810. Most of the acts alleged in the Indictment form the basis of several charges under different Articles of the Statute. For instance, the acts of killing alleged in paragraph 42 of the Indictment are charged in Count 7 as murder under Article 5, in Count 8 as wilful killing under Article 2, and in Count 9 as murder under Article 3. Another example is that of the act of taking civilians as hostages which is charged under both Articles 2 and 3 of the Statute (Counts 25 and 33, and 26 and 34). The jurisprudence of the International Tribunal permits the practice of cumulative charging. This was most recently reaffirmed in the Celebici Appeal Judgement.¹⁷⁴² In relation to the particular case at hand, the Trial Chamber rejected a Defence motion seeking the dismissal of charges on the basis that they were cumulative, considering that

     the Prosecutor may be justified in bringing cumulative charges when the Articles of the Statute referred to are designed to protect different values and when each Article requires proof of a legal element not required by the others, and that in the instant case both requirements are met.¹⁷⁴³

     The issue now before the Trial Chamber is that of cumulative conviction.

     A. Arguments of the Parties

811. The Prosecution, relying on Akayesu, argues that an accused may be cumulatively charged and convicted (1) where the offences have different elements, or (2) where the provisions creating the offence protect different interests, or (3) where it is necessary to record a conviction for both offences in order to fully describe the criminal conduct of the accused.¹⁷⁴⁴ The Prosecution contends that the findings of the Kupreskic Trial Chamber , which relied on the test set out in the Blockburger case of the United States Supreme Court, do not represent a correct application of the law.¹⁷⁴⁵ It is submitted that because Articles 2, 3 and 5 of the Statute have different values and protect different interests, and have different elements, cumulative convictions are needed in order to describe fully the conduct of the accused.¹⁷⁴⁶ The Prosecution submits that issues arising out of cumulative charging or conviction may be addressed at the sentencing stage in imposing concurrent sentences.¹⁷⁴⁷

812. The Kordic Defence submits that the approach taken by the Kupreskic Trial Chamber is the approach that should be applied by the Trial Chamber.¹⁷⁴⁸ Applying the test set out to the present case, the Defence submits that Dario Kordi c could not be convicted on Count 9 (murder under Article 3 of the Statute) if he were to be convicted on Count 7 (murder under Article 5(a) of the Statute) based on the same transaction.¹⁷⁴⁹ The Defence also identifies three more groups of cumulative counts: (a) Counts 24 and 28 (cruel treatment under Article 3) vis-à-vis Count 10 (inhumane acts under Article 5 (i));¹⁷⁵⁰ (b) Counts 3, 4, 13, 26, 38, 39, and 43 (Article 3 offences) vis-à-vis Count 1 (persecution under Article 5(h));¹⁷⁵¹ and (c ) Counts 8, 11, 12, 22, 23, 25, 27, and 37 (Article 2 offences) vis-à-vis Count 1 (persecution under Article 5 (h)) or Counts 7, 10, and 21 (the offences of murder, inhumane acts and imprisonment under Article 5).¹⁷⁵²

813. The Cerkez Defence submits that the accused cannot be convicted several times for the same criminal conduct, except “(i(f more than one offense arises out from the same act, and under the condition that one offense has elements which are not found in the other offense”.¹⁷⁵³ The Defence argues that where the accused is charged with violating Articles 2, 3, and 5 for offences arising out of “a single criminal act”, he should be convicted under Articles 2 or 5, but not Article 3.¹⁷⁵⁴
     B. Discussion

814. The Appeals Chamber in Celebici addressed this issue within the context of an appeal against multiple convictions based on the same acts. The Appeals Chamber found as follows:

     Having considered the different approaches expressed on this issue both within this Tribunal and other jurisdictions, this Appeals Chamber holds that reasons of fairness to the accused and the consideration that only distinct crimes may justify multiple convictions, lead to the conclusion that multiple criminal convictions entered under different statutory provisions but based on the same conduct are permissible only if each statutory provision involved has a materially distinct element not contained in the other. An element is materially distinct from another if it requires proof of a fact not required by the other.¹⁷⁵⁵

815. The Appeals Chamber went on to hold that where multiple criminal convictions are not permissible under this test “the conviction under the more specific provision should be upheld.”¹⁷⁵⁶ In the Appeals Chamber’s view, this means that where a fact forms the basis of two charges under different provisions of the Statute, and where the test set out above is not met , the provision “which contains an additional materially distinct element” should be the one under which a conviction will be entered.¹⁷⁵⁷

816. The Appeals Chamber went on to apply the test it set out, i.e., to assess whether each applicable provision contains a materially distinct legal element not present in the other. Of relevance to the present case is the analysis in relation to cumulative conviction for the same acts under Article 2 and Article 3 of the Statute. Generally , with respect to the distinctive character of “grave breaches” as compared to Common Article 3 of the Geneva Conventions which is incorporated in the “violations of the laws or customs of war”, the Appeals Chamber held that “Article 2 of the Statute is more specific than Common Article 3.”¹⁷⁵⁸

817. Comparing the elements of “wilful killing” under Article 2 of the Statute and “murder” under Article 3 (on the basis of Common Article 3 of the Geneva Conventions ), the Appeals Chamber concluded that “wilful killing under Article 2 contains an additional element (the requirement that the victim be a protected person( and therefore more specifically applies to the situation at hand (a situation of international armed conflict(, the Article 2 conviction must be upheld, and the Article 3 conviction dismissed.”¹⁷⁵⁹ Thus, where all the elements of both offences are proven, the offence of “wilful killing” should be preferred to enter a conviction to that of “murder”.

818. The Appeals Chamber, after analysing the elements of the offences of “wilfully causing great suffering or serious injury to body or health” under Article 2, and “cruel treatment” under Article 3 on the one hand, and the offences of “inhumane treatment” under Article 2 and “cruel treatment” under Article 3 on the other hand , came to a similar conclusion. In both cases, the offences charged under Article 2 are to be chosen for conviction because they contain the “materially distinct legal element” that the victim be a protected person.¹⁷⁶⁰

819. The Trial Chamber will now turn to a consideration of the offences based on the same acts cumulatively charged in the Indictment.

820. Wilful killing (Article 2)/murder (Article 3)/murder (Article 5)¹⁷⁶¹: Based on the discussion of the elements of the crimes, the Trial Chamber finds that the offences of wilful killing and murder charged under Article 2 and 5 of the Statute (Counts 7 and 8, 14 and 15) each contain an additional element not required by the offence of murder under Article 3 (the requirement that the victim be a protected person for wilful killing under Article 2, and the requirements that the offence be widespread or systematic and directed against any civilian population in the case of a murder charged under Article 5). Thus, where the elements of all these crimes are proved, an accused may not be convicted of the Article 3 offence (Counts 9 and 16). Moreover, the crimes of wilful killing and murder under Articles 2 and 5 each contain an additional legal element not required by the other. Consequently , where all the elements of both crimes are proved, convictions may be entered on both charges.

821. Wilfully causing great suffering and inhuman treatment (Article 2)/violence to life and persons (Article 3)/inhumane acts (Article 5)¹⁷⁶² for causing injuries: The offence of inhumane acts charged under Article 5 of the Statute (Counts 10 and 17) contains an additional legal element not contained in the other charges, and a conviction should thus be entered on this charge if all its elements are proved. In relation to the charges under Articles 2 and 3 (Counts 11 – 13 and Counts 18 – 20): the offence of violence to life and person is broader than the two offences charged under Article 2 in that it also encompasses acts resulting in death. Therefore, where the evidence shows that the acts charged did not result in the death of the victim, a conviction under the Article 2 charges should be preferred. However, Counts 10 – 13 and 17 – 20 are specifically pleaded under the heading of ‘Injuries’, as opposed to those counts relating to murder and wilful killing which are pleaded under the heading of ‘Killings’. Accordingly, the former offences must be taken to encompass offences which fall short of those resulting in death and convictions under Article 2 (Counts 11 and 12, 18 and 19) will be preferred. Furthermore, in relation to the charges of wilfully causing great suffering and inhuman treatment under Article 2, where the evidence shows that the acts constituted an attack upon human dignity, as the Trial Chamber finds in Counts 11 and 12, 18 and 19 in the present case, the accused should be convicted of the offence of inhuman treatment (Counts 12 and 19).

822. Inhuman treatment of detainees (Article 2)/cruel treatment of detainees (Article 3)¹⁷⁶³: Applying the Celebici Appeals Chamber’s finding referred to above, the Trial Chamber finds that where all the elements of both offences are proved, an accused should be convicted of the offence of inhuman treatment under Article 2 of the Statute (Counts 23 and 31).

823. Inhuman treatment (human shields, Article 2)/ cruel treatment (human shields , Article 3)¹⁷⁶⁴: Applying the Celebici Appeals Chamber’s finding referred to above, the Trial Chamber finds that where all the elements of both offences are proved, an accused should be convicted of the offence of inhuman treatment under Article 2 of the Statute (Counts 27 and 35).

824. Unlawful confinement (Article 2) and imprisonment (Article 5)¹⁷⁶⁵: Each of these crimes contain an additional element not required by the other (the requirement that the victim be a protected person for unlawful confinement under Article 2, and the requirements that the offence be widespread or systematic and directed against any civilian population in the case of imprisonment charged under Article 5). Therefore, where the elements of both offences are satisfied, convictions may be entered on both charges.

825. Taking of civilians as hostages (Article 2)/taking of hostages (Article 3)¹⁷⁶⁶: As with wilful killing /murder, the elements of these two offences are similar except for the requirement that the victims be protected persons contained in Article 2; therefore where all the elements of the offences are proved, an accused should be convicted of taking civilians as hostages under Article 2 of the Statute (Counts 25 and 33).

826. The issue of improper cumulative conviction does not arise in relation to the remaining Counts charged in the Indictment.
     
     
     II. FINDINGS AS TO RESPONSIBILITY UNDER ARTICLE 7(1) OF THE STATUTE
     A. Counts 1 and 2: Persecution

827. The Trial Chamber has already defined persecution under Article 5(h) of the Statute as the occurrence of discriminatory acts on racial, religious or political grounds committed with intent to cause an infringement of an individual’s basic or fundamental rights; and in fact doing so. The Trial Chamber finds, on overwhelming evidence, that there was a campaign of persecution throughout the Indictment period in Central Bosnia (and beyond) aimed at the Bosnian Muslims. This campaign was led by the HDZ-BiH and conducted through the instruments of the HZ H-B and the HVO and orchestrated from Zagreb. It took the form of the most extreme expression of persecution, i.e., of attacking towns and villages with the concomitant destruction and plunder, killing, injuring and detaining Bosnian Muslims. The Trial Chamber has already held that the allegations relating to the encouragement and promotion of hatred, etc., and the dismissal of Bosnian Muslims from employment do not amount to persecution for the purposes of this case or, in the case of the latter allegation , at all. The purpose of this campaign was the subjugation of the Bosnian Muslim population. All this, in the Trial Chamber’s view, has been comprehensively proved and thus all the elements of the underlying offence made out. The defence case that these events amounted to a civil war in which the Bosnian Croats were on the defensive, and themselves subject to persecution, is rejected.¹⁷⁶⁷ For these purposes, as has been pointed out, the fact that individual atrocities were committed against Bosnian Croats is for these purposes irrelevant although they may be the subject of other criminal proceedings. (It is inherent in the above finding that there existed a common plan or design in the Bosnian Croat leadership to conduct this persecution.) However, as the Trial Chamber has found, the abuse and inhuman treatment of the detained Muslims (and using them as hostages and human shields and for trench-digging) was not part of the common plan or design.

828. The prosecution case against Dario Kordic is that, together with other persons holding positions of authority, he conceived this common plan to persecute the Bosnian Muslim population of Central Bosnia and that he planned, prepared, instigated or ordered it: as “an overall architect” of the plan, he had the necessary mens rea, and “intended to contribute to that joint criminal design”.¹⁷⁶⁸ The defence case is that Kordic was not linked to any crimes.¹⁷⁶⁹

829. The Trial Chamber has already held that planning is an autonomous form of responsibility under Article 7(1) and that no formal superior-subordinate relationship is required for a finding of “ordering”. Its findings to date amount to this: Dario Kordic was the political leader of the Bosnian Croats in Central Bosnia with particular authority in the Lasva Valley and although having no formal position in the chain of command he was associated with the military leadership; as such he participated in the HVO take-over of the municipalities and the attacks on Busovaca in January and the Lasva Valley in April and Kiseljak in June 1993. Whatever positions he may have held, the evidence does not support the contention that Dario Kordic was in the very highest echelons of the Bosnian Croat leadership or that he conceived the campaign of persecution. He was a regional political leader and lent himself enthusiastically to the common design of persecution by planning, preparing and ordering those parts of the campaign which fell within his sphere of authority. (It is to be inferred that he did so intending to advance the policy and sharing the discriminatory intent from his active participation in the campaign.) The evidence on which the Trial Chamber relies in making this finding is of the accused’s positions as Vice-President of the HDZ-BiH and President of the Busovaca HDZ, his role in the HVO take-over and attack on Busovaca and his role in the attacks in the Lasva Valley and Kiseljak and in the confinement of Muslims.

830. The prosecution case against Mario Cerkez is that he was a co-perpetrator: his contribution to the common plan being to implement its objectives by force in engaging his units in the persecution and playing a central role as military commander in attacks on Ahmici, Donja Veceriska, Vitez and Stari Vitez. He intended to participate in the common design and to contribute to it.¹⁷⁷⁰ The defence case is that there is no nexus between the accused and any subordinates alleged to have committed crimes.

831. The Trial Chamber has already held that Cerkez, as Commander of the Viteska Brigade, participated in the attacks on Vitez, Stari Vitez and Donja Veceriska ( although not in the initial attack on Ahmici). This was a high point of the campaign of persecution. The accused played his part in that campaign by commanding the troops involved in some of the incidents. As such he was a co-perpetrator; and that he had the necessary mens rea may be inferred, also in his case, from his part in the campaign.
     B. Counts 3 – 44: Unlawful Attacks, Wilful Killing, Inhuman Treatment , Detention and Destruction

832. The prosecution case on these counts is that Kordic was responsible for planning and ordering the crimes which were committed by HVO units implementing his commands and instructions. The coordinated fashion and number of crimes is an indication of the existence of an organised scheme. Kordic had the necessary mens rea since he intended the crimes or accepted the risk that they would be committed.¹⁷⁷¹ On the other hand the Kordic Final Brief begins by asserting that the case deals with crimes committed by soldiers whereas Dario Kordic was a local political leader who helped his community organise itself for defence: the core issue is the “lack of linkage” of any credible evidence that the accused had any criminal responsibility for crimes by soldiers.¹⁷⁷²

833. The prosecution case against Cerkez is that he planned and ordered these crimes , intending that they should be committed or instigated them by failing to prevent or punish them; alternatively, he was an aider and abetter.¹⁷⁷³ The defence case is that there is no evidence implicating the accused in any of these offences.¹⁷⁷⁴

834. The Trial Chamber finds that in those cases where Kordic participated in the HVO attacks he intended to commit the crimes associated with them and did so. His role was as political leader and his responsibility under Article 7(1) was to plan , instigate and order the crimes. In making this finding the Trial Chamber relies on the evidence already referred to in relation to persecution. As a result the Trial Chamber finds the accused Dario Kordic liable under Article 7(1) on the following counts:

     (a) Count 3 (unlawful attacks on civilians) and Count 4 (unlawful attacks on civilian objects), Count 7 (murder) and Count 8 (wilful killing), Count 10 (inhumane acts ) and Count 12 (inhuman treatment) in relation to the following locations and dates as set out in the Indictment: Busovaca (January 1993); Vitez, Stari Vitez, Vec eriska-Donja Veceriska, Ahmici, Nadioci, Pirici, Santici, and Rotilj (April 1993 ); Tulica¹⁷⁷⁵ and Han Ploca-Grahovci (June 1993).¹⁷⁷⁶

     (b) On Count 21 (imprisonment) and Count 22 (unlawful confinement of civilians) in the following locations: Kaonik Prison, Vitez Cinema Complex, Veterinary Station, SDK offices, Chess Club, Dubravica Elementary School, Kiseljak municipal buildings and barracks and Rotilj village.

     (c) On Count 38 (wanton destruction not justified by military necessity) and Count 39 (plunder of public or private property) in relation to the following locations: Novi Travnik (October 1992); Busovaca (January 1993); Kiseljak, Svinjarevo, Gomionica , Polje Visnjica, Rotilj (April 1993); Tulica, Han Ploca-Grahovci (June 1993); and Vitez, Stari Vitez, Ahmici and Veceriska-Donja Veceriska (April 1993). And on Count 38, alone, in the following locations: Merdani (January 1993); and Ocehnici, Visnijca, Behrici, Gromiljak, Nadioci, Pirici, Santici and Gacice (April 1993). And on Count 39, alone, in Loncari (April 1993).

     (d) On Count 43 (destruction or wilful damage to institutions dedicated to religion or education) in the following locations: Ahmici and Stari Vitez (April 1993) and Han Ploca (June 1993).

835. In relation to the remaining locations in which offences are alleged to have been committed in the above Counts and on Counts 9, 11, 13, 23, 24, 25, 26, 27, 28 and 37, the Trial Chamber finds Dario Kordic not liable under Article 7(1).

