirements for personal hygiene 352 At that time the temperatures were very high in Sanski Most and the food they were given was only what their families could bring them 353 On 18 June 1992 Mr Zulic was arrested and taken to the Betonirka factory which was located about 100 to 150 metres from the police station and had been converted into a detention facility 354 It consisted of a main building and three small metal garages Mr Zulic was locked in the first garage which already held about 30 detainees 355 There was not enough room it was insufferably hot and they were regularly beaten and humiliated by the Serbian guards 356 Mr Zulic also testified that the guards carved a sign of the cross on his chest with a knife 357 On 22 June 1992 the witness was present when about 19 men were murdered at Kriva Cesta which is about two kilometres from Betonirka 358 The witness was given a hoe ordered to join about 20 to 25 other men and start digging his own grave 359 At a picnic table about a hundred metres away the witness saw the then SDS president of the municipality Professor Nedeljko Rasula in civilian attire as well as others wearing camouflage and former olive-grey JNA uniforms 360 All of the men except three were executed 361 177 B-1684 testified that on 1 August 1992 at noon Serb soldiers in olive-drab uniforms with red bands tied on their epaulettes arrived in the area broke into the witness’s house in Lukavica and searched it 362 After searching his home the soldiers took the witness towards his parents’ home located down a nearby hill As the witness was going down the hill he saw a group of 14 people consisting of his male relatives 363 When the witness asked the soldiers if they would be beaten or killed the soldiers told him to return home The witness was allowed to leave and he sought the assistance of a Serb neighbour who declined to help for fear that he would also be killed When the witness later returned home the women told him that all 14 of his relatives had been killed 364 The witness later recovered the corpses which were full of bullets and disfigured from automatic gunfire at close range 365 Among the dead were his father and 22-year old brother 366 He is the only male survivor from his village 367 178 Many detainees of the Betonirka factory and the Sports hall were later driven from Sanski Most to Manjaca prison camp in Banja Luka 368 Mr Zulic was among the 64 men taken from Betonirka 20 03 2009 11 54 AM 45 of 102 file cs WWork Ictysite milosevic trialc judgement 040616 htm factory to Manjaca camp and en route a number of detainees died 369 Mr Zulic testified that at the Manjaca camp they were beaten with clubs cables bats or other similar items by the military police 370 The men were placed in small bare stables which were overcrowded and contained no toilet facilities 371 While at the camp the detainees received inadequate food and water 372 Their heads were shaved and they were severely beaten during interrogations 373 Mr Zulic himself was beaten in the infirmary 374 Prijedor 179 The municipality of Prijedor is located in northwestern Bosnia The population in Prijedor municipality in 1991 was approximately 94 028 with around 40 075 42 6 percent of the population being of Muslim ethnicity 375 In 1997-1998 the population of Prijedor was 39 248 with approximately 397 1 percent of the population being of Muslim ethnicity 376 180 Mr Mesanovic testified that in 1991 when Yugoslavia was still a unified state orders came from Belgrade for the TO in Prijedor to mobilise Only people of Serb ethnicity were mobilised in 1992 377 Although there was no need for self-defence in spring 1992 weapons were publicly distributed to the local Serb population in Prijedor 378 Most Muslims had responded to the mobilisation call-up in 1991 but already at the beginning of 1992 a large number of them left the JNA Only a small number remained within the JNA 379 181 On 23 May 1992 members of the Serb army fired at a concentration of Bosnian Muslim villages called Brdo which is made up of Zecovi Carakovo Hambarine Rakovcani Rizvanovici and Bišcani Hambarine fell on 23 May 1992 380 182 Mr Selak served in the JNA from 1955 until his request for retirement was formally granted in September 1992 381 On 27 May 1992 there was a daily reporting with Colonel Marcetic and General Tali c about the events in Kozarac at which Colonel Marcetic reported that on that day in Kozarac 800 “citizens” were killed and 1 200 were taken prisoner Mr Selak thought the number killed was actually 2 000 and that the number had been diminished because he was the only Bosniak present General Talic then looked at Colonel Marceti c and stated “You mean that 80 persons were killed that is the information that you are supposed to send to the general staff” This information was then recorded and signed by Colonel Marcetic in his report to the 1st Krajina Corps command The witness said that General Talic did this because he knew he would be held accountable and that he was violating international law 382 Mr Selak testified that “a genocide occurred in Prijedor ethnic cleansing” because of the large discrepancy in casualties between the 343rd Motorised Brigade and the Muslims 383 183 At the end of May 1992 after the take-over of Prijedor and the outlying areas the Serb forces confined thousands of Muslim and Croat civilians in the Omarska Keraterm and Trnopolje detention camps 384 184 B-1805 was a member of the Intervention Platoon in the Prijedor police which was given lists of lawyers doctors and other prominent Muslims who were specifically targeted for arrest 385 He testified that most of the civilians who were taken out of their houses in the Brdo operation during the clearing up of the terrain of Hambarine Carine Pisare Rizvanovici etc did not end up at the police station to be interrogated but instead were directly taken to the camps without any investigation or accompanying procedures 386 A large majority were unarmed and innocent civilians 387 185 B-1805 testified that in both Bišcani and Carakovo he saw the military forcing the Muslim men 20 03 2009 11 54 AM 46 of 102 file cs WWork Ictysite milosevic trialc judgement 040616 htm women and children out of their homes and making them gather at a central location where pre-arranged trucks and buses were waiting The buses were owned by Transport Prijedor and Ljubija mines 388 Approximately 2 000 civilians were driven out of their homes and taken to detention camps in Prijedor So far as the witness was aware these civilians were not guilty of anything 389 After the Carakovo operation the witness saw between eight and ten military trucks transporting Muslim bodies from the Brdo area 390 Between Ljubija and Carakovo at a hamlet called Raljaš the witness saw 30 to 50 recently killed Muslim civilians B-1805 thought that it looked like an execution because the bodies were scattered over approximately 100 square meters and no weapons were found on the bodies 391 186 B-1805 testified that on 21 August 1992 over 100 men were taken off two buses being driven out of Prijedor by the Intervention Platoon The prisoners were taken off the buses at Koricanske Stijere Vlasic Mountain in groups and then taken to the edge of the cliff where they were shot 392 Some of those who were executed fell off the cliff and those who did not fall were pushed over either by members of the intervention platoon or by the prisoners who were brought after them to be shot The prisoners on the cliff pleaded for their lives before being shot All the prisoners from both buses were killed in this way and grenades were thrown over the edge of the cliff onto their bodies in order to finish off anyone who was still alive The whole process took about 30 minutes 393 187 Mr Garibovic who survived the killings testified that he had boarded a bus with about 150 men and they were lined up at Vlasic Mountain and shot at from behind The witness survived and escaped to the woods The witness heard the moaning of dying people the entire night The witness and another man wandered around for 2 to 3 days on Mount Vlasic 394 188 B-1032 testified that on 23 July 1992 he was ordered to drive a truck and collect bodies in Ravine Over a two-day period he collected bodies from the Biscani-Rizvanovici area that covered a distance of roughly eight kilometres The witness collected about 300 to 350 bodies in total and the witness testified that 90 percent of the bodies were Muslims and a small percentage were Croats 395 189 Ultimately non-Serbs were divided into two groups one which consisted of men aged between 12 to 15 and 60 to 65 and one of women children and elderly men 396 Generally the men were taken to the Keraterm and Omarska detention camps and the women to the Trnopolje detention camp 397 During confinement both male and female prisoners were subjected to severe mistreatment which included beatings sexual assaults torture and executions 398 Prisoners were guarded by soldiers police forces local Serb military or TO units or a combination thereof who were dressed in uniforms and generally had automatic rifles and other weapons on their persons The guards cursed the prisoners referring to them as “Balijas” or “Ustasa” 399 Members of paramilitary organisations and local Serbs were routinely allowed to enter the camps to abuse beat and kill prisoners 400 190 The Omarska camp consisted of two large buildings the hangar and the administrative building and two smaller buildings known as the “white house” and the “red house ” 401 Omarska held as many as 3 000 prisoners at one time primarily men but also had at least 36 to 38 women With few exceptions all the prisoners in Omarska were Muslims or Croats The only Serb prisoners held in Omarska were said to have been there because they were on the side of the Muslims 402 191 Prisoners were held in large numbers in very confined spaces with little room either to sit or to lie down to sleep 403 Sometimes 200 persons were held in a room of 40 square metres Three-hundred prisoners were confined in one small room Some Omarska prisoners spent the time crowded together in the lavatories 404 In the lavatories prisoners were packed one on top of the other and often they had to lie amidst excrement 405 The crowded rooms at Omarska were stifling in the summer heat and often guards refused to open windows in rooms crowded to overflowing or 20 03 2009 11 54 AM 47 of 102 file cs WWork Ictysite milosevic trialc judgement 040616 htm demanded the handing over of any possessions prisoners had managed to retain as the price of an open window or a plastic jar of water 406 192 Mr Mesanovic was taken to Omarska camp on 24 June 1992 and left on 6 August 1992 407 The witness spent the first three days of his detention in the white house and for the rest of the time he was detained in the glass house 408 The witness estimated that there were about 3 000 people detained at Omarska Camp 409 The witness testified that Ranko Mijic was the person most responsible for the killings and beatings that took place at Omarska camp Towards the end of July 1992 about 100 people from the Brdo area were taken to the white house and killed 410 At the camp the witness slept on ceramic tiles the food provided and toilet facilities were not adequate 411 193 Among the prisoners suffering from hunger was acute The prisoners were fed in batches of about 30 at a time and had to run to and from their daily meal often being beaten by guards as they came and went 412 Some prisoners lost 20 to 30 kilograms in body weight during their time at Omarska others considerably more 413 Women who were held at Omarska were routinely called out of their rooms at night and raped One woman was taken out five times and raped and after each rape she was beaten 414 194 After Mr Mesanovic’s left Omarska camp he heard that approximately 150 men had been killed at Keraterm camp 415 195 The Keraterm detention camp located on the eastern outskirts of Prijedor was previously used as a ceramic tile factory 416 The Keraterm camp began operating on 25 May 1992 and held up to 1 500 prisoners crowded into a number of large rooms or halls 417 Conditions in Keraterm were atrocious prisoners were crowded into its rooms as many as 570 in one room with barely space to lie down on the concrete floors 418 The rooms in Keraterm were unlit without windows and in the summer intensely hot with no ventilation 419 Prisoners in Keraterm were kept locked in these rooms for days on end crowded together 420 196 Beatings were very frequent at Keraterm prisoners were called out attacked with bars and batons and made to beat each other 421 There was much calling-out and beating of prisoners at night and those who returned were bloody and bruised all over some died of their injuries 422 Some who were called out never returned and prisoners assumed that they had died as a result of the beatings 423 197 On 23 July 1992 approximately 120-130 Muslim men of military age from the Brdo area were taken to Keraterm camp including B-1088 424 The conditions in the room were terrible and people were regularly called out and beaten 425 Around 24 July 1992 the witness heard the first burst from the light machine-gun that was about 20 metres away from Room 3 pointing at it 426 There were also some infantry weapons being used some gunfire and when the door was broken down the shooting became very intense 427 The shooting lasted for roughly four to five minutes The witness heard several bursts of fire with a pause of a couple of minutes in between Nobody was allowed to leave the room 428 The witness only saw what had happened in the morning He estimates that there were about 200 bodies The bodies of those killed were taken away on a truck Those who were wounded were also taken away and the witness never saw any of them again 429 The shooting apparently occurred through the closed doors of the room in which those prisoners were confined these doors had large bullet holes pierced through them 430 198 B-1805 testified that on 24 July 1992 he reported to the Keraterm camp to secure a crime scene He 20 03 2009 11 54 AM 48 of 102 file cs WWork Ictysite milosevic trialc judgement 040616 htm saw between 100 and 150 dead bodies of prisoners in the camp who had been killed with automatic weapons 431 199 The Trnopolje detention camp was located near the Kozarac station on the Prijedor -Banja Luka railway line 432 The Trnopolje camp held thousands of prisoners most of whom were older men and women and children 433 Armed soldiers guarded the camp and the camp commander was Slobodan Kuruzovic 434 No food was supplied by the camp authorities to the prisoners at Trnopolje Initially prisoners ate what they had brought with them and after that they survived on food passed to them by members of the local population 435 Although there was no regular regime of interrogations or beatings as in the other camps beatings and killings did occur 436 200 Because the Trnopolje camp housed the largest number of women and girls there were more rapes at this camp than at any other 437 Girls between the ages of 16 and 19 were at the greatest risk of rape 438 During evenings groups of soldiers would enter the Trnopolje camp take out their victims from the Dom building and rape them 439 Women were gang raped One 19-year old woman was raped by seven men she subsequently suffered terrible pains and sought medical attention at the clinic for treatment of her haemorrhaging 440 These rapes caused terrible fear and mental trauma among all the prisoners 441 Because of the lack of food and the unsanitary conditions at the Trnopolje camp lice and scabies were rampant and the majority of inmates suffered from dysentery with one estimate being as high as 95 percent 442 There was no running water at all at Trnopolje and only limited lavatory facilities 443 201 The Trnopolje camp was the culmination of the campaign of ethnic cleansing because those Muslims and Croats who were not killed at the Omarska or Keraterm camps were sent to Trnopolje and then deported from Bosnia and Herzegovina 444 Srebrenica 202 In 1991 the population of Srebrenica was 29 198 people 21 361 73 2 percent being of Muslim ethnicity 445 In 1997-87 the population of Srebrenica was 7 442 with 7 0 1 percent being of Muslim ethnicity 446 203 According to the evidence of General Morillon Commander of the UN Protection Force in Bosnia and Herzegovina from September 1992 until July 1993 and Ambassador Arria Head of the UN Security Council Mission to Bosnia and Herzegovina sent to ascertain the situation on the ground and report to the Security Council the Srebrenica enclave was surrounded by Serb forces beginning some time in 1993 until 1995 during which time tens of thousands of Bosnian Muslim refugees lived in the overcrowded town under tragic humanitarian conditions 447 204 On 21 March 1995 Radovan Karadzic signed a “Directive for Up-coming Operations ” addressed to the Command of the 1st Krajina Corps In relation to the Drina Corps the Directive says “planned and well-thought-out combat operations create an unbearable situation of total insecurity with no hope of further survival or life for the inhabitants of Srebrenica and Zepa” 448 General Smith understood this paragraph to be instructions to “squeeze and compress both physically and in terms of a way of life the existence of those enclaves ” 449 The Directive also states that “in case the UNPROFOR forces leave Zepa and Srebrenica the DK glossary command shall plan an operation with the task of breaking up and destroying the Muslim forces in these enclaves and definitively liberating the Drina valley region” 450 General Smith understood this to mean that if the UN withdrew the enclaves would be “done away with” 451 20 03 2009 11 54 AM 49 of 102 file cs WWork Ictysite milosevic trialc judgement 040616 htm 205 On 6 July 1995 an attack on the Srebrenica enclave started and shelling of the town intensified in the following days 452 Bosnian Muslim forces present in the area resisted with small arms and mortars but were easily outgunned 453 On 11 July 1995 the VRS entered the town under the command of Ratko Mladic 454 who stated “Here we are on the 11th of July 1995 in Serbian Srebrenica On the eve of one more great Serbian holiday we present this town to the Serbian people After the rebellion against the Turkish governor the moment has finally come for us to take revenge on the Turks here” 455 206 The majority of the population gathered around the UN “Dutchbat” compound at Potocari 456 Meanwhile the Bosnian Muslim Army 28th Division decided to try to break through hostile territory Many civilians decided to follow them and formed a column in the village of Jagli ci 457 According to Mr Becirevic the column numbered between 12 000 to 15 000 men stretching for about 10 to 15 kilometres as it moved towards Tuzla 458 207 The Trial Chamber heard evidence of the unfolding events from Mr Deronjic who was appointed Civil Commissioner for Srebrenica around 11 July 1995 459 In the early morning of 12 July 1995 the witness went to Hotel Fontana where he found Ratko Mladic and two other men A meeting set for later in the morning involving the Muslims and UNPROFOR was discussed At the meeting the Muslim representatives made it clear that they wanted to leave safely The witness realised that Ratko Mladic must have had a previous meeting with the group and this was confirmed by a waiter from Hotel Fontana Ratko Mladic had a meeting with UNPROFOR on the evening of 11 July 1995 460 Around 13 July 1995 buses and trucks were coming to Bratunac from Konjevic Polje with imprisoned Muslims During the evening people were mobilised and told to guard the buses The witness stated that Ljubo Simic reported that evening that killing and shooting was occurring 461 Late in the evening of 13 July 1995 Colonel Beara told the witness that he had “orders from the top to kill the prisoners” from Srebrenica in Bratunac 462 There is evidence that the killings were perpetrated by VRS units and organised at the highest levels of the VRS 463 208 The majority of refugees in Potocari were women and children but there were about 300 men in the compound and 500 to 600 men outside the compound 464 Approximately 25 000 women and children and some elderly men were evacuated by bus out of Potocari 465 Major Franken Deputy Commander of the Dutch battalion testified that he became anxious about the fate of the men because Ratko Mladic had