Tribunal Criminal Tribunal for the Former Yugoslavia

Page 918

1 Thursday 11 July 1996

2 [Ruling]

3 [Open session]

4 --- Upon commencing.

5 JUDGE JORDA: [Interpretation] Registrar, will you please cite

6 today's case?

7 THE REGISTRAR: Before us we have case number IT-95-5-R61 and

8 IT-95-18-R61.

9 JUDGE JORDA: [Interpretation] Thank you. Now, let's see whether

10 the equipment's working. Can everyone hear me? The gentlemen from the

11 Prosecutor's office?

12 Could you please introduce yourselves, gentlemen. Microphone,

13 please.

14 MR. OSTBERG: I will do it again, then. I'm Eric Ostberg, Senior

15 Trial Attorney. Today with me is Mr. Mark Harmon and Mr. Teree Bowers.

16 JUDGE JORDA: [Interpretation] Thank you. Are the interpreters

17 ready? The visitors in the public gallery can hear the proceedings as

18 well? The registrar; fellow Judges? Fine.

19 The Trial Chamber I was the following Judges: Presiding Judge

20 Claude Jorda; Mrs. Elizabeth Odio-Benito; and Judge Fouad Riad in the case

21 of the Prosecutor against Radovan Karadzic and Ratko Mladic. This is a

22 review of the indictment under Rule 61.

23 Now, in their Decisions rent rendered respectively on 25 July and

24 16 November 1995, Judges Claude Jorda Fouad Riad confirm the indictments

25 issued by the Prosecutor against Ratko Mladic and Radovan Karadzic. On

Page 919

1 the same dates, they issued warrants of arrest with orders for surrender

2 against the two accused. Now, these warrants were sent to the Federal

3 Republic of Yugoslavia, the Bosnian Serb administration at Pale, and so

4 far they have not been executed. The Confirming Judges, in their

5 decisions of 18 June 1996, considered that a reasonable time had elapsed

6 since the warrants of arrest were issued and therefore invited the

7 Prosecutor to report on the measures taken to effect personal service of

8 the indictments or to inform the accused of their existence. Satisfied by

9 the steps the Prosecutor had taken, in those same decisions the Judges

10 ordered that he submit both indictments to the Trial Chamber for joint

11 review during a public hearing, pursuant to the provisions of Rule 61 of

12 the Rules of Procedure and Evidence ("the Rules").

13 During its review, the Trial Chamber must consider whether there

14 are reasonable grounds for believing that the accused committed one or all

15 of the offences for which they are charged in the indictment. To that

16 end, it has reviewed all the evidence submitted to the Confirming Judges,

17 as well as the additional material produced during the hearing. It also

18 heard the witnesses who had been called and interviewed by the Prosecutor

19 and two amici curiae, Mrs. Rehn, Special Rapporteur for the United Nations

20 Commission on Human Rights, and Mrs. Cleiren, who is a member of the

21 Commission of Experts established pursuant to Resolution 780 of the

22 Council of Security, and the Chamber had to review the legal

23 classification of the acts by the Prosecutor so that it could verify that

24 its jurisdiction had been established at this stage.

25 Now, recourse to the Rule 61 proceedings permits International

Page 920

1 Criminal Tribunal for the Former Yugoslavia, which is not have its own

2 police force, to react to the failure of the accused to appear voluntarily

3 and to the failure to execute the warrants issued against them. Should

4 the reviewing Trial Chamber review the indictments, it must issue

5 international warrants of arrest. It may also note that the failure to

6 execute the initial warrants of arrest may be acquired to the failure or

7 refusal to cooperate by the State or States to which they were

8 transmitted, and it may request the President of the Tribunal to inform

9 the Security Council of that failure. The Rule 61 proceedings permit the

10 charges in the indictment and the supporting material to be publicly and

11 solemnly exposed. When called to appear by the Prosecutor, the victims

12 may use this forum to have their voices heard and to become a part of

13 history. The organs of international criminal justice, which cannot

14 accommodate the failures of individuals or states, must pursue the mission

15 of revealing the truth about the acts perpetrated and the suffering

16 endured, as well as identifying and arresting those accused of

17 responsibility.