836. The Trial Chamber finds that in those cases where Cerkez participated in attacks as Commander of the Viteska Brigade, he committed the crimes associated with them , intending to commit the crimes. His responsibility as Commander of the Brigade was as a co-perpetrator in crimes which he committed. As a result the Trial Chamber finds the accused, Mario Cerkez, liable under Article 7(1) on the following counts :

     (a) Count 5 (unlawful attacks on civilians) and Count 6 (unlawful attacks on civilian objects), Count 14 (murder), and Count 15 (wilful killing), Count 17 (inhumane acts ), Count 19 (inhuman treatment) in relation to the following locations Vitez, Stari Vitez, Stari Vitez and Veceriska-Donja Veceriska; and Count 41 (wanton destruction not justified by military necessity) and Count 42 (plunder of public or private property) in relation to the following locations: Vitez, Stari Vitez and Donja Veceriska;

     (b) on Count 29 (imprisonment), Count 30 (unlawful confinement of civilians), Count 31 (inhuman treatment), Count 33 (taking civilians as hostages) and Count 35 (inhuman treatment) in relation to the following locations: Vitez Cinema Complex, Veterinary Station, SDK offices and Chess Club);

     (c) on Count 44 (destruction or wilful damage to institutions dedicated to religion or education) in relation to Stari Vitez.

837. In relation to the remaining locations on the above Counts and Counts 16, 18 , 20, 32, 34, 36 and 40, the Trial Chamber finds Mario Cerkez not liable under Article 7(1).
     
     
     III. FINDINGS AS TO RESPONSIBILITY UNDER ARTICLE 7(3) OF THE STATUTE
     A. Dario Kordic

838. Dario Kordic was a civilian and a politician with tremendous influence and power in Central Bosnia. He occupied an important position in the leadership of the HZ H-B, but was not in the top echelon, being answerable to Mate Boban.

839. While he played an important role in military matters, even at times issuing orders, and exercising authority over HVO forces, he was, and remained throughout the Indictment period, a civilian, who was not part of the formal command structure of the HVO.

840. Although liability under Article 7(3) may attach to civilians as well as military personnel, once it is established that the requisite power to prevent or punish exists, the Chamber holds that great care must be taken in assessing the evidence to determine command responsibility in respect of civilians, lest an injustice is done. In the first place, it is established that substantial influence (such as Kordic had), by itself, is not indicative of a sufficient degree of control for liability under Article 7(3).¹⁷⁷⁷ Secondly, while liability under Article 7(3) may attach not only to persons in formal positions of command, but also to those who are effectively in command of more informal structures,¹⁷⁷⁸ the Chamber finds that Kordic lacked effective control, which the Appeals Chamber in the Celebi ci case defined as “a material ability to prevent or punish criminal conduct , however that control is exercised”.¹⁷⁷⁹

841. In sum, the Chamber finds that Kordic was neither a commander nor a superior in respect of the HVO, since he possessed neither the authority to prevent the crimes that were committed, nor to punish the perpetrators of those crimes,¹⁷⁸⁰ and as such, he is not liable under Article 7(3) of the Statute.
     B. Mario Cerkez

842. The Chamber refers to its previous finding that, as commander of the Viteska Brigade, Mario Cerkez participated in the attacks on Vitez, Stari Vitez and Veceriska ; as commander, he exercised de jure and de facto control over the members of his brigade.

843. The Chamber is satisfied that Mario Cerkez knew of the impending attacks on those towns by those troops under his command, that he failed to take the necessary measures to prevent those attacks, and that he failed to punish those who were responsible for the attacks. The Chamber therefore finds Mario Cerkez liable under Article 7(3) in respect of the attacks by the Viteska Brigade on the three locations and the associated killings and injuries (Counts 5 - 6, 14 - 15, 17 and 19), imprisonment and other detention offences (Counts 29 – 31, 33 and 35), plunder (Count 42) and destruction (Counts 41 and 44).

     
     
     

     IV. SENTENCING
     A. Submissions of the Parties

844. The Prosecution submits that a sentence of life imprisonment for both accused is appropriate in this case, with a recommendation that Kordic serve a minimum of 30 years and Cerkez a minimum of 25 years.¹⁷⁸¹ In support of this submission the Prosecution relies on principles to be borne in mind in sentencing, i.e., the requirements for retribution and deterence: it also relies on the need for a sentence to reflect adequately the gravity of the criminal conduct of the accused.¹⁷⁸² It submits that (a) both accused have been charged with crimes of the gravest nature , and that the evidence establishes “a pattern of atrocities and inhumane acts”; (b) the Trial Chamber should have in mind the large number of victims, their suffering and that of their families; (c) the accused in this case had a “central” role in the crimes charged, and should bear “the highest criminal culpability”; and (c) there are no mitigating circumstances.¹⁷⁸³

845. The Kordic Defence made no submissions on sentencing in its Final Brief, although reference was made to the fact that he is a family man with no criminal record, who surrendered voluntarily to the International Tribunal and whose behaviour in the United Nations Detention Unit has been described as excellent.¹⁷⁸⁴ On behalf of Mario Cerkez, it is submitted in mitigation (a) that he surrendered voluntarily to the International Tribunal and returned to the Detention Unit, having been released provisionally due to the terminal illness of his father; (b) that he is a model citizen, a hard-working family man with no criminal record; (c) that he had friends of all ethnicities and had displayed no prejudices or intolerance ;¹⁷⁸⁵ and (d) that his behaviour in the United Nations Detention Unit has also been described as excellent.¹⁷⁸⁶
     B. Sentencing Principles

846. The relevant provisions of the Statute and Rules of Procedure and Evidence of the International Tribunal are Article 24 of the Statute and Rule 101. The material parts of these provisions are as follows:

     Article 24:

     1. The penalty imposed by the Trial Chamber shall be limited to imprisonment. In determining the terms of imprisonment, the Trial Chamber shall have recourse to the general practice regarding prison sentences in the courts of the former Yugoslavia .

     2. In imposing the sentences, the Trial Chamber should take into account such factors as the gravity of the offences and the individual circumstances of the convicted person.

     …

     Rule 101:

     (A) A convicted person may be sentenced to imprisonment for a term up to and including the remainder of the convicted person’s life.

     (B) In determining the sentence, the Trial Chamber shall take into account the factors mentioned in Article 24, paragraph 2, of the Statute, as well as such factors as :

     (i) any aggravating circumstances;

     (ii) any mitigating circumstances including the substantial cooperation with the Prosecutor by the convicted person before or after conviction;

     (iii) the general practice regarding prison sentences in the courts of the former Yugoslavia;

     …

     (C) Credit shall be given to the convicted person for the period, if any, during which the convicted person was detained in custody pending surrender to the Tribunal or pending trial or appeal.

847. Thus, in imposing a sentence,¹⁷⁸⁷ a Trial Chamber must have regard to the gravity of the offence, the individual circumstances of the accused, and any aggravating or mitigating factors. The application of these principles has not led to the establishment by the Appeals Chamber of sentencing guidelines;¹⁷⁸⁸ however, various general principles have emerged from its Judgements:

     (i) Deterrence is a consideration of general importance in determing a sentence,¹⁷⁸⁹ but it “must not be accorded undue prominence in the overall assessment”;¹⁷⁹⁰

     (ii) “An equally important factor is retribution. This is not to be understood as fulfilling a desire for revenge but as truly expressing the outrage of the international community at these crimes”;¹⁷⁹¹

     (iii) The most important consideration is the gravity of the offence which has been described as “the litmus test for the appropriate sentence”¹⁷⁹² and reflects the provisions of Article 24(2) of the Statute;¹⁷⁹³

     (iv) The fact that an accused held a position of superior responsibility may seriously aggravate an offence,¹⁷⁹⁴ but there must be regard to the position of the accused in the command structure.¹⁷⁹⁵

848. On the other hand, no clear formulation of what constitutes mitigating circumstances (other than cooperation with the Prosecutor) has emerged. The following have been considered as mitigation in certain cases: a good personal character with no previous criminal record,¹⁷⁹⁶ poor health ¹⁷⁹⁷ and youth.¹⁷⁹⁸ Although it will be rare for such factors to play a significant part in mitigating international crimes, there may be occasions when they do; and the categories of mitigating circumstance cannot be considered as closed. Such factors will vary with the circumstances of each case, as must be contemplated by the reference to “individual circumstances” in Article 24 of the Statute.

849. A Trial Chamber must also have regard to the sentencing practice of the former Yugoslavia although, as has been noted, no provision requires a Trial Chamber to follow this practice.¹⁷⁹⁹ The SFRY Criminal Code of 1976/1977 provided for a sentence of not less than five years imprisonment or the death penalty for genocide or war crimes against civilians (Articles 141 and 142(1)). (However, Article 38(2) of the Code permitted courts to impose a term of 20 years imprisonment for criminal acts eligible for the death penalty.)¹⁸⁰⁰ The practice of the former Yugoslavia shows that the death penalty was imposed for such offences: for instance, by the District Court in Zagreb in 1986 on a former member of the so-called Independent State of Croatia during the Second World War ;¹⁸⁰¹ by a military court in Belgrade in 1992 on two members of paramilitary units;¹⁸⁰² and in a similar case on the commander of a paramilitary unit who was sentenced for carrying out “the liquidation of quite a large number” of Serbs.¹⁸⁰³ On the other hand, if the offences were sporadic or committed by a soldier of lower rank, the penalty was mitigated. Thus, in the last case above, a member of the commander’s unit was sentenced to 11 years imprisonment and in 1985, in the District Court of Sabac, a soldier was sentenced to five years imprisonment for beating a civilian who subsequently died as a result of his injuries.¹⁸⁰⁴ The practice, therefore, may be said to be similar to that of the International Tribunal, in the serious view taken of these offences and the role of commanders .

850. Finally, a Trial Chamber must give credit to an accused for the period during which he or she was detained in custody pending trial; it must order any sentence to run from the date of Judgement¹⁸⁰⁵ and may recommend a minimum sentence to be served by an accused before any commutation or reduction of sentence is considered.¹⁸⁰⁶

851. With the above principles in mind, the Trial Chamber will consider the appropriate sentences in the case of these accused, emphasising that the sentences reflect the evidence in this case and the role of these accused as found by this Trial Chamber .
     C. Sentences

852. The starting point for the consideration of sentence is the gravity of the offences. Both accused have been convicted of numerous offences. However, all arise from the same common design which led to the persecution and “ethnic cleansing ” of the Bosnian Muslims of the Lasva Valley and surroundings. This led to a sustained campaign involving a succession of attacks on villages and towns which were characterised by a ruthlessness and savagery and in which no distinction was made as to the age of its victims: young and old were either murdered or expelled and their houses burned. The total number of dead may never be known, but it runs into hundreds, with thousands expelled. Offences of this level of barbarity could not be more grave and those who participate in them must expect sentences of commensurate severity to mark the outrage of the international community.
     1. Dario Kordic

853. Dario Kordic was born on 14 December 1960. He is now 40 years old. At the time of these offences he was aged between 31-33, a youthful age (the Trial Chamber notes) for the responsibilities of leadership which he undertook. His role in these offences was an important one. As a regional political leader in Central Bosnia , with particular authority in the Lasva Valley, he was the effective political commander in the area where the majority of these offences were committed. The Trial Chamber bears in mind that it has not accepted the full extent of the Prosecution case and not found that Kordic was in the highest echelons of the leadership of the campaign of persecution; likewise, he has been acquitted of some of the offences arising from individual acts of terror and the massacre at Stupni Do. He is not , therefore, to be sentenced as an architect of the persecution or the prime mover in it. Nonetheless, he joined the campaign enthusiastically and played an instrumental part in the Lasva Valley offensives in 1993, in particular, in the ordering of the attack on Ahmici and the other villages in April 1993. For his part in that dreadful episode he deserves appropriate punishment. The fact that he was a politician makes no difference: he played his part as surely as the men who fired the guns. Indeed , the fact that he was a leader aggravates the offences.

854. Dario Kordic has offered no mitigation of these offences; and there is none . The Trial Chamber considers that the overall criminality of the accused can best be reflected in a single sentence. Dario Kordic is sentenced to twenty-five years’ imprisonment.
     2. Mario Cerkez

855. Mario Cerkez was born on 27 March 1959. He is now aged 41. At the time of these offences he was 33-34. His position is different from that of his co-accused . Whereas the latter was a political leader, Mario Cerkez was a soldier and a middle -ranking HVO commander. The Trial Chamber notes that he had no previous experience of command and nothing in his earlier life could have prepared him for it. However , he was the commander of the local Viteska Brigade during the time of the terrible events in the Lasva Valley and led it in the assaults on Vitez and Veceriska, both of which led to civilian deaths and destruction. While the Trial Chamber has found that his troops were not involved in the massacre at Ahmici, he played his part in the campaign of persecution against the Muslims of the Lasva Valley, aggravated because of his role as commander.

856. None of the matters submitted as mitigating circumstances amount to mitigation of these international crimes. The Trial Chamber considers that the overall criminality of the accused can best be reflected in a single sentence. Mario Cerkez is sentenced to fifteen years’ imprisonment.

THE TRIAL CHAMBER makes these findings on the Counts of the Indictment:

Count 1: a crime against humanity, as recognised by Article 5(h) (persecutions on political, racial, or religious grounds) and pursuant to Article 7(1) of the Statute of the International Tribunal
DARIO KORDIC - GUILTY

Count 2: a crime against humanity, as recognised by Article 5(h) ( persecutions on political, racial, or religious grounds) and pursuant to Article 7(1) of the Statute of the International Tribunal
MARIO CERKEZ - GUILTY

Count 3 : a violation of the laws or customs of war, as recognised by Article 3 (unlawful attack on civilians) and pursuant to Article 7(1) of the Statute of the International Tribunal
DARIO KORDIC - GUILTY

Count 4 : a violation of the laws or customs of war, as recognised by Article 3 (unlawful attack on civilian objects) and pursuant to Article 7(1) of the Statute of the International Tribunal
DARIO KORDIC - GUILTY

Count 5: a violation of the laws or customs of war, as recognised by Article 3 (unlawful attack on civilians) and pursuant to Articles 7(1) and 7(3) of the Statute of the International Tribunal
MARIO CERKEZ - GUILTY

Count 6: a violation of the laws or customs of war, as recognised by Article 3 (unlawful attack on civilian objects) and pursuant to Articles 7(1) and 7(3) of the Statute of the International Tribunal
MARIO CERKEZ - GUILTY

Count 7: a crime against humanity, as recognised by Article 5(a) (murder ) and pursuant to Article 7(1) of the Statute of the International Tribunal
DARIO KORDIC - GUILTY

Count 8: a grave breach of the Geneva Conventions, as recognised by Article 2(a) (wilful killing) and pursuant to Article 7(1) of the Statute of the International Tribunal
DARIO KORDIC - GUILTY

Count 9: a violation of the laws or customs of war, as recognised by Article 3 (murder) of the Statute of the International Tribunal
DARIO KORDIC - NOT GUILTY

Count 10: a crime against humanity, as recognised by Article 5(i) (inhumane acts) and pursuant to Article 7(1) of the Statute of the International Tribunal
DARIO KORDIC - GUILTY

Count 11: a grave breach of the Geneva Conventions, as recognised by Article 2(c) (wilfully causing great suffering or serious injury to body or health) of the Statute of the International Tribunal.
DARIO KORDIC - NOT GUILTY

Count 12: a grave breach of the Geneva Conventions, as recognised by Article 2(b) (inhuman treatment) and pursuant to Article 7(1) of the Statute of the International Tribunal
DARIO KORDIC - GUILTY

Count 13: a violation of the laws or customs of war, as recognised by Article 3 (violence to life and person) of the Statute of the International Tribunal
DARIO KORDIC - NOT GUILTY

Count 14: a crime against humanity, as recognised by Article 5(a) (murder ) and pursuant to Articles 7(1) and 7(3) of the Statute of the International Tribunal
MARIO CERKEZ - GUILTY

Count 15: a grave breach of the Geneva Conventions, as recognised by Article 2(a) (wilful killing) and pursuant to Articles 7(1) and 7(3) of the Statute of the International Tribunal
MARIO CERKEZ - GUILTY

Count 16: a violation of the laws or customs of war, as recognised by Article 3 (murder) of the Statute of the International Tribunal
MARIO CERKEZ - NOT GUILTY

Count 17: a crime against humanity, as recognised by Article 5(i) (inhumane acts) and pursuant to Articles 7(1) and 7(3) of the Statute of the International Tribunal
MARIO CERKEZ - GUILTY

Count 18: a grave breach of the Geneva Conventions, as recognised by Article 2(c) (wilfully causing great suffering or serious injury to body or health) of the Statute of the International Tribunal
MARIO CERKEZ - NOT GUILTY

Count 19: a grave breach of the Geneva Conventions, as recognised by Article 2(b) (inhuman treatment) and pursuant to Articles 7(1) and 7(3) of the Statute of the International Tribunal
MARIO CERKEZ - GUILTY

Count 20: a violation of the laws or customs of war, as recognised by Article 3 (violence to life and person) of the Statute of the International Tribunal
MARIO CERKEZ - NOT GUILTY

Count 21: a crime against humanity, as recognised by Article 5(e) (imprisonment ) and pursuant to Article 7(1) of the Statute of the International Tribunal
DARIO KORDIC - GUILTY

Count 22: a grave breach of the Geneva Conventions, as recognised by Article 2(g) (unlawful confinement of civilians) and pursuant to Article 7(1) of the Statute of the International Tribunal
DARIO KORDIC - GUILTY

Count 23: a grave breach of the Geneva Conventions, as recognised by Article 2(b) (inhuman treatment) of the Statute of the International Tribunal
DARIO KORDIC - NOT GUILTY