told DutchBat that he was going to separate men who were 16 to 60-years of age from other refugees in order to check if they were war criminals 466 The men were separated interrogated in “the white house” which was about 300 to 400 metres outside the main gate and then taken outside the enclave in a blue bus 467 The witness tried to send escorts but failed as they were stopped by Serb forces 468 It was obvious that the VRS did not want DutchBat to witness what was going to happen 469 Nine bodies of executed men were found in an area near a brook directly south of the white house a solider reported to the witness that he had actually seen two Serb soldiers execute a Muslim man and reports came in that the men who were expected to go to Kladanj were not arriving 470 The witness complained at least twice to Colonel Jankovic about the treatment of men in the white house 471 Without any acknowledgement of mistreatment Colonel Jankovic stated that the VRS had 6 000 prisoners under their control 472 209 B-1804 who held a senior position in the Zvornik Brigade 473 received information on 12 July 1995 that parts of the Muslim 28th Division were passing between Buljin and the Milici Brigade In the evening of the same day the witness had information that measures were being taken to block these parts of the 28th Division on the Kravica-Nova Kasaba-Milici road The witness organised an ambush of the Muslim 28th Division 474 On the morning of 14 July 1995 the Zvornik Brigade 20 03 2009 11 54 AM 50 of 102 file cs WWork Ictysite milosevic trialc judgement 040616 htm engaged in combat with part of the column of the 28th Division The fighting continued and increased during the night of 15 July 1995 At 14 00 hours on 16 July 1995 a provisional truce was reached which allowed for a corridor to be opened for 24 hours B-1804 testified that a large number of Muslims was able to pass through the corridor when it was open 475 After the corridor had been closed the Zvornik Brigade along with several units of the MUP searched the terrain for “stragglers from the 28th Division” and this continued until 30 July 1995 People that were found were either captured or immediately killed 476 210 On 13 July 1995 B-1804 received a call from the Assistant Commander for Security of the Zvornik Brigade Drago Nikolic who said that the Brigade was expecting a large number of Muslim prisoners to come from Bratunac and that preparations had to be made for them Mr Nikolic told the witness that the prisoners were not being sent to Batkovic camp because the ICRC and UNPROFOR “knew about it” and that Ratko Mladic had personally ordered that the prisoners were to be executed in Zvornik In the afternoon of the same day the witness had information that this concerned about 3 000 prisoners 477 There is also evidence that the orders for the massacres were given by Radovan Karadzi c on 9 July 1995 478 211 On 13 July 1995 witness B-1401 was part of a group of Muslim men who were forced to run along the road to Bratunac They turned at a meadow above the Bratunac -Konjevic Polje Road where there were between 1 000 and 2 000 people surrounded by Bosnian Serb soldiers 479 The Muslim men in the meadow were told to get on to trucks one of which had “Tuzla Transport” written on it The trucks travelled in the direction of Bratunac and the men spent the night in the trucks The truck passed through Konjevic Polje Drinjaca and Zvornik and reached Karakaj 480 In the afternoon of 14 July 1995 the men were taken from the truck and detained at Petkovici School 481 When the men were detained in a classroom soldiers came and asked for Muslim men from certain geographical locations to come out When the men were taken out the witness could hear blows and moans and did not see them again When darkness fell groups of men were taken to the front of the school and loud bursts of fire could be heard 482 B-1401 and other detainees from Petkovici School were forced to board a truck and taken to Petkovici Dam area 483 As the witness left Petkovici School he saw a pile of those who had been killed earlier in front of the school 484 When the truck stopped the prisoners heard shots 485 The prisoners were called out in small groups of five for execution 486 When the witness and others in his group were forced to leave the truck they were told to “find a place” At the right hand side of the truck the witness saw rows of corpses 487 The men were told to lie down and then the shooting started The witness subsequently heard other groups of people being taken from the truck and shot When the shooting stopped the soldiers inspected the bodies to ensure that everyone was dead anyone found alive was shot again When the truck left the witness looked up and saw many corpses but was unsure how many 488 212 B-1395 testified that on 13 July 1995 he was captured by Serb soldiers and transported with a group of other Muslim men to a meadow in Lolici They were searched for money and their hands were tied behind their necks The witness heard some people say that there must be about 2 000 people in the meadow They were given some water and one person who complained was killed 489 Ratko Mladic came and assured them that they would be exchanged and the witness told Ratko Mladic that he had lost his boots Ratko Mladic responded by promising him that he would get a pair of shoes 490 Approximately 20 minutes later a person in a civilian uniform without any insignia told the Muslim men to make a column The column was between 400 and 500 metres long guarded every six metres by Serb soldiers armed with automatic rifles The prisoners were taken to a warehouse near Kravica which became very full The last person to enter the warehouse was told to sit down but he could not so the guards shot him Immediately thereafter the Serb soldiers began to shoot into the warehouse and this continued until nightfall 491 The witness managed to reach a little reception booth and pulled a dead body over himself where he remained for the next 20 03 2009 11 54 AM 51 of 102 file cs WWork Ictysite milosevic trialc judgement 040616 htm 24 hours The next morning 14 July 1995 a man was shot when he stood up to urinate 492 At a certain point the soldiers offered to take any wounded people to a hospital when some crawled out of the warehouse they were killed immediately When it became dark the witness crawled out and stood behind an excavator noticing that two other people were still alive inside the warehouse The witness heard dead bodies being loaded onto a truck and then managed to escape 493 213 B-161 a member of the Serbian MUP in Loznica was in Zvornik in July 1995 and testified that at the RS command in Zvornik Drago Nikolic told him that Beara had ordered that 6 900 people “had to disappear” within five days in the area between Zvornik and Bijeljina and that they were transporting men to various villages and killing them 494 214 On 15 July 1995 B-1804 spoke to Major Jokic who said that Mr Beara Colonel Popovic and Mr Nikolic “were taking people whenever they felt like it” and that Colonel Popovic had ordered that there should be no radio communication or anything recorded or written down about the prisoners Later on the same day the witness informed Lieutenant Colonel Pandurevic about the executions who then asked why the civilian defence were not “digging in” The witness understood this to mean why were the civilian defence not burying the executed prisoners 495 215 Several witnesses testified about widespread killings in the Srebrenica area including killings at Cerska 496 Kravica 497 Orahovac 498 Petkovici Dam 499 Branjevo Military Farm 500 Pilica Dom 501 and Kovluk 502 216 About April 1994 Mr Erdemovic joined the 10th Sabotage Unit which was a unit belonging to the VRS in Bijelina 503 When the unit grew it was divided into two platoons the Vlasenica and the Bijeljina platoons and the witness was part of the Bijeljina platoon 504 On 16 July 1995 the witness’s unit was involved in the killing of people at Branjevo Military Farm He estimates that 1 000 people were killed on this occasion 505 After this the lieutenant colonel who had previously given the orders for the killings at Branjevo Military Farm arrived and gave further orders to Brano Gojkovic who was the one who gave orders to the witness 506 The lieutenant colonel said that at the Pilica Cultural Dom there were about 500 men trying to get out The witness stated that he would not and could not do it any longer and was supported in this by some of the men from his unit Instead men from Bratunac carried out the execution of these 500 men 507 The witness heard automatic gunfire and a few hand grenades when the men of Bratunac were at Pilica and he saw bodies lying in front of the Pilica Cultural Dom 508 It is not clear how many people survived this execution just that there were some survivors 509 217 Mr Manning an Investigations Team Leader in the Office of the Prosecutor attended all the exhumation sites directly linked to Srebrenica 510 There are 43 known Srebrenica related mass graves 23 have been exhumed by the Office of the Prosecutor and 20 have been probed to confirm the existence of multiple human remains 511 The witness gave evidence about the distinction between primary graves and secondary graves Primary graves contain individuals who were buried soon after their deaths In Srebrenica these include Branjevo Military Farm Kozluk Petkovici Dam Orahovac Cerska Nova Kasaba Konjevic Polje Ravnice and Glogova Secondary graves contain the bodies of individuals who have already been buried in primary graves but then have been exhumed and buried again elsewhere These include Hodzici Road Lipje ancari Road and Zeleni Jadar Primary and secondary sites can be linked using forensic scientific methods 512 There is evidence that after the executions units of the VRS then transferred the bodies from the primary graves to secondary graves 513 The bodies were removed from the primary grave sites using heavy machinery 514 218 The major cause of death of those exhumed during the Srebrenica investigation was gunshot injury 20 03 2009 11 54 AM 52 of 102 file cs WWork Ictysite milosevic trialc judgement 040616 htm Mr Manning testified that there was no indication that people had been killed in battle In the majority of graves especially in the primary graves there was evidence of ligature or blindfolding of individuals There was also evidence that individuals had been killed in situ i e they had been shot in the grave or beside the grave Bullets were found under the bodies which were in postures indicating they had been executed For example in Glogova all the bodies had been shot in the head and some had also been shot twice in the chest after having been bound 515 219 Mr Manning gave evidence that there was a minimum of 2 570 individuals found in Srebrenica mass grave sites exhumed between 1996 and 2001 516 This figure is conservative because it does not take into account the large number of body parts still to be assessed or the secondary graves which have not been exhumed by either the Office of the Prosecutor or the Bosnian Commission for Missing Persons 517 ii Other municipalities 220 The Trial Chamber now turns to a consideration of whether there is sufficient evidence that genocide was committed in the remaining specified territories Kotor Varos Kljuc Bosanski Novi and Bijeljina 518 The Prosecution had submitted in a footnote that there is what it described as “ limited evidence” in relation to Kotor Varos Kljuc and Bosanski Novi and that there was other evidence in relation to Bijeljina 519 221 The evidence in relation to these four territories is set out in summary form below Kotor Varos 222 There is no evidence of genocide in this territory Bijeljina 223 The takeover of Bijeljina commenced on 31 March 1992 520 224 In 1991 there were 24 314 Muslims or 29 8% of the population In 1997-1998 there were 1 429 Muslims or 2 6% of the population 521 225 There is evidence of – 1 Killings a Tens of people were killed in the centre of Bijeljina and behind the SDS headquarters 522 b During the war an unspecified number of bodies were seen floating in the Drina River 523 c Forty-eight bodies were seen in the streets of Bijeljina – a witness was aware of more corpses that existed 524 d A witness heard it announced on Radio Bijeljina that 25 bodies had been found in a garbage dump 525 e A TO member referred to killing “quite a lot of them” Muslims – number unknown 526 f Twenty-two people were tortured and killed in a basement 527 20 03 2009 11 54 AM 53 of 102 file cs WWork Ictysite milosevic trialc judgement 040616 htm g Forty-one people were killed during the takeover and their names were announced by Radio Bijeljina and the Semberija newspaper 528 h On 31 March 1992 a witness learned through Bijeljina Television that “Arkan’s men and people from Captain Dragan’s guards the Chetniks of Vojvoda Mile Blagic” entered Bijeljina and killed people including whole families in the centre of town 529 2 Persecutions a A list of Muslims to be arrested was used by the police The list included the names of well-off Muslims or Muslim businessmen and was given to every checkpoint or exit from SAO Semberija 530 b Police patrols were formed with Arkan’s men who went from house to house with lists of “suspects” – many people were taken from their homes and never seen again 531 c The Serb plan was to cleanse Bijeljina of its non-Serb population by first targeting people with economic political and religious influence so the remainder of the population would be easier to control 532 d In 1992 there was a general announcement that all able-bodied Bosniaks were to report for service to the VRS they then received call-up papers to the VRS 533 Those who did not comply were sent to work details on the frontline no Serbs had to work on the front lines even the ones who were not in the army 534 e Non-Serbs were dismissed from their jobs and replaced with Serbs Only irreplaceable non-Serbs were kept in their positions and even then only under close supervision 535 3 Detention and Mistreatment a Three to four hundred men women and children took shelter at the JNA barracks 536 General Jankovic told Fikret Abdic that in addition to the several hundred refugees in the barracks there were another one-and-a-half thousand refugees in Petkovaca mostly Muslims 537 b On 10 August 1993 a witness along with 47 others was detained by Serbs transferred to the Brcko area and forced to work digging trenches and fortifications on the frontlines of the VRS 538 Almost a year later when the witness declared his intention not to leave Bijeljina he was harassed and badly beaten by Major Vojkan urkovic’s men 539 c Four people were detained and beaten at the SUP building 540 d About 2 000 people were detained at Batkovic Camp mostly Muslims 541 People were beaten About 100 people died in the camp 542 A group of ten men was selected for beating and if one succumbed they would make up the number 543 A witness was tormented by being hanged 544 Sexual activity was forced upon the men 545 Around September 1993 the witness was again detained at Batkovic Camp – this time there were between 800 and 900 Muslims but in the following few days 600 to 700 were exchanged 546 20 03 2009 11 54 AM 54 of 102 file cs WWork Ictysite milosevic trialc judgement 040616 htm 4 Destruction of cultural property a In March 1993 two mosques in Janja were destroyed All five mosques in Bijeljina were also destroyed 547 b Serbs targeted “symbols of non-Orthodox religion” – all mosques in Bijeljina and in the outlying villages were destroyed with dynamite There were 11 mosques in total 548 5 Forcible Transfer and Deportation a A witness left Janja in September 1994 after being forced to abandon his house and property 549 No one coerced the population of Janja to leave as such but the population had its property taken away and had to leave because of the psychological pressure exerted on them 550 b The Red Cross alerted a witness that in the beginning of mid-July 1994 large numbers of Muslims were being forced out of Bijeljina Over the next months 2 500 Muslims were moved and in the autumn a further 2 500 551 c On 22 August 1994 a witness and his family were detained and taken away with 30 or so other Muslim residents in a cattle truck towards Tuzla 552 Bijeljina had a population of 30 000 and they were all expelled and only 5% of the Muslims – 800-2 000 persons – remained 553 6 Miscellaneous a In April and May 1992 a witness was assigned to escort convoys transporting weapons ammunition and other military equipment from Serbia to Bosnia via Srijemska Ra ca to Bijeljina Brcko Zvornik and Majevica – to the battlefields 554 He accompanied such convoys at least ten times across the Sava River 555 Each convoy consisted of between ten to 20 “heavy duty trucks” 556 Kljuc 226 The takeover of Kljuc commenced in April 1992 557 227 In 1991 there were 17 696 Muslims or 47 3% of the population In 1993 14 000 to 15 000 Muslims had left Kljuc In 1995 there were 1 211 Muslims or 6 0% of the population 558 228 There is evidence of – 1 Killings a About one hundred people were killed in front of the old primary school in Velagi ci 559 2 Detention and Mistreatment a Dozens were beaten and detained at the Velagici school 560 b Fifty-one Muslims were taken to the frontline to do forced labour 561 Bosanski Novi 20 03 2009 11 54 AM 55 of 102 file cs WWork Ictysite milosevic trialc judgement 040616 htm 229 The takeover of Bosanski Novi commenced in May 1992 562 230 In 1991 there were 14 040 Muslims or 33 7% of the population In 1993 13 000 Muslims had left Bosanski Novi In 1995 there were 1 513 Muslims or 4 8% of the population 563 231 There is evidence of – 1 Killings and Forcible Transfer and Deportation a In May 1992 the Muslim village Suhaca was shelled from the direction of neighbouring Serb villages 564 On 24 May 1992 after the shelling stopped 8 000 to 10 000 men women and children including 1 200 from Suhaca attempted to flee the area around the village of Suhaca 565 b In June 1992 in Blagaj Japra soldiers surrounded the Muslim civilians who had fled from the Suhaca area and opened fire upon them – for two hours 566 c Nine-thousand persons left Bosanski Novi and travelled to Croatian territory 567 d Inhabitants of the village of Sikare were driven from their homes some were then taken and killed 568 2 Detention and Mistreatment a In June 1992 Muslim civilians in the town of Blagaj Japra were detained at the Japra Company 569 Beatings and took place 570 At least two detainees were shot and killed 571 The men were separated from the women and children and then transferred to the Mlakve football stadium on 11 June 1992 572 They were detained there for around 46 days and the conditions were terrible 573 At least one detainee was beaten 574 b A football field of detainees was the tip of the iceberg in the efforts of local Serbs to establish RS as free of Muslims including camps at Keraterm Trnopolje Omarska and Manjaca and there was cooperation between local Serbs and the mayors and TO of Bosanska Dubica Banja Luka Prijedor Sanski Most and Kljuc 575 3 Destruction of cultural property a In May 1992 mosques in the Muslim village of Suhaca were shelled from the direction of neighbouring Serb villages 576 iii Other Evidence Demographic Evidence 232 Demographic evidence shows that in 1991 344 803 Muslims lived in the Republika Srpska part of the Milosevic case area as defined in Professor Tabeau’s expert report 577 Of that number about 7 933 or about 1 4 percent remained in 1997-1998 578 Destruction of Cultural Heritage 233 The Trial Chamber heard evidence of destruction of the Bosnian Muslims’ cultural and religious properties in the territories of Bosnia and Herzegovina Professor Riedlmayer testified that all of the 20 03 2009 11 54 AM 56 of 102 file cs WWork Ictysite milosevic trialc judgement 040616 htm 277 mosques that were surveyed were damaged and only 22 of those were assessed as only lightly damaged 579 Most of the mosques surveyed were located in territories seized and held by Bosnian Serb forces during the conflict with Sarajevo being an exception 580 In a number of cases mosques were not only razed to the ground but the site was cleared and other objects were placed on the site such as rubbish dumps 581 A majority of the religious sites identified in Professor Riedlmayer’s report were destroyed as a result of attacks