18 Prior to the Rule 61 hearings on 27 June and 5 July, and after

19 having heard their oral submissions, the Trial Chamber reviewed two

20 applications from the attorneys assigned by Radovan Karadzic. They were

21 Mr. Pantelic from Belgrade, as well as Messrs. Medvene and Ranley from the

22 California bar. And they were to represent him before the International

23 Tribunal for the former Yugoslavia, and they had requested access to all

24 the documents and relevant files which the Prosecutor would submit during

25 the proceedings. In decisions rendered on those two dates, the Trial

Page 921

1 Chamber, noting the powers of attorney lodged on behalf of Radovan

2 Karadzic, invited the registrar to read the two indictments issued against

3 the accused in the presence of the first attorney chosen. Rejecting the

4 requests filed by the attorneys, it granted them observer status but

5 required them to observe the proceedings from the public gallery.

6 Now, we're going to begin by describing the indictments and then

7 we're going to go on with a joint review thereof.

8 The Chamber was seized of the review of two indictments. The

9 former, confirmed on 25 July 1995, states that Radovan Karadzic, President

10 of the Bosnian Serb administration, and Ratko Mladic, Commander of the

11 Bosnian Serb army, are responsible for a series of serious violations of

12 international humanitarian law allegedly committed by the forces of the

13 Bosnian Serb Administration in the territory of Bosnia and Herzegovina

14 since May 1992. Now, the indictment contains 16 counts set out in they

15 parts. The Chamber notes that all of them pertain to offences within the

16 Tribunal's jurisdiction, namely, grave breaches of the Geneva Conventions

17 of 1949, violations of the laws or customs of war, genocide, and crimes

18 against humanity.

19 Now, the charges of crimes against humanity refer to persecution

20 on political, racial and religious grounds of Bosnian Muslim and Bosnian

21 Croat civilians, as well as to the sniping campaign against the civilian

22 population of Sarajevo. These same acts or also separately indicted in

23 other counts of the indictment.

24 The charge of genocide is invoked for the internment of civilians

25 in detention facilities and inhumane treatment therein.

Page 922

1 Characterised as grave breaches of the Geneva Conventions of 1949

2 are: the unlawful confinement of civilians in camps, the extensive

3 destruction of property, and the appropriation and plunder of property.

4 Characterised as violations of the laws or customs of war are: the

5 unlawful confinement of civilians, the shelling of such gatherings, the

6 destruction of sacred sites, the appropriation and plunder of property,

7 and the sniping at civilians in Sarajevo.

8 For taking United Nations peacekeepers hostage and using them as

9 human shields, the accused are considered to be responsible for grave

10 breaches of the Geneva Conventions and violations of the laws and customs

11 of war.

12 Now, the second indictment, confirmed on 16 November 1995, relates

13 to serious violations of international humanitarian law allegedly

14 committed by the forces of the Bosnian Serb Administration during the

15 takeover of the Srebrenica safe area in the east of Bosnia and Herzegovina

16 in July 1995. Radovan Karadzic and Ratko Mladic are charged with

17 genocide, crimes against humanities, and violations of the laws and

18 customs of war for the summary execution of Bosnian Muslims at and around

19 Potocari and Karakaj, as well as in the woods in the direction of Tuzla.

20 The Chamber notes that boat of the indictments which are before it

21 involve the same individuals, Radovan Karadzic and Ratko Mladic, and that

22 both invoke the individual criminal responsibility of the accused on

23 account of their positions of authorities in the Bosnian Serb

24 Administration. For these reasons, the Chamber considered it appropriate

25 to join the two indictments for further review under Rule 61.

Page 923

1 So the Chamber's going to begin by describing the offences alleged

2 in the indictments and the supporting evidence. It will then turn its

3 attention to the alleged individual criminal responsibility of Radovan

4 Karadzic and Ratko Mladic, first putting those acts in their historical,

5 political, and military context, in particular, in late of the concept of

6 ethnic cleansing, and then demonstrating the role of the two accused

7 within an organisation. It will then legally characterise the acts in

8 accordance with the Statute.

9 Now, such a repetition of similar acts who were all aimed at the

10 same kind of people and demonstrate the same desire to alienate the

11 culture and religious rights give rise to the question as to the level of

12 responsibility to which one has to go up to determine the conception, the

13 planning, and organisation and then the execution of such an approach.

14 Now, this consideration of the conflict in the former Yugoslavia

15 can but lead to the conclusion that one has to consider a political

16 responsibility at the highest level, the individual criminal

17 responsibility of superiors, and in this case, those of political and

18 military leaders. There is no historical example, taking into account the

19 judgements handed down in Nuremberg and Tokyo, where it was not through an

20 analysis of the conflict, considering the intent and the planning

21 alongside the execution, that one could consider this kind of issue

22 appropriately.