Count 24: a violation of the laws or customs of war, as recognised by Article 3 (cruel treatment) of the Statute of the International Tribunal
DARIO KORDIC - NOT GUILTY

Count 25: a grave breach of the Geneva Conventions, as recognised by Article 2(h) (taking civilians as hostages) of the Statute of the International Tribunal
DARIO KORDIC - NOT GUILTY

Count 26: a violation of the laws or customs of war, as recognised by Article 3 (taking of hostages) of the Statute of the International Tribunal
DARIO KORDIC - NOT GUILTY

Count 27: a grave breach of the Geneva Conventions, as recognised by Article 2(b) (inhuman treatment) of the Statute of the International Tribunal
DARIO KORDIC - NOT GUILTY

Count 28: a violation of the laws or customs of war, as recognised by Article 3 (cruel treatment) of the Statute of the International Tribunal
DARIO KORDIC - NOT GUILTY

Count 29: a crime against humanity, as recognised by Article 5(e) (imprisonment ) and pursuant to Articles 7(1) and 7(3) of the Statute of the International Tribunal
MARIO CERKEZ - GUILTY

Count 30: a grave breach of the Geneva Conventions, as recognised by Article 2(g) (unlawful confinement of civilians) and pursuant to Articles 7(1) and 7(3) of the Statute of the International Tribunal
MARIO CERKEZ - GUILTY

Count 31: a grave breach of the Geneva Conventions, as recognised by Article 2(b) (inhuman treatment) and pursuant to Articles 7(1) and 7(3) of the Statute of the International Tribunal
MARIO CERKEZ - GUILTY

Count 32: a violation of the laws or customs of war, as recognised by Article 3 (cruel treatment) of the Statute of the International Tribunal
MARIO CERKEZ - NOT GUILTY

Count 33: a grave breach of the Geneva Conventions, as recognised by Article 2(h) (taking civilians as hostages) and pursuant to Articles 7(1) and 7(3) of the Statute of the International Tribunal
MARIO CERKEZ - GUILTY

Count 34: a violation of the laws or customs of war, as recognised by Article 3 (taking of hostages) of the Statute of the International Tribunal
MARIO CERKEZ - NOT GUILTY

Count 35: a grave breach of the Geneva Conventions, as recognised by Article 2(b) (inhuman treatment) and pursuant to Articles 7(1) and 7(3) of the Statute of the International Tribunal
MARIO CERKEZ - GUILTY

Count 36: a violation of the laws or customs of war, as recognised by Article 3 (cruel treatment) of the Statute of the International Tribunal
MARIO CERKEZ - NOT GUILTY

Count 37: a grave breach of the Geneva Conventions, as recognised by Article 2(d) (extensive destruction of property not justified by military necessity) of the Statute of the International Tribunal
DARIO KORDIC - NOT GUILTY

Count 38: a violation of the laws or customs of war, as recognised by Article 3(b) (wanton destruction not justified by military necessity) and pursuant to Article 7(1) of the Statute of the International Tribunal
DARIO KORDIC - GUILTY

Count 39: a violation of the laws or customs of war, as recognised by Article 3(e) (plunder of public or private property) and pursuant to Article 7(1) of the Statute of the International Tribunal
DARIO KORDIC - GUILTY

Count 40: a grave breach of the Geneva Conventions, as recognised by Article 2(d) (extensive destruction of property not justified by military necessity) of the Statute of the International Tribunal
MARIO CERKEZ - NOT GUILTY

Count 41: a violation of the laws or customs of war, as recognised by Article 3(b) (wanton destruction not justified by military necessity) and pursuant to Articles 7(1) and 7(3) of the Statute of the International Tribunal
MARIO CERKEZ - GUILTY

Count 42: a violation of the laws or customs of war, as recognised by Article 3(e) (plunder of public or private property) and pursuant to Articles 7(1) and 7 (3) of the Statute of the International Tribunal
MARIO CERKEZ - GUILTY

Count 43: a violation of the laws or customs of war, as recognised by Article 3(d) (destruction or wilful damage to institutions dedicated to religion or education ) and pursuant to Article 7(1) of the Statute of the International Tribunal
DARIO KORDIC - GUILTY

Count 44: a violation of the laws or customs of war, as recognised by Article 3(d) (destruction or wilful damage to institutions dedicated to religion or education ) and pursuant to Articles 7(1) and 7(3) of the Statute of the International Tribunal
MARIO CERKEZ - GUILTY

And, therefore, SENTENCES the accused

DARIO KORDIC to 25 years’ imprisonment, and

MARIO CERKEZ to 15 years’ imprisonment

and STATES that the period of time during which the accused have been in the custody of the International Tribunal, i.e., from 6 October 1997 to the date of this Judgement, shall be deducted from the overall length of the sentence.

Done in English and French, the English text being authoritative.

__________________________
Richard May
Presiding

________________________
Patrick Robinson

__________________________
Mohamed Bennouna

Dated this twenty-sixth day of February 2001
At The Hague
The Netherlands

[Seal of the Tribunal]

August 1990
The Croatian Democratic Union of Bosnia and Herzegovina (“HDZ-BiH”) was founded.

November 1990
Multi-party elections in Bosnia and Herzegovina (“BiH”).

25 June 1991
Republic of Croatia declared its independence (suspended until 8 October 1991).

18 November 1991
Formation of the Croatian Community of Herceg-Bosna (“HZ H-B”).

15 January 1992
Republic of Croatia recognised by the European Community.

February 1992
Referendum on independence in BiH.

3 March 1992
Republic of Bosnia and Herzegovina declared its independence.

Spring of 1992
Attacks on Slimena and Busovaca arms depots of the JNA.

March-April 1992
War started in BiH with attacks by the Bosnian Serb Army.

6 April 1992
Republic of Bosnia and Herzegvina recognised by the European Community.

8 April 1992
Establishment of the HVO as the supreme defence body in the territory of the HZ H-B.

May 1992
JNA shelled Busovaca.

May-June 1992
HVO general HQ established in Mostar.
HVO Central Bosnia HQ established in Busovaca.

22 May 1992
Republic of Croatia and Republic of Bosnia and Herzegovina admitted by the UN as Member States.

19 June 1992

Fighting broke out in Novi Travnik between the HVO and the TO.

22 June 1992
RBiH proclaimed a state of war.

14 September 1992
HZ H-B declared illegal by the Constitutional Court of BiH.

19-26 October 1992
Second conflict in Novi Travnik: TO erected barricade in Ahmici in order to prevent HVO reinforcements getting there. When HVO reached barricade, ensuing fighting lasted one day.

November-December 1992
Mixed Military Working Group, representing the three Bosnian factions and chaired by General Morillon on behalf of the UN, met at Sarajevo airport for negotiations .

December 1992-early 1993
HVO forces in Central Bosnia began to consolidate, operating as units of larger brigades, with Milivoj Petkovic serving as supreme commander and Tihomir Blaskic as Central Bosnia Operative Zone (“CBOZ”) commander.

11 January 1993
Fighting breaks out in Gornji Vakuf.

20 January 1993
HVO, as alleged, attacked Merdani, Kacuni, Strane, Loncari and Ocehnici in the municipality of Busovaca; while ABiH attacked northern Kiseljak Valley, cutting off the main supply route and establishing a checkpoint between Busovaca and Kiseljak, at Kac uni.

25 January 1993
Announcement of the Vance Owen Peace Plan with proposal that BiH be organised into ten provinces.

25 January 1993
Kacuni checkpoint incident: exchange of fire between the HVO and the ABiH.

30 January 1993
Cease-fire agreement between the HVO and the ABiH.

24 March 1993
Tihomir Blaskic appointed Mario Cerkez as Commander of the Viteska Brigade.

4 April 1993
The HVO HQ in Mostar set the deadline of 15 April for President Izetbegovic to sign the 3 April agreement according to which, the military and police were to come under the authority of the HVO in Provinces 3, 8 and 10.

10 April 1993
Artillery duel in Travnik over the flying of flags.

15 April 1993
Abduction of local HVO commander Zivko Totic and murder of his bodyguards in Zenica .

16 April 1993
Violence broke out across the Lasva Valley as the HVO, as alleged, attacked Vitez , Stari Vitez, Gacice, Ahmici, Santici, Pirici, Donja Veceriska, Sivrino Selo, Nadioci , Loncari, Putis and Ocehnici.
Detention of civilians in the Vitez cinema complex and veterinary station, the Dubravica elementary school, the SDK offices and the chess club.
In the village of Ahmici, at least 103 Muslim civilians were killed, including 33 women and children.

18 April 1993
Truck bomb explosion in Stari Vitez/Mahala, the Muslim quarter of Vitez.
HVO attacked the municipality of Kiseljak: Stara Bila, Svinjarevo, Gomionica, Gromiljak , Visnjica and Rotilj.

19 April 1993
Shelling of Zenica market place.
ABiH proceeded to defeat the HVO in Zenica.

20 April 1993
HVO attacks Muslim population of Gacice, Pirici, Preocica and new Vitez.
ABiH counteroffensive succeeded in rolling back some HVO gains and recapturing all checkpoints.

25 April 1993
At a meeting in Zagreb, Alija Izetbegovic and Mate Boban concluded a cease-fire agreement.

May-June 1993
ABiH offensive in Lasva Valley. By June, the ABiH became dominant.

Early June 1993
Convoy of Joy incident.

4 June 1993
ABiH took Travnik, large exodus of Croats to Busovaca.

9 June 1993
Fighting again broke in Novi Travnik.

12 June 1993
HVO attacked Tulica.

13 June 1993
HVO attacked the villages of Han Ploca and Grahovci.

16 June 1993
Fighting broke out in Kresevo.

24 June 1993
HVO attacked Zepce.

30 June 1993
ABiH commander in Zepce surrendered to HVO, Muslim civilians and military personnel were put into detention around Zepce.

June-July 1993
ABiH captured Kakanj, Fojnica and Bugojno, causing many more Croats to flee to Busova ca.

6 August 1993
A report on the union of the three republics of BiH, the “Owen-Stoltenberg Plan”, was sent by the Secretary-General to the Security Council.

28 August 1993
HZ H-B declared itself Croatian Republic of Herceg-Bosna (“HR H-B”), with Mate Boban as President and Dario Kordic as Vice-President.

23 October 1993
HVO attacked Stupni Do.

2 November 1993
ABiH attacked Vares.

25 February-2March 1994 Washington Agreements ended the war between Muslims and Croats.

10 July 1994
Dario Kordic became President of the HDZ-BiH.

November-December 1995
Dayton Agreements. RBiH, Croatia and the FRY agreed to fully respect the sovereign equality of one another and to settle disputes by peaceful means.

Summer of 1997
Death of Mate Boban.

6 October 1997
Surrender of both accused to the Tribunal.

Mile Akmadzic

Prime Minister of RBiH;

Member of the Presidential Council HZ H-B.

Miro Andric

HV Colonel.

Ivan Bender

President of the House of Representatives HR H-B.

Ante Bilic

Vice President HDZ Busovaca.

Tihomir Blaskic

Commander of the CBOZ.

Mate Boban

President of the HZ H-B.
President of the Presidency of the HZ H-B.
President of the HVO.
President of HDZ-BiH.

Janko Bobetko

HV General, southern front Commander.

Mario Cerkez

Commander of the HVO Viteska Brigade.

Filip Filipovic

HVO Colonel in Travnik.

Anto Furundzija

Commander of the Jokers (Dzokeri), subordinate to Vladimir Santic.

Darko Gelic

Tihomir Blaskic’s liaison officer to the UNPROFOR.

Florijan Glavocevic

President HDZ Busovaca.

Dusko Grubesic

Commander of the Nikola Subic Zrinski Brigade.

Jadranko Jandric

Commander of the HOS (replaced by Mladen Holman).

Enver Hadzihasanovic

ABiH 3rd Army Corps Commander.

Radovan Karadzic

President of the Bosnian Serb administration in Pale.

Dario Kordic

Vice President of the HZ H-B Presidency.
Vice President of the HR H-B.
President HDZ-BiH in 1994.

Ignac Kostroman

Secretary-General of the HZ H-B and the HDZ-BiH.

Darko Kraljevic

Commander of the Vitezovi.

Pasko Ljubicic

IV Battalion Military Police Commander from 18 January 1993 until 23 July 1993.

Zoran Maric

President of HVO Busovaca.

Dzemal Merdan

ABiH Chief of Staff.

Slobodan Milosevic

President of the FRY.

Philippe Morillon

Commander UN BiH Command.

Marinko Palavra

IV Battalion Military Police Commander from 23 July 1993.

Arif Pasalic

Commander of the ABiH 4th Corps.

Jadranko Perlic

President of the HVO.

Zeljko Pervan

President of HVO Travnik.

Milivoj Petkovic

HV General, HVO headquarters Chief of Staff.

Slobodan Praljak

HV General, replaced by Petkovic as HVO Chief of Staff on 27 July 1993.

Bozo Rajic

Minister of Defence RBiH.
Vice President HVO.
Vice President of the HZ H-B Presidency.

Ivica Rajic

HVO OZ 3 Commander (in Kiseljak).

Ante Roso

HV General in charge of the Livno region, in replacement of Praljak as HVO Chief of Staff in October 1993.

Ivan Santic

President of HVO Vitez.

Vladimir Santic

Commander of a company in IV Brigade MP

Pero Skopljak

Chief of Police Vitez.

Ante Sliskovic

Commander of the CBOZ SIS, office at the Hotel Vitez.

Bruno Stojic

Head of HVO Defence Department.

Gojko Susak

Minister of Defence of the Republic of Croatia.

Zivko Totic

Commander of the Jure Francetic Brigade.

Franjo Tu|man

President of the Republic of Croatia.

Anto Valenta

President of the Vitez HDZ.
Deputy-President of the HDZ for the HZ-HB.
Vice-President of the HVO.

Srecko Vucina

Vice President HDZ-BiH.

Zvonko Vukovic

IV Battalion Military Police Commander until 18 January 1993.

Ivica Zeko

Deputy-Commander of the CBOZ, responsible for intelligence activities.

Kresimir Zubak

Member of the Presidential Council;
Member of the Presidency of RBiH;
Vice President of the HVO.

Additional Protocol I

Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), of 8 June 1977

Additional Protocol II

Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), of 8 June 1977

Akayesu Trial Judgement

Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement, 2 September 1998

Aleksovski Appeal Judgement

Prosecutor v. Zlatko Aleksovski, Case No. IT 95-14/1-A, Judgement, 24 March 2000

Blaskic Trial Judgement

Prosecutor v. Tihomir Blaskic, Case No. IT-95-14-T, Judgement, 3 March 2000

Celebici Trial Judgement

Prosecutor v. Zejnil Delalic et al, Case no. IT-96-21-T, Judgement, 16 November 1998

Celebici Appeal Judgement

Prosecutor v. Zejnil Delalic et al, Case No. IT-96-21-A, Judgement, 20 February 2001

Cerkez Final Brief

Prosecutor v. Dario Kordic and Mario Cerkez, Case No. IT-95-14/2, Mario C erkez Final Trial Brief, filed on 13 December 2000

Cerkez Pre-trial Brief

Prosecutor v. Dario Kordic and Mario Cerkez, Case No. IT-95-14/2, Defendant’s Mario Cerkez Pre-Trial Brief, filed 8 April 1999

Commission of Experts Report

Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 780 (1992) (S/1994/674)

Common Article 3

Article 3 of Geneva Conventions I through IV

Furundzija Trial Judgement

Prosecutor v. Anto Furundzija, Case No. IT-95-17/1-T, Judgement, 10 December 1998

Furundzija Appeal Judgement

Prosecutor v. Anto Furundzija, Case No. IT-95-17/1-A, Judgement, 21 July 2000

Geneva Convention I

Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of August 12, 1949

Geneva Convention II

Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of August 12, 1949

Geneva Convention III

Geneva Convention Relative to the Treatment of Prisoners of War of August 12, 1949

Geneva Convention IV

Geneva Convention Relative to the Protection of Civilian Persons in Time of War of August 12, 1949

Geneva Conventions

Geneva Conventions I through IV of August 12, 1949

Hague Convention IV

The 1907 Hague Convention (IV) Respecting the Laws and Customs of War on Land

Hague Regulations

Regulations Respecting the Laws and Customs of War on Land annexed to Hague Convention IV

ICCPR

International Covenant on Civil And Political Rights, adopted by the United Nations General Assembly on 16 December 1966

ICRC Commentary (GC IV)

Pictet (ed.)-Commentary: IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War (1958)

ICRC Commentary (Additional Protocol I)

Sandoz et al. (eds.)-Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949

ICC Statute

Rome Statute of the International Criminal Court, Adopted at Rome on 17 July 1998 (PCNICC/1999/INF/3)

1991 ILC Report

Report of the International Law Commission on the work of its 43rd session, 29 April -19 July 1991, supplement no. 10 (A/46/10)

1996 ILC Report

Report of the International Law Commission on the work of its 48th session, 6 May -26 July 1996, supplement no. 10 (A/51/10)

Indictment

Prosecutor v. Dario Kordic and Mario Cerkez, Case No. IT-95-14/2, Amended Indictment, 30 September 1998

Jelisic Trial Judgement

Prosecutor v. Goran Jelisic, Case No. IT-95-10-T, Judgement, 14 December 1999

Kordic Final Brief
Prosecutor v. Dario Kordic and Mario Cerkez, Case No. IT-95-14/2, Dario Kordi c’s Final Trial Brief, filed 13 December 2000

Kordic Pre-trial Brief

Prosecutor v. Dario Kordic and Mario Cerkez, Case No. IT-95-14/2, Kordic Defense Pre-Trial Brief, filed 6 April 1999

Kupreskic Trial Judgement

Prosecutor v. Zoran Kupreskic et al, Case No. IT-95-16-T, Judgement, 14 January 2000

Law Reports

Law Reports of Trials of War Criminals (the United Nations War Crimes Commission )

Prosecution Final Brief

Prosecutor v. Dario Kordic and Mario Cerkez, Case No. IT-95-14/2, Prosecutor’s Closing Brief, filed 13 December 2000

Prosecution Pre-trial Brief

Prosecutor v. Dario Kordic and Mario Cerkez, Case No. IT-95-14/2, Prosecutor’s Pre-Trial Brief, filed 25 March 1999

Report of the Secretary-General

Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), (S/25704)

Rules

Rules of Procedure and Evidence of the International Tribunal

Statute

Statute of the International Tribunal, annexed to the Report of the Secretary-General pursuant to paragraph 2 of Security Council resolution 808 (1993), (S/25704)

T.