directed at them rather than incidental to fighting in the vicinity 582 Expert Evidence 234 Dr Zwaan Associate Professor at the Centre for Holocaust and Genocide Studies University of Amsterdam testified about the importance of ideology and use of propaganda in setting the context for genocide According to Dr Zwaan ideology plays a major role in processes leading to the commission of genocide involving various types of radical nationalism 583 which dehumanise the targeted group also using collective historical memory where applicable in an attempt to create a “them” and “us” culture 584 These nationalist ideologies are later used to legitimise rationalise and justify the genocidal process 585 Although individual motives for participating in the acts may be varied ideologies give an overall sense of direction to what should be done and impart a sense of purpose and intent to individual perpetrators 586 Dr Zwaan testified that scholars generally agree that genocide is a crime of state i e the overall perception attitude behaviour and decision of the central political leadership are decisive factors in the emergence of genocidal crimes 587 According to Dr Zwaan genocidal crimes never develop from the “bottom up” 588 they are “top down” affairs 589 Such crimes occur with the “knowledge approval and involvement of the state authorities ” 590 235 Dr Budding an Associate at the Harvard Academy for International and Area Studies 591 prepared a report entitled “Serbian Nationalism in the Twentieth Century Historical Background and Context ” 592 The expert report of Dr Budding provided the historical background and context relevant to understanding Serbian national mobilisation in the 1980s and the sequence of political events that led to the dissolution of the Yugoslav state and the beginning of the post-Yugoslav wars in 1991 593 The report had a particular focus on the Serbs’ attitude toward the Yugoslav state and on the relation between Serbs inside Serbia and those outside and sought to identify and explain the elements of a national mindset that contributed to the disintegration of Yugoslavia 594 The report was not intended to imply that Serbia’s leaders bore exclusive responsibility for Yugoslavia’s collapse independent of Serbian actions forces in favour of independence existed in both Slovenia and Croatia 595 However the report stated that the Accused’s policies and rhetoric helped these forces move from marginal to dominant political positions 596 236 From 1990 although the Accused’s regime declined to set out explicit border claims in public it took a variety of actions directly and indirectly aimed at aligning Serbs in Bosnia and Herzegovina and Croatia with Belgrade and against the newly elected governments of those republics 597 At this time a flood of stories in the Belgrade media promoted the idea that Serbs outside Serbia were again threatened by the genocide they had suffered during the Second World War 598 It was also fed by personal and family memories of the war and – in Croatia – by the Tu man regime’s highly nationalist rhetoric partial rehabilitation of the Ustasa state and many acts of insensitivity toward the Serb population 599 All of these actions were aimed at promoting a territorial rather than a political solution to the re-emerging “Serbian problem” 600 237 Professor de la Brosse of the University of Reims an expert in the use of propaganda by the media 20 03 2009 11 54 AM 57 of 102 file cs WWork Ictysite milosevic trialc judgement 040616 htm prepared a report entitled “Political Propaganda and the Plan to Create a State for all Serbs” 601 The report of the witness focused on the use of propaganda by the Accused and Serbs but also examined the use of propaganda by other parties to the conflict 602 Professor de la Brosse determined that a comparison between Serbian Croatian and Bosnian nationalist propaganda yielded the conclusion that Serbian propaganda surpassed the other two both in the scale and content of the media messages put out 603 iv Evidence of genocidal intent of Bosnian Serb leadership 238 Both Radovan Karadzic and Biljana Plavsic stated that the basic goal of the Serb war aim was to redistribute the population of Bosnia and Herzegovina so that the Serbs would be left in control of a single continuous block of territory embracing the whole of the border with Montenegro Serbia and all of the traditionally Serb -inhabited areas 604 This required the removal of very large numbers of Bosnian Muslims because they were the majority population along the Drina River Valley in North-Eastern Bosnia adjacent to Serbia 605 239 Aleksa Buha Foreign Minister of the RS stated in May 1994 in the Assembly of Republika Srpska that their “primary option was unification with Serbia and if that doesn’t fly then independence” 606 This was reiterated in May 1994 by Milan Martic President of Republic of Serbian Krajina who stated in the same session that “we are one and the same nations and be sure that before long whether it please someone or not we will be one state” 607 Radovan Karadzic had also promoted the idea of unification when he announced in October 1993 that “we must propose the complete unity of the Serbian people including Yugoslavia the RSK and the RS” 608 240 Mr Harland testified that on numerous occasions members of the Bosnian Serb leadership expressed their resolve to achieve the stated objective at all costs and that Radovan Karadzic in particular in his pre-conflict statements forecast the extermination of the Bosnian Muslim population in the event of war Radovan Karadzic stated “We will use this Serbian-supported war machine to make life impossible for civilians” to terrorise the civilians in order to reach a particular political goal 609 241 The following quotations provide insight into Radovan Karadzic’s state of mind at the relevant time “They Muslims will disappear that people will disappear from the face of the Earth They do not understand that there would be bloodshed and that the Muslim people would be exterminated The deprived Muslims who do not know where he is leading to what he is leading the Muslims would disappear ” 610 “In just a couple of days Sarajevo will be gone and there will be five hundred thousand dead in one month Muslims will be annihilated in Bosnia and Herzegovina ” 611 “First none of their leaders would survive they’d all be killed in three to four hours They’d stand no chance of surviving whatsoever” 612 “This is the road that you want Bosnia and Herzegovina to take the same highway of hell and suffering that Slovenia and Croatia went through Don’t think you won’t take Bosnia and Herzegovina to hell and Muslim people in possible extinction Because Muslim people will not be able to defend itself if it comes to war here ”613 “What will we do if we get a state in which we are a minority They want us and the Croats to remain in a unified Bosnia so that we control the Muslims We cannot be in that unified state We well know where fundamentalism arrives you cannot live any more This conflict was incited so 20 03 2009 11 54 AM 58 of 102 file cs WWork Ictysite milosevic trialc judgement 040616 htm that the Muslims would not exist” 614 “We certainly know that we must give up something – that is beyond doubt insofar as we want to achieve our first strategic goal to drive our enemies by the force of war from their homes that is the Croats and Muslims so that we will no longer be together in a state” 615 242 On 1 May 1992 Biljana Plavsic told Mr Doyle Lord Carrington’s personal representative that if there was to be a division of territory the Serbs deserved more territory and if it took the lives of three million people to solve the problem then they should get on with it 616 243 Similarly Dragan Kalinic Minister of Health of Republika Srpska said in May 1992 at the 16th RS Assembly in relation to Sarajevo “ knowing who our enemies are how perfidious they are how they cannot be trusted until they are physically militarily destroyed and crushed which of course implies eliminating and liquidating their key people” 617 244 At the 34th Assembly of Republika Srpska from 27 August to 1 October 1993 Momcilo Krajisnik stated “Believe me it would be the greatest tragedy if the Muslims accepted to live together with us You’ve seen how they engratiate sic themselves with the Croats W e might lose our state I simply wouldn’t accept that I would accept a lesser percentage than we have now in order to remain divided that we have our state and not be with the Muslims” 618 245 Other examples of statements by Radovan Karadzic are the following “we have preserved 250 000 places of the living space where Muslims lived” 619 “we have no further reason to fight we have liberated almost all that is ours” 620 and “They will challenge us because of ethnic cleansing but we will say – Serbs have also been ethnically cleansed” 621 Following the take-over of Srebrenica in July 1995 Radovan Karadzic addressed the 54th Assembly of Republika Srpska in October 1995 “I found General Krsti c and advised him to go into the city and proclaim the fall of Srebrenica and after that we will chase the Turks through the woods I approved that radical mission and I feel no remorse for it” 622 v Finding 246 On the basis of the inference that may be drawn from this evidence a Trial Chamber could be satisfied beyond reasonable doubt that there existed a joint criminal enterprise which included members of the Bosnian Serb leadership whose aim and intention was to destroy a part of the Bosnian Muslim population and that genocide was in fact committed in Brcko Prijedor Sanski Most Srebrenica Bijeljina Klju c and Bosanski Novi The genocidal intent of the Bosnian Serb leadership can be inferred from all the evidence including the evidence set out in paragraphs 238 -245 The scale and pattern of the attacks their intensity the substantial number of Muslims killed in the seven municipalities the detention of Muslims their brutal treatment in detention centres and elsewhere and the targeting of persons essential to the survival of the Muslims as a group are all factors that point to genocide 247 Having examined the evidence the Trial Chamber finds no evidence of genocide in Kotor Varos 248 The Trial Chamber notes that the number of killings and other acts of mistreatment in Bijeljina Kljuc and Bosanski Novi is lower than in the other four territories However it concludes that by reason of the geographic contiguity of these three territories to the other four territories and the relative similarity in the period of time when both sets of territories were taken over there is also sufficient evidence of a genocidal intent in relation to these three territories b Is there evidence upon which a Trial Chamber could be satisfied that the Accused was a participant in the joint criminal enterprise and that he shared the required intent of its participants 20 03 2009 11 54 AM 59 of 102 file cs WWork Ictysite milosevic trialc judgement 040616 htm i The Leader of All Serbs 249 Mr Babic testified that the Accused was the leader of the Serbian people in Yugoslavia and the people in Knin saw him as the protector of the Serbs in Yugoslavia 623 Ambassador Galbraith testified that he believed that the Accused “was the architect of a policy of creating Greater Serbia and that little happened without his knowledge and involvement” 624 250 On 16 March 1991 the Accused stated that in order to be powerful the Serbs had to be united and ordered mobilisation of the reserve police to ensure security and to defend the interests of the Republic and Serbs outside Serbia 625 The Accused said that he had been in touch with “our people” in Knin and Bosnia and Herzegovina and hoped that “they” would not be “stupid enough to fight us” 626 251 The idea of all Serbs living in one State had been put forward for many years 627 On 15 January 1991 the Accused made a speech during which he asserted that the Serbian people wanted to live in one State and therefore a division that would force them to live in separate sovereign states was unacceptable 628 252 In March 1991 during a secret meeting at Kara or evo the Accused agreed with President Tu man to the division of Bosnia and Herzegovina along ethnic lines and its annexation to Croatia and Serbia respectively allowing the possibility for the Bosnian Muslims to live in an enclave 629 An outline of “Six Strategic Goals” in order to achieve a Serbian state was passed by the RS Assembly during its 16th session held on 12 May 1992 630 253 In July 1991 Mr Babic Radovan Karadzic and the Accused had a conversation during which Radovan Karadzic stated that he would chase the Muslims into the river valleys in order to link up all Serb territories in Bosnia and Herzegovina The Accused warned Mr Babic not to “stand in Radovan’s way” 631 254 The Accused articulated his desire for a separate Serbian state to Hrvoje Sarinic on 12 November 1993 when he stated “I am telling you frankly that with Republika Srpska in Bosnia which will sooner or later become part of Serbia I have resolved ninety percent of Serbia’s national question” 632 and again in September 1995 the Accused stated “We Hrvoje are going to solve our problem and without the international community We are each going to annex our part of Bosnia Hercegovina” 633 255 The Accused manipulated the Serbian media to impose nationalist propaganda in order to justify the creation of a Serbian State 634 The Accused kept the Serbian press under tight surveillance with independent media channels given less than one-tenth of the national media space in the interest of foreign policy 635 General Morillon believed that the Accused was responsible for sowing fear of past atrocities in the Yugoslav population thereby unleashing “dogs” which escaped his control and contributed to the tragic events 636 256 Mr Jovic testified that “for more than a decade the Accused was the main political figure in Serbia He held absolute authority within the people and within the party and he had the possibility of having a decisive role on all decisions made And by the same token he was in a way the main actor of everything that came to pass during that period of time” 637 Mr Jovic gave evidence that “ t his period of our history was marked without any doubt by the Accused In every sense he was the key figure the main actor in this Serbian tragedy ” 638 Professor de la Brosse gave evidence that Mr Jovic in his book entitled Last Days of the SFRY stated “For years the Accused paid the biggest attention to the media especially television He personally appointed editors-in-chief of the newspapers and news programmes especially directors-general of the radio 20 03 2009 11 54 AM 60 of 102 file cs WWork Ictysite milosevic trialc judgement 040616 htm and television He was deeply convinced that citizens formed their view of the political situation on the basis of what they were presented and not on the basis of their real material and political position What is not published has not happened at all – that was the Accused’s motto” 639 ii Relationship of the Accused with Bosnian Serb political and military authorities 257 The Accused was the dominant political figure in Serbia and he had profound influence over the Bosnian Serb political and military authorities 640 258 Mr Harland a UN Civil Affairs and Political Affairs Officer in Sarajevo from 1993 until 1999 641 testified that there was a basic level of support from Serbia to the Bosnian Serbs and in particular to the Bosnian Serb military 642 The Bosnian Serb military emphasised that the chain of command really ran to Belgrade 643 Dr Williams the UNPROFOR Director of Information and Spokesperson for the UN Special Representative Yasushi Akashi between 1994 and 1995 testified that by the autumn of 1994 Serbs were using greater radar and air defence around Sarajevo and North-Western Bosnia 644 Mr Akashi as well as UN military personnel concluded that the equipment must have come from Yugoslavia 645 The VJ and the Serb leadership received operational reports from the VRS and provided direct assistance 646 General Clark once told General Perisic to turn off the air defence connectivity that linked the air defence system in Bosnia and Herzegovina with that in Serbia 647 259 A report to the Main Staff of the VRS dated September 1992 and signed by Ratko Mladic indicated that the decision of the Assembly of Republika Srpska of 12 May 1992 provided the Serbs from the former JNA with the available material and equipment to form the VRS 648 Ratko Mladic recognised that the VRS started off with a very substantial amount of assets especially in relation to combat hardware ammunition fuel and food reserves 649 When the JNA pulled out of Bosnia and Herzegovina in the second-half of 1992 it left the Serbs in Bosnia and Herzegovina with a nearly complete army supplied with the equipment from the former JNA 2nd Military District 650 260 VRS officers received pay as members of the 30th Personnel Centre of the Yugoslav Army until 28 February 2002 651 The 30th Personnel Centre was an administrative unit within the General Staff in Belgrade which was established by an order of Momcilo Perisic VJ Chief of General Staff for the purpose of attending to personnel matters of VRS officers contract personnel and other personnel 652 When the JNA pulled out of Bosnia and Herzegovina in 1992 the JNA officers and non-commissioned officers – approximately 1 800 persons – who originally came from Bosnia and Herzegovina wished to remain in the territory of Bosnia and Herzegovina 653 Mr Lilic formalised the situation through a decision of the SDC in November 1993 establishing the 30th and 40th Personnel Centres This was to resolve the status of persons formerly members of the JNA who were outside the territory of the FRY 654 All personnel attached to the 30th Personnel Centre were paid by the VJ 655 B-127 worked for the 30th Personnel Centre and did not receive a single dinar from the VRS 656 As acknowledged by General Smith “the man who pays the cheque is usually the person who is in command eventually ” 657 261 The minutes of the 50th session of the RS Assembly held on 15-16 April 1995 recorded Ratko Mladic as stating that the “Yugoslav army provided VRS with weapons and other equipment which covered about 50% of the needs” 658 To illustrate this Ratko Mladic gave a consumption review from the beginning of the war until 31 December 1994 stating that 9 185 tones sic of infantry ammunition have been consumed 1 49% of which was self-produced 42 2% from supplies VRS inherited and found in the former JNA 20 03 2009 11 54 AM 61 of 102 file cs WWork Ictysite milosevic trialc judgement 040616 htm barracks 47 2% provided by the Yugoslav Army and 9 11% imported or purchased Currently VRS has got only 9 11% of the total needs for 1995 As for artillery ammunition 18 151 tones sic have been consumed out of which 26 2% was self-produced 39% from supplies 34 4% provided by the Yugoslav Army and 0 26% imported VRS has got 18 36% of this year’s needs As for anti-aircraft ammunition 1 336 tones sic have been consumed 0% was self -produced 42 7% from supplies 52 4% provided by the Yugoslav Army 4 9% imported 659 262 At the Third Congress of the SPS in 1996 the Accused acknowledged the material assistance the SPS party had given to “Serbs outside Serbia” including “those at war where a war was waged” 660 The Accused stated “As regards the resources spent for weapons ammunition and other needs of the Army of Republika Srpska and the Republic of Serbian Krajina these expenditures constituted a state secret and because of state interests could not be indicated in the Law on the Budget which is a public document The same applies to the expenditures incurred by providing equipment for the security forces and special anti-terrorist forces in particular and this was not made public because it was a state secret as was everything else that was provided for the Army of Republika Srpska” 661 The Accused also stated “Extra-budgetary spending was limited exclusively to some specific forms of assistance to Serbs on the other side of the Drina The other extra-budgetary funds the majority of them one could say were used for the needs for the various needs to strengthen and preserve the country’s security” 662 In another statement the Accused said that “most of the assistance was sent to people and fighters and Bosnia and Herzegovina” 663 263 