23 Now, as said, we are going to begin with the offences charged.

24 Now, what follows are allegations made in the supporting material

25 submitted by the Prosecutor and in testimony heard during the

Page 924

1 proceedings. We're going to begin by considering the first indictment and

2 move on to the second indictment.

3 With regard to the first indictment, the charges against the

4 accused in the first indictment relate to a series of acts which occurred

5 between April 1992 and July 1995 in Bosnia and Herzegovina. They included

6 setting up internment camps, targeting Bosnian Muslim and Bosnian Croat

7 political, intellectual, and professional leaders, shelling civilian

8 gatherings, appropriating, plundering and/or destroying property and

9 systematically destroying places of worship. The criminal acts charged

10 will be examined in three main section main parts: crimes related to

11 Bosnian Serb military operations, crimes related to the siege of Sarajevo,

12 and crimes against United Nations personnel.

13 One, crimes related to Bosnian Serb military operations. Now,

14 these crimes may be further divided into four categories, (a) Unlawful

15 confinement and related crimes.

16 During the period in question, a network of camps which were

17 managed and organised by civilian and military personnel and Bosnian Serb

18 police, and which were located across the entire territory of Bosnia and

19 Herzegovina under Bosnian Serb occupation (Omarska, Keraterm, Trnopolje,

20 Luka, Manjaca, Susica; KP Dom, Livade, Batkovic, et cetera) was used to

21 intern thousands of civilian Bosnian Muslims and Bosnian Croats, including

22 women, children, and elderly people who had been systematically selected

23 and assembled for national, ethnical, political, or religious reasons.

24 Detained for weeks, months, or even years under inhuman living

25 conditions involving inadequate rations and lack of medical care and

Page 925

1 proper hygiene, the civilians were then either executed, subjected to

2 mistreatment and other physical and mental harm calculated to bring about

3 their physical destruction, or used as human shields against other

4 troops. After their execution, the remains of the victims from the KP Dom

5 and Luka camps were allegedly thrown into the nearby Drina and Sava

6 Rivers. In the Omarska camp, many detainees were said to have been burned

7 alive by soldiers celebrating St. Peter's Day, a Serbian family saint's

8 day, in July 1993.

9 Inside the camps or at other places, many of the women and girls

10 being detained were allegedly systematically raped and/or subjected to

11 other forms of sexual assault by Serbian soldiers and police or by their

12 agents with the consent and the complicity of the officials of the

13 detention units. Some of the camps were nothing less than specialised

14 centres for the rape of women. On a smaller scale, many men were also

15 victims of rape and sexual assault by the Serbian forces. On several

16 occasions, brothers or parents were forced to have sexual contact with one

17 another. Forms of sexual assault particularly degrading for women, and

18 using a variety of objects, and the castration of men, sometimes performed

19 under duress by prisoners on one another, was practised.

20 Appropriation or plunder of property, destruction of places of

21 worship.

22 In the cities and villages of Bosnia and Herzegovina which had

23 come under their command, the Bosnian Serb military personnel and police,

24 along with other agents of the Bosnian Serb administration, committed

25 arbitrary large-scale appropriation of real and movable property belonging

Page 926

1 to Bosnian Muslim and Bosnian Croat civilians. Prior to the forced

2 transfer, many detainees in the internment camps were forced to sign

3 official Bosnian Serb documents by which they "voluntarily" gave up their

4 titles of ownership and their possessions to the Bosnian Serb

5 administration. With the approval and consent of the leaders of the

6 internment camps, or on their instructions, many detainees were escorted

7 out of the camps to their homes, industrial or commercial establishments,

8 were forced to and own their funds and other valuables.

9 Elsewhere, in order to rule out any possibility of return by the

10 dispossessed, Bosnian Serb forces systematically destroyed buildings. The

11 destruction took place both in areas where the hostilities had ceased and

12 in which the populations had surrendered without resistance. In cities

13 such as Foca, where Serbian and non-Serbian neighbourhoods were next to

14 one another, Serbian neighbourhoods were carefully spared.