Transcript of hearing in Prosecutor v. Dario Kordic and Mario Cerkez, Case No. IT-95-14/2-T

Tadic Appeal Judgement

Prosecutor v. Dusko Tadic, Case No. IT-94-1-A, Judgement, 15 July 1999

Tadic Jurisdiction Decision

Tadic (1995) I ICTY JR 293

Tadic Trial Judgement

Prosecutor v. Dusko Tadic, Case No. IT-94-1-T, Judgement, 7 May 1997

Tadic Sentencing Appeals Judgement

Prosecutor v. Dusko Tadic, Case No. IT-94-1-A and IT-94-1-Abis, Judgement in Sentencing Appeals, 26 January 2000

TWC

Trials of War Criminals before the Nuernberg Military Tribunals under Control Council Law No. 10

Vance-Owen Peace Plan

This plan is reproduced in pp. 13-44 of the Report of the Secretary-General on the Activities of the International Conference on the former Yugoslavia, 2 February 1993, (S/25221)

ABiH

Armed Forces of the Republic of Bosnia and Herzegovina

AID

Bosnian Intelligence Service

BiH

Bosnia and Herzegovina

BSA

Bosnian Serb Army

Britbat

British Battalion of UNPROFOR

CBOZ

Central Bosnia Operative Zone, HVO

Dayton Agreements

Agreements between RBiH, Croatia and the FRY, initialled in Dayton on 21 November 1995 and signed in Paris on 14 December 1995

Dutchbat

Dutch Battalion of UNPROFOR

ECHR

European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1959

EC

European Community

ECMM

European Community Monitoring Mission

FRY

Federal Republic of Yugoslavia (Serbia and Montenegro)

HDZ

Croatian Democratic Union

HDZ-BiH

Croatian Democratic Union of Bosnia and Herzegovina

HOS

Croat Defence Forces (military wing of the HSP)

HR H-B

Croatian Republic of Herceg-Bosna

HSP

Croatian Party of Rights

HZ H-B

Croatian Community of Herceg-Bosna

HV

Army of the Republic of Croatia

HVO

Croatian Defence Council

ICJ

International Court of Justice

ICRC

International Committee of the Red Cross

ICTR

International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States, between 1 January 1994 and 31 December 1994

IMT

International Military Tribunal sitting at Nuremberg, Germany

IMTFE

International Military Tribunal for the Far-East sitting at Tokyo, Japan

International Tribunal

International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991

JNA

Yugoslav Peoples’ Army

Milinfosum

Military Information Summary

MMWG

Mixed Military Working Group

MOS

Muslim Armed Forces

MUP

Ministry of the Interior Police

Parties

The Prosecutor and the Defence in Prosecutor v. Dario Kordic and Mario Cerkez , Case No. IT-95-14/2-T

PPN

Special Purpose Unit

RBiH

Republic of Bosnia and Herzegovina

SDA

Party of Democratic Action

SDS

Serbian Democratic Party

SFRY

Socialist Federal Republic of Yugoslavia

SIS

HVO Security and Information Service

SJS

Public Security Station

TO

Territorial Defence

UNPROFOR

United Nations Protection Force

VJ

Army of the FRY

VP

HVO Military Police

Ban Jelacic

Located in Kiseljak

Bobovac

Located in Vares

Frankopan

Located in Travnik

Jure Francetic

Located in Zenica

Nikola Subic Zrinski

Located in Busovaca

Stjepan Tomasevic

Located in Novi Travnik

Viteska

Located in Vitez; formed out of part of the Stjepan Tomasevic Brigade

IV Battalion Military Police

Military Police Fourth Battalion located in Travnik, renamed Military Police 7th Battalion in July 1993

VII Battalion Military Police

See IV Battalion Military Police

Bruno Busic

Located in Travnik. Left the CBOZ before the April 1993 conflict.

Jokers (Dzokeri)

Anti-terrorist unit formed within the IV Battalion Military Police, located in the Bungalow in Nadioci

Maturice

Located in Kiseljak

Vitezovi (formerly HOS)

Located in the Dubravica school, Vitez

Zuti

Located in Travnik

3rd Corps

Located in Zenica, its area of responsibility included Central Bosnia

7th Muslim Brigade

Part of the ABiH 3rd Corps, comprised (in part) of foreign combatants (Mujahedin )

325th Mountain Brigade

3rd Corps Brigade in Vitez

Mujahedin

See 7th Muslim Brigade.

1. Dario Kordic and Mario Cerkez were indicted on a joint indictment with four other accused, including Tihomir Blaskic and Zlatko Aleksovski. The joint indictment was confirmed by Judge McDonald on 10 November 1995¹⁸⁰⁷ and warrants of arrest were issued the same day addressed to the Republic of Croatia , the Federation of Bosnia and Herzegovina and the Republic of Bosnia and Herzegovina .¹⁸⁰⁸ Copies of the indictments and warrants of arrest were subsequently sent to IFOR upon an Order issued by Judge Claude Jorda in December 1995.¹⁸⁰⁹

2. The co-accused Tihomir Blaskic surrendered voluntarily to the International Tribunal in April 1996 while Zlatko Aleksovski was arrested in the Republic of Croatia in June 1996 and transferred to the International Tribunal in April 1997. Proceedings against both of these co-accused were separated from those against the four indictees remaining at large.

3. Dario Kordic, Mario Cerkez and their co-accused, Ivan Santic and Pero Skolpjak, surrendered voluntarily to the International Tribunal on 6 October 1997 and made their initial appearances on 8 October 1997 before a Trial Chamber comprised of Judge Jorda, presiding, Judge Karibi-Whyte and Judge Shahabuddeen. All four pleaded not guilty to the charges in the indictment. On 20 November 1997, following the installation of new Judges at the International Tribunal, the case was assigned to a Trial Chamber composed of Judge Jorda, presiding, Judge Riad and Judge Rodrigues . In December 1997, all charges against the co-accused Ivan Santic and Pero Skolpjak were withdrawn and they were released from the custody of the International Tribunal ¹⁸¹⁰. The case continued jointly against Dario Kordic and Mario Cerkez and in September 1998 the indictment was amended with leave of Judge McDonald. The accused again pleaded not guilty in a further appearance on 14 October 1998.

4. In November 1998, following the creation of a third Trial Chamber, the case was transferred to a Trial Chamber comprising Judge May, presiding, Judge Bennouna and Judge Robinson, before whom the trial was conducted.

5. The pre-trial proceedings lasted 18 months and required the resolution of more than 60 pre-trial motions and requests. In February 1998 the accused filed a joint application requesting disqualification of Judge Jorda and Judge Riad on the basis that the two Judges were also hearing the case against Tihomir Blaskic which, it was argued , would both cause undue delay in the progress of the case and would expose those Judges to evidence that would jeopardise their ability to hear the second case impartially . The application was denied in May 1998, following a referral to the Bureau in accordance with the Rules¹⁸¹¹. The objection was immediately renewed and a further decision denying the application was issued by the Trial Chamber on 8 October 1998¹⁸¹². In July 1998, Mario Cerkez applied for a separate trial on the grounds that, first , there was no common transaction capable of forming the basis of the joint charges and, second, even if a common transaction was established, it would be in the interests of justice for the two accused to be tried separately. The application was denied on 7 December 1998 on the grounds that the two accused were properly joined in that they were accused of crimes committed in the course of the same transaction; there was no risk of prejudice to Mario Cerkez in a joint trial and that the interests of justice actually mitigated in favour of a joint trial¹⁸¹³.

6. The trial of Dario Kordic and Mario Cerkez commenced on 12 April 1999. The Prosecution team was led by Mr. Geoffrey Nice, Q.C., and the Defence for Dario Kordic (“Kordi c Defence”) was led by Mr. Mitko Naumovski. The Defence for Mario Cerkez (“Cerkez Defence”) was led by Mr. Bozidar Kovacic. The Prosecution case lasted 134 days and 114 Prosecution witnesses were called. Of these, two were subsequently recalled . Later in the proceedings four prosecution witnesses were heard in relation to the admissibility of additional evidence that had only become available late in the trial. With the permission of the Trial Chamber, one final prosecution witness , Witness AT, was heard in November 2000, shortly after his availability became known to the Prosecution. The transcripts of testimony of 30 witnesses from other proceedings before the International Tribunal were also admitted into evidence in this case.

7. The Prosecution completed presentation of its case in March 2000 but did not formally close its case as a number of issues remained outstanding relating to the production of documents from the Republic of Croatia. Shortly after the end of the evidence both accused filed Motions for Judgement of Acquittal pursuant to Rule 98 bis of the Rules and a hearing was held on 30 March 2000. The Trial Chamber handed down its Decision on Defence Motions for Judgement of Acquittal on 6 April 2000¹⁸¹⁴ denying the motions but confirming that there was no case to answer in relation to the charge of plunder against Dario Kordic (Count 39 of the Indictment) in respect of ten specified locations and no case to answer in relation to the similar charge against Mario Cerkez (Count 42 of the Indictment) in respect of two specified locations . The Prosecution also conceded that it had not produced evidence on two locations (Divjak and Stupni Do) referred to in Counts 43 and 44 of the Indictment and agreed to amend the Indictment accordingly. With respect to the charges of persecution (Counts 1 and 2 of the indictment), which were charged “throughout the HZ H-B/HR H-B and the municipality of Zenica” the Trial Chamber noted that the Prosecution was not required to produce evidence as to each and every municipality forming part of the HZ H-B/HR H-B but that the Defence was not expected to call evidence concerning municipalities about which no evidence was given.

8. The defence case for Dario Kordic commenced on 11 April 2000 and a total of 60 witnesses were called. Three of these witnesses were heard via video-link conference from the region. The defence for Mario Cerkez commenced on 24 July 2000 and called 53 witnesses. Together the defence cases ran for 84 days. The Kordic Defence presented affidavit evidence from 32 witnesses pursuant to Rule 94 ter of the Rules and the Cerkez Defence presented a further 17 witness affidavits. The Trial Chamber ordered certain of the witnesses whose affidavits were tendered to give oral testimony instead.

9. After the close of the defence cases in chief, the Trial Chamber heard two witnesses called by the Chamber pursuant to Rule 98 of the Rules. After hearing the two witnesses who were recalled and the additional prosecution witnesses referred to in paragraph 6 above, the Prosecution then called three rebuttal witnesses, the Kordic Defence called three witnesses in rejoinder and the Cerkez Defence called two rejoinder witnesses, over a period of four days. The Cerkez Defence sought unsuccessfully to appeal the ruling of the Trial Chamber for closing arguments to be heard shortly thereafter, seeking a period of not less than four weeks in which to prepare its final brief.¹⁸¹⁵ Closing arguments were heard over two days from 14 December 2000 and the case closed on 15 December 2000. Four thousand six hundred and sixty-five exhibits were admitted and the transcript runs to more than 28,500 pages.

10. The Rules of the International Tribunal provide for the Trial Chamber to issue a single Judgement addressing both guilt and penalty, where appropriate. Accordingly , some defence witnesses testified as to the character of the accused and addressed other matters relevant to sentencing. The Prosecution did not present any witnesses in this respect.

11. On the few occasions when for exceptional and temporary reasons, such as illness , a member of the Trial Chamber was unable to sit, the Trial Chamber utilised the provisions of Rule 71 to proceed by way of deposition. Upon obtaining the consent of the accused to proceed in this manner, the Trial Chamber would grant a motion from one of the parties and mandate the two remaining members of the Trial Chamber to act as presiding officers, with the case-file of the proceedings for that period being presented to the full Trial Chamber. After the adoption of Rule 15 bis in November 1999, the Trial Chamber utilised the provisions of this Rule (which permits the remaining Judges to continue to sit for up to three days) in such circumstances .

1. Motions for provisional release of the accused

12. In February 1999 the accused filed a joint request for provisional release which was denied on 22 March 1999¹⁸¹⁶, shortly before the trial commenced in April 1999. In September 1999 the Cerkez Defence presented a motion for temporary provisional release to permit the accused to visit his father who was then terminally ill. The Trial Chamber found that the humanitarian aspects weighed in favour of granting the motion for a limited period of time, partly in view of the fact that the accused had surrendered voluntarily to the International Tribunal, and also taking into consideration the fact that, as far as the Trial Chamber was informed, none of the Prosecution witnesses resided in the area of release and so the accused was not likely to pose a danger to any victim or witness. The Republic of Croatia provided certain guarantees of compliance and Mario Cerkez was granted provisional release for a three-day period, subject to stringent conditions¹⁸¹⁷. The accused Mario Cerkez duly returned to the custody of the International Tribunal at the allotted time.

13. In November 1999, Rule 65 of the Rules governing provisional release was amended to remove the requirement for the accused to show "exceptional circumstances" justifying release¹⁸¹⁸. In early December 1999 both accused filed motions seeking provisional release. Both motions were denied on the grounds that generally it would be inappropriate to grant provisional release during the trial and that the Trial Chamber was not satisfied that the accused would appear for trial if released and would not pose a danger to any victim, witness or other person.¹⁸¹⁹

14. On 20 February 2001, the accused Mario Cerkez filed a confidential application for temporary provisional release. The Trial Chamber denied the application as being inappropriate in the circumstances.¹⁸²⁰

2. Legal representation of the accused

15. Mario Cerkez was represented throughout the proceedings, by counsel assigned by the Registrar of the International Tribunal pursuant to the Directive on the Assignment of Defence Counsel¹⁸²¹. In August 1999, part-way through the trial, that assignment was withdrawn on the basis of information obtained by the Registrar from the media that the accused was receiving substantial financial support for his legal representation from a Croatian support group¹⁸²². Counsel for Mario Cerkez challenged the Registrar’s decision before the Trial Chamber on a number of grounds , asserting that the information relied upon by the Registrar was unreliable. The Trial Chamber considered the matter and found that there was insufficient evidence for the Registrar to take such a drastic step in the middle of the trial, based upon unsubstantiated reports, and that further investigation should have been undertaken before withdrawing the assignment. The Trial Chamber reversed the Registrar’s decision and ordered that the assignment should continue without interruption¹⁸²³.

16. The accused Dario Kordic did not request assignment of counsel by the International Tribunal on the grounds of indigency and was represented throughout the trial by Mr. Naumovski, from Zagreb, assisted by a number of attorneys from the United States law firms of Hunton & Williams and Stein, Volinsky & Callaghan, P.A., under financial arrangements to which the Trial Chamber is not party. In a filing in late December 1998 the Prosecution raised various issues relating to the representation of the accused by the same law firm (Hunton & Williams) that represented the Republic of Croatia in proceedings relating to the production of documents in both this case and other cases before the International Tribunal. After giving the opportunity to the Kordic defence, the Republic of Croatia and the law firm itself to make submissions , the Trial Chamber took formal notice of the knowing, voluntary and informed consent of the accused, Dario Kordic, to the concurrent representation¹⁸²⁴. In January 2001, shortly before the entry of this Judgement, the two law firms sought and were granted permission to withdraw from the record, apparently after having represented the accused for more than a year without financial settlement.

1. Witness protection

17. Both the Prosecution and the Kordic Defence applied for various protective measures for certain of their witnesses, pursuant to the Rules of Procedure and Evidence of the International Tribunal. In all, the Trial Chamber issued more than 100 orders for various protective measures, in both the pre-trial and trial phases of the proceedings , and over 20 witness summonses and subpoenas.

18. Pseudonyms were granted to 50 Prosecution witnesses, of whom 16 were heard in closed session and 34 testified in open session but with facial distortion to conceal their identities from the public. One Prosecution witness testified with facial distortion but no pseudonym and one court witness testified in closed session, also with a pseudonym. When the need arose, the Trial Chamber would go into private session (where there is no external sound broadcast) for a short period. The accused were always fully aware of the identity of the protected witnesses.

19. Of the Kordic Defence witnesses, 12 were granted pseudonyms, six of whom were heard in closed session and six in open session with facial distortion. Three Kordic Defence witnesses, who were unable or unwilling for good reason to travel to The Hague, were heard by way of video conference link from the region. Orders for safe conduct (granting limited immunity for a short period of time so as to permit the witness to travel to The Hague to testify without fear of arrest) were issued for 37 Defence witnesses, who otherwise would have refused to appear, together with one of the witnesses called by the Chamber.