B-174 gave evidence that in October 1992 the 72nd Brigade of which he was a member was trained at Pancevo by officers of the VJ 664 Members of a special police unit from Knin were also undergoing training at the same place The witness referred to his training as inter-army cooperation between the VJ and the army of Krajina 665 During the night in January 1993 just before the men about 300 from the 72nd Brigade crossed the border into Bosnia they changed their uniforms replacing the insignia of the VJ with symbols of the VRS provided by their superior officers 666 Once across the border they met the 63rd Parachute Brigade from Nis and attacked the village of Skelane 667 The attack began with shooting from hand held rocket launchers and setting fire to haystacks so that people would panic and leave their homes 668 When the people did leave their homes the soldiers opened fire with automatic weapons and threw grenades 669 Armed and civilian people attempting to flee were met with machine gun fire 670 When the resistance declined the soldiers went further into the village and threw grenades into houses before entering to make sure that no one was hiding 671 The children in the village were killed by the only soldier willing to do so Lieutenant Zolotic a k a Zombie from the 72nd Brigade 672 264 B-1804 gave evidence that in May 1992 the JNA General Staff and Ratko Mladi c who had been appointed Commander of the Main Staff of the VRS issued orders that officers who were born in Bosnia and Herzegovina should remain there along with all their equipment 673 While the witness was on assignment with the VRS he and other members of the VRS were paid by the VJ 674 VRS soldiers who needed medical assistance could receive it in Serbia 675 Decisions of the VRS such as promotions had to be approved by the VJ before becoming effective and decisions by the VRS needed to be in compliance with VJ regulations 676 The relationship between the VRS and the VJ was both administrative and financial the personnel records of VRS officers who were born in Bosnia and Herzegovina were kept with the 30th Personnel Centre of the VJ which was based in Belgrade and responsible for all personnel matters related to VRS officers who were also JNA 20 03 2009 11 54 AM 62 of 102 file cs WWork Ictysite milosevic trialc judgement 040616 htm officers 677 The VJ partially supplied the VRS with ammunition fuel spare parts equipment food and other supplies 678 During the course of the conflict in Bosnia and Herzegovina including around February or March 1993 the VJ rendered direct assistance to the VRS in combat operations 679 265 Ambassador Galbraith gave evidence that in May 1992 when the JNA withdrew from Bosnia and Herzegovina 85 percent of their men and most of their equipment were left behind under the control of the Bosnian Serbs 680 Ambassador Galbraith also testified that the VRS was created in May 1992 and that it received financial support directly from Serbia in particular the salaries came from Serbia 681 266 Mr Anastasijevic was often in Bosnia and Herzegovina during the war He testified that around May 1992 when the JNA changed its name all ethnic Serbs born in either Croatia or Bosnia and Herzegovina were given the choice of transferring to the VRS or the army of the Republic of Srpska Krajina or being dismissed from the army 682 Consequently almost all of the officers in the VRS were previously officers in the JNA such as Ratko Mladic the Commander of the VRS 683 The salaries and pensions of VRS members came from Belgrade the JNA provided the VRS continual support in terms of equipment ammunition and manpower and occasionally participated in armed operations during the war 684 267 Baron van Lynden gave evidence that he had no doubt that all the soldiers of the VRS that he saw were working within a fairly strictly controlled hierarchal army and that the commanders that he met were always well-attired professional officers of the JNA 685 268 General Morillon testified that he understood the VRS to be the “federal army ” In May 1992 – and practically overnight – the federal army under the orders of General Kukanjac was “repainted” and became the VRS it consisted of the same officers and equipment and therefore all ammunition fuel logistics and weapons came from the federal army which always submitted to the authority of the President The assistance to the VRS was “obvious for everybody” 686 Despite the fact that according to official reports Belgrade no longer exerted control over the VRS in reality General Morillon was absolutely convinced that Belgrade continued to exercise its authority on Ratko Mladic 687 269 B-127 gave evidence that when the JNA formally withdrew from Bosnia and Herzegovina the officers who remained became members of the VRS through the 30th Personnel Centre 688 In autumn 1992 a VJ reservist told the witness that he had been mobilized in Belgrade and would have lost his job if he did not respond to the call-up for mobilisation 689 The witness had a JNA identification document that was issued in 1992 and a VRS identification document that was issued July or August 1996 The two documents had the same identification number 690 If IFOR or later SFOR stopped the witness he had to show his VRS identification otherwise he may have been arrested as a member of the JNA 691 Senior officers of the VRS who belonged to the 30th Personnel Centre only had JNA identification documents After 1996 VRS identification documents were issued 692 270 Mr Theunens a military expert with experience as a Balkan analyst in the Belgian Ministry of Defence and who has participated in various UN peacekeeping operations in the former Yugoslavia between 1994 and 1999 gave evidence regarding the transition of the JNA to the VRS and VJ support of the VRS 693 The formation of the VRS officially on 12 May 1992 came about through the re-structuring of the JNA’s former 2nd Military District headquartered in Sarajevo 694 The final key decisions in the transformation of the JNA into the VRS were the appointment by the SFRY Presidency of Ratko Mladic as Commander of the 2nd Military District on 25 April 1992 General 20 03 2009 11 54 AM 63 of 102 file cs WWork Ictysite milosevic trialc judgement 040616 htm Ad‘ic’s visit to Banja Luka on 2 May 1992 and the establishment of the VRS Main Staff between 3 and 19 May 1992 695 271 In late summer 1992 the VRS and VJ agreed upon a plan – code named Izvor – whereby the VJ was to re-supply the VRS with ammunition and fuel 696 The witness pointed to various documents such as an “Analysis of the Combat Readiness of the VRS for 1992” wherein the VRS Main Staff noted that 7 451 tons of ammunition were received from the FRY via the Izvor plan 697 and a logistics report dated 1 January 1993 from the VRS 1st Krajina Corps noting that 29 trailer trucks were dispatched from the FRY for material transport as per the Izvor plan 698 272 Mr Theunens gave evidence that the VJ did not completely forfeit its direct role in combat operations in Bosnia and Herzegovina as indicated by actions along the Drina Valley December 1992 to August 1993 and Spring 1995 around Sarajevo October 1993 and September 1994 and Western Bosnia and Herzegovina July to November 1994 699 Mr Theunens testified about an operation outside Sarajevo 25 October 1993 to 25 February 1994 the aims of which were to push the Army of Bosnia and Herzegovina out of a wider area of Vogosca and to take and hold the Nisici Plateau to the northwest of Sarajevo 700 273 General Vegh a retired General and former Commander of the Hungarian Defence Forces 701 also gave evidence with respect to JNA participation in events in Bosnia and Herzegovina 702 JNA transition to the VRS 703 and VJ support of the VRS 704 The witness opined that as long as military organisations stationed in Bosnia and Herzegovina were subordinated to the JNA they operated on the theory and practice of “one army ” an expression the witness saw used quite often in several records and reports 705 After the withdrawal of the JNA and creation of the VRS two independently functioning armed forces were formed 706 However the relationship between them did not end and yet they did not function as “one army” either 707 Rather the coordinated and harmonised activities and support resulted in exceptionally close cooperation of the two armies 708 274 Mr Harland testified that when he personally had to write “signs” for negotiation meetings for Ratko Mladic and the Bosnian Serb delegation Ratko Mladic would cross out the word “Bosnian” and say “No no we are a single Serb delegation You know Belgrade is our capital” 709 In general when the UN had problems with getting the Bosnian Serb civilians to take the appropriate decision there would often be a delegation to Belgrade as in the case of Gorazde They would talk with the Accused who according to Mr Harland would be able to bring about the desired outcome with the Bosnian Serb military 710 further the Accused was able to influence the behaviour of the VRS 711 275 Secretary Vance Lord Carrington and Ambassador Okun understood the Accused’s signature of the Cessation of Hostilities Agreement712 to indicate the assent of the paramilitaries and irregulars as was recorded in the document because these groups were in their opinion under the Accused’s control 713 276 At a meeting on 22 April 1994 regarding the situation in Gorazde the Accused directed Radovan Karadžic during the meeting to instruct his officials to remove obstacles to a UN aid convoy in Rogatica and Radovan Karadžic complied 714 The Accused’s influence over Radovan Karadzic was apparent from the pressure the Accused placed upon him to help resolve the UN hostage crisis in May and June 1995 715 In an intercepted conversation on 9 July 1991 Radovan Karadzic said to the Accused “Get in touch with me maybe daily It is very important for me to hear your assessment” 716 20 03 2009 11 54 AM 64 of 102 file cs WWork Ictysite milosevic trialc judgement 040616 htm 277 UNPROFOR was able to detect direct intervention by the Accused and others in Belgrade in the VRS only at a few key points in time most evidently in relation to Gorazde Mount Igman and Bjelasnica area 717 Thus the fact that nothing was done to restrain the VRS around Sarajevo and in other places including Srebrenica was taken as either acquiescence or support of these activities 718 Support given by Belgrade enabled it to influence a number of outcomes in Bosnia and Herzegovina 719 The Bosnian Serbs were almost entirely dependent on the support from Serbia and had a serious effort been made to restrain them Mr Harland believes that the Bosnian Serbs would have been responsive 720 278 As a Delegate for the Special Representative of the UN Secretary-General in Belgrade 721 Charles Kirudja had about six meetings with the Accused on issues concerning UNPROFOR Prevlaka and no-fly zones 722 The witness was struck by the Accused’s command of detail and knowledge of matters on which they spoke 723 usually in meetings with government leaders aides are the keepers of details 724 but there was never an issue of delegation to FRY President Lilic or anyone else it was sufficient to meet only with the Accused 725 In a memorandum of 16 May 1995 the witness referred to the Accused’s “solo role in the negotiations” 726 It was clear to the witness at the time that the Accused had a role to play in the recovery of hostages in Sarajevo 727 279 As part of the shuttle negotiations to achieve peace in Bosnia and Herzegovina General Clark then Commander of the NATO Operation Allied Force met with the Accused on 17 August 1995 along with Richard Holbrooke and other members of the Belgrade delegation 728 The delegation went to meet the Accused because it was thought that he would be a dominant factor in achieving peace in Bosnia 729 Holbrooke asked the Accused whether he should deal with him or the Bosnian Serbs The Accused replied “With me of course” 730 The Accused stated that he should be given the terms of the agreement and that he would hold an election a referendum on the agreement 731 When asked why a referendum vote in Serbia would bind people in Bosnia and Herzegovina the Accused stated that they will not disobey the will of the Serb people 732 280 General Clark asked the Accused why if he had this influence over the Bosnian Serbs he had allowed Ratko Mladic to kill all those people at Srebrenica 733 The Accused replied “Well General Clark I told him not to do it but he didn’t listen to me” 734 General Clark testified that he had regarded the admission as stunning because it showed foreknowledge of Srebrenica 735 281 There was a further meeting on 13 September 1995 at a lodge near Belgrade The Accused recommended that General Clark and Richard Holbrooke speak to Radovan Karadžic and Ratko Mladic who were in a building only 200 metres away 736 282 During the Dayton negotiations the Accused marked on a map of Sarajevo a line in red to identify those portions of Sarajevo he would be willing to return to the Federation of Bosnia and Herzegovina and those portions that he would retain 737 The Accused revealed a great deal of personal knowledge of the terrain and had no need to speak to anyone 738 When the time came to discuss the establishment of a sovereign road between Sarajevo and the Bosnian Muslim enclave of Gorazde the Accused worked on a computerised map with General Clark and without consulting with any member of the Bosnian Serb team he seemed very familiar with the road and terrain the Accused identified parts of the land held by the Bosnian Serbs that he was willing to return to the Federation of Bosnia and Herzegovina to establish a sovereign road between Sarajevo and Gorazde 739 For General Clark the significance of the map marked by the Accused at Dayton is that the Accused drew the line himself without consulting it was an indication of his authority 740 He did not consult anyone during the negotiations 741 20 03 2009 11 54 AM 65 of 102 file cs WWork Ictysite milosevic trialc judgement 040616 htm 283 In relation to negotiations at Dayton when General Clark had trouble with the Bosnian Serbs he went to the Accused who was able to respond 742 The Accused said that his initials were enough to verify the Dayton Agreement and that he would produce the Bosnian Serbs’ signatures later 743 284 At least one member of the Contact Group said that he had seen the Accused in Serbia with Ratko Mladic on 7 July 1995 four days before Srebrenica fell 744 A code cable to the Accused on the 11th July 1995 states that “the BSA VRS is likely to separate the military-age men from the rest of the population” an eventuality about which UNPROFOR troops will be able to do very little The fact that the VRS will have practical difficulties controlling 40 000 people may mitigate against their desire to prolong or exacerbate the plight of the Srebrenica population 745 285 The Accused would be informed every day 746 The following persons attended the State Security meetings every morning Messrs Prodanic Stanisic Tapavcevic and for a while Kertes while he was at the federal MUP 747 B-179 heard in Bubanj Potok conversations between Milan Prodanic and Jovica Stanisic that the Accused had to be informed about everything that was being done 748 The witness heard that the Accused received reports through Mr Prodanic from the State Security of Serbia749 and that the Accused had to be informed about everything that was sent to the front line 750 286 The fact that nothing was done to restrain the VRS around Sarajevo or Srebrenica was taken by Mr Harland to mean that the Accused either acquiesced or supported these activities 751 General Smith concluded that the Accused knew of the killings after the event because at the meeting on 15 July 1995 he must have understood what had happened because Ratko Mladic was there 752 287 The contents of this paragraph are set out in a confidential annex iii Finding 288 On the basis of the inference that may be drawn from the evidence including evidence referred to in paragraphs 250-287 and 304-308 a Trial Chamber could be satisfied beyond reasonable doubt that the Accused was a participant in the joint criminal enterprise found by the Trial Chamber in paragraph 246 to include the Bosnian Serb leadership and that he shared with its participants the aim and intention to destroy a part of the Bosnian Muslims as a group Judge Kwon dissenting On the basis of the evidence as to – 1 the overall leadership position of the Accused among the Serbian people including the Bosnian Serbs in Bosnia and Herzegovina 2 the Accused’s advocacy of and support for the concept of a Greater Serbia 3 the logistical and financial support from Serbia to the Bosnian Serbs which it is reasonable to infer was provided with the knowledge and support of the Accused the logistical support is illustrated by the close relationship of VJ personnel with the VRS 4 the nature of the Accused’s relationship and involvement with the Bosnian Serb political and military leadership as evidenced by the request of Karadzic that the Accused keep in touch with him and that it was very important for Karadzic to have his assessment 753 5 the authority and influence of the Accused over the Bosnian Serb leadership 6 the intimate knowledge that the Accused had “about everything that was being 20 03 2009 11 54 AM 66 of 102 file cs WWork Ictysite milosevic trialc judgement 040616 htm done ” his insistence that he be informed “about everything that was going to the front line” 754 and 7 the crimes committed the scale and pattern of the attacks on the four territories their intensity the substantial number of Muslims killed the brutal treatment of Muslims in detention centres and elsewhere and the targeting of persons essential to the survival of the Muslims as a group a Trial Chamber could infer that he not only knew of the genocidal plan of the joint criminal enterprise but also that he shared with its members the intent to destroy a part of the Bosnian Muslims as a group in that part of the territory of Bosnia and Herzegovina which it was planned to include in the Serbian state c Answer to the First Question 289 The Trial Chamber concludes that there is sufficient evidence that genocide was committed in Brcko Prijedor Sanski Most Srebrenica Bijeljina Kljuc and Bosanski Novi and Judge Kwon dissenting that there is sufficient evidence that the Accused was a participant in a joint criminal enterprise which included the Bosnian Serb leadership the aim and intention of which was to destroy a part of the Bosnian Muslims as a group ii Is there evidence upon which a Trial Chamber could be satisfied beyond reasonable doubt that the Accused was a participant in a joint criminal enterprise to commit a particular crime and it was reasonably foreseeable to him that as a consequence of the commission of that crime a different crime namely genocide in whole or in part of the Bosnian Muslims as a group would be committed by other participants in the joint criminal enterprise and it was committed a Genocide and mens rea requirement for a conviction pursuant to the third category of joint criminal enterprise liability 290 The Amici Curiae submitted firstly that there is no evidence that the crime of genocide was within the object of the alleged joint criminal enterprise and secondly that the special intent required for genocide is not compatible with the mens rea requirement for a conviction pursuant to the third category of joint criminal enterprise and that the Prosecution must prove the Accused possessed the specific intent required for genocide before a conviction can be entered 755 In Prosecutor v Tadic 756 the Appeals Chamber identified three categories of joint criminal enterprise the third of which requires the Prosecution to establish 1 that the crime charged was a natural and foreseeable consequence of the execution of that enterprise and 2 that the Accused was aware that such crime was a possible consequence of the execution and that with that awareness he participated in that enterprise 757 The essence of this category of joint criminal enterprise is that an accused person who enters into such an enterprise to commit a particular crime is liable for the commission of another crime outside the object of the joint criminal enterprise if it was reasonably foreseeable to him that as a consequence of the commission of that particular crime the other crime would be