15 Throughout the territory of Bosnia and Herzegovina under their

16 control, Bosnian Serb forces also destroyed, quasi-systematically, the

17 Muslim and Catholic cultural heritage, in particular, sacred sites.

18 According to estimates provided at the hearing by an expert witness,

19 Dr. Kaiser, a total of 1.123 mosques, 504 Catholic churches and five

20 synagogues were destroyed or damaged, for the most part, in the absence of

21 military activity or after the cessation thereof.

22 This was the case in the destruction of the entire Islamic and

23 Catholic heritage in the Banja Luka area, which had a Serbian majority and

24 the nearest area of combat to which was several dozen kilometres away.

25 All of the mosques and Catholic churches were destroyed. Some mosques

Page 927

1 were destroyed with explosives and the ruins were then levelled and the

2 rubble thrown in the public dumps in order to eliminate any vestige of

3 Muslim presence.

4 Aside from churches and mosques, other religious and cultural

5 symbols like cemeteries and monasteries were targets of the attacks.

6 Expulsion and deportation:

7 Thousands of civilians were unlawfully expelled or deported to

8 other places inside and outside the Republic of Bosnia and Herzegovina.

9 Removed from their homes, many civilians, including women, children, and

10 elderly persons, were used in prisoner exchanges. The result of these

11 expulsions was a partial or total elimination of Muslim and Bosnian Croats

12 in some of Bosnian Serb-held regions of Bosnia and Herzegovina. In the

13 municipality of Prijedor, Foca, Vlasenica, Brcko, and Bosanski Samac, to

14 name but a few, the once non-Serbian majority was systematically

15 exterminated or expelled by force or intimidation. Among the methods used

16 to apply pressure, the Prosecutor noted a radio announcement which told

17 Muslims to leave town or face execution and stated that "for a Serb killed

18 at the front, ten Muslims were to be executed."

19 At the same time, Bosnian Serb military and police personnel

20 persecuted leaders and members of the non-Serbian political parties,

21 especially the mainly Muslim Party of Democratic Action, the SDA, and the

22 Croatian Democratic Union, HDZ, the main Croatian political party, in the

23 towns of Prijedor, Vlasenica, Bosanski Samac, Brcko, and Foca. Based on

24 the lists drawn by the SDS, the leaders were arrested, interned, subjected

25 to physical abuse, and in many cases, executed.

Page 928

1 Generally speaking, Bosnian Muslim and Bosnian Croat political,

2 intellectual, and professional leaders were victims of persecution by

3 Bosnian Serb groups.

4 Shelling of civilian gatherings.

5 Throughout the conflict, the strategy of Bosnian Serb forces

6 consisted in indiscriminately targeting civilians. Such was the case

7 during the entire siege of Sarajevo, and at times in the safe areas of

8 Srebrenica, Zepa, Gorazde, Bihac, and Tuzla.

9 From July 1992 to July 1995, many civilian gatherings,

10 particularly at stadiums or in public squares, were subject to shelling by

11 Bosnian Serb military forces whose objective was to kill, terrorise, and

12 demoralise the civilian population.

13 Crimes related to the siege of Sarajevo:

14 From 5 April 1992 to 31 May 1995, the city of Sarajevo was

15 besieged by Bosnian Serb forces. During this period, the city was

16 subjected to systematic and deliberate sniping campaign, the outbreak of

17 which allegedly occurred on 6 April 1992 from the headquarters of the

18 Serbian Democratic Party, the SDS, at the Holiday Inn.

19 The snipers, who were members of the Bosnian Serb army, used very

20 sophisticated weapons to shoot people while they were going about their

21 daily business. Casualties included women, children, and the elderly.

22 Crimes committed against United Nations military personnel:

23 In response to the airstrikes of the North Atlantic Treaty

24 Organisation (NATO) on Serbian military targets, between 26 May and

25 2 June 1995, Bosnian Serb forces took hostage some 284 United Nations

Page 929

1 peacekeepers assigned, inter alia, to the regions of the Pale, Sarajevo,

2 and Gorazde.

3 Around 26 May 1995, Bosnian Serb forces selected United Nations

4 military observers in the Pale region and used them as "human shields."