20. To the extent that this Judgement is based upon testimony given in closed session , that testimony is released to the extent that it is recited or relied upon herein . Of particular relevance here is the evidence of Witness AT, the reliability of which has been considered in detail in the Judgement in the assessment of his credibility as a witness. The Prosecution acknowledged that it was required to disclose to the Defence, pursuant to Rule 68 of the Rules of Procedure and Evidence, closed session material that went to the issue of his credibility, even though a previous request for disclosure from the Defence had been denied by the Trial Chamber before which the evidence had been given (the witness in question not having consented to the testimony being used or released in other proceedings). The Trial Chamber examined both the issue and the material to be disclosed and ruled that where the Trial Chamber is required to balance the competing and conflicting interests of the rights of the accused and the protection of witnesses, the requirement under Article 20 of the Statute to act with “full respect” for the rights of the accused is to be given greater weight than the requirement in the same Article to have “ due regard” to the protection of victims and witnesses.¹⁸²⁵ The Trial Chamber authorised the release of the confidential material to the Defence , subject to the same protective measures as had been imposed by the original Trial Chamber.

2. The summoning of Trial Chamber witnesses pursuant to Rule 98

21. On 20 July 2000 the Trial Chamber rejected a request from the Defence to admit the transcripts of two of seven witnesses who had previously testified in the Bla skic case. The Prosecution objected to the admission of the transcripts on the basis that there were significant issues relating to the role of the accused that were not addressed in the previous testimony. The Trial Chamber ruled that the two witnesses were to be called to testify in person and, at the suggestion of the Defence, agreed to summon the two witnesses proprio motu pursuant to Rule 98.¹⁸²⁶

22. The witnesses were heard after the close of the Cerkez case in chief, and before any party witnesses were recalled and before rebuttal and rejoinder witnesses were heard. The Trial Chamber ordered that the transcript of the evidence given by the witness in the Blaskic trial would be treated as the examination-in-chief and the witnesses were then subject to cross-examination by all parties.

3. Provision of witness statements, summaries and outlines

23. On 6 April 1999, immediately prior to the commencement of the Prosecution case, the Prosecution filed its list of intended witnesses pursuant to (then) Rule 73 bis. The Prosecution listed 331 witnesses to be called and provided brief summaries of the expected testimony. The timely provision of full witness statements for these witnesses in both an official language of the International Tribunal and in the language of the accused proved to be difficult for the Prosecution, largely due to translation difficulties as a result of the sheer volume of material, and was an ongoing issue of contention between the parties throughout both the trial and pre-trial period.

24. In addition to the summary of the testimony for each witness provided before the trial commenced, the Prosecution developed a practice of providing both the Trial Chamber and the Defence with an outline of the evidence to be given by the individual witness shortly before the witness was called and references to paragraphs of these outlines can be seen throughout the transcripts. The outline was prepared after the witness arrived in The Hague to testify and proved to be a useful tool in that it identified topics for which the Defence could agree that the witness could be led. The outlines do not form part of the evidence of the trial, nor does the fact that something is not included in the outline preclude a party from raising it with the witness. The purpose of the outline is simply to assist everyone involved in the proceedings to concentrate on what is relevant to the particular trial.

4. Additional witnesses

25. In June 1999 the Prosecution made an oral application to call four additional witnesses whose testimony, it was said, had only been sought after certain other (listed) witnesses had refused to testify. The Prosecution asserted that, although the Office of the Prosecutor had had contact with the witnesses during past investigations concerning Central Bosnia, no statements had been taken and it was only when they were identified as possible “replacement” witnesses that statements were taken. In the case of one witness in particular, the statement indicated for the first time that the witness could provide direct information on a topic on which the Prosecution had no other evidence. After hearing the parties on the issue, the Trial Chamber rejected the Prosecution application to call the additional witnesses in an oral ruling on 3 June 1999.¹⁸²⁷

26. The Prosecution then sought leave to appeal the decision on the ground that the exclusion of the witnesses would cause prejudice to the Prosecution case that could only be cured by interlocutory appeal and that the Prosecutor should not be prevented from calling additional witnesses, especially where it would not lengthen the overall proceedings. The Appeals Chamber denied the application as not showing any prejudice that could not be cured on the final disposal of the trial and that it did not present an issue of general importance to the proceedings of the International Tribunal.¹⁸²⁸

1. Exhibits generally

27. Numerous evidentiary and procedural issues arose during the trial and the Trial Chamber dealt with more than 150 applications of various types and issued more than 30 decisions on matters of substance. The magnitude of the evidence in this case gave rise to repeated challenges and complaints as to late production of material . More than 4,500 exhibits were admitted into evidence and many others excluded , for a variety of reasons. In addition to submitting two binders of key exhibits at the commencement of the case (“core documents”), many of which were agreed by the Defence (subject to translation, legibility etc.), at the close of the presentation of its case-in-chief, the Prosecution submitted to the Trial Chamber a large volume of exhibits (15 binders, with approximately 50 documents in each) that had not been tendered through witnesses but which the Prosecution still sought to have admitted (“the outstanding exhibits”). The Trial Chamber examined the documents tendered and, after hearing the parties, admitted most but not all of them (9 binders), subject to an evaluation of the weight to be attributed to such material. A similar procedure was followed at the close of the Defence cases. The Prosecution also submitted five binders of exhibits relating to the issue of an international armed conflict in the region, of which approximately half were admitted.

2. Judicial notice of adjudicated facts

28. In March 2000, shortly after the issue of the Judgement in Blaskic, and near to the close of the Prosecution case, the Prosecution filed a motion requesting the Trial Chamber to take judicial notice of certain facts contained in the Kupreski c and Blaskic Judgements, in the interests of judicial economy and the efficient administration of justice. The material sought to be noted related, in particular , to the events in Ahmici, as established by the Kupreskic Trial Chamber, to the issue of an armed conflict in the Lasva Valley, as established in the Blaskic Judgement , and to various attacks and incidents of detention in certain of the Lasva Valley municipalities. The matter remained pending until late May 2000, when the Prosecution asked for consideration of the motion to be postponed¹⁸²⁹, pending, inter alia, the outcome of appeals challenging some of the facts sought to be admitted. In light of that application, the Trial Chamber decided to treat the motion as withdrawn.¹⁸³⁰ The Prosecution submitted a revised application at the close of its rebuttal case in December 2000, inviting the Trial Chamber to consider certain factual findings from previous Judgements, rather than taking judicial notice of adjudicated facts . The Trial Chamber declined to take judicial notice of any of the matters raised , noting that the Chamber has an inherent power to consider the findings of other Chambers but that it is not bound by any such determination.

3. Evidence other than through live testimony

29. With the encouragement of the Trial Chamber and supported by various changes to the Rules of Procedure and Evidence during the course of the trial, the parties tendered large amounts of evidence in various documentary forms. Transcripts of the testimony of 57 witnesses given in other cases before the International Tribunal were tendered for admission, 50 from the Prosecution and seven from the Kordic Defence . Of these, 30 were admitted into evidence, sometimes with the agreement of the other parties and sometimes by order of the Trial Chamber, after having examined the transcript and heard the parties on the issue. Fourteen transcripts were not admitted by the Trial Chamber and six witnesses were required to be called to testify in person.

30. Evidence was also tendered by way of affidavit by all parties pursuant to Rule 94 ter of the Rules. Rule 94 ter sets out various procedural requirements and requires the affidavits to be corroborative in nature. Towards the end of its case, the Prosecution sought to have admitted seven affidavits, a formal statement , and two unsworn statements of witnesses who had subsequently died. The Defence challenged the admission of these affidavits and the statements, on the basis that the procedural and temporal requirements of the Rule had not been met. By way of oral rulings, on 10 March 2000, the Trial Chamber admitted the seven affidavits and the formal statement. In so doing, the Trial Chamber stated that, in its view , and following the decision of the Permanent Court of Justice in the Chorzow Factory case (1929) and the International Court of Justice in the Corfu Channel case (1950), the Rules had to be interpreted so as to give them useful effect (ut res magis valeat quam pereat).¹⁸³¹

31. The Prosecution sought to admit the first of the two deceased statements under Rule 89 (C), which permits a Trial Chamber to admit “any relevant evidence which it deems to have probative value”. The Trial Chamber noted that the deceased statement had not been (and could not now be) subject to cross-examination and was not given under oath; further, the Trial Chamber noted that, consistent with the jurisprudence of the European Court of Human Rights, it would not be possible to convict the accused on the basis of the deceased statement alone, if uncorroborated. With those considerations in mind, the first statement was admitted on 21 February 2000.¹⁸³² The second statement was of a witness who had testified in other proceedings before the International Tribunal prior to his death, and whose transcript had already been admitted in these proceedings. The Trial Chamber held that this second witness statement did not contain sufficient additional evidence to make it admissible in its own right and that any additional evidence was cumulative in nature.¹⁸³³

32. The Defence then sought leave to appeal these two decisions of the Trial Chamber and leave was granted on March 2000 in respect of the deceased statement and on 28 April 2000 in respect of the affidavits and the formal statement.

33. The Appeals Chamber ruled the deceased statement inadmissible on 21 July 2000.¹⁸³⁴ The Appeals Chamber held that the Rules express a preference for in-court testimony and that they provide certain safeguards which must apply in any departure from that principle so as to ensure that the evidence is reliable. The Appeals Chamber found that the deceased statement contained none of the required indicia of reliability in that it was not given under oath, nor was it made under formal circumstances that might increase its reliability, such as before an investigation judge. The deceased statement had not been subjected to cross-examination and was not corroborated in terms of the truth of the matter asserted. It was not made contemporaneously with the events in question but some years afterwards. In addition, the method of taking the statement, involving multiple translations in an informal setting, created potential for inaccuracy.

34. Addressing the admissibility of the affidavits and the formal statement, the Appeals Chamber held that there were three relevant issues: whether the timing requirement of Rule 94 ter was merely procedural in nature; the effect of an objection if the affiant is not then made available for cross-examination; and the interpretation of the phrase in Rule 94 ter “a fact in dispute”.

35. The Appeals Chamber held that the timing requirement was not merely procedural but was an integral part of the Rule protecting the rights of the accused and that to depart from it caused material prejudice to the accused. On this ground alone the appeal would succeed. The Appeals Chamber also held that there is no absolute right to cross-examine a witness, simply a right to apply for an order for the affiant to be called for cross-examination. The decision is then to be made by the Trial Chamber on a case-by-case basis. Similarly, it is for the Trial Chamber to determine on a case-by-case basis whether the fact in dispute is of a minor nature or not, provided that there is a clear link between the live testimony to be corroborated by the affidavit and the corroborating evidence in the affidavit is focussed on the facts contained in the live testimony. The seven affidavits were ruled inadmissible .

36. The Appeals Chamber then held that the formal statement was of a different character , as it related to an agreement to supplement live testimony already given by the declarant, without requiring the recall of the witness but that it failed to meet the requirement for admission under Rule 94 ter. The Appeals Chamber held that the formal statement could be considered for admission under Rule 89 (C), applying the criteria set down by the Appeals Chamber in connection with the admission of the affidavits and directed to the Trial Chamber to re-evaluate its admissibility .

37. The Trial Chamber considered the admissibility of the formal statement afresh¹⁸³⁵ and, in light of the continued objections of the Cerkez Defence to the admission of the information contained in the statement (a list of detainees at a certain location), the witness was recalled for cross-examination.

38. A further issue of admissibility was raised by the Kordic Defence in connection with Prosecution exhibit Z1380.4. This unsigned and unattributed document, which was said to be an internal report prepared by the Croatian Information Service (“ HIS”), was admitted by the Trial Chamber “in the fashion that (the Prosecution( were given it … as a document … which will serve you in your cross-examination today ”.¹⁸³⁶ The Defence challenged its admissibility on the grounds of lack of proper foundation, authenticity and hearsay . The Defence sought leave to appeal on the basis that admission of the exhibit would cause incurable prejudice to the accused: its admission would not only breach the right of confrontation of witnesses under Article 21, paragraph 4, of the Statute but that it was likely to be a fabricated document, produced (by its creators, not by the Prosecution) in an attempt to influence the outcome of the case. The Appeals Chamber denied the application for leave on the grounds that the Appeals Chamber had recently addressed the general question of admissibility of evidence pursuant to Rule 89 (C) and that the Defence had not made out that the issues in the proposed appeal were of general importance to proceedings before the International Tribunal or in international law generally.¹⁸³⁷

4. The village dossiers

39. Another innovative evidentiary procedure was the submission by the Prosecution of “dossiers” (or village binders) containing material relevant to specific locations . The Prosecution submitted a dossier relating to the village of Tulica as an example of the information it sought to present in this manner and the Trial Chamber ruled upon the admissibility of the material on 29 July 1999.¹⁸³⁸

40. The Tulica dossier contained a report prepared by the Investigations Team Leader responsible for this case (“Investigator”), together with:

i. Eight witness statements;

ii. Four transcripts;

iii. Five maps;

iv. Exhumation documents, including an on-site report, photographs and death certificates ;

v. Photographs, diagrams and maps;

vi. A video;

vii. Photographic “stills” taken from the video footage.

41. The Prosecution proposed that the dossier form part of the record of the proceedings and for the Investigator to be called to summarise the scope and result of the investigations conducted by the Office of the Prosecutor in this case. The Prosecution relied upon Rules 90 (G) and 89 (C) as permitting the Trial Chamber to admit the material . The Defence objected to admission of the material in the dossier on the basis that it amounted to a violation of the right of the accused under Article 21, paragraph 4 (e) of the Statute to examine the witnesses against him.

42. The Trial Chamber examined both the Investigator’s report and each category of material sought to be admitted. It held that the Investigator’s report was merely a collation of statements and other materials and that the Investigator would not be reporting as a contemporary witness of fact. The report would therefore be of little or no probative value and was not admissible. The witness statements were also excluded from admission under Rule 89 (C), on the ground that to admit them would amount to wholesale admission of hearsay evidence untested by cross-examination but the Trial Chamber drew the attention of the parties to the possibility of admitting the witness statements under Rule 94 ter. Similarly, there was no basis for the admission of transcripts of testimony from other trials of four witnesses who had already testified live and been subject to cross-examination in these proceedings . However, the remaining transcripts were admissible on the basis that the witnesses had been cross-examined in other proceedings in which the Defence in that case had a common interest with the Defence in the current case. This would not preclude the Defence from applying to cross-examine these witnesses on the grounds that there are significant relevant matters not covered in the previous case which needed to be tested in these proceedings.

43. Turning to the photographic and documentary evidence, the Trial Chamber held that this was admissible pursuant to Rule 89 (C) as evidence which the Trial Chamber deems to have probative value. Any assumptions or conclusions expressed in the material (for example, a statement by an investigating judge that the deceased persons had been killed by the HVO) would be disregarded by the Trial Chamber and would not form part of the record of evidence in determining the innocence or guilt of the accused.

44. Prior to the Trial Chamber’s ruling, the Kordic Defence filed a “precautionary” application for leave to appeal. In the application, it sought to challenge the requirement on the Defence, if any, in responding to the issues raised in connection with the dossier, to go beyond the not guilty plea and to require the Defence to state its substantive position on specific issues, thus effectively reversing the burden for the production of proof. The Appeals Chamber rejected the application on 12 July 1999, on the basis that no issue of general importance to proceedings before the International Tribunal had yet arisen.¹⁸³⁹

45. The Prosecution subsequently submitted similar dossiers for a further eight villages and municipalities (Ahmici, Busovaca, Kiseljak, Novi Travnik, Vares, Vitez, Zenica and Zepce).

5. Material challenged pursuant to Rule 95

46. In September 1998, the Office of the Prosecutor obtained and, with the assistance of the United Nations Stabilisation Force (“SFOR”), executed a search warrant relating to the Defence Office of the Vitez Municipality, pursuant to which a number of documents were seized. The Defence challenged the manner in which the warrant had been executed , arguing, inter alia, that the Office of the Prosecutor had no power to take direct enforcement action within a sovereign state without the consent or participation of such state and that SFOR was not vested with the power to execute warrants other than warrants of arrest. The Defence then sought to suppress the production of material seized during the search, pursuant to Rule 95 of the Rules, which provides that: “No evidence shall be admissible if obtained by methods which case substantial doubt on its reliability …”. The Trial Chamber overruled the objection and admitted such material by an oral ruling of 1 June 1999¹⁸⁴⁰, followed by written reasons on 25 June 1999.¹⁸⁴¹

47. The Defence sought leave to challenge the admission of this material on the basis that its improper admission would cause incurable prejudice to the accused, arguing that the question of the extent of the power of the Office of the Prosecutor to seize documents raised an issue of general importance to proceedings before the International Tribunal. The Appeals Chamber denied leave to appeal, on the basis that the Defence had not shown any prejudice that could not be cured on the final disposal of the trial and that no issue of general importance to proceedings before the International Tribunal or in international law generally had been raised, in that the issues raised were provided for in the Statute, the Rules and a treaty entered into between the United Nations and the state in question.¹⁸⁴²

6. Exhibit 2801

48. The Defence challenged the authenticity of this exhibit, a tape-recording of an intercepted conversation between Colonel Blaskic and Dario Kordic in January 1993 , presented through the witness Edin Husic. The Kordic Defence acknowledged that the voices on the tape are those of Blaskic and Dario Kordic but alleged possible tampering with the tape (of which there are a number of copies). The chain of custody of the various copies of the recording were also disputed by the Defence both at the time the tape was first tendered and again, on separate grounds, after it was discovered that the Prosecution had sent copies of the tapes to an external laboratory for testing after they had been formally tendered into evidence. The Defence sought to have the tape excluded on the basis that the handling of the evidence by the Prosecution violated Rule 81 (C), pursuant to which the Registrar of the International Tribunal is to retain all physical evidence offered in the proceedings.¹⁸⁴³

49. The tape is not the original recording but one of at least two copies made by the witness in February 1993. The witness provided one copy (tape A) to his superior later in 1993 and retained the other (tape B). The witness retained tape B until sometime in November 1999 when, on being told that tape A could not be located, he handed tape B to his current superior. The witness next saw tape B on 4 December 1999 when it was shown to him by investigators from the Office of the Prosecutor and he confirmed that it was indeed tape B. In addition to challenging the provenance of the tapes, the Defence also challenges the integrity of tape B, asserting that it could have been tampered with and recordings of the accused’s voice spliced into it in the period from November to early December 1999, while out of the custody of the witness. From December 1999 to February 2000 tape B was held in the Evidence Unit of the Office of the Prosecutor (“the OTP Evidence Unit”).

