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