committed by other participants in the joint criminal enterprise 291 The Appeals Chamber in Prosecutor v Brdjanin758 held that there is no incompatibility between the requirement of genocide and the mens rea requirement for a conviction pursuant to the third category of joint criminal enterprise 759 it is therefore not necessary for the Prosecution to prove that the Accused possessed the required intent for genocide before a conviction can be entered on this basis of liability That submission of the Amici Curiae is therefore without merit b Finding and Answer to the Second Question 20 03 2009 11 54 AM 67 of 102 file cs WWork Ictysite milosevic trialc judgement 040616 htm 292 On the basis of the inference that may be drawn from the evidence set out in relation to the First Question a Trial Chamber could be satisfied beyond reasonable doubt that the Accused was a participant in a joint criminal enterprise to commit other crimes than genocide and it was reasonably foreseeable to him that as a consequence of the commission of those crimes genocide of a part of the Bosnian Muslims as a group would be committed by other participants in the joint criminal enterprise and it was committed 293 Although this basis of liability is alternative to the liability of the Accused as a perpetrator sharing the intent of the other members of the joint criminal enterprise First Question the Trial Chamber will not make a final determination as to the one or the other basis at this stage that is whether to acquit the Accused at this stage of one or the other basis of liability The reason is that a determination as to the Accused’s liability depends to a certain extent on issues of fact and the weight to be attached to certain items of evidence which calls for an assessment of the credibility and reliability of that evidence These issues do not arise for determination until the judgement phase iii Aiding and Abetting Genocide and Complicity in Genocide a Is there evidence upon which a Trial Chamber could be satisfied beyond reasonable doubt that the Accused aided and abetted in the commission of the crime of genocide in Brcko Prijedor Sanski Most Srebrenica Bijeljina Kljuc and Bosanski Novi b Is there evidence upon which a Trial Chamber could be satisfied beyond reasonable doubt that the Accused was complicit in the commission of the crime of genocide in Brcko Prijedor Sanski Most Srebrenica Bijeljina Kljuc and Bosanski Novi 294 The Amici Curiae submit that there is no evidence that the Accused knowingly aided or abetted one or more persons to commit genocide 760 295 In Prosecutor v Krstic the Appeals Chamber held 1 Aiding and abetting genocide is a separate mode of liability its mens rea is simply knowledge of the genocidal intent which need not be shared by the Accused The Trial Chamber observes that the Appeals Chamber’s conclusion that the proper characterisation of Krstic’s liability is aiding and abetting is confined to the facts of that case 761 2 There is authority for the view that complicity in genocide requires that the Accused share the genocidal intent when it “strikes broader than the prohibition of aiding and abetting” 762 The Appeals Chamber cited national legislation and the travaux préparatoires of the 1948 Genocide Convention to support that view but took no position on that question since it was not an issue before the Chamber thereby rendering their comments obiter dicta 763 296 There is therefore no authoritative decision within the Tribunal as to whether there is a difference in the mens rea for aiding and abetting genocide and complicity in genocide either when the latter is broader than aiding and abetting or indeed when it is of the same scope as aiding and abetting 297 In the absence of anything to indicate that complicity is broader than aiding and abetting in the circumstances of this case the Trial Chamber considers that there is merit in the Prosecution’s submission that the two are essentially the same 764 The Prosecution also submitted that in light of the similarities between the charges the Trial Chamber should confine itself to a determination on 20 03 2009 11 54 AM 68 of 102 file cs WWork Ictysite milosevic trialc judgement 040616 htm aiding and abetting under Article 7 1 of the Statute 765 It appears to the Trial Chamber that because complicity in genocide under Article 4 3 e of the Statute is following the Trial Chamber’s Judgement in Prosecutor v Stakic 766 the lex specialis in relation to liability under Article 7 1 of the Statute the proper characterisation of the Accused’s liability in this case may be complicity in genocide However the matter need not be determined at this stage The final determination if necessary will be made at the judgement phase c Finding and Answer to Third and Fourth Questions 298 On the basis of the evidence set out above in relation to the First Question a Trial Chamber could be satisfied beyond reasonable doubt that the Accused aided and abetted or was complicit in the commission of the crime of genocide in that he had knowledge of the joint criminal enterprise and that he gave its participants substantial assistance being aware that its aim and intention was the destruction of a part of the Bosnian Muslims as a group 299 Although complicity and aiding and abetting are possible alternatives to the liability of the Accused as a principal the Trial Chamber will not for the reason stated in paragraph 293 in relation to the third category of joint criminal enterprise make a determination at this stage as to the one or the other iv Is there evidence upon which a Trial Chamber could be satisfied beyond reasonable doubt that the Accused knew or had reason to know that persons subordinate to him were about to commit or had committed genocide in whole or in part of the Bosnian Muslims as a group in Brcko Prijedor Sanski Most Srebrenica Bijeljina Kljuc and Bosanski Novi and he failed to take the necessary measures to prevent the commission of genocide or punish the perpetrators thereof 300 The Amici Curiae submit that the specific intent required for genocide cannot be reconciled and is not compatible with the simple mens rea requirement of command responsibility under Article 7 3 of the Statute 767 On the basis of the Decision of the Appeals Chamber in Prosecutor v Br anin 768 this submission in unmeritorious 301 The Amici Curiae also submit that there is insufficient evidence that the Accused exercised “effective control” over the perpetrators of the alleged crime of genocide and that there is no evidence that 1 a subordinate to the Accused killed individual Bosnian Muslims or Bosnian Croats with the intent to destroy them as a group and 2 that the Accused “knew or had reason to know” that a subordinate was about to commit genocide or had done so and that the Accused failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators 769 302 The Prosecution submits that there is sufficient evidence that the Accused exercised “effective control” over General Adžic the Chief of the Main Staff of the JNA Ratko Mladic the Chief of the General Staff of the VRS and Franko Simatovic and Jovica Stanisic of the Serbian DB 770 It submits that the evidence demonstrates that the Accused had the ability to prevent or punish the commission of crimes by forces subordinated to these individuals 771 In addition it is submitted that the evidence supports a finding that the Accused’s influence and control over the Bosnian Serb leadership amounted to de facto control 772 The Accused could have prevented the perpetration of crimes of genocide had he wished to 773 According to the Prosecution the Accused’s approval acquiescence and continuing support following the commission of atrocities by forces under his control are indications of his intentions 774 303 The Chamber will now consider the evidence relevant to these submissions a Evidence in relation to liability under Article 7 3 of the Statute 20 03 2009 11 54 AM 69 of 102 file cs WWork Ictysite milosevic trialc judgement 040616 htm 304 The Accused exercised de facto control over the JNA through his influence over 1 the SFRY Presidency 775 2 the Chiefs of the Main Staff Kadijevic Adzic and Panic 776 3 the finances of the JNA 777 and 4 the appointment of loyal JNA officers 778 The VRS and the VJ were created out of the JNA 779 and throughout the war the VRS received logistical support from the VJ 780 Indeed funding for the VRS and the VJ emerged from a single financing plan 781 305 The Accused had both de jure and de facto control over the Serbian MUP and the State Security Service DB 782 Jovica Stanisic who controlled the Serbian DB is reported to have said the following to the Accused at an anniversary celebration of the founding of the special forces formed under the direction of the DB or the Red Berets later JATD and JSO “ Mr President everything we have done so far we did with your knowledge and with your consent” 783 At the same ceremony the Accused said to a member of the Red Berets Radojica Bozovic that he “read the reports” from Bozovic 784 306 B-129 testified that through the DB the Accused controlled and supported the Red Berets and Arkan’s Tigers and knew of their activities in Bosnia and Herzegovina 785 When asking Mihalj Kertes whether Arkan was under control the Accused stated “We need people like this now but no one should think that they are more powerful than the state” 786 In addition the Accused stated to Borisav Jovic in 1991 that “Arkan was a criminal and that it was unthinkable that our official organs would co-operate with someone like Arkan” 787 The Accused covertly provided support to paramilitary groups from Serbia such as the eseljevci 788 During meetings and negotiations the Accused was understood to represent all of the forces operating in Bosnia and Herzegovina including paramilitaries 789 307 The Accused had intimate knowledge of events and geography and was familiar with the strategic importance of villages and the terrain around Sarajevo 790 The Accused was aware of the crimes occurring on the ground in Bosnia and Herzegovina directly through national sources such as the Serbian MUP 791 Security Administration 792 and his close associates e g Radovan Karadzic 793 as well as international sources such as Helsinki Watch 794 Ambassador Okun and Secretary Vance 795 308 At a FRY Council for Coordination of State Policy meeting held on 18 August 1992 the issue of ethnic cleansing of Bosnia Muslims was discussed in the presence of the Accused 796 who stated that it would be unacceptable for “us” to leave the Bosnia Serbs helpless and that the aid to the Bosnia Serbs was humanitarian 797 b Finding and Answer to Fifth Question 309 On the basis of this evidence as well as other evidence a Trial Chamber could be satisfied beyond reasonable doubt that the Accused was a superior to certain persons whom he knew or had reason to know were about to commit or had committed genocide of a part of the Bosnian Muslims as a group in Brcko Prijedor Sanski Most Srebrenica Bijeljina Kljuc and Bosanski Novi and he failed to take the necessary measures to prevent the commission of genocide or punish the perpetrators thereof 2 Specific Challenges to the Bosnia Indictment a Schedule A Indictment Reference Amici Curiae Submissions Prosecution Submissions Trial Chamber’s Decision Evidence Examined 20 03 2009 11 54 AM 70 of 102 file cs WWork Ictysite milosevic trialc judgement 040616 htm No 2 The Amici Curiae submit that there is no evidence to support this allegation The Prosecution concedes that this allegation is unsupported by evidence Response at para 441 The Trial Chamber finds that there is insufficient evidence to support this allegation The Motion is allowed B-1354 Ex 652 tab 1 partially under seal transcript from Brdjanin The Amici Curiae submit Bosanski Novi that there is no evidence to In Alici 27 support this Bosnian Muslims allegation were killed The Prosecution concedes that this allegation is unsupported by evidence Response at para 441 The Trial Chamber finds that there is no evidence to support this allegation The Motion is allowed The Trial Chamber has found no evidence The Amici Curiae submit that there is no evidence to support this allegation The Prosecution concedes that this allegation is unsupported by evidence Response at para 441 The Trial Chamber finds that there is insufficient evidence to support this allegation The Motion is allowed B-1538 Ex 495 under seal transcript from Krnojelac at T 4045-4046 The Amici Curiae submit that there is no evidence to support this allegation The Prosecution concedes that this allegation is unsupported by evidence Response at para 441 The Trial Chamber finds that there is no evidence to support this allegation The Motion is allowed The Trial Chamber has found no evidence The Amici Curiae submit that there is no The Prosecution concedes that this allegation is The Trial Chamber finds that there is B-1122 Ex 566 tab 1 under seal statement Bosanski Novi In Blagaj Japra 7 Bosnian Muslim men were killed during the expulsion of Bosnian Muslims Professor Riedlmayer Ex 486 at pp 6 11 9 June 1992 No 2 23 June 1992 No 5 Foca In Jelec 18 Bosnian Muslims including elderly people and 8 members of 1 family were executed by JNA soldiers 4-10 May 1992 No 5 Foca In Brod 14 Bosnian Muslim men from Trnovaca were executed by Serb soldiers 22 June 1992 No 6 Gacko 20 03 2009 11 54 AM 71 of 102 file cs WWork Ictysite milosevic trialc judgement 040616 htm evidence to support this allegation unsupported by evidence Response at para 441 insufficient evidence to support this allegation The Motion is allowed dated 27 January 1999 at para 39 The Amici Curiae submit that there is no evidence to support this allegation The Prosecution concedes that this allegation is unsupported by evidence Response at para 441 The Trial Chamber finds that there is insufficient evidence to support this allegation The Motion is allowed B-1122 Ex 566 tab 1 under seal statement dated 27 January 1999 at para 39 The Amici Curiae submit that there is no evidence to support this allegation The Prosecution concedes that this allegation is unsupported by evidence Response at para 441 The Trial Chamber finds that there is no evidence to support this allegation The Motion is allowed The Trial Chamber has found no evidence The Amici Curiae submit that there is no evidence to support this allegation The Prosecution concedes that this allegation is unsupported by evidence Response at para 441 The Trial Chamber finds that there is no evidence to support this allegation The Motion is allowed The Trial Chamber has found no evidence The Amici Curiae submit Kotor Varos that there is no evidence to In a barn in support this Dabovci at least allegation The Prosecution concedes that this allegation is unsupported by evidence Response at The Trial Chamber finds that there is no evidence to support this allegation The The Trial Chamber has found no evidence 2 Muslim males were killed by Serbs in a field near Mount Zelengora 18 June 1992 No 6 Gacko At least 8 Muslims were killed by Serb soldiers near Mount Zelengora 18-23 June 1992 No 7 Kljuc In Prhovo 38 Bosnian Muslim villagers including women and children were killed by shooting and grenades 1 June 1992 No 8 Kotor Varos In Kotor Varos town approximately 13 non-Serbs were killed in and around the Medical Centre 25 June 1992 No 8 20 03 2009 11 54 AM 72 of 102 file cs WWork Ictysite milosevic trialc judgement 040616 htm 15 Bosnian Muslim men were killed para 441 Motion is allowed The Amici Curiae submit that there is no evidence to support this allegation The Prosecution concedes that this allegation is unsupported by evidence Response at para 441 The Trial Chamber finds that there is no evidence to support this allegation The Motion is allowed The Trial Chamber has found no evidence The Amici Curiae submit that there is no evidence to support this allegation The Prosecution concedes that this allegation is unsupported by evidence Response at para 441 The Trial Chamber finds that there is insufficient evidence to support this allegation The Motion is allowed C-017 T 22044-22045 22049-22050 The Amici Curiae submit that there is no evidence to support this allegation The Prosecution concedes that this allegation is unsupported by evidence Response at para 441 The Trial Chamber finds that there is insufficient evidence to support this allegation The Motion is allowed C-017 T 22044-22045 22049-22050 The Amici Curiae submit that the evidence to support this allegation is The Prosecution submits that there is sufficient evidence and cites B-1369 The Trial Chamber finds that there is insufficient evidence to B-1369 Ex 658 tab 1 under seal transcript from Brdjanin tab 2 under August 1992 No 8 Kotor Varos In Grabovice a large number of Bosnian Muslim and Bosnian Croat detainees were held in the Grabovice School beaten and never seen again November 1992 No 9 Nevesinje At or near Lipovaca and Dubrovaci at least 34 Bosnian Muslim men women and children were killed June-July 1992 No 9 Nevesinje Near Kiser approximately 17 Bosnian Muslim civilians were killed by Serb soldiers mid-July 1992 No 10 Prijedor In Hambarine 20 03 2009 11 54 AM 73 of 102 file cs WWork Ictysite milosevic trialc judgement 040616 htm and Behlici at least 3 Bosnian Muslims were killed insufficient and cite B-1369 Ex 658 and B-1032 Ex 656 11 June-1 July 1992 Ex 658 tabs 1-2 T 12648-12649 12655-12657 and B-1032 Ex 656 tab 1 at T 11852 11864 support this allegation The Motion is allowed seal transcript from Stakic tabs 4- 5 under seal Mr Husein Ex 655 Mr Garibovic Ex 657 Response at para 442 B-1032 Ex 656 tab 1 under seal transcript from Brdjanin at T 11852 11864 The Amici Curiae submit that there is no evidence to support this allegation The Prosecution concedes that this allegation is unsupported by evidence Response at para 441 The Trial Chamber finds that there is insufficient evidence to support this allegation The Motion is allowed B-1493 T 18953-18955 The Amici Curiae submit Prijedor that there is no evidence to In Jaskic at least support this 19 Bosnian allegation Muslim men were killed The Prosecution concedes that this allegation is unsupported by evidence Response at para 441 The Trial Chamber finds that there is insufficient evidence to support this allegation The Motion is allowed B-1493 T 18953-18955 The Amici Curiae submit that there is no evidence to support this allegation The Prosecution concedes that this allegation is unsupported by evidence Response at para 441 The Trial Chamber finds that there is insufficient evidence to support this allegation The Motion is allowed B-1493 T 18953-18955 The Amici Curiae submit that there is no evidence to The Prosecution concedes that this allegation is unsupported by The Trial Chamber finds that there is insufficient B-1493 T 18953-18955 No 10 Prijedor In Kamicani approximately 8 non-Serbs were killed in Mehmed Sahoric’s house 26 May 1992 No 10 14 June 1992 No 10 Prijedor In Brisevo at least 68 non-Serbs were killed during the attack 24 July 1992 No 10 Prijedor In Kipe iron ore 20 03 2009 11 54 AM 74 of 102 file cs WWork Ictysite milosevic trialc judgement 040616 htm mine near Ljubija at least 8 Bosnian Muslim men were executed support this allegation evidence Response at para 441 evidence to support this allegation The Motion is allowed The Prosecution submits that there is sufficient evidence and cites B-1369 Ex 658 tab 2 at T 3930-3932 Response at para 442 The Trial Chamber finds that there is insufficient evidence to support this allegation The Motion is allowed B-1369 Ex 658 tab 2 under seal transcript from Stakic at T 3931 The Amici Curiae submit that there is no evidence to support this allegation The Prosecution concedes that this allegation is unsupported by evidence Response at para 441 The Trial Chamber finds that there is insufficient evidence to support this allegation The Motion is allowed B-1493 T 18953-18955 The Amici Curiae submit that the evidence to support this allegation is insufficient and cite B-1610 Ex 532 at T 16017 T 26183-26184 The Prosecution submits that there is sufficient evidence and cites B-1610 Ex 532 T 26149 The Trial Chamber finds that there is sufficient evidence to support this allegation The Motion is not allowed B-1610 Ex 532 tab 1 under seal transcript from Brdjanin at T 26149 26184 The Prosecution concedes that this allegation is unsupported by evidence Response at para 