50. On 2 February 2000, tape B (Exhibit Z2801.1) and a transcript were tendered in evidence by the Prosecution through the witness. The Prosecution retained the “original” tape B and a copy was made and submitted to the Registry. Tape B was not played in court because, during his testimony, the witness produced another tape (tape C) which he said was a copy he had made before handing over tape B. Tape C was played in court and was given number Exhibit Z2801.4. Tape C was then provided to the Registry and a copy was made by the Audio-visual section and provided to all parties. The tapes were formally admitted on 4 February 2000 but the Defence was permitted to raise further matters pertaining to the tapes. (The Defence also asserted that there are various sounds that appear on one version of the tape and not on the other, so that they are not reliable copies.)

51. On 16 February 2000 both tapes (the “original” tape B and a “copy” of tape C) were released by the Prosecution to a forensic laboratory for a digital copy to be made . This was done without the knowledge or consent of either the Trial Chamber or the Registry. The tapes remained at the forensic laboratory until 12 May 2000 when they were returned to the custody of the OTP Evidence Unit.

52. During its initial consideration of this matter, the Trial Chamber expressed considerable concern that an original exhibit could leave the Tribunal without permission.¹⁸⁴⁴ On 15 May 2000, the Chamber considered the matter further, referring to Rule 81 of the Rules of Procedure and Evidence. The Chamber noted the universal principle that it is the court and not a party that should control the exhibits.¹⁸⁴⁵ On 18 May, the issue was raised again and all members of the Chamber expressed grave concerns about the propriety of leaving the originals of exhibits in the hands of one of the parties, and especially the impression this could give in the international community.¹⁸⁴⁶ The Chamber ordered the original of both tape B and tape C to be handed to the Registry forthwith. The Chamber indicated that it would consider a Defence application for this exhibit to be excluded from evidence and the OTP was given seven days in which to file a written report setting out where the tapes had been. The report was filed on 25 May 2000.¹⁸⁴⁷

53. Expert evidence about the tapes was called subsequently by both parties, and on 3 July 2000 the Trial Chamber decided that the witness should be recalled.¹⁸⁴⁸ The witness was heard on 16 November 2000. In a final submission, the Kordic Defence acknowledged that it was unable to assemble evidence to establish that the conversation did not occur or that it was a fabrication from several conversations but still sought to have the tape excluded .¹⁸⁴⁹ The Trial Chamber ruled the tape admissible on 6 December 2000 on the basis that , in this case, the Registry had, in fact, retained the original exhibit (tape C ) and that in any event, the evidence would only be excluded if its admission would seriously damage the integrity of the proceedings.¹⁸⁵⁰

54. During the course of the trial and the pre-trial proceedings, both the Prosecution and the Kordic Defence sought binding orders addressed to States or other international entities in connection with the production of documents relevant to their respective cases, pursuant to Rules 54 and 54 bis. The majority of these proceedings were conducted on a confidential basis and so will not be addressed in detail in this section. However, the Trial Chamber notes the varying levels of cooperation received and its appreciation of the assistance that has been provided by a number of States and entities in identifying and providing access to the material sought .

55. The Trial Chamber does find it necessary however to address in more detail in this section the proceedings relating to States once part of the former Yugoslavia. The impact of cooperation by these States is all the more important in that they are the most likely repositories of such documents and their cooperation with the International Tribunal in these matters is mandated by Article 29 of the Statute .

1. Proceedings addressed to the Republic of Croatia

56. On 28 January 2000, the Trial Chamber issued an “omnibus” order (“the Order of 28  January”), addressing four separate applications by the Prosecution, all filed before the adoption by the Tribunal of Rule 54 bis. The Order required production of documents listed in four separate annexes. In all, 184 different categories of documents were identified for production.

57. Croatia was required to file a written submission on progress within 28 days and to attend at a hearing two weeks later. Following a request from Croatia for an extension of time, a hearing was held on 29 March 2000. On 31 March 2000, the Trial Chamber issued a further Order requiring Croatia by 13 April 2000 to file a report stating which of the documents requested were in its possession and to produce those documents by 29 April 2000.

58. On 13 April 2000 Croatia responded with a list of 219 documents said to be covered by the Order of 28 January and, on 24 May 2000, six documents relating to Ahmici were provided by Croatia, including HIS reports from Miroslav Tu|man to President Tu|man.

59. On 25 July 2000, the Prosecution filed an application under Rule 54 bis for an order to Croatia for production of 70 categories of documents, referred to as “the Ahmici documents”. The Prosecution asserted that all or most of the Ahmici documents were already covered by the Order of 28 January. An ex parte hearing was held on 25 July 2000 addressing the need for an urgent hearing of the application . (Rule 54 bis requires that 15-days notice of the application be given to the relevant State.) The Prosecution acknowledged that it had recently been given access to the HVO archive, containing a huge quantity of material, in excess of 2000 binders. The Chamber determined not to expedite the proceedings at this stage, stating that the government of Croatia should have time to respond to the request of 10 July 2000.¹⁸⁵¹

60. On 2 August 2000 the Prosecution filed a renewed application seeking an order in identical terms to that sought on 25 July 2000 and asking that a hearing be scheduled for shortly after the summer recess. A Scheduling Order was issued by the Trial Chamber on 4 August 2000, ordering the application to be served on Croatia and setting a hearing for 7 September 2000 and on 24 August 2000 Croatia submitted a letter in response to the Application (filed on 6 September 2000) outlining the steps that had been taken by Croatia to provide access to these documents to both the Prosecution and the Defence.

61. At the hearing the Trial Chamber noted that there had been compliance with the Order to some extent and that there was ongoing cooperation in respect thereof. In those circumstances the Trial Chamber declined to make any further order but reiterated that the Order of 28 January remained in force. ¹⁸⁵²

2. The admission of the material obtained pursuant to the Order of 28 January 2000

62. Throughout the proceedings, the Prosecution had indicated that it was still seeking the production of documents by the Republic of Croatia and that it would seek to submit any material so obtained as part of its case. Indeed, the Prosecution had been permitted not to close its case in chief when it completed the presentation of all of its other evidence in March 2000. As a result of the access to archives provided to the Prosecution by the Republic of Croatia, on 30 October 2000 the Prosecution applied for the admission of additional material¹⁸⁵³ (both in the case in chief and as rebuttal evidence) in the Prosecution case (“the Zagreb material”). This was after presentation of both defence cases, with only the rebuttal and rejoinder phases of the proceedings and closing arguments remaining .

63. The material submitted by the Prosecution for admission was voluminous, amounting to more than 300 items, plus 33 transcripts of meetings that had also recently been made available to it. These alone comprised six binders. In addition, the Prosecution proposed to call up to 33 additional witnesses. The Prosecution argued that everyone involved in the proceedings had been aware of the efforts the Prosecution was making to try to obtain this material and that to exclude it now that it had been produced would reward those who sought to hinder the proper functioning of the International Tribunal. The Prosecution was permitted to call three witnesses, one of whom testified as to the access to these materials from an archive in Zagreb, and the other two of whom testified about the manner in which the transcripts had been recorded and access to the documents regulated. Admission of this evidence at this late stage of the proceedings was vigorously resisted by the Defence.

64. After receiving both written and oral submission from the parties the Trial Chamber ruled all but 17 of the items inadmissible.¹⁸⁵⁴ All of the transcripts were excluded on the ground that they addressed matters which had already been the subject of considerable evidence in the case, namely the role of the Republic of Croatia in the conflict in Bosnia and Herzegovina. Therefore to admit them would be cumulative and repetitious. Of the exhibits, the Trial Chamber noted that some of the items were already in evidence; others had been produced in other proceedings before the International Tribunal and therefore had been available to the Prosecution at any earlier stage of these proceedings; in many cases the material was cumulative and did not add to the material already in evidence; or the material was not significant enough to warrant production at this stage of the proceedings; or that certain items were based on anonymous sources or hearsay statements that were incapable of being tested by cross-examination.

65. The Prosecution also sought to admit 42 documents as rebuttal evidence, five of which were subsequently withdrawn. Of these the Trial Chamber admitted two documents , noting that 20 of the documents tendered had already been admitted into evidence during the course of the trial, and excluding the remainder.¹⁸⁵⁵

66. Both Defence teams also sought to admit material recently received from Croatia; the Kordic Defence initially sought to admit 159 further documents and to call four additional witnesses. This was reduced to 12 documents, of which all but one were admitted by the Trial Chamber.¹⁸⁵⁶ The Cerkez Defence sought only to admit two additional documents as “Zagreb material ” both of which were accepted by the Trial Chamber.¹⁸⁵⁷

3. Proceedings addressed to the Federation of Bosnia and Hercegovina

67. As with the proceedings involving Croatia, the Prosecution sought a series of Orders for production addressed to the Federation of Bosnia and Herzegovina (FBiH), which were eventually combined in an Order of the Trial Chamber issued on 27 January 2000 . Pursuant to this Order FBiH was to produce the documents sought no later than 24 February 2000. In early - mid March 2000 the Trial Chamber received reports from the Ministry of Justice, the Minister of Defence and the Ministry of the Interior of the FBiH addressing the steps that had been taken by those Ministries to locate the various documents but no documents were actually produced at this time. The Trial Chamber notes that the responses provided by one part of the FBiH are not always consistent with those provided by another part.

68. A hearing on the issue of compliance with the Order was held on 29 March 2000, at which the representative of the FBiH confirmed that certain relevant documents did exist but that the material needed to be checked and organised but could be produced within one month. The Trial Chamber confirmed the obligation to provide all of the documentation referred to in the Order and allowed a further period of one month for production. At the date of issue of this Judgement, none of the documents subject to the Order had been produced.

69. In June 2000 the Kordic Defence also sought an Order for production of documents by the FBiH. A hearing on that application was held on 6 July 2000 and a Binding Order for production of documents was issued by the Trial Chamber on 18 July 2000 . On 15 August 2000 the FBiH produced 27 documents pursuant to this latest Order , which documents were formally filed (after translation into one of the official languages) in November 2000.

Case No. IT-95-14/2-PT

Confirming Judge:
Judge Gabrielle Kirk McDonald

Trial Chamber:
Judge Claude Jorda
Judge Fouad Abdel-Monem Riad
Judge Almiro Sim(es Rodrigues

Registrar:
Ms. Dorothee de Sampayo Garrido

Date:
30 September 1998

The Prosecutor of the International Criminal Tribunal for the former Yugoslavia, pursuant to her authority under Article 18 of the Statute of the International Criminal Tribunal for the former Yugoslavia (“The Statute of the Tribunal”), charges:

with Crimes Against Humanity, Grave Breaches of the Geneva Conventions and Violations of the Laws or Customs of War.

1. The events alleged in this indictment took place against the background of the break-up of the former Yugoslavia. The Republic of Croatia declared its independence on 25 June 1991, the implementation of which was suspended until 8 October 1991. The Republic of Croatia was recognized by the European Community on 15 January 1992 , and admitted by the United Nations as a member State on 22 May 1992. The Republic of Bosnia and Herzegovina declared its independence on 3 March 1992, and was recognized by the European Community on 6 April 1992, and admitted by the United Nations as a member State on 22 May 1992.

2. At times relevant to the indictment, the Croatian Democratic Union (the "HDZ") was a principal and influential political party in Croatia. Some of the HDZ’s stated goals were to establish “the sovereignty of the Croatian people” and their “inalienable right to self-determination -- including the right to secession -- of the entire Croatian nation inside its historical and natural borders,” and to promote “the economic and spiritual association between . . . Croatia and . . . Bosnia and Herzegovina , which comprise (or constitute) a natural, inseparable geopolitical entity and whose historical fate (or destiny) is directed toward partnership.”

3. At times relevant to the indictment, the Croatian Democratic Union of Bosnia and Herzegovina (the “HDZ-BiH”) was a principal Bosnian Croat political party in the Republic of Bosnia and Herzegovina. Among the HDZ-BiH’s stated goals were “ securing the right of the Croatian people to self-determination, including the right to secession . . .”

4. The Croatian Community of Herceg-Bosna (the “HZ H-B”) proclaimed its existence on 18 November 1991, claiming to be a separate or distinct “political, cultural, economic and territorial whole," in the territory of Bosnia and Herzegovina. Among its purposes was the establishment of closer ties to or a union with Croatia, as evidenced by the HZ H-B’s use of Croatian currency, the Croatian language and the granting of Croatian citizenship by Croatia to Bosnian Croats. The HZ H-B’s Presidency included a President, two Vice Presidents and a Secretary. The Presidency’s powers included the appointment of executive and administrative authorities. On 28 August 1993, the HZ H-B declared itself the Croatian Republic of Herceg-Bosna (“HR H-B”), with its two principal officers being a President and a single Vice President. Neither the HZ H-B nor the HR H-B were ever recognized by the international community , and the HZ H-B was declared illegal by the constitutional court of Bosnia and Herzegovina on or about 14 September 1992.

5. By Article 2 of the 18 November 1991 Decision on the Establishment of the HZ H-B, the HZ H-B (and later the HR H-B) consisted of the following muncipalities in the territory of Bosnia and Herzegovina: Jajce, Kresevo, Busovaca, Vitez, Novi Travnik, Travnik, Kiseljak, Fojnica, Skender Vakuf (Dobretici), Kakanj, Vares, Kotor Varos, Tomislavgrad, Livno, Kupres, Bugojno, Gornji Vakuf, Prozor, Konjic, Jablanica , Posusje, Mostar, Siroki Brijeg, Grude, Ljubuski, Citluk, Capljina, Neum, Stolac and Trebinje (Ravno). By virtue of Article 4 of the same Decision, the municipality of Zepce was added to the HZ H-B/HR H-B in about October 1992.

6. The Croatian Defence Council (the “HVO”) was established in or about April 1992 , and was the HZ H-B’s and HR H-B’s supreme executive, administrative and defence authority. The creation of municipal HVOs was authorized and such HVOs were subsequently established beginning in or about June 1992, as the municipal executive and military power. The HVO and every HVO member were subject and accountable to the HZ H-B Presidency, which in turn executed its powers and objectives through the HVO.

7. From approximately November 1991 to March 1994, various persons and groups associated or directed, instigated, supported or aided or abetted by the HDZ, the HDZ-BiH, the HZ H-B/HR H-B and HVO and various of their political, municipal and administrative bodies, armed forces, police, paramilitary and special units, caused, planned, prepared , instigated, supported, directed and engaged in a campaign of persecutions and ethnic cleansing and committed serious violations of international humanitarian law against the Bosnian Muslim population residing in the HZ H-B/HR H-B and the municipality of Zenica, in the territory of Bosnia and Herzegovina.

8. Dario KORDIC, son of Pero, was born on 14 December 1960 in Sarajevo, in the Republic of Bosnia and Herzegovina. He studied at the University of Sarajevo , where he concentrated on political science, and then worked as a journalist.

9. Dario KORDIC was an active member of the HDZ-BiH and rose to positions of increasing power, authority and influence in the Bosnian Croat leadership. He was part of the highest circle of political and military leaders in the HDZ-BiH, the HZ H-B, the HR H-B and HVO. In 1991, Dario KORDIC was named President of the HDZ-BiH in the municipality of Busovaca and also President of the Travnik Regional Community. As President of the Travnik Regional Community, Dario KORDI C co-chaired a meeting of the HDZ-BiH on 12 November 1991, where it was declared that “the Croatian people in Bosnia and Herzegovina finally has to start conducting a decisive and active policy which should bring about the realisation of our eternal dream -- a joint Croatian state.” Several days later, on 18 November 1991, Dario KORDIC was one of the leaders who signed the Decision establishing the HZ H- B and became one its two Vice Presidents, in which position he continued until approximately August 1993. By virtue of his position as a Vice President, Dario KORDIC was also a member of the HZ H-B Presidency, which also functioned as the HZ H-B’s legislative body. When the HR H-B was declared in August 1993, Dario KORDIC was named Vice President, in which position he continued at times relevant to the indictment. Beginning on or about 10 July 1994, he became President of the HDZ -BiH. At times relevant to the indictment, Dario KORDIC represented himself and was regarded by others as a senior HVO official, and signed orders and documents as a senior HVO official. By his roles and positions, Dario KORDIC exercised power. command and authority in, over and through the HVO and its activities and operations.

10. Dario KORDIC, by virtue of his various offices, positions and authorities, his relationships with key Croatian and Bosnian Croat leadership figures and his political and military power in the HZ-HB/HR H-B, exerted power, influence and control over the political and military aims and operations of the HDZ-BiH, the HZ H-B, the HR H-B and HVO. Dario KORDIC demonstrated power, influence , authority and control on numerous occasions and in numerous ways including, by example, making policy and strategic decisions, negotiating cease-fire agreements on behalf of the HVO, issuing orders that were directly or indirectly of a military nature or consequence, representing himself as a HVO Colonel, Vice President or other senior HVO official, dressing in military attire, having a military operations room in his office at the PTT building in Busovaca, countermanding cease-fire agreements when the terms were not suitable to him, appointing and dismissing persons to or from various offices, jobs and positions, issuing orders for the arrest or release of influential Muslims detained by the HVO, authorizing travel and freedom of movement through various HVO-controlled territories, obtaining the release of stolen or seized vehicles or property, and negotiating the passage of relief convoys or United Nations vehicles through various checkpoints.