5 Those observers were tied to potential targets of NATO airstrikes,

6 specifically the munitions depot at Joharinski Potok, the radar facility

7 site at Jahorina, and the nearby communications centre. High-level

8 Bosnian Serb political and military delegations, which included, inter

9 alia, Professor Koljevic, the then Vice-president Republika Srpska and

10 President of the State Committee for Cooperation with the United Nations

11 and other humanitarian organisations, even inspected and photographed the

12 scene. According to one of the hostages, Captain Rechner, a Canadian

13 military observer who was stationed in Pale and was in charge of, among

14 other things, liaison between the United Nations Protection Force

15 (UNPROFOR) and Bosnian Serb Administration, and who was often in contact

16 with Radovan Karadzic's cabinet, the hostage-taking had been officially

17 decided at the highest level of the chain of command.

18 Now we will look at the charges in the second indictment.

19 The charges against Karadzic and Mladic in the second indictment

20 relate to a series of crimes allegedly committed during the military

21 operations which preceded and followed the fall of Srebrenica enclave in

22 July 1995.

23 Due to the military occupation of their villages in Eastern Bosnia

24 by the Bosnian Serb forces, the Muslim people of this region fled, in

25 particular towards the enclaves of Gorazde, Zepa, Tuzla, and Srebrenica.

Page 930

1 In order to provide them with the requisite protection, the Security

2 Council of the United Nations, acting pursuant to Chapter VII of the

3 Charter, demanded in its Resolution 819 of 16 April 1993, that the parties

4 to the conflict regard the Srebrenica enclave as a safe area and as such

5 not subject it to armed attack or any other hostile act.

6 Besieged since April 1993, the Srebrenica enclave was targeted,

7 from 6 July 1995, by the shelling of Bosnian Serb forces to whom it fell

8 on 11 July 1995. This was followed by an exodus of 40.000 Muslims who had

9 lived in the safe area.

10 Initially, the populations of the enclave gathered in and around

11 the United Nations Srebrenica compound. Then, victimised by shelling from

12 Bosnian Serb forces, they adopted two different lines of conduct. Several

13 thousand women, children, and mainly elderly men went to seek refuge with

14 the Dutch UNPROFOR battalion stationed at Potocari. A second group, made

15 up of roughly 15.000 mostly unarmed, able-bodied Muslim men, was forced at

16 Susnjari in the evening of 11 July 1995 and fled, in one enormous column,

17 through the woods in the direction of the Tuzla, a zone controlled by the

18 Bosnian Serb government.

19 The evidence is that whichever option was chosen, Bosnian Muslims

20 allegedly faced a similar fate of deportation, summary or mass execution,

21 torture, rape, or other humiliations. Nightmarish scenes have been

22 evoked, which would, as the Confirming Judge noted during his initial

23 review of the indictment, "fill the darkest pages of human history."

24 Massacres in the woods:

25 The evidence in the case file and the testimony during the hearing

Page 931

1 establishes prima facie that in the morning of 12 July 1995, Bosnian Serb

2 soldiers stationed along the Bratunac-Nova Kasaba road, having APCs,

3 tanks, anti-aircraft guns and artillery, set numerous ambushes for the

4 column of Bosnian Muslims trying to reach Tuzla through the woods.

5 Ensnared behind Bosnian Serb lines and lured by guarantees of safety

6 promised by the Serbs, a number of those fleeing surrendered or were taken

7 prisoner. In either event, thousands of Muslims were summarily executed

8 either at the very place of their vend surrender, of capture, or

9 elsewhere. Many witnesses reported the infiltration of the column by

10 Bosnian Serb soldiers who gave the crowd erroneous directions in order to

11 direct people toward ambushes or toward the Bratunac-Nova Kasaba road

12 where the army lay in wait for them.

13 It is alleged that the barbarity of the methods of execution and

14 mutilation used by Bosnian Serb troops was such that Muslim refugees were

15 seized by a wave of frenzy and that many of them committed suicide. Among

16 the methods mentioned in testimony, the survivors of massacres made

17 special reference to dumdum bullets and knives. At the hearing, the

18 investigator, Jean-Rene Ruez, described the horror of some of the scenes.

19 Survivors told how a man was forced to eat the liver of his grandson, the

20 throat of whom had been cut before his eyes by a Serbian soldier, and how

21 a woman watched helplessly as her baby was executed by stabbing with a

22 bayonet. The Tribunal has chose Tribunal has deliberately chosen not to

23 describe any others here.

24 Mass executions at Kravica:

25 On 13 July 1995, it is alleged a large group of approximately 500

Page 932

1 to 1.000 Bosnian Muslims, who had been surrounded after the ambush at

2 Kamenica, surrendered to Bosnian Serb soldiers on the asphalt road there

3 and were directed to a field at Sandici and then on foot towards Kravica.