441 The Trial Chamber finds that there is no evidence to support this allegation The Motion is allowed The Trial Chamber has found no evidence The Prosecution submits that The Trial Chamber finds B-108 T 19915-19916 25 July 1992 No 10 The Amici Curiae submit Prijedor that the evidence to support this In Ljubija at allegation is least 3 Bosnian insufficient and Muslim men cite B-1369 Ex were executed at 658 the football stadium 25 July 1992 No 10 Prijedor In Tomasica 4 non-Serbs were killed 3 December 1992 No 11 Prnjavor In Lisna 4 Bosnian Muslim men were executed May 1992 No 12 The Amici Curiae submit Sanski Most that there is no evidence to In Donji Kruhari support this near Skrljevit 5 allegation Bosnian Croat men were killed Response at para 442 2 November 1992 No 12 Sanski Most The Amici Curiae submit 20 03 2009 11 54 AM 75 of 102 file cs WWork Ictysite milosevic trialc judgement 040616 htm that the evidence to support this allegation is insufficient there is sufficient evidence and cites B-108 T 19916 and B-1047 T 22496 T 22527 Response at para 442 that there is sufficient evidence to support this allegation The Motion is not allowed 20022 20038 Ex D128 The Amici Curiae submit Srebrenica that there is no evidence to Following the support this take-over of allegation and Srebrenica cite three several thousand witnesses dealing Bosnian Muslim with Kozluk 1 men were Mr Banjanovic executed by T 20614 Bosnian Serb 20626 Ex 444 forces including 2 B-024 T at the following 21894 and 3 location 7 Riviere T Kozluk 28139 The Prosecution submits that there is sufficient evidence and cites Mr Manning T 31411-31413 Ex 642 tabs 1 3-6 8-11 16-20 23-26 Response at para 442 The Trial Chamber finds that there is sufficient evidence to support this allegation The Motion is not allowed Mr Manning T 31406-31409 31411-31413 Ex 642 tab 1 statement dated 24 November 2003 tabs 4-6 8-9 15 18 23 The Prosecution submits that there is sufficient evidence and cites B-1054 T 25596-25600 Response at para 442 The Trial Chamber finds that there is sufficient evidence to support this allegation The Motion is not allowed B-1054 Ex 522 tab 1 transcript from Vasiljevic In Sasina at least 65 non-Serb men were executed by members of Arkan’s Tigers under the direct command of Arkan Mr Zulic T 30046-30047 21 September 1995 No 13 Zvornik municipality at least 340 Bosnian Muslim men 15-16 July 1995 No 14 Visegrad In Bikavac settlement approximately 70 Bosnian Muslim and other non-Serb civilians were burnt to death in a house ignited by Serb paramilitaries led by Milan Lukic The Amici Curiae submit that there is insufficient evidence to support this allegation and cite B-1054 T 25600 25596 Ex 522 20 03 2009 11 54 AM 76 of 102 file cs WWork Ictysite milosevic trialc judgement 040616 htm 27 June 1992 No 15 The Prosecution submits that there is sufficient evidence and cites Mr Osmanovic Ex 597 tab 1 Response at para 442 The Trial Chamber finds that there is sufficient evidence to support this allegation The Motion is not allowed Mr Osmanovic Ex 597 tab 1 statement dated 10 October 1994 tab 2 statement dated 11 October 1995 tab 3 statement dated 7 June 2001 The Prosecution concedes that this allegation is unsupported by evidence Response at para 441 The Trial Chamber finds that there is no evidence to support this allegation The Motion is allowed The Trial Chamber has found no evidence The Amici Curiae submit that there is no evidence to support this allegation The Prosecution concedes that this allegation is unsupported by evidence Response at para 441 The Trial Chamber finds that there is no evidence to support this allegation The Motion is allowed The Trial Chamber has found no evidence Indictment Reference Amici Curiae Submissions Prosecution Submissions Trial Chamber’s Decision Evidence Examined No 1 The Amici Curiae submit that there is no evidence to support this allegation The Prosecution concedes that this allegation is unsupported by evidence Response at para 446 The Trial Chamber finds that there is no evidence to support this allegation The Motion is allowed The Trial Chamber has found no evidence Vlasenica In Drum Vlasenica town approximately 22 Bosnian Muslim men were killed The Amici Curiae submit that there is insufficient evidence to support this allegation June 1992 No 15 The Amici Curiae submit Vlasenica that there is no evidence to In Zaklopaca at support this least 58 Bosnian allegation Muslim men women and children were executed during the Serb attack on the village 16 May 1992 No 17 Ilijas Greater Sarajevo In Ljesevo 21 Bosnian Muslims were killed 4 June 1992 b Schedule B Banja Luka Between Krings camp and Manjaca camp approximately 20 non-Serb men 20 03 2009 11 54 AM 77 of 102 file cs WWork Ictysite milosevic trialc judgement 040616 htm were killed during transportation between the camps 4 July 1992 No 2 The Amici Curiae submit Bileca that there is no evidence to In SUP detention support this facility 2 allegation non-Serb detainees killed The Prosecution concedes that this allegation is unsupported by evidence Response at para 446 The Trial Chamber finds that there is no evidence to support this allegation The Motion is allowed The Trial Chamber has found no evidence The Amici Curiae seem to submit that there is insufficient evidence to support the allegation because B-1643 Ex 654 testifies to the killing of 16 people on 7 May 1992 The Prosecution submits that there is sufficient evidence and cites B-1643 Ex 654 T 11571-11575 11557-11583 Response at para 444 The Trial Chamber finds that there is sufficient evidence to support this allegation The Motion is not allowed B-1643 Ex 654 tab 1 under seal transcript from Simic at T 11569-11582 The Amici Curiae submit that there is insufficient evidence to support this allegation and cite Ms Malesevic T 17431-17432 The Prosecution submits that there is sufficient evidence and cites Ms Malesevic T 17431-17432 Response at para 444 The Trial Chamber finds that there is insufficient evidence to support this allegation The Motion is allowed Ms Malesevic Ex 404 tab 7 T 17429-17433 17439 The Prosecution concedes that this allegation is unsupported by evidence Response at para 446 The Trial Chamber finds that there is no evidence to support this allegation The Motion is allowed The Trial Chamber has found no evidence 25 June - 18 December 1992 No 4 Bosanski Samac In Crkvina camp approximately 17 non-Serb detainees were killed 6 May 1992 No 7 Cajnice At Mostina Hunting Lodge 53 non-Serbs killed 19 May 1992 No 9 The Amici Curiae submit Gacko that there is no evidence to 5 Bosnian men support this killed in the SUP allegation building in Gacko B-1244 T 23464 Ex 476 tab 3 under seal 3 July 1992 20 03 2009 11 54 AM 78 of 102 file cs WWork Ictysite milosevic trialc judgement 040616 htm No 10 Kalinovik Approximately 23 Muslim men and boys from the Gunpowder warehouse were shot in a field near Ratine The Amici Curiae submit that there is insufficient evidence to support this allegation and cites Ms Malesevic T 17432 The Prosecution submits that there is sufficient evidence and cites Ms Malesevic T 17432 Response at para 444 The Trial Chamber finds that there is sufficient evidence to support this allegation The Motion is not allowed Ms Malesevic Ex 404 tab 7 T 17429-17433 17439 The Amici Curiae submit that there is insufficient evidence to support this allegation The Prosecution submits that there is sufficient evidence and cites B-1088 Ex 624 at T 2527 The Trial Chamber finds that there is sufficient evidence to support this allegation The Motion is not allowed B-1088 Ex 624 tab 1 under seal transcript from Sikirica at T 2522-2523 2527 tab 3 under seal statement dated 19 November 2000 The Prosecution submits that its pending Rule 92bis C application for admission of the evidence of Mr Alisic if granted would provide sufficient evidence to support this allegation Response at para 444 The Trial Chamber finds that there is sufficient evidence to support this allegation The Motion is not allowed Mr Alisic Ex 670 tab 1 statement dated 16 January 1997 The Prosecution concedes that this allegation is unsupported by evidence Response at para 446 The Trial Chamber finds that there is no evidence to support this allegation The Motion is allowed The Trial Chamber has found no evidence 5 August 1992 No 14 Sanski Most Near Hrastova Glavica approximately 100 non-Serb men taken from Keraterm and Omarska camps were killed Response at para 444 5 August 1992 No 14 The Amici Curiae submit Sanski Most that there is no evidence to At Sanakeram support this ceramics factory allegation at least 10 non-Serb men were killed 30 September 09 October 1992 No 15 Teslic In Teslic town at least 5 non-Serb men were killed at the TO building The Amici Curiae submit that there is no evidence to support this allegation June 1992 20 03 2009 11 54 AM 79 of 102 file cs WWork Ictysite milosevic trialc judgement 040616 htm No 17 The Amici Curiae submit that there is insufficient evidence to support this allegation and cite B-1461 Ex 437 and Mr Deronjic Ex 606 The Prosecution submits that there is sufficient evidence and cites B-1461 Ex 437 T 20197 and Mr Deronjic Ex 606 T 29719 Response at para 444 The Trial Chamber finds that there is insufficient evidence to support this allegation The Motion is allowed Indictment Reference Amici Curiae Submissions Prosecution Submissions Trial Chamber’s Decision Evidence Examined No 2 The Amici Curiae submit that there is insufficient evidence to support this allegation and cite Ms Malesevic Ex 404 tab 7 T 17429 The Prosecution submits that there is sufficient evidence and cites Ms Malesevic Ex 404 tabs 7-8 T 17427-17430 Response at paras 446 i - ix 447 The Trial Chamber finds that there is sufficient evidence to support this allegation The Motion is not allowed Ms Malesevic The Amici Curiae submit that there is insufficient evidence to support this allegation and cite Ms Malesevic Ex 404 tab 7 T 17429 The Prosecution concedes that this allegation is unsupported by evidence Response at para 445 The Trial Chamber finds that there is insufficient evidence to support this allegation The Motion is allowed Ms Malesevic The Amici Curiae submit that there is insufficient evidence to support this allegation and cite Ms Malesevic Ex 404 tab 7 T 17429 The Prosecution submits that this allegation is in dispute but does not specifically oppose the Motion Response at para 440 p 208 The Trial Chamber finds that there is insufficient evidence to support this allegation The Motion is allowed Ms Malesevic Zvornik At Novi Izvor building at least 2 non-Serb male detainees were killed May 1992 B-1461 T 20212-20214 20263 Mr Deronjic Ex 600 statement dated 25 November 2003 B-1516 Ex 606 partially under seal c Schedule C Bihac Traktorski Servis Ripac garages and houses July-October 1992 No 4 Bileca SUP Detention Facility 10 June - 19 December 1992 No 4 Bileca Student Hostel Dacki Dom 25 June - 05 October 1992 Ex 404 tabs 6-9 T 17414 et seq Ex 404 tabs 6-9 T 17414 et seq Ex 404 tabs 6-9 T 17414 et seq 20 03 2009 11 54 AM 80 of 102 file cs WWork Ictysite milosevic trialc judgement 040616 htm No 8 The Prosecution concedes that this allegation is unsupported by evidence Response at para 445 The Trial Chamber finds that there is insufficient evidence to support this allegation The Motion is allowed Ms Malesevic The Amici Curiae submit Cajnice that there is insufficient Mostina Hunting evidence to Lodge support this allegation and April-May 1992 cite Ms Malesevic Ex 404 tab 7 T 17429-17432 The Prosecution submits that there is sufficient evidence and cites Ms Malesevic Ex 404 tabs 7-8 T 17427-17432 Response at paras 446 i - ix 447 The Trial Chamber finds that there is sufficient evidence to support this allegation The Motion is not allowed Ms Malesevic No 11 The Amici Curiae submit that there is insufficient evidence to support this allegation and cite Ms Malesevic Ex 404 tab 7 T 17429-17432 The Prosecution concedes that this allegation is unsupported by evidence Response at paras 445 497 The Trial Chamber finds that there is insufficient evidence to support this allegation The Motion is allowed Ms Malesevic The Amici Curiae submit Doboj that there is insufficient Seslija Camp evidence to support this March - October allegation and 1993 cite Ms Malesevic Ex 404 tab 7 T 17429-17432 The Prosecution concedes that this allegation is unsupported by evidence Response at para 445 The Trial Chamber finds that there is insufficient evidence to support this allegation The Motion is allowed Ms Malesevic No 15 The Prosecution submits that there is sufficient evidence and cites Ms Malesevic Ex 404 tabs 7-8 T 17427-17432 The Trial Chamber finds that there is sufficient evidence to support this allegation The Motion is not Ms Malesevic Bosanski Novi Bosanska Kostajnica Police Station May-July 1992 The Amici Curiae submit that there is insufficient evidence to support this allegation and cite Ms Malesevic Ex 404 tab 7 T 17429 No 11 Cajnice Cajnice SUP Building June-July 1993 No 12 Kalinovik Gunpowder house between Jelasica and Jazici The Amici Curiae submit that there is insufficient evidence to support this allegation and cite Ms Ex 404 tabs 6-9 T 17414 et seq Ex 404 tabs 6-9 T 17414 et seq Ex 404 tabs 6-9 T 17414 et seq Ex 404 tabs 6-9 T 17414 et seq Ex 404 tabs 6-9 T 17414 et seq 20 03 2009 11 54 AM 81 of 102 file cs WWork Ictysite milosevic trialc judgement 040616 htm 05 July - 05 August 1992 Malesevic Ex 404 tab 7 T 17429-17432 No 16 The Amici Curiae submit Kotor Varos that there is insufficient Kotor Varos evidence to Prison support this allegation and June - November cite Ms 1992 Malesevic Ex 404 tab 7 T Kotor Varos 17429-17432 Sawmill Response at allowed paras 446 i - ix 447 The Prosecution submits that there is sufficient evidence and cites Ms Malesevic Ex 404 tabs 7-8 T 17427-17432 Response at paras 446 i - ix 447 The Trial Chamber finds that there is insufficient evidence to support this allegation The Motion is allowed Ms Malesevic The Prosecution concedes that this allegation is unsupported by evidence Response at para 445 The Trial Chamber finds that there is insufficient evidence to support this allegation The Motion is allowed Ms Malesevic The Amici Curiae submit Nevesinje that there is insufficient Central Heating evidence to Factory Kilavci support this allegation and June - July 1992 cite Ms Malesevic Ex 404 tab 7 T 17429-17432 The Prosecution submits that there is sufficient evidence and cites Ms Malesevic Ex 404 tabs 7-8 T 17427-17432 Response at paras 446 i - ix 447 The Trial Chamber finds that there is insufficient evidence to support this allegation The Motion is allowed Ms Malesevic No 18 The Prosecution concedes that this allegation is unsupported by evidence Response at para 445 The Trial Chamber finds that there is insufficient evidence to support this allegation The Motion is Ms Malesevic Ex 404 tabs 6-9 T 17414 et seq June 1992 Kotor Varos Police Station May - September 1992 No 16 Kotor Varos Kotor Varos Elementary School August September 1992 The Amici Curiae submit that there is insufficient evidence to support this allegation and cite Ms Malesevic Ex 404 tab 7 T 17429-17432 No 17 Prijedor Miska Glava July 1992 The Amici Curiae submit that there is insufficient evidence to support this allegation and cite Ms Ex 404 tabs 6-9 T 17414 et seq Ex 404 tabs 6-9 T 17414 et seq Ex 404 tabs 6-9 T 17414 et seq 20 03 2009 11 54 AM 82 of 102 file cs WWork Ictysite milosevic trialc judgement 040616 htm Malesevic Ex 404 tab 7 T 17429-17432 No 20 allowed The Amici Curiae submit Sanski Most that there is insufficient Boiler Room of evidence to Old Hotel support this allegation and 21-25 September cite Ms 1995 Malesevic Ex 404 tab 7 T 17429-17432 The Prosecution submits that there is sufficient evidence and cites Ms Malesevic Ex 404 tabs 7-8 T 17427-17430 and Mr Alisic Response at paras 446 i - ix 447 The Trial Chamber finds that there is sufficient evidence to support this allegation The Motion is not allowed Ms Malesevic No 21 The Amici Curiae submit Teslic that there is insufficient Pribinic old post evidence to office support this allegation and June - October cite Ms 1992 Malesevic Ex 404 tab 7 T 17429-17432 The Prosecution submits that there is sufficient evidence and cites Ms Malesevic Ex 404 tabs 7-8 T 17427-17430 Response at paras 446 i - ix 447 The Trial Chamber finds that there is insufficient evidence to support this allegation The Motion is allowed Ms Malesevic No 21 The Amici Curiae submit that there is insufficient evidence to support this allegation and cite Ms Malesevic Ex 404 tab 7 T 17429-17432 The Prosecution submits that there is sufficient evidence and cites Ms Malesevic Ex 404 tabs 7-8 T 17427-17430 Response at paras 446 i - ix 447 The Trial Chamber finds that there is insufficient evidence to support this allegation The Motion is allowed Ms Malesevic The Amici Curiae submit that there is insufficient evidence to support this allegation and cite Ms Malesevic Ex 404 tab 7 T 17429-17432 The Prosecution submits that there is sufficient evidence and cites Ms Malesevic Ex 404 tabs 7-8 T 17427-17430 Response at paras 446 i - ix 447 The Trial Chamber finds that there is insufficient evidence to support this allegation The Motion is allowed Ms Malesevic The Amici Curiae submit The Prosecution submits that The Trial Chamber finds Ms Malesevic Teslic TO Building June 1992 No 21 Teslic SUP Building June 1992 No 22 Visegrad Ex 404 tabs 6-9 T 17414 et seq Mr Alisic Ex 670 tab 1 statement dated 16 January 1997 Ex 404 tabs 6-9 T 17414 et seq Ex 404 tabs 6-9 T 17414 et seq Ex 404 tabs 6-9 T 17414 et seq Ex 404 tabs 20 03 2009 11 54 AM 83 of 102 file cs WWork Ictysite milosevic trialc judgement 040616 htm that there is Detention Centre insufficient in tourist hotel in evidence to Vilina Vlas support this allegation and 1 May 1992 cite Ms Malesevic Ex 404 tab 7 T 17429-17432 and B-1510 Ex 661 No 22 Visegrad Uzamnica a former military warehouse and barracks August 1992 -October 1994 The Amici Curiae submit that there is insufficient evidence to support this allegation and cite Ms Malesevic Ex 404 tab 7 T 17429-17432 there is sufficient evidence and cites Ms Malesevic Ex 404 tabs 7-8 T 17427-17430 and B-1510 Ex 661 Response at paras 446 i - ix 447 that there is sufficient evidence to support this allegation The Motion is not allowed 6-9 The Prosecution submits that there is sufficient evidence and cites Ms Malesevic Ex 404 tabs 7-8 T 17427-17430 and B-1510 Ex 661 Response at paras 446 i - ix 447 The Trial Chamber finds that there is insufficient evidence to support this allegation The Motion is allowed Ms Malesevic T 17414 et seq B-1510 Ex 661 tab 1 transcript from Vasiljevic at T 663-666 675 678 681 Ex 404 tabs 6-9 T 17414 et seq B-1510 Ex 661 tab 1 transcript from Vasiljevic B-1505 Ex 523 tab 1 transcript from Vasiljevic at T 144-145 151-152 188-189 T 25888 d Schedule D Indictment Reference No 1 Amici Curiae Submissions The Amici Curiae concede Banja Luka that there is evidence of Deportations to forcible transfer Hungary but submit that there is no 19 359 non-Serb evidence of displaced deportation from persons and Banja Luka into refugees Hungary Prosecution Submissions Trial Chamber’s Decision Evidence Examined The Prosecution submits that there is sufficient evidence to support this allegation 1 Professor Tabeau’s report 2 Professor Riedlmayer’s report and 3 a proof of movement across a national border is not necessary to The Trial Chamber finds that there is sufficient evidence to support this allegation The Motion is not allowed Professor Tabeau Ex 548 tab 2 Annex A1 at pp 69 73 77 Annex A2 at pp 85 89 93 Annex A5 at p 133 Mr Kirudja Ex 378 tabs 5 7 T 15412-15436 15485 Mr McLeod Ex 650 tabs 20 03 2009 11 54 AM 84 of 102 file cs WWork Ictysite milosevic trialc judgement 040616 htm prove forcible transfer from Banja Luka and b irrespective of whether there was movement across a national border there is evidence of forcible transfer from Banja Luka Response at paras 452-457 459 No 2 Bileca Deportations to Montenegro 993 non-Serb displaced persons and refugees The Amici Curiae submit that there is no evidence of forcible transfer from Bileca or deportation from Bileca into Montenegro The Prosecution submits that there is evidence to support this allegation 1 Professor Tabeau’s report 2 Professor Riedlmayer’s report and 3 evidence of forcible transfer