11. Mario CERKEZ, son of Tugomir, was born on 27 March 1959 in the village of Rijeka, municipality of Vitez, in the Republic of Bosnia and Herzegovina. Mario CERKEZ worked as a car mechanic and a clerk at the SPS Factory.

12. Mario CERKEZ became the commander of the HVO brigade in or about the municipality of Vitez (the “HVO Vitez Brigade”) in 1992, and he remained in such position at all times relevant to the charges in this indictment. His position within the HVO meant that he was under the command of Tihomir BLASKIC, who was then the HVO Central Bosnia Operative Zone Commander. Mario CERKEZ's authority and duties as a commander are set forth in the Decree on the Armed Forces of the Croatian Community of Herceg-Bosna, dated 17 October 1992, which provides that a commander in his position was responsible for the combat readiness of the troops under his command and the mobilisation of the armed forces and police units, and had the authority to appoint and dismiss commanders.

13. At all times relevant to the charges in this indictment, Mario CERKEZ , by virtue of the positions and authority described above, demonstrated or exercised his control in military matters in a variety of ways including, by example, negotiating cease-fire agreements with opposing civil and military figures from within the Muslim community, negotiating with United Nations officials, issuing orders to deploy troops and other units under his command and controlling the detention and treatment of detained civilians.

14. In each paragraph charging crimes against humanity, a crime recognised by Article 5 of the Statute of the Tribunal, the alleged acts or omissions were part of widespread , large-scale or systematic acts and conduct directed against Bosnian Muslim civilian populations residing in the HZ H-B/HR H-B and the municipality of Zenica, in the territory of Bosnia and Herzegovina.

15. At all times relevant to this indictment, a state of international armed conflict and partial occupation existed on the territory of the Republic of Bosnia and Herzegovina .

16. All acts or omissions herein set forth as grave breaches of the Geneva Conventions of 1949 (hereafter “grave breaches”), recognised by Article 2 of the Statute of the Tribunal, occurred during such international armed conflict and partial occupation .

17. All of the victims referred to in the charges contained in this indictment were , at all relevant times, persons protected by the Geneva Conventions of 1949.

18. The accused in this indictment were required to abide by the mandate of the laws and customs governing the conduct of war, including the Geneva Conventions of 1949.

19. Dario KORDIC, from about November 1991 to approximately March 1994, is individually responsible for the crimes charged against him in this indictment, pursuant to Article 7(1) of the Statute of the Tribunal. Individual criminal responsibility includes committing, planning, instigating, initiating, ordering or aiding and abetting the planning, preparation or execution of any acts or omissions set forth in this indictment.

20. Dario KORDIC, from about November 1991 to approximately March 1994, is also, or alternatively, criminally responsible as a superior for the acts of his subordinates pursuant to Article 7(3) of the Statute of the Tribunal. A superior is criminally responsible for the acts of his subordinate if the superior knew or had reason to know that his subordinate was about to commit such acts or had done so and the superior failed to take necessary and reasonable measures to prevent further such acts or to punish his subordinate. As to each charge in the indictment , Dario KORDIC, in addition to being individually responsible, knew or had reason to know, and it was foreseeable, that persons subordinate to him were about to commit various crimes, persecutions and illegal acts, or had done so, and failed to take necessary and reasonable measures to prevent such crimes, persecutions and acts or punish the perpetrators thereof.

21. Mario CERKEZ, from about April 1992 to approximately August 1993, is individually responsible for the crimes charged against him in this indictment, pursuant to Article 7(1) of the Statute of the Tribunal. Individual criminal responsibility includes committing, planning, instigating, initiating, ordering or aiding and abetting the planning, preparation or execution of any acts or omissions set forth in this indictment.

22. Mario CERKEZ, from about April 1992 to approximately August 1993, is also, or alternatively, criminally responsible as a superior for the acts of his subordinates pursuant to Article 7(3) of the Statute of the Tribunal. A superior is criminally responsible for the acts of his subordinate if the superior knew or had reason to know that his subordinate was about to commit such acts or had done so and the superior failed to take necessary and reasonable measures to prevent further such acts or to punish the subordinate. As to each charge in the indictment , Mario CERKEZ, in addition to being individually responsible, knew or had reason to know, and it was foreseeable, that persons subordinate to him were about to commit various crimes, persecutions and illegal acts, or had done so, and failed to take necessary and reasonable measures to prevent such crimes, persecutions and acts or punish the perpetrators thereof.

23. The general allegations contained in paragraphs 1 through 22, as well as the allegations in paragraphs 24 through 35 below, are realleged and incorporated in each charge.

24. One of the principal aims of the HDZ-BiH, the HZ H-B, the HR H-B and HVO was to control various municipalites and territories in Bosnia and Herzegovina and connect or unify them with the Republic of Croatia. To achieve this aim, the HDZ-BiH, the HZ H-B/HR H-B and HVO caused, planned, instigated, prepared, initiated, supported and executed a political-military campaign to gain control of these territories, and to ethnically cleanse them of, or substantially reduce and subjugate, the Bosnian Muslim population. This campaign was carried out by various practices, means and methods which demonstrated, by their pattern, consistency and frequency, that an orchestrated and widespread campaign was implemented throughout the HZ H-B/HR H- B and the municipality of Zenica, from about 18 November 1991, when the HZ H-B proclaimed its existence, to approximately 1 March 1994, when the Washington Agreement was signed.

25. In his various high-ranking positions and through the power and influence that he exercised, Dario KORDIC played a central role in developing, establishing and executing the policies, objectives and strategies of the HDZ-BiH, the HZ H-B , the HR H-B and the HVO. Along with others, he launched, planned, instigated, prepared, ordered, committed and aided and abetted a political-military campaign to persecute and terrorise Bosnian Muslims, which involved, or resulted in, the commission of serious violations of international humanitarian law. Dario KORDI C was a definite integral and important figure in the whole campaign, and had power, authority and responsibility to direct, control and shape its policies and execution, and to prevent, limit or punish crimes, violations or abuses which occurred or were carried out in the campaign. He publicly advocated the campaign’s goals and encouraged and instigated the ethnic hatred, strife and distrust which served its ends.

26. Dario KORDIC extended his sphere of authority, command and influence over a wide range of municipalities, and was closely involved in preparing, instigating and carrying out the campaign’s objectives and operations. Dario KORDIC not only personally voiced and promoted the campaign’s objectives and participated in various criminal acts, but was also aware of and had every reason to know - in the highly charged and volatile environment of Bosnia and Herzegovina - of the dangers , abuses and consequences of the campaign’s policies and objectives, and the courses of conduct that he and others set in motion. Persecution, oppression and violence against Bosnian Muslim civilians, institutions and property were fully foreseeable and no adequate steps were taken to prevent, stop or punish such abuses and violations . Dario KORDIC knew or had reason to know that various subordinates and aiders and abetters were about to persecute and oppress Bosnian Muslims, or had done so , and failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators.

27. As an HVO commander, Mario CERKEZ implemented by military means the HDZ -BiH’s, the HZ H-B’s, the HR H-B’s and HVO’s goals, policies and objectives, and committed and aided and abetted the persecution campaign. He was the commander of the HVO Vitez Brigade, which was directly and actively involved in the wide-scale persecution against Bosnian Muslim civilians. Mario CERKEZ also knew or had reason to know that various subordinates and aiders and abetters under his control were about to persecute and oppress Bosnian Muslim civilians, or had done so, and failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators.

28. The campaign of persecution, violence and ethnic cleansing was perpetrated and carried out on a widespread or systematic basis, by various means and methods, including attacks on cities, towns and villages with no military significance inhabited by Bosnian Muslim civilians, and killing and causing serious injury to Bosnian Muslim civilians. Many of the attacks commenced early in the morning when most of the inhabitants were in their homes and asleep. At least one hundred defenceless Bosnian Muslim civilians, including women, children, the elderly and the infirm, were killed and many wounded or harmed in their homes or yards, while attempting to hide or escape from the HVO attacks or bombardments or after they had been detained by the HVO.

29. Detention and imprisonment were other means used to persecute Bosnian Muslims , who were systematically selected, detained and imprisoned in HZ H-B/ HR-H-B and HVO detention facilities, on political, racial, ethnic or religious grounds. Imprisoned and otherwise detained Bosnian Muslim civilians were subjected to physical and psychological abuse, including beatings and sexual assaults, and suffered inhumane deprivations of basic necessities, such as adequate food, water, shelter and clothing. There was often little or no medical attention, and overcrowded and unsanitary conditions .

30. As part of the persecutions, Bosnian Muslims were forced to proclaim their allegiance to the HZ H-B/HR H-B and/or the HVO or face losing their jobs. Many Bosnian Muslims were dismissed or removed from government, municipal and other positions, or relegated to positions of no real power or authority.

31. Many of the Bosnian Muslims who were imprisoned and detained were also forced to dig trenches in hostile and otherwise hazardous conditions, were used in forced labor, used as hostages to promote the HZ H-B/HR H-B and HVO political-military objectives and also used as human shields. Some such persons were killed in the course of being detained and forced to engage in such activities.

32. The persecution against Bosnian Muslims was also accomplished by encouraging , instigating and fomenting hatred, distrust and division on political, racial, ethnic or religious grounds, by propaganda, speeches and otherwise.

33. The widespread persecution of Bosnian Muslims also included coercing, intimidating , terrorising and forcibly transferring such civilians from their homes and villages . Many of the persecuted Bosnian Muslims were either killed, transferred or forced to move to Muslim-dominated areas outside the municipalities of Vitez, Novi Travnik and Busovaca. Many of the detained or transferred civilians were taken to HVO checkpoints and then made to walk to Bosnian Muslim territory.

34. To promote and advance this ethnic cleansing, various members of the HDZ-BiH , the HZ H-B/HR H-B and HVO, together with their agents and others, instigated, caused and engaged in the wanton and extensive destruction and plundering of Bosnian Muslim civilian property, with no military justification. Bosnian Muslim dwellings and buildings, as well as civilian personal property and livestock, were destroyed or severely damaged. Bosnian Muslim businesses were blown up and destroyed. Many of these acts and much of this damage was meant to ensure that the Muslim inhabitants could not or would not return to their homes and communities. In addition, many Bosnian Muslim buildings, sites and institutions dedicated to religion or education were targeted for destruction or otherwise damaged or violated.

35. As a result of the persecution and ethnic cleansing campaign, the Bosnian Muslim civilian population was substantially reduced and relocated from those areas of the HZ H-B/HR H-B where the HDZ-BiH, the HZ H-B/HR H-B and HVO and their leaders and agents seized control.

36. From about November 1991 to approximately March 1994, Dario KORDIC, together with various members of the HDZ-BiH, the HZ H-B/HR H-B and HVO and their leaders , armed forces and agents, caused, planned, instigated, ordered or committed, or aided and abetted the planning, preparation or execution of, a crime against humanity , that is, the widespread or systematic persecutions of Bosnian Muslim civilians on political, racial, ethnic or religious grounds, throughout the HZ H-B/HR H-B and the municipality of Zenica, in the territory of Bosnia and Herzegovina.

37. This campaign of widespread or systematic persecutions was perpetrated, executed and carried out by or through the following means:

(a) attacking cities, towns and villages inhabited by Bosnian Muslim civilians;
(b) killing and causing serious injury or harm to Bosnian Muslim civilians, including women, children, the elderly and the infirm, both during and after such attacks;
(c) encouraging, instigating and promoting hatred, distrust and strife on political , racial, ethnic or religious grounds, by propaganda, speeches and otherwise;
(d) selecting, detaining and imprisoning Bosnian Muslims on political, racial, ethnic or religious grounds;
(e) dismissing and removing Bosnian Muslims from government, municipal and other positions;
(f) coercing, intimidating, terrorising and forcibly transferring Bosnian Muslim civilians from their homes and villages;
(g) physical and psychological abuse, inhumane acts, inhuman treatment, forced labor and deprivation of basic human necessities, such as adequate food, water, shelter and clothing, against Bosnian Muslims who were detained or imprisoned;
(h) using detained or imprisoned Bosnian Muslims to dig trenches;
(i) using detained or imprisoned Bosnian Muslims as hostages and human shields;
(j) wanton and extensive destruction and/or plundering of Bosnian Muslim civilian dwellings, buildings, businesses, and civilian personal property and livestock; and
(k) the destruction and wilful damage of institutions dedicated to Muslim religion or education.

By these acts and omissions, Dario KORDIC committed:

Count 1: a CRIME AGAINST HUMANITY, as recognised by Articles 5(h), 7(1) and 7(3) (persecutions on political, racial, or religious grounds) of the Statute of theTribunal.

38. From about 1 April 1992 to September 1993, Mario CERKEZ, together with various members of the HDZ-BiH, the HZ H-B/HR H-B and HVO and their leaders, armed forces and agents, caused, planned, instigated, ordered or committed, or aided and abetted the planning, preparation or execution of, a crime against humanity, that is, the widespread or systematic persecutions of Bosnian Muslim civilians on political , racial, ethnic or religious grounds, in the municipalities of Vitez, Busovaca and Novi Travnik, in the territory of Bosnia and Herzegovina.

39. This campaign of widespread or systematic persecutions was perpetrated, executed and carried out by or through the following means:

(a) attacking cities, towns and villages inhabited by Bosnian Muslim civilians;
(b) killing and causing serious injury or harm to Bosnian Muslim civilians, including women, children, the elderly and the infirm, both during and after such attacks;
(c) encouraging, instigating and promoting hatred, distrust and strife on political , racial, ethnic or religious grounds, by propaganda, speeches and otherwise;
(d) selecting, detaining and imprisoning Bosnian Muslims on political, racial, ethnic or religious grounds;
(e) coercing, intimidating, terrorising and forcibly transferring Bosnian Muslim civilians from their homes and villages;
(f) physical and psychological abuse, inhumane acts, inhuman treatment, forced labor and deprivation of basic human necessities, such as adequate food, water, shelter and clothing, against Bosnian Muslims who were detained or imprisoned;
(g) using detained or imprisoned Bosnian Muslims to dig trenches;
(h) using detained or imprisoned Bosnian Muslims as hostages and human shields;
(i) wanton and extensive destruction and/or plundering of Bosnian Muslim civilian dwellings, buildings, businesses, and civilian personal property and livestock; and
(j) the destruction and wilful damage of institutions dedicated to Muslim religion or education.

By these acts and omissions, Mario CERKEZ committed:

Count 2: a CRIME AGAINST HUMANITY, as recognised by Articles 5(h), 7(1) and 7(3) (persecutions on political, racial, or religious grounds) of the Statute of the Tribunal.

40. From about January 1993 to approximately October 1993, Dario KORDIC, together with members of the HZ H-B/HR H-B and HVO and their leaders, armed forces and agents, caused, planned, instigated, ordered or committed, or aided and abetted the planning, preparation or execution of, unlawful attacks on civilians and civilian objects and wanton destruction not justified by military necessity in the following cities, towns and villages on about the dates indicated:

Busovaca
January 1993

Merdani
January 1993

Vitez
April 1993

Stari Vitez
April 1993

Veceriska-Donja Veceriska
April 1993

Ahmici
April 1993

Nadioci
April 1993

Pirici
April 1993

Santici
April 1993

Loncari
April 1993

Putis
April 1993

Ocehnici
April 1993

Rotilj
April 1993

Zenica
April 1993

Novi Travnik
October 1993

Stupni Do
October 1993

By these acts and omissions, Dario KORDIC committed:

Count 3: a VIOLATION OF THE LAWS OR CUSTOMS OF WAR, as recognised by Articles 3, 7(1) and 7(3) of the Statute of the Tribunal and customary law, Article 51(2) of Additional Protocol I and Article 13(2) of Additional Protocol II (unlawful attack on civilians).

Count 4: a VIOLATION OF THE LAWS OR CUSTOMS OF WAR, as recognised by Articles 3, 7(1) and 7(3) of the Statute of the Tribunal and customary law and Article 52(1) of Protocol I (unlawful attack on civilian objects).

41. During or about April 1993, Mario CERKEZ, together with members of the HZ H-B/HR H-B and HVO and their leaders, armed forces and agents, caused, planned , instigated, ordered or committed, or aided and abetted the planning, preparation or execution of, unlawful attacks on civilians and civilian objects and wanton destruction not justified by military necessity in the following cities, towns and villages on about the dates indicated:

Vitez
April 1993

Stari Vitez
April 1993

Veceriska-Donja Veceriska
April 1993

Ahmici
April 1993

Nadioci
April 1993

Pirici
April 1993

Santici
April 1993

By these acts and omissions, Mario CERKEZ committed:

Count 5: a VIOLATION OF THE LAWS OR CUSTOMS OF WAR, as recognised by Articles 3, 7(1) and 7(3) of the Statute of the Tribunal and customary law, Article 51(2) of Additional Protocol I and Article 13(2) of Additional Protocol II (unlawful attack on civilians).

Count 6: a VIOLATION OF THE LAWS OR CUSTOMS OF WAR, as recognised by Articles 3, 7(1) and 7(3) of the Statute of the Tribunal and customary law and Article 52(1) of Protocol I (unlawful attack on civilian objects).