4 They were forced into hangar which could barely hold all its members. The

5 soldiers surrounding the hangar opened fire through all the hangar's

6 apertures and threw grenades inside. With a few rare exceptions, this

7 group was exterminated.

8 Mass executions near Karakaj Lazete:

9 According to the descriptions by survivors, the massacres at

10 Karakaj unfolded according to the following scenario: After their

11 surrender or capture, thousands of the Muslims who had initially been part

12 of the column fleeing towards Tuzla were led toward various assembly or

13 transit points, notably a soccer field at Nova Kasaba, a hangar at

14 Bratunac, then towards Grbavci school facility near Karakaj.

15 During the day of 14 July 1995, Bosnian Serb soldiers took all the

16 Muslim detainees out of the school in small groups and boarded them on

17 trucks. Blindfolded or with their hands tied behind their backs, the

18 detainees were subsequently driven either to a field near the school of

19 Grbavci or to the artificial lake of a dam where they were all executed.

20 Those showing signs of life were finished off by individual shots.

21 Present at one of the sites, General Mladic saw the execution of the

22 detainees who were there when he passed. An excavator, thereafter, dug a

23 mass grave. The massacres took place from about noon to midnight on

24 14 July 1995, the trucks arriving at the execution areas every 10 to 15

25 minutes. The number of persons executed at this site was estimated at

Page 933

1 2.500 by one of the survivors.

2 During the same day, a witness at the Konjevici intersection saw

3 three buses full of men, followed by a wheeled APC and an excavator, take

4 a turnoff towards Cerska. Those buses later headed back without their

5 occupants.

6 Mass executions at a farm at Branjevo and other places:

7 According to testimony at the hearing given by Drazen Erdemovic,

8 also indicted by this Tribunal, Muslim civilians previously held in the

9 school at Pilica were taken by bus, on 16 July 1995, to a farm at

10 Branjevo. This group of 1.200 people was executed in its entirety by

11 soldiers of the unit to which Drazen Erdemovic belonged. He also

12 participated in the executions.

13 After 16 July 1996, many groups of Muslims still trying to reach

14 Tuzla through the woods continued to be savagely killed by Bosnian Serb

15 soldiers: half of a group of 150 people at Konjevic Polje and another

16 group of 150 people at Udric. On 17 July 1995, 250 people who were

17 captured were gathered around what was to be their grave and were pushed

18 into it alive by an excavator.

19 Summary executions at Potocari:

20 Potocari and its environs were the assembly point for most of the

21 Muslim women, children, elderly and invalids who had journeyed to the

22 UNPROFOR compound held by the Dutch Battalion. Since not all of them were

23 able to find protection there, many spent the night of 11 to 13 July 1995

24 in the neighbouring factories and were then transferred by truck to the

25 areas controlled by the Muslim government forces. The few fighting-age

Page 934

1 men present were transported toward execution sites.

2 Potocari and its environs were the scene of summary executions.

3 Several hundred people were allegedly selected and then cruelly massacred

4 with knives. For several hours on 12 July 1995, Serbian soldiers randomly

5 selected refugees among the crowd of Muslims, collected them together in

6 small groups of ten, and led them behind the 11th of March factory where

7 they were mutilated with knives and had their throats cut. It took a

8 truck about five trips to collect the bodies of those thus executed. This

9 selection and execution process allegedly continued until the morning of

10 13 July.

11 These arbitrary massacres were of such exceptional cruelty and

12 created such a degree of terror and panic amid the remaining Muslims that

13 some of them were given to commit suicide. Horrific scenes reported by

14 witnesses tell of several babies being killed with knives before their

15 mothers' eyes.

16 The International Criminal Tribunal has not been requested to

17 review under what conditions the enclave was defended. The Prosecutor,

18 nonetheless, requested that Colonel Karremans, Commander of the Dutch

19 Battalion, and two of his men testify. In his testimony, the corps leader

20 described the impetus of his unit in avoiding the tragedy even though he

21 did recognise a list of the men present among the refugees allegedly given

22 to a Serbian officer by one of his men. The corps leader suggested

23 several causes. He spoke about the imbalance of men and weapons, the

24 logistical and psychological impact on the battalion of the blockade of

25 the enclave, an unfavourable international context.