from the neighbouring municipality of Gacko Response at paras 452-457 460 11-13 17 Mr Babic T 12855 13064-13069 13081-13082 The Trial Chamber finds that there is insufficient evidence to support this allegation The Motion is allowed Professor Tabeau Ex 548 tab 2 Annex A1 at pp 69 73 77 Annex A2 at p 85 C-017 T 22037-22038 B-1122 Ex 566 tab 1 statement dated 27 January 1999 at p 4 Ex 613 tab 145 intercepted communication Mr Babic Ex 353 tab 40 T 13446-13447 No 5 The Amici Curiae submit Bosanska Krupa that there is no evidence of Buzim forcible transfer and cite Mr 389 non-Serb Velic T 29578 displaced persons and refugees The Prosecution submits that there is evidence to support this allegation 1 Professor Tabeau’s report 2 Professor Riedlmayer’s report and 3 it is not necessary for the evidence to match the allegation exactly Response at The Trial Chamber finds that there is insufficient evidence to support this allegation The Motion is allowed Professor Tabeau Ex 548 tab 2 Annex A1 pp 69 73 77 Annex A2 p 85 Mr Velic T 29573-29579 Mr Kirudja T 15440-15442 15485 Mr Palic T 29719 Ex 603 statement dated 20 03 2009 11 54 AM 85 of 102 file cs WWork Ictysite milosevic trialc judgement 040616 htm paras 450 452-457 461 No 5 The Amici As above Curiae submit Bosanska Krupa that there is no evidence of Krupa na Uni forcible transfer The Trial Chamber finds that there is insufficient evidence to support this allegation The Motion is allowed Professor Tabeau Ex 548 tab 2 Annex A1 at pp 69 73 77 Annex A2 pp 85 93 The Prosecution submits that there is evidence to support this allegation 1 Annex A5 of Professor Tabeau’s report 2 Professor Riedlmayer’s report and 3 evidence of abuses including forcible transfer in Bosanski Novi Prijedor and Sanski Most Response at paras 452-457 462 The Trial Chamber finds that there is sufficient evidence to support this allegation The Motion is not allowed Professor Tabeau Ex 548 tab 2 Annex A1 at pp 69 73 77 Annex A2 at p 85 Annex A5 at p 133 The Prosecution submits that there is evidence to support this allegation 1 Annex A5 of Professor Tabeau’s report 2 Riedlmayer’s report and 3 evidence of abuses including forcible transfer in Bosanski Novi Prijedor Banja Luka and Sanski Most Response at paras 452-457 The Trial Chamber finds that there is insufficient evidence to support this allegation The Motion is allowed 1 non-Serb displaced person and refugee No 6 Bosanska Dubica 3 310 non-Serb displaced persons and refugees No 7 Bosanska Gradiska 7 516 non-Serb displaced persons and refugees The Amici Curiae submit that there is no evidence of forcible transfer The Amici Curiae submit that there is no evidence of forcible transfer 26 August 1999 and addendum dated 31 July 2001 Mr Kirudja Ex 378 tabs 7 9 T 15422-15428 15433 Mr Mesanovic Ex 638 Professor Tabeau Ex 548 tab 2 Annex A1 at pp 69 73 77 79 Annex A2 at p 85 Annex A5 at p 133 Mr McLeod Ex 650 tab 1 transcript from Brdjanin at T 7301-7302 tab 5 20 03 2009 11 54 AM 86 of 102 file cs WWork Ictysite milosevic trialc judgement 040616 htm 463 No 9 Bosanski Petrovac Bosanski Petrovac − 778 non-Serb displaced persons and refugees The Amici Curiae submit that there is no evidence of forcible transfer and cite B-127 T 24668 Petrovac − unknown number of non-Serb displaced persons and refugees No 12 Brcko Ravne Rahic 1 532 non-Serb displaced persons and refugees The Amici Curiae concede that there is evidence of forcible transfer from Brcko but submit that there is no evidence of forcible transfer from Ravne Rahic The Prosecution submits that there is evidence to support this allegation 1 Annex A5 of Professor Tabeau’s report 2 Professor Riedlmayer’s report and 3 evidence of abuses including forcible transfer in Sanski Most Kljuc Prijedor Banja Luka and Bosanski Novi Response at paras 452-457 464 The Trial Chamber finds that there is insufficient evidence to support this allegation The Motion is allowed The Prosecution submits that there is evidence to support this allegation 1 Professor Tabeau’s report 2 Professor Riedlmayer’s report and 3 it is not necessary for the evidence to match the allegation exactly Response at paras 450 452-457 465 The Trial Chamber finds that there is insufficient evidence to support this allegation The Motion is allowed Professor Tabeau Ex 548 tab 2 Annex A1 at pp 69 73 77 Annex A2 at p 85 Annex A5 at p 134 Mr Selak Ex 464 tab 9 T 22208-22212 B-127 T 24668-24669 Professor Tabeau Ex 548 tab 2 Annex A1 at pp 70 73 Annex A2 at pp 86 94 B-1493 T 18901 Mr Babic T 12855 13064-13069 13081-13082 C-037 Ex 326 tab 11 B-1408 Ex 557 tab 1 under seal transcript from Jelisic at T 1553-1557 B-1407 Ex 556 tab 1 under seal transcript from Jelisic at T 1192-1193 20 03 2009 11 54 AM 87 of 102 file cs WWork Ictysite milosevic trialc judgement 040616 htm No 13 Cajnice 2 214 non-Serb displaced persons and refugees No 14 Celinac 608 non-Serb displaced persons and refugees No 16 Donji Vakuf 1 729 non-Serb displaced persons and refugees The Amici Curiae submit that there is no evidence of forcible transfer The Amici Curiae submit that there is no evidence of forcible transfer The Amici Curiae submit that there is no evidence of forcible transfer The Prosecution submits that there is evidence to support this allegation 1 evidence of Melika Malesevic 2 Professor Tabeau’s report 3 Professor Riedlmayer’s report and 4 evidence of abuses including forcible transfer from Foca and Visegrad Response at paras 452-547 466 The Trial Chamber finds that there is insufficient evidence to support this allegation The Motion is allowed Professor Tabeau Ex 548 tab 2 Annex A1 at pp 70 74 78 Annex A2 at p 86 The Prosecution submits that there is evidence to support this allegation 1 Annex A5 of Professor Tabeau’s report 2 Professor Riedlmayer’s report and 3 evidence of abuses including forcible transfer in Prijedor Banja Luka and Doboj Response at paras 452-457 467 The Trial Chamber finds that there is insufficient evidence to support this allegation The Motion is allowed Professor Tabeau Ex 548 tab 2 Annex A1 at pp 70 73 74 78 Annex A2 at pp 86 94 Annex A5 at p 135 The Prosecution submits that there is evidence to support this allegation 1 Annex A5 of Professor Tabeau’s report 2 Professor Riedlmayer’s report and 3 evidence of Mr The Trial Chamber finds that there is insufficient evidence to support this allegation The Motion is allowed Professor Tabeau Ex 548 tab 2 Annex A1 at pp 70 74 78 Annex A2 at pp 86 94 Annex A5 at p 135 Ms Malesevic T 17430-17433 17439 Mr Babic Ex 352 tabs 46-47 T 13056-13058 13094 13108 13811-13812 Mr Selak Ex 462 transcript from Brdjanin at T 20 03 2009 11 54 AM 88 of 102 file cs WWork Ictysite milosevic trialc judgement 040616 htm Selak Response at paras 452-457 468 The Amici Curiae submit Gorazde that there is insufficient Gorazde FBiH − evidence of 2 563 non-Serb forcible transfer displaced persons and refugees No 19 Srpsko Gorazde − 1 834 non-Serb displaced persons and refugees The Prosecution submits that there is sufficient evidence to support this allegation 1 Professor Tabeau’s report 2 Professor Riedlmayer’s report 3 evidence of the humanitarian situation in Gorazde given by a Dr Williams General van Baal and Mr Harland Response at paras 452-457 469 13015-13030 13036-13039 13078-13084 transcript from Tadic at T 1963-1964 The Trial Chamber finds that there is sufficient evidence to support this allegation The Motion is not allowed Professor Tabeau T 27093-27096 27099 27139 27609 Ex 548 tab 2 at pp 10-12 26-27 Annex A1 at pp 70 74 78 Annex A2 at pp 86 94 tabs 3-4 Dr Williams T 22898 General van BAAL Ex 534 Mr HARLAND T 26927 et seq Mr Donia Ex 537 tab 4 at pp 10-11 B-1505 T 25851-25852 25844 Ex 523 tab 1 transcript from Vasiljevic at T 139-142 Mr Taranin Ex 491 tab 1 transcript from Krnojelac at T 3003-3004 No 20 Kalinovik 612 non-Serb displaced persons and refugees The Amici Curiae submit that there is no evidence of forcible transfer The Prosecution submits that there is evidence to support this allegation 1 Professor Tabeau’s report 2 Professor Riedlmayer’s report 3 the The Trial Chamber finds that there is insufficient evidence to support this allegation The Motion is allowed Professor Tabeau Ex 548 tab 2 Annex A1 at pp 70 74 78 Annex A2 at p 86 B-1538 Ex 495 under seal transcript from 20 03 2009 11 54 AM 89 of 102 file cs WWork Ictysite milosevic trialc judgement 040616 htm fact that Kalinovik borders Sarajevo 4 evidence of Ms Malesevic T 17432 5 evidence of B-1537 Ex 494 at T 2404 and 6 evidence of abuses including forcible transfer in Foca and Gacko Response at paras 452-457 470 No 22 Kotor Varos 6 870 non-Serb displaced persons and refugees No 23 Nevesinje 1 483 non-Serb displaced persons and refugees No 25 Prnjavor The Amici Curiae submit that there is no evidence of forcible transfer The Amici Curiae submit that there is no evidence of forcible transfer The Amici Curiae submit that there is no evidence of Krnojelac at T 4144 4147-4149 The Prosecution submits that there is evidence to support this allegation 1 Annex A5 of Professor Tabeau’s report and 2 Professor Riedlmayer’s report Response at paras 452-457 471 The Trial Chamber finds that there is insufficient evidence to support this allegation The Motion is allowed Professor Tabeau Ex 548 tab 2 Annex A1 at pp 70 74 78 Annex A2 at p 86 Annex A5 p 135 The Prosecution submits that there is evidence to support this allegation 1 Professor Tabeau’s report 2 Professor Riedlmayer’s report and 3 evidence of C-017 Response at paras 452-457 472 The Trial Chamber finds that there is sufficient evidence to support this allegation The Motion is not allowed Professor Tabeau Ex 548 tab 2 Annex A1 at pp 70 74 78 Annex A2 at p 86 The Prosecution submits that there is evidence to support this The Trial Chamber finds that there is sufficient Professor Riedlmayer Ex 488 T 23800-23801 C-017 T 22049-22050 Professor Riedlmayer Ex 486 at p 6 T 23802-23803 23806-23807 Professor Tabeau Ex 548 tab 2 Annex A1 at pp 71 75 79 20 03 2009 11 54 AM 90 of 102 file cs WWork Ictysite milosevic trialc judgement 040616 htm 3 490 non-Serb displaced persons and refugees No 26 Rogatica 6 650 non-Serb displaced persons and refugees No 27 Rudo Deportations to Macedonia 1 614 non-Serb displaced persons and refugees forcible transfer allegation 1 Annex A5 of Professor Tabeau’s report 2 Professor Riedlmayer’s report and 3 evidence of B-1610 Ex 532 tab 1 at T 15991-15993 15997 Response at paras 452-457 474 evidence to support this allegation The Motion is not allowed Annex A2 at p 87 Annex A5 at p 136 The Amici Curiae submit that there is no evidence of forcible transfer The Prosecution submits there is evidence to support this allegation 1 Professor Tabeau’s report 2 Professor Riedlmayer’s report and 3 evidence of abuses including forcible transfers in Srebrenica and Visegrad Response at paras 452-457 472 The Trial Chamber finds that there is insufficient evidence to support this allegation The Motion is allowed Professor Tabeau T 27093-27096 27099 27139 Ex 548 tab 2 at pp 11 26-27 Annex A1 at pp 71 75 Annex A2 at p 87 tabs 3 4 The Prosecution submits there is evidence to support this allegation 1 Professor Tabeau’s report 2 Professor Riedlmayer’s report and 3 evidence of abuses including forcible transfer The Trial Chamber finds that there is insufficient evidence to support this allegation The Motion is allowed The Amici Curiae submit that there is no evidence of forcible transfer from Rudo or deportation from Rudo into Macedonia B-1610 Ex 532 tab 1 under seal transcript from Brdjanin at T 15982 et seq tabs 3-5 under seal B-1770 Ex 616 tab 1 under seal statement dated 13 March 2002 at para 9 B-1619 T 30608 30629 30633 Ex 620 under seal statement dated 28 June 1997 at paras 2 28 31-32 36 Professor Tabeau Ex 548 tab 2 Annex A1 at pp 71 75 79 Annex A2 at p 87 20 03 2009 11 54 AM 91 of 102 file cs WWork Ictysite milosevic trialc judgement 040616 htm in Visegrad and Gorazde Response paras 452-457 475 No 30 Sekovici 162 non-Serb displaced persons and refugees No 31 Sipovo 1 427 non-Serb displaced persons and refugees No 32 Sokolac 2 670 non-Serb displaced persons and refugees The Amici Curiae submit that there is no evidence of forcible transfer The Amici Curiae submit that there is insufficient evidence of forcible transfer The Amici Curiae submit that there is no evidence of forcible transfer The Prosecution submits there is evidence to support the allegation 1 Professor Tabeau’s report 2 Professor Riedlmayer’s report and 3 evidence of abuses including forcible transfer in Zvornik and Bratunac Response paras 452-457 476 The Trial Chamber finds that there is insufficient evidence to support this allegation The Motion is allowed Professor Tabeau Ex 548 tab 2 Annex A1 at pp 72 76 80 Annex A2 at p 88 The Prosecution submits that there is sufficient evidence to support this allegation 1 Annex A5 of Professor Tabeau’s report and 2 Professor Riedlmayer’s report Response at paras 452-457 477 The Trial Chamber finds that there is insufficient evidence to support this allegation The Motion is allowed Professor Tabeau Ex 548 tab 2 Annex A1 at pp 72 75 80 Annex A2 at p 88 Annex A5 at p 136 The Prosecution submits that there is evidence to support this allegation 1 Professor Tabeau’s report and 2 the fact that Sokolac borders Sarajevo Response at paras 452-457 478 The Trial Chamber finds that there is insufficient evidence to support this allegation The Motion is allowed Mr Osmanovic Ex 597 tab 1 statement dated 10 October 1994 at p 2 B-1021 T 30073 Professor Riedelmayer Ex 488 Professor Tabeau Ex 548 tab 2 Annex A1 at pp 72 76 80 Annex A2 at p 88 20 03 2009 11 54 AM 92 of 102 file cs WWork Ictysite milosevic trialc judgement 040616 htm No 33 Teslic 7 789 non-Serb displaced persons and refugees No 34 Trebinje Trebinje 3 116 non-Serb displaced persons and refugees No 34 Trebinje Ravno 201 non-Serb displaced persons and refugees The Amici Curiae submit that there is no evidence of forcible transfer and cite General Vasiljevic T 16326 The Prosecution submits that there is evidence to support this allegation 1 Annex A5 of Professor Tabeau’s report 2 Professor Riedlmayer’s report and 3 evidence of General Vasiljevic T 15898 16326 and 4 evidence of abuses including forcible transfer in Prnjavor and Doboj Response at paras 452-457 479 The Trial Chamber finds that there is sufficient evidence to support this allegation The Motion is not allowed Professor Tabeau Ex 548 tab 2 Annex A1 at pp 72 76 80 Annex A2 at p 88 Annex A5 at p 137 The Amici Curiae submit that there is insufficient evidence of forcible transfer and cite C-017 T 22014-22015 22049-50 and Mr Babic T 13347 The Prosecution submits that there is sufficient evidence to support this allegation 1 Professor Tabeau’s report and 2 Professor Riedlmayer’s report Response at paras 452-457 480 The Trial Chamber finds that there is insufficient evidence to support this allegation The Motion is allowed Professor Tabeau Ex 548 tab 2 Annex A1 at pp 72 76 80 Annex A2 at p 88 The Amici Curiae submit that there is insufficient evidence of forcible transfer and cite Mr Kljuic T 24448 The Prosecution submits that this allegation is in dispute Response at para 440 and that there is sufficient evidence to support this allegation 1 Professor Tabeau’s report and 2 Professor Riedlmayer’s The Trial Chamber finds that there is insufficient evidence to support this allegation The Motion is allowed Professor Tabeau Ex 548 tab 2 Annex A1 at pp 72 76 80 Annex A2 at p 88 General Vasiljevic T 15898 16326 B-1643 Ex 654 tab 1 under seal transcript from Simic at T 11566 Professor Riedlmayer Ex 488 20 03 2009 11 54 AM 93 of 102 file cs WWork Ictysite milosevic trialc judgement 040616 htm report Response at paras 452-457 480 No 36 Vlasenica 6 942 non-Serb displaced persons and refugees The Amici Curiae submit that there is insufficient evidence of forcible transfer and cite B-1056 Ex 597 The Prosecution submits that there is sufficient evidence to support the allegation 1 Professor Tabeau’s report 2 Professor Riedlmayer 3 evidence of Mr Osmanovic and 3 evidence of B-1500 Response at paras 452-457 481 The Trial Chamber finds that there is sufficient evidence to support this allegation The Motion is not allowed Professor Tabeau T 27093-27096 27099 27139 Ex 548 tab 2 pp 26-27 Annex A1 at pp 72 76 80 Annex A2 at p 88 tabs 3 and 4 Mr Gusalic T 18276-18278 B-1461 T 20265 Mr Osmanovic T 29470 Ex 597 tab 1 statement dated 10 October 1994 tab 2 statement dated 11 October 1995 tab 3 statement dated 7 June 2001 B-1770 Ex 616 tab 1 under seal statement dated 13 March 2002 at para 9 City of Sarajevo The Amici Curiae submit No 38 that there is insufficient Ilidza evidence of forcible transfer Ilidza – 218 non-Serb displaced persons and refugees Srpska Ilidza – 60 non-Serb The Prosecution submits that there is sufficient evidence to support these allegations 1 intercepted conversations concerning the Bosnian Serb Leadership’s plans to take over and divide The Trial Chamber finds that there is sufficient evidence to support these allegations The Motion is not allowed Professor Tabeau Ex 548 tab 2 Annex A1 at pp 71-72 75-76 79-80 Annex A2 at pp 75 79 87-88 95 Dr Williams Ex 470 tab 26 General van 20 03 2009 11 54 AM 94 of 102 file cs WWork Ictysite milosevic trialc judgement 040616 htm displaced persons and refugees Sarajevo Ex 613 tabs 48 50 51 54 56 57 90 168 Ex 451 tab 12 No 39 Novi Grad Sarajevo Baal Ex 534 tab 1 transcript from Galic at T 9862 9880 Lord Owen 2 intercepted communication concerning the existence of a column of 7 200 Muslims Ex 613 tab 228 9 008 non-Serb displaced persons and refugees No 40 T 28372 et seq B-1369 Ex 658 under seal B-1345 Ex 575 tab 1 under seal 3 Professor Tabeau’s report 4 Professor Riedlmayer’s report and 5 evidence concerning the humanitarian situation and the shelling and sniping campaigns in Sarajevo e g evidence of Mr Harland T 26953-26955 Response at paras 452-457 482-484 Novo Sarajevo Novo Sarajevo – 7 097 non-Serb displaced persons and refugees Srpsko Novo Sarajevo – 4 non-Serb displaced persons and refugees No 41 Vogosca Mr Harding Ex 587 Mr Harland T 26927 et seq Baron van Lynden Ex 540 Mr Kucanin Ex 586 Mr Hafizović 2 099 non-Serb displaced persons and refugees Ex 588 Mr Hamill Ex 590 Ex 613 intercepted communications Greater Sarajevo No 43 Ilijas 1 889 non-Serb displaced persons and refugees As above As above The Trial Chamber finds that there is sufficient evidence to support this allegation The Motion is not allowed Professor Tabeau Ex 548 tab 2 Annex A1 at pp 72 75-76 79-80 Annex A2 at pp 87-88 Dr Williams Ex 470 tab 26 General van 20 03 2009 11 54 AM 95 of 102 file cs WWork Ictysite milosevic trialc judgement 040616 htm No 44 Pale Pale – 1 697 non-Serb displaced persons and refugees Pale FBiH – 115 non-Serb displaced persons and refugees No 45 Trnovo Trnovo RS – 744 non-Serb displaced persons and refugees Trnovo FBiH – 415 non-Serb displaced persons and refugees Baal Ex 534 tab 1 transcript from Galic at T 9862 9880 Lord Owen T 28372 et seq B-1369 Ex 658 under seal B-1345 Ex 575 under seal Mr Harding Ex 587 Mr Harland T 26927 et seq Baron van Lynden Ex 540 Mr Kucanin Ex 586 Mr Hafizović Ex 588 Mr Hamill Ex 590 Professor Riedelmayer Ex 488 e Schedule E 310 This Schedule of the Bosnia Indictment lists 44 individual incidents of sniping in Sarajevo The Amici Curiae submit that there is no evidence to support allegations numbered 1-23 and 25-44 Although the Prosecution concedes that all save one of the scheduled sniping incidents are not supported by evidence 802 it submits that the “overview evidence” of a shelling and sniping campaign in Sarajevo during the indictment period is sufficient for a Trial Chamber to convict the Accused with respect to paragraphs 43-45 of the Bosnia Indictment 803 311 Having reviewed all the evidence 804 the Trial Chamber finds that there is no evidence with respect to numbers 1-23 and 25-44 The Motion is allowed with respect to these allegations 20 03 2009 11 54 AM 96 of 102 file cs WWork Ictysite milosevic trialc judgement 040616 htm 312 The Trial Chamber notes that incident No 24 805 which is not challenged by the Amici Curiae is the only sniping incident that remains f Schedule F 313 This Schedule of the Bosnia Indictment lists 26 individual incidents of shelling in Sarajevo The Amici Curiae submit that there is 1 insufficient evidence to support allegations numbered 1 and 