42. From about January 1993 to approximately October 1993, Dario KORDIC, together with members of the HZ H-B/HR H-B and HVO and their leaders, armed forces and agents, caused, planned, instigated, ordered or committed, or aided and abetted the planning, preparation or execution of, murders and wilful killings of, and wilful causing and infliction of serious injury and great suffering to body and health, both physical and mental, inhumane acts and inhuman treatment upon and against Bosnian Muslims, in the following cities, towns and villages on about the dates indicated :

Busovaca
January 1993

Rotilj
April 1993

Ahmici
April 1993

Nadioci
April 1993

Pirici
April 1993

Santici
April 1993

Vitez
April 1993

StariVitez
April 1993

Veceriska-Donja Veceriska

April 1993

Zenica
April 1993

Tulica
June 1993

Han Ploca/Grahovci
June 1993

Stupni Do
October 1993

By these acts and omissions, Dario KORDIC committed:

Killings:
Count 7: a CRIME AGAINST HUMANITY, as recognised by Articles 5(a) (murder), 7(1) and 7(3) of the Statute of the Tribunal.
Count 8: a GRAVE BREACH OF THE GENEVA CONVENTIONS OF 1949 (hereinafter “GRAVE BREACH”), as recognised by Articles 2(a) (wilful killing), 7(1) and 7(3) of the Statute of the Tribunal.
Count 9: a VIOLATION OF THE LAWS OR CUSTOMS OF WAR, as recognised by Articles 3, 7(1) and 7(3) of the Statute of the Tribunal and Article 3(1)(a) (murder) of the Geneva Conventions.

Injuries:
Count 10: a CRIME AGAINST HUMANITY, as recognised by Articles 5(i) (inhumane acts), 7(1) and 7(3) of the Statute of the Tribunal.
Count 11: a GRAVE BREACH, as recognised by Articles 2(c) (wilfully causing great suffering or serious injury to body or health), 7(1) and 7(3) of the Statute of the Tribunal.
Count 12: a GRAVE BREACH, as recognised by Articles 2(b) (inhuman treatment), 7(1) and 7(3) of the Statute of the Tribunal.
Count 13: a VIOLATION OF THE LAWS OR CUSTOMS OF WAR, as recognised by Articles 3, 7(1) and 7(3) of the Statute of the Tribunal and Article 3(1)(a) (violence to life and person) of the Geneva Conventions.

43. During or about April 1993, Mario CERKEZ, together with members of the HZ H-B/HR H-B and HVO and their leaders, armed forces and agents, caused, planned , instigated, ordered or committed, or aided and abetted the planning, preparation or execution of, murders and wilful killings of, and wilful causing and infliction of serious injury and great suffering to body and health, both physical and mental , inhumane acts and inhuman treatment upon and against Bosnian Muslims, in the following cities, towns and villages on about the dates indicated:

Ahmici
April 1993

Nadioci
April 1993

Pirici
April 1993

Santici
April 1993

Vitez
April 1993

StariVitez
April 1993

Veceriska-Donja Veceriska
April 1993

By these acts and omissions, Mario CERKEZ committed:

Killings:
Count 14: a CRIME AGAINST HUMANITY, as recognised by Articles 5(a) (murder), 7(1) and 7(3) of the Statute of the Tribunal.
Count 15: a GRAVE BREACH, as recognised by Articles 2(a) (wilful killing ), 7(1) and 7(3) of the Statute of the Tribunal.
Count 16: a VIOLATION OF THE LAWS OR CUSTOMS OF WAR, as recognised by Articles 3, 7(1) and 7(3) of the Statute of the Tribunal and Article 3(1)(a) (murder) of the Geneva Conventions.

Injuries:
Count 17: a CRIME AGAINST HUMANITY, as recognised by Articles 5(i ) (inhumane acts), 7(1) and 7(3) of the Statute of the Tribunal.
Count 18: a GRAVE BREACH, as recognised by Articles 2(c) (wilfully causing great suffering or serious injury to body or health), 7(1) and 7(3) of the Statute of the Tribunal.
Count 19: a GRAVE BREACH, as recognised by Articles 2(b) (inhuman treatment), 7(1) and 7(3) of the Statute of the Tribunal.
Count 20: a VIOLATION OF THE LAWS OR CUSTOMS OF WAR, as recognised by Articles 3, 7(1) and 7(3) of the Statute of the Tribunal and Article 3(1)(a) (violence to life and person) of the Geneva Conventions.

44. From about 1 January 1993 to approximately 31 March 1994, Dario KORDIC, together with members of the HZ H-B/HR H-B and HVO and their leaders, armed forces and agents, caused, planned, instigated, ordered or committed, or aided and abetted the planning, preparation or execution of, the imprisonment, unlawful confinement and inhuman treatment of Bosnian Muslims at about the following locations, in the territory of Bosnia and Herzegovina:

Kaonik Prison,
Vitez Cinema Complex,
Vitez Veterinary Station,
SDK Offices in Vitez,
The chess club in Vitez,
Dubravica Elementary School,
Municipal Building in Kiseljak,
Kiseljak Barracks,
Rotilj village,
Nova Trgovina, and
Silos

45. Many Bosnian Muslims were expelled or forcibly transferred from their homes and villages. Bosnian Muslims were detained and beaten, subjected to physical and /or psychological abuse, intimidation and inhuman treatment, including being confined in overcrowded and unsanitary conditions, deprived of adequate food and water, and provided little or no medical attention.

46. From about 1 January 1993 to approximately 31 January 1994, Dario KORDIC, together with members of the HZ H-B/HR H-B and HVO and their leaders, armed forces and agents, caused, planned, instigated, ordered or committed, or aided and abetted the planning, preparation and execution of, the use of Bosnian Muslim detainees to dig trenches in hostile, hazardous and combat conditions, in the municipalities of Kiseljak, Vitez, Busovaca, Novi Travnik and Zepce, which resulted in a number of such detainees being killed or injured.

47. From about 1 January 1993 to aproximately 31 January 1994, Dario KORDIC, together with members of the HZ H-B/HR H-B and HVO and their leaders, armed forces and agents, caused, planned, instigated, ordered or committed, or aided and abetted the planning, preparation or execution of, the use of various Bosnian Muslims detained or imprisoned at the facilities or locations described in Paragraph 44 as hostages.

48. From about June 1993 to approximately September 1993, Dario KORDIC, together with members of the HZ H-B/HR H-B and HVO and their leaders, armed forces and agents , caused, planned, instigated, ordered or committed, or aided and abetted the planning , preparation or execution of, the use of Bosnian Muslims as hostages in Novi Travnik in order to transfer Bosnian Muslim and Bosnian Croat populations.

49. From about 1 January 1993 to approximately 31 October 1993, Dario KORDIC, together with members of the HZ H-B/HR H-B and HVO and their leaders, armed forces and agents, caused, planned, instigated, ordered or committed, or aided and abetted the planning, preparation or execution of, the use of Bosnian Muslims as human shields in order to prevent armed forces hostile to the HVO from attacking or firing on HVO positions or to force Bosnian Muslims to surrender:

Merdani
January 1993

Skradno
January-February 1993

Strane
January-February 1993

Katici
January-February 1993

Kula
April-May 1993

Vitez
April 1993

Zepce
June 1993

Novi Travnik
July 1993

By these acts and omissions, Dario KORDIC committed:

Imprisonment/Unlawful Confinement:
Count 21: a CRIME AGAINST HUMANITY, as recognised by Articles 5(e ) (imprisonment), 7(1) and 7(3) of the Statute of the Tribunal.
Count 22: a GRAVE BREACH, as recognised by Articles 2(g) (unlawful confinement of civilians), 7(1) and 7(3) of the Statute of the Tribunal..

Inhuman and/or Cruel Treatment of Detainees:
Count 23: a GRAVE BREACH as recognised by Articles 2(b) (inhuman treatment ), 7(1) and 7(3) of the Statute of the Tribunal.
Count 24: a VIOLATION OF THE LAWS OR CUSTOMS OF WAR as recognised by Articles 3, 7(1) and 7(3) of the Statute of the Tribunal and Article 3(1)(a) (cruel treatment) of the Geneva Conventions.

Hostages:
Count 25: a GRAVE BREACH as recognised by Articles 2(h) (taking civilians as hostages), 7(1) and 7(3) of the Statute of the Tribunal.
Count 26: a VIOLATION OF THE LAWS OR CUSTOMS OF WAR as recognised by Articles 3, 7(1) and 7(3) of the Statute of the Tribunal and Article 3(1)(b) (taking of hostages) of the Geneva Conventions.

Human Shields:
Count 27: a GRAVE BREACH as recognised by Articles 2(b) (inhuman treatment ), 7(1) and 7(3) of the Statute of the Tribunal;
Count 28: a VIOLATION OF THE LAWS OR CUSTOMS OF WAR as recognised by Articles 3, 7(1) and 7(3) of the Statute of the Tribunal and Article 3(1)(a) (cruel treatment) of the Geneva Conventions.

50. From about 1 April 1993 to approximately 31 August 1993, Mario CERKEZ , together with members of the HZ H-B/HR H-B and HVO and their leaders, armed forces and agents, caused, planned, instigated, ordered or committed, or aided and abetted the planning, preparation or execution of, the imprisonment, unlawful confinement and inhuman treatment of Bosnian Muslims at the following locations in the territory of Bosnia and Herzegovina:

Kaonik Prison,
Vitez Cinema Complex,
Vitez Veterinary Station,
SDK Offices in Vitez,
The chess club in Vitez,
Dubravica Elementary School,

51. Many Bosnian Muslims were expelled or forcibly transferred from their homes and villages. Bosnian Muslims were detained and beaten, subjected to physical and /or psychological abuse and intimidation, and inhuman treatment, including being confined in overcrowded and unsanitary conditions, deprived of adequate food and water, and provided little or no medical attention.

52. From about 1 April 1993 to approximately 31 August 1993, Mario CERKEZ, together with members of the HZ H-B/HR-HB and HVO and their leaders, armed forces and agents, caused, planned, instigated, ordered or committed, or aided and abetted the planning, preparation and execution of, the use of Bosnian Muslim detainees to dig trenches in hostile, hazardous and combat conditions, in the municipality of Vitez.

53. During or about April 1993, Mario CERKEZ, together with members of the HZ H-B/HR H-B and HVO and their leaders, armed forces and agents, caused, planned , instigated, ordered or committed, or aided and abetted the planning, preparation or execution of, the use of Bosnian Muslims detained or imprisoned at or about the facilities or locations described in Paragraph 50 as hostages.

54. During or about April 1993, Mario CERKEZ, together with members of the HZ H-B/HR H-B and HVO and their leaders, armed forces and agents, caused, planned , instigated, ordered or committed, or aided and abetted the planning, preparation or execution of, the use of Bosnian Muslims as human shields in or about Vitez, in order to prevent armed forces hostile to the HVO from attacking or firing on HVO positions or to force Bosnian Muslims to surrender.

By these acts and omissions, Mario CERKEZ committed:

Imprisonment/Unlawful Confinement:
Count 29: a CRIME AGAINST HUMANITY, as recognised by Articles 5(e ) (imprisonment), 7(1) and 7(3) of the Statute of the Tribunal.
Count 30: a GRAVE BREACH, as recognised by Articles 2(g) (unlawful confinement of civilians), 7(1) and 7(3) of the Statute of the Tribunal.

Inhuman and/or Cruel Treatment of Detainees:
Count 31: a GRAVE BREACH as recognised by Articles 2(b) (inhuman treatment ), 7(1) and 7(3) of the Statute of the Tribunal.
Count 32: a VIOLATION OF THE LAWS OR CUSTOMS OF WAR as recognised by Articles 3, 7(1) and 7(3) of the Statute of the Tribunal and Article 3(1)(a) (cruel treatment) of the Geneva Conventions.

Hostages:
Count 33: a GRAVE BREACH as recognised by Articles 2(h) (taking civilians as hostages), 7(1) and 7(3) of the Statute of the Tribunal.
Count 34: a VIOLATION OF THE LAWS OR CUSTOMS OF WAR as recognised by Articles 3, 7(1) and 7(3) of the Statute of the Tribunal and Article 3(1)(b) (taking of hostages) of the Geneva Conventions.

Human Shields:
Count 35: a GRAVE BREACH as recognised by Articles 2(b) (inhuman treatment ), 7(1) and 7(3) of the Statute of the Tribunal;
Count 36: a VIOLATION OF THE LAWS OR CUSTOMS OF WAR as recognised by Articles 3, 7(1) and 7(3) of the Statute of the Tribunal and Article 3(1)(a) (cruel treatment) of the Geneva Conventions.

55. From about 1 October 1992 to approximately 31 December 1993, Dario KORDIC, together with members of the HZ H-B/HR H-B and HVO and their leaders, armed forces and agents, caused, planned, instigated, ordered or committed, or aided and abetted the planning, preparation or execution of, the unlawful, wanton and extensive destruction, devastation and plunder of Bosnian Muslim dwellings, buildings, businesses , civilian personal property and livestock, which was not justified by military necessity, in the following cities, towns and villages on or about the dates indicated :

Novi Travnik
October 1992 -December 1993

Busovaca
January-February 1993

Merdani
January-February 1993

Putis
April 1993

Ocehnici
April 1993

Loncari
April 1993

Kiseljak
April 1993

Visnjica
April 1993

Kazagici
April 1993

Behrici
April 1993

Svinjarevo
April 1993

Gomionica
April 1993

Gromiljak
April 1993

Polje Visnjica
April 1993

Visnjica
April 1993

Rotilj
April 1993

Tulica
June 1993

Han Ploca/Grahovci
June 1993

Vitez
April1993

Stari Vitez
April 1993

Ahmici
April 1993

Nadioci
April 1993

Pirici
April 1993

Santici
April 1993

Veceriska-Donja Veceriska
April 1993

Gacice
April 1993

Divjak (Divjaka)
September 1993

Stupni Do
October 1993

By these acts and omissions, Dario KORDIC committed:

Count 37: a GRAVE BREACH, as recognised by Articles 2(d) (extensive destruction of property), 7(1) and 7(3) of the Statute of the Tribunal.
Count 38: a VIOLATION OF THE LAWS OR CUSTOMS OF WAR, as recognised by Articles 3(b) (wanton destruction not justified by military necessity), 7(1) and 7(3) of the Statute of the Tribunal.
Count 39: a VIOLATION OF THE LAWS OR CUSTOMS OF WAR, as recognised by Articles 3(e) (plunder of public or private property), 7(1) and 7(3) of the Statute of the Tribunal.

56. During or about April 1993, Mario CERKEZ, together with members of the HZ H-B/HR H-B and HVO and their leaders, armed forces and agents, caused, planned , instigated, ordered or committed, or aided and abetted the planning, preparation or execution of, the unlawful, wanton and extensive destruction, devastation and plunder of Bosnian Muslim dwellings, buildings, businesses, civilian personal property and livestock, which was not justified by military necessity, in the following cities , towns and villages on or about the dates indicated:

Vitez
April 1993

Stari Vitez
April 1993

Ahmici
April 1993

Nadioci
April 1993

Pirici
April 1993

Santici
April 1993

Donja Veceriska
April 1993

By these acts and omissions, Mario CERKEZ committed:

Count 40: a GRAVE BREACH, as recognised by Articles 2(d) (extensive destruction of property), 7(1) and 7(3) of the Statute of the Tribunal.
Count 41: a VIOLATION OF THE LAWS OR CUSTOMS OF WAR, as recognised by Articles 3(b) (wanton destruction not justified by military necessity), 7(1) and 7(3) of the Statute of the Tribunal.
Count 42: a VIOLATION OF THE LAWS OR CUSTOMS OF WAR, as recognised by Articles 3(e) (plunder of public or private property), 7(1) and 7(3) of the Statute of the Tribunal.

57. From about October 1992 to approximately November 1993, Dario KORDIC, together with members of the HZ H-B/HR H-B and HVO and their leaders, armed forces and agents, caused, planned, instigated, ordered or committed, or aided and abetted the planning, preparation or execution of, the destruction or wilful damage of Bosnian Muslim institutions dedicated to religion or education in the following towns and villages, on or about the dates indicated:

Ahmici
April 1993

Stari Vitez
April 1993

Han Ploca
June 1993

Kiseljak
July-August 1993

Divjak
September 1993

Stupni Do
October 1993

By these acts and omissions, Dario KORDIC committed:

Count 43: a VIOLATION OF THE LAWS OR CUSTOMS OF WAR, as recognised by Articles 3(d) (destruction or wilful damage to institutions dedicated to religion or education), 7(1) and 7(3) of the Statute of the Tribunal.

58. From about April 1993 to approximately September 1993, Mario CERKEZ, together with members of the HZ H-B/HR H-B and HVO and their leaders, armed forces and agents, caused, planned, instigated, ordered or committed, or aided and abetted the planning, preparation or execution of, the destruction or wilful damage of Bosnian Muslim institutions dedicated to religion or education in the following towns and villages, on or about the dates indicated:

Stari Vitez
April 1993

Ahmici
April 1993

Divjak
September 1993

By these acts and omissions, Mario CERKEZ committed:

Count 44: a VIOLATION OF THE LAWS OR CUSTOMS OF WAR, as recognised by Articles 3(d) (destruction or wilful damage to institutions dedicated to religion or education), 7(1) and 7(3) of the Statute of the Tribunal.

By Authority of the Prosecutor:
_________________________
Gavin F. Ruxton
Senior Legal Advisor

Dated this 30 September 1998
The Hague
The Netherlands