Page 935

1 Before concluding, he said:

2 "On 25 May, in a very long report, I informed all the

3 hierarchical levels and my authorities that I was no longer in a position

4 to carry out my submission and execute my orders. In fact, this signalled

5 the end of my mission. We then began to do what we could, to improvise.

6 By doing this, we succeeded in holding out until 6 July, which was part of

7 our mission."

8 The material in the confirmation file, along with the additional

9 evidence tendered by the Prosecutor at the hearing, bears out the

10 following conclusions:

11 The following places in Bosnian Serb-held Bosnia and Herzegovina

12 were used as prisoner assembly or transit points: Srebrenica, Potocari,

13 Bratunac, Sandici, Nova Kasaba, a school at Tisca, Lazete, a school at

14 Grbavci, a school at Pilica.

15 The following places were execution sites: Srebrenica, Potocari,

16 an area at the Konjevici intersection and an area all along the route

17 between Konjevic Polje and Nova Kasaba, the Jadar River, the Cerska

18 Valley, the hills near Vlasenica, Lazete, the plateau at the dam of

19 Lazete, the farm at Branjevo.

20 Mass graves have been identified at the following places: Two at

21 Tatar Glogova, three potential ones are near the Nova Kasaba soccer field,

22 one in the Cerska Valley, two at the execution site at Lazete, and at the

23 farm at Branjevo.

24 All of these operations leading to and following the fall of the

25 Srebrenica enclave took place under the supervision of General Ratko

Page 936

1 Mladic, to whose presence at the decisive moments there has been more than

2 sufficient attestation.

3 Upon entering Srebrenica, Mladic spoke to the press in those

4 terms:

5 "That's it. As of 11 July 1995, Srebrenica is Serb. On the eve

6 of another great Serbian feast day, we are offering the city to the

7 Serbian people. Finally, after the rebellion against the Dahijas, the

8 moment has arrived for us to take vengeance on the Turks in this region."

9 Around the UN Compound at Potocari, General Mladic was present on

10 12 July 1995. He was seen giving a short interview to reporters and

11 speaking to the crowd whom he pretended to appease. On his orders, the

12 men were separated from the women and loaded onto buses.

13 At Bratunac on 13 July 1995, Mladic went to see the detainees in a

14 hangar and told them that they would subsequently be exchanged. In the

15 night of 13 to 14 July 1995, when the detainees were evacuated toward the

16 school at Grbavci, Mladic was seen given instructions to his troops.

17 Mladic was also present at Sandici and spoke to a large throng of

18 prisoners held there and reiterated the same reassurances. Mass

19 executions followed his departure.

20 On 13 July 1995, he spoke to a crowd of prisoners before their

21 transfer to Nova Kasaba and participated first in separating a group of

22 some thirty men from among the prisoners.

23 On 14 July 1995, General Mladic was at the school at Grbavci and

24 spoke to the prisoners once again. His departure was immediately followed

25 by the transfer of the detainees towards an execution site. It was at

Page 937

1 that site that he was subsequently seen in the evening by Witness A, one

2 of those who survived the massacre.

3 Specifically in respect of the events at Kravica and the Branjevo

4 farm, which do not appear in the indictment of 16 November but whose

5 occurrence has been abundantly demonstrated during the hearings, the Trial

6 Chamber invites the Prosecutor to supplement the indictment.

7 Pursuant to the scheme that we have decided to follow, we will now

8 start the fourth part, responsibility of the alleged offences: Individual

9 criminal responsibility.

10 The facts presented by the Prosecutor in support of the indictment

11 permit the inference to be drawn that the offences charged were committed

12 in accordance with a political programme and an institutional and military

13 organisation whose background is here summarised. The Trial Chamber will

14 then analyse the seizure of power in several parts of the Republic of

15 Bosnia and Herzegovina and the consequences of that seizure.

16 First, the historical and political context of the offences

17 charged.

18 Bosnia and Herzegovina was one of the six republics in two

19 autonomous regions which constituted the Socialist Federative Republic of

20 Yugoslavia, the SFRY. After the last convention of the league of League

21 of Communists, the LCY, on 20 January 1990, which unanimously abrogated

22 the dominant role of the Communist Party, elections were organised in all

23 the republics. Parliamentary elections were held in Bosnia and

24 Herzegovina in November and December 1990 in which three nationalist

25 parties emerged victorious: the SDA (Party of Democratic Action) for the

Page 938

1 Muslims, the Serbian Democratic Party (SDS), and the Croatian Democratic

2 Union (HDZ).

3 After the elections, the three parties formed a coalition and

4 divided the main institutional positions within the republic among

5 themselves. The president of the republic was a Bosnian Muslim, Alija

6 Izetbegovic; the head of the parliament a Serb, Momcilo Krajisnik; and the

7 Prime Minister, a Croat, Jure Pelivan. Despite the apparent consensus, it

8 seems that the objective of the SDS was different from that of the other

9 parties represented in the republic's institution, it being to seize power

10 in certain regions of the republic.

11 Political preparation: The programme of Serbian - The programme

12 of the Serbian Democratic Party (SDS) of Bosnia and Herzegovina and the

13 concept of a Greater Serbia:

14 The Serbian Democratic Party of Bosnia and Herzegovina was founded

15 - I will now call it the SDS - was founded in July 1990 in anticipation

16 of the elections scheduled in Bosnia and Herzegovina at the end of the

17 year. The themes it used can be understood only in the light of the

18 process of dissolution of the SFRY. Its stated goal was the defence of

19 the rights of the Serbian people in Bosnia and Herzegovina. During the

20 conference which led to the founding of the party in July 1990, Radovan

21 Karadzic, who became its president, insisted on the need to grant total

22 equality to the Serbs in Bosnia and Herzegovina and alleged that the

23 Serbian nation was being destroyed by the system in place and by the

24 so-called genocide continuously being perpetrated Defence the Serbs. To a

25 great extent, the programme was similar to the one supported to all

Page 939

1 Serbian nationalists in the SFRY, which was given a voice in the

2 memorandum of the Serbian Academy of Arts and Sciences in 1986 condemning

3 an alleged bureaucratic shift of the regime in Yugoslavia as well as, and

4 I quote, "physical, political, legal, and cultural genocide" which would

5 be perpetrated in Kosovo against the Serbian population in that province.

6 The nationalist trend expressed in that text was used by the new power in

7 Serbia. The President of the Communist League of the Republic of Serbia,

8 Slobodan Milosevic, at the start of 1987, launched a "anti-bureaucratic

9 revolution" at the time that he initiated a fight against

10 decentralisation. According to Professor Paul Guarde, the expert

11 witness: "Under the mask of anti-bureaucratic revolution was hidden ...

12 the attempt by the Serbs to retake control of the entire Federation which

13 naturally appeared as a threat to all the other peoples." From that date

14 forward, the powers in Serbia organised popular rallies on the struggle

15 against the bureaucracy and in defence of the Serbian nation. The rallies

16 were organised not only in Serbia but also in Croatia and in Bosnia and

17 Herzegovina and were designed to rekindle hatred against the other peoples

18 of Yugoslavia, specifically by recalling the massacres of the Second World

19 War.

20 The SDS supported the idea of keeping the Republic of Bosnia and

21 Herzegovina within the Yugoslav Federation, as can be seen from the

22 position expressed by the SDS deputies on 10 June 1991, but with the

23 notion of turning this to their own advantage. It appearance that the

24 federal system definitively ceased to operate with the blocking of the

25 rotating federal presidency system by the Serbian group within the within

Page 940

1 the Presidency on 17 May 1991. Through the rallies which were organised

2 from 1987 by the leaders of the Republic of Serbia, it was possible to

3 weaken their political opponents not only in republic but also in

4 Montenegro and the two autonomous provinces of Kosovo and Vojvodina. A

5 "Serbian bloc" was established which comprised the republic of Serbia,

6 Montenegro, and the provinces of Kosovo and Vojvodina, whose autonomy was

7 reduced by constitutional changes. Having four out of the eight votes,

8 this "Serbian bloc" prevented the automatic succession of the Croatian

9 member, Stipe Mesic, to the presidency of that body. Confronted by the

10 fact that the federal institutions had ceased to function, Slovenia and

11 Croatia officially proclaimed their independence on 26 June 1991, after a

12 referendum. From the moment the process of dissolution of the federal

13 institutions had begun and the Yugoslav People's Army (JNA) had intervened

14 in Slovenia and Croatia, provoking a violent conflict in the latter, the

15 Bosnian Parliament also declared, on 14 to 15 October 1991, its support

16 for the independence of Bosnia and Herzegovina. It may be considered that

17 the SDS demand in Bosnia and