4 and 2 no evidence to support allegations numbered 2-3 and 6-26 Although the Prosecution concedes that most of the scheduled shelling incidents are not supported by evidence 806 it submits that the “overview evidence” of a shelling and sniping campaign in Sarajevo during the indictment period is sufficient for a Trial Chamber to convict the Accused with respect to paragraphs 43-45 of the Bosnia Indictment 807 314 Having reviewed all the evidence 808 the Trial Chamber finds that there is either no or insufficient evidence with respect to numbers 1-4 and 6-26 The Motion is allowed with respect to these allegations 315 The Trial Chamber notes that incident No 5 809 which is not challenged by the Amici Curiae is the only shelling incident that remains V DISPOSITION 316 The effect of the Trial Chamber’s determinations is that it has found sufficient evidence to support each count challenged in the three Indictments but there is no or insufficient evidence to support certain allegations relevant to some of the charges in the Indictments 317 In summary the Trial Chamber holds as follows A Kosovo 318 With respect to the submission that there was no evidence of an armed conflict in Kosovo in the FRY prior to 24 March 1999 that date being the commencement of the NATO bombing campaign the Motion is DISMISSED Section IV A 1 of the Decision 319 With respect to each of the specific challenges to the Kosovo Indictment as to sufficiency of evidence the Motion is DISMISSED Section IV A 4 of the Decision B Croatia 320 With respect to the submission that Croatia only became a state some time between 15 January and 22 May 1992 and that consequently the conflict in Croatia was not international before that time and therefore all grave breaches counts in the Croatia Indictment which go to alleged crimes committed before these dates must be dismissed the Motion is DISMISSED Section IV B 1 of the Decision 321 With respect to the specific challenges to the Croatia Indictment as to sufficiency of evidence in paragraphs 64 b 64 f 64 h 64 p and 71 elija of that Indictment the Motion is GRANTED 322 With respect to the specific challenges to the Croatia Indictment as to sufficiency of evidence in paragraphs 36 l 40-41 50-51 53 55-58 64 j and 71 Nadin arengrad Bruska and Bapska of the Indictment the Motion is DISMISSED 20 03 2009 11 54 AM 97 of 102 file cs WWork Ictysite milosevic trialc judgement 040616 htm Section IV B 2 of the Decision C Bosnia 323 With respect to the Amici Curiae submissions concerning genocide the Trial Chamber except for its holding in paragraph 324 DISMISSES the Motion and holds that there is sufficient evidence that 1 there existed a joint criminal enterprise which included members of the Bosnian Serb leadership the aim and intention of which was to destroy a part of the Bosnian Muslims as a group and that its participants committed genocide in Brcko Prijedor Sanski Most Srebrenica Bijeljina Kljuc and Bosanski Novi 2 the Accused was a participant in that joint criminal enterprise Judge Kwon dissenting 3 the Accused was a participant in a joint criminal enterprise which included members of the Bosnian Serb leadership to commit other crimes than genocide and it was reasonably foreseeable to him that as a consequence of the commission of those crimes genocide of a part of the Bosnian Muslims as a group would be committed by other participants in the joint criminal enterprise and it was committed 4 the Accused aided and abetted or was complicit in the commission of the crime of genocide in that he had knowledge of the joint criminal enterprise and that he gave its participants substantial assistance being aware that its aim and intention was the destruction of a part of the Bosnian Muslims as group 5 the Accused was a superior to certain persons whom he knew or had reason to know were about to commit or had committed genocide of a part of the Bosnian Muslims as a group and he failed to take the necessary measures to prevent the commission of genocide or punish the perpetrators thereof 324 The Trial Chamber finds no evidence that genocide was committed in Kotor Varos Section IV C 1 of the Decision 325 With respect to each of the specific challenges to Schedule A of the Bosnia Indictment as to sufficiency of evidence Concerning items 2 5 6 7 8 9 10 12 Donji Kruhari in Sanski Most 15 Zaklopa ca in Vlasenica and 17 the Motion is GRANTED Concerning items 11 12 Sasina in Sanski Most 13 14 and 15 Drum in Vlasenica the Motion is DISMISSED Section IV C 2 a of the Decision 326 With respect to each of the specific challenges to Schedule B of the Bosnia Indictment as to sufficiency of evidence Concerning items 1 2 7 9 15 and 17 the Motion is GRANTED Concerning items 4 10 and 14 the Motion is DISMISSED Section IV C 2 b of the Decision 327 With respect to each of the specific challenges to Schedule C of the Bosnia Indictment as to sufficiency of evidence 20 03 2009 11 54 AM 98 of 102 file cs WWork Ictysite milosevic trialc judgement 040616 htm Concerning items 4 8 11 Cajnice SUP Building in Cajnice 12 16 17 18 21 and 22 Uzamnica in Visegrad the Motion is GRANTED Concerning items 2 11 Mostina Hunting Lodge in Cajnice 15 20 and 22 detention centre in tourist hotel in Vilina Vlas in Visegrad the Motion is DISMISSED Section IV C 2 c of the Decision 328 With respect to each of the specific challenges to Schedule D of the Bosnia Indictment as to sufficiency of evidence Concerning items 2 5 7 9 12 13 14 16 20 22 26 27 30 31 32 and 34 the Motion is GRANTED Concerning items 1 6 19 23 25 33 36 38 39 40 41 43 44 and 45 the Motion is DISMISSED Section IV C 2 d of the Decision 329 With respect to each of the specific challenges to Schedule E of the Bosnia Indictment as to sufficiency of evidence the Motion is GRANTED Section IV C 2 e of the Decision 330 With respect to each of the specific challenges to Schedule F of the Bosnia Indictment as to sufficiency of evidence the Motion is GRANTED Section IV C 2 f of the Decision Done in English and French the English text being authoritative ____________ Judge Robinson Presiding Dated this sixteenth day of June 2004 At The Hague The Netherlands Seal of the Tribunal VI SEPARATE OPINION OF JUDGE PATRICK ROBINSON 1 In this Opinion I comment on Part III of the Decision 810 which is devoted to an analysis of the degree of proof necessary in a Rule 98bis Motion I am particularly concerned to ascertain whether the features of the common law procedure of no case to answer from which the Rule is derived remain unchanged in the application of the Rule 2 When the Rules were first adopted in 1994 they did not contain a provision for a motion of acquittal at the end of the Prosecution case This provision was introduced in 1998 3 It is not surprising that the 1994 Rules contained no such provision because the no case to answer 20 03 2009 11 54 AM 99 of 102 file cs WWork Ictysite milosevic trialc judgement 040616 htm procedure has a peculiarly common law origin and does not fit readily into a regime that attempts to blend the civil and common law systems It may be that there was no agreement on its inclusion in the 1994 Rules Generally civil law jurisdictions do not have a procedure equivalent to Rule 98bis because they do not have a system in which evidence is first presented by the Prosecution and then by the Defence 811 thus the closure of the Prosecution’s case which underpins the no case to answer procedure does not exist in civil law jurisdictions 4 Significantly the Rules of Procedure and Evidence of the International Criminal Court “ICC” do not provide for a procedure equivalent to Rule 98bis In fact there is no provision for a sequence in the presentation of evidence by the Prosecution and the Defence such as that set out in the Tribunal’s Rule 85 The ICC’s regime for the presentation of evidence appears to follow the civil law inquisitorial model Article 69 3 of the ICC Statute provides that “the parties may submit evidence relevant to the case in accordance with article 64 The Court shall have the authority to request the submission of all evidence that it considers necessary for the determination of the truth ” 5 While Rule 98bis provides that the accused is to be acquitted if the Trial Chamber finds that the evidence is insufficient to sustain a conviction it does not identify the standard for determining the sufficiency of evidence In determining what “sufficiency’ means in the Rule it is natural therefore that recourse would be had to the law and practice of common law countries relating to the no case to answer procedure 6 However the mere fact that the Rule owes its origin to the common law does not necessarily mean that it bears all the features of the no case to answer procedure in its application at the Tribunal That is why this Trial Chamber said in Kordic that while the application of the Rule may be influenced by features of the no case to answer procedure in domestic jurisdictions it will not be controlled by that procedure 812 Ultimately the Rule has to be interpreted in the light of the context in which the Statute operates and the purpose it is intended to serve This is the effect of the requirement in Article 31 1 of the Vienna Convention on the Law of Treaties that “a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose ”813 7 The meaning of “sufficiency” in Rule 98bis has implications for the broader question of how national rules and practices are transferred to the international plane The Tribunal’s jurisprudence warns against the importation of domestic procedures “lock stock and barrel” into the Tribunal’s legal system Rule 89 A provides that the Tribunal “shall not be bound by national rules of evidence” The Trial Chamber in Delalic said “A Rule may have a common law or civilian origin but the final product may be an amalgamation of both common law or civilian elements so as to render it sui generis ”814 Also Judge Cassesse in his Dissenting Opinion in the Appeals Chamber Judgement in Erdemovic said “Legal constructs and terms of art upheld in national law should not be automatically imported into international criminal proceedings The International Tribunal being an international body based on the law of nations must first of all look to the object and purpose of the relevant provisions of its Statute and Rules ”815 In Jelisic Judge Pocar also emphasised the need to avoid “the application in a mechanical fashion of national solutions without assessing whether they may require adaptations to the needs of the procedure before this Tribunal …” 816 The main consequence of the transfer of a domestic practice to an international regime such as the Tribunal’s is that the practice becomes subject to international law – a consequence that has implications for its interpretation and application 8 It is important to note that the Tribunal’s jurisprudence does not prohibit the use of national rules and practices in its proceedings What it does is to require that a national procedure be interpreted and applied in accordance with the Tribunal’s Statute Ultimately then the issue is one of interpretation An issue of interpretation is less likely to arise when the Tribunal’s Rules detail the manner in which a domestic procedure is to be applied thus some provisions in the Tribunal’s Rules may reflect conformity with the domestic procedure while others may not Generally where a Rule is based on a domestic procedure it is 20 03 2009 11 54 AM file cs WWork Ictysite milosevic trialc judgement 040616 htm better to set out in as detailed a manner as is appropriate the provisions for its application at the Tribunal 9 But where as in the case of Rule 98bis some aspects of the application of the domestic procedure are not set out in the Tribunal’s Rules the meaning of the Rule will have to be ascertained by the interpretative process which may show that the domestic procedure has been modified to take account of its new legal environment 10 I fully support the analysis in paragraph 11 of the Decision and the conclusion that “an essential function of the procedure in common law jurisdictions is to ensure that at the end of the Prosecution’s case the jury is not left with evidence which cannot lawfully support a conviction otherwise it may bring in an unjust conviction ” 11 However when this procedure is transposed to the Tribunal in the form of Rule 98bis it has to be applied and construed in the context of a Statute which provides for a Trial Chamber performing the dual functions of tribunal of law and tribunal of fact there is no separate lay jury to be given directions by the judge there is instead a Chamber of professional judges perfectly capable of sifting evidence to determine what items could lawfully sustain a conviction and what items could not Thus in principle there is far less danger of an unjust conviction at the Tribunal than in criminal proceedings in common law jurisdictions there is certainly less need to insulate judges of a Trial Chamber from evidence which can not lawfully sustain a conviction 12 Nothing in this analysis is to be taken as meaning that Rule 98bis is unnecessary rather my purpose is to stress that in applying the no case to answer procedure at the level of the Tribunal the need to screen the trier of fact from evidence which could not lawfully support a conviction is not as urgent as it is in domestic common law jurisdictions where the tribunal of fact is a jury In my view it is appropriate for a Trial Chamber to take this into account in applying the test in Prosecutor v Jelisic 817 This may be the kind of modification referred to in Prosecutor v Kordic 818 that the common law features of the no case to answer procedure might undergo in the transition from their domestic berth to the Tribunal 13 I do not mean to suggest that that the test for determining the sufficiency of evidence under Rule 98bis is lower than the common law test confirmed by the Appeals Chamber in Jelisic that is evidence upon which a trier of fact could not should convict 819 But surely the fact that a Trial Chamber is composed of professional judges whose need to be insulated from weak evidence is not as great as a lay jury must make a difference to the application of the no case to answer procedure at the level of the Tribunal If the effect of my analysis is that evidence that is discarded at the half way stage in common law jurisdictions may be retained under Rule 98bis that does not necessarily mean that I am advocating a standard that is lower than the applicable criterion in those jurisdictions It may be a different standard but not necessarily one that is lower 14 In any event the time has come to evaluate the operation of Rule 98bis so as to determine whether changes are needed to make it a more beneficial instrument in the work of the Tribunal 15 In the first place although the Rule itself is designed to secure an acquittal of an accused on an offence charged its use is more directed at the dismissal of specific paragraphs or allegations in a count of an indictment than the count itself True enough in common law jurisdictions sometimes no case to answer submissions have a similar purpose But at the level of the Tribunal it is more the norm than the exception that Rule 98bis is used in this way 16 Charges at the Tribunal are multilayered to a degree that is generally not present in indictments at the domestic level Thus a charge could have as many as a hundred or more separate allegations it could cover forty municipalities be allegedly committed by fifteen different means details of which could be set out in fifty or more items in a Schedule Is it useful to devote the Tribunal’s resources to an exercise which may result in the elimination of a dozen of these hundred or more individual allegations or details of a charge while the charge or count remains intact Is there any prejudice to an accused in leaving those dozen individual allegations for consideration by the Trial Chamber at the judgement phase 100 of 102 20 03 2009 11 54 AM file cs WWork Ictysite milosevic trialc judgement 040616 htm 17 Consideration should be given to confining motions under Rule 98bis to submissions that are designed to eliminate a charge or count rather than individual allegations of fact relating thereto in most cases such submissions will relate to a missing legal ingredient of a charge e g mens rea However the possibility cannot be ruled out that in some cases generally where the Prosecution’s case has broken down as a whole submissions for the dismissal of individual allegations of fact may lead to the dismissal of a charge or count as a whole although by virtue of the multilayered character of charges this will not happen frequently that allege that there is no evidence as distinct from insufficient evidence to sustain a charge the reason being that the Tribunal’s trier of fact is a Chamber constituted of professional judges not a lay jury as in common law jurisdictions and there is therefore less need to screen the Chamber from evidence that cannot lawfully sustain a conviction provision may be made for an exception when allegations of insufficiency are such that they imply that the Prosecution’s case has broken down either in respect of a particular count or the charge as a whole in which case it would be in the interest of judicial economy that that count or the case itself should be dismissed at the half way stage rather than at the judgement phase In order to facilitate the identification of instances where there is no evidence to sustain a charge at the end of the Prosecution’s case the Prosecution should be required to list the allegations in the indictment in respect of which no evidence has been adduced the accused may comment on the list or produce his own list if there is a dispute as to whether there is evidence supporting a charge generally the issue should be treated as a submission that there is insufficient evidence which should be left for consideration at the judgement phase 18 The no case to answer procedure is a very valuable instrument for securing justice it promotes judicial economy by allowing for the acquittal of an accused at the half way stage in a trial But if it is to be of real benefit to the Tribunal modifications should be made that take into account the differing role of the judge at the Tribunal and the judge in a common law court with a jury Done in both English and French the English text being authoritative ___________ Patrick Robinson Presiding Judge Dated this sixteenth day of June 2004 At The Hague The Netherlands Seal of the Tribunal VII DISSENTING OPINION OF JUDGE O-GON KWON 1 With respect to the count of genocide under the first category of joint criminal enterprise I do not agree with the majority that there is sufficient evidence upon which a Trial Chamber could find beyond reasonable doubt that the Accused had the dolus specialis required for genocide i e the intent to destroy the Bosnian Muslims as a group in whole or in part 2 I agree with the finding that there is sufficient evidence upon which a Trial Chamber could convict the Accused of i genocide under the third category of joint criminal enterprise ii aiding and abetting or complicity in genocide or iii genocide as a superior under Article 7 3 However such finding does not affect my dissent 3 Taking the evidence from the Prosecution’s case at its highest the furthest that a Trial Chamber could 101 of 102 20 03 2009 11 54 AM file cs WWork Ictysite milosevic trialc judgement 040616 htm infer in relation to the mens rea requirement is the knowledge of the Accused that genocide was being committed in the specified municipalities in Bosnia and Herzegovina but not the genocidal intent of the Accused himself The latter conclusion cannot be automatically inferred from the finding that the Accused knew that genocide was being committed by the principal perpetrators or that it was reasonably foreseeable to him that genocide could be committed as a consequence of the commission of other crimes And with the evidence presented finding of the genocidal intent of the Accused is too tenuous 4 Accordingly the Motion should be granted with respect to the count of genocide under the first category of joint criminal enterprise Done in both English and French the English text being authoritative ________________ O-Gon Kwon Judge Dated this sixteenth day of June 2004 At The Hague The Netherlands Seal of the Tribunal 102 of 102 20 03 2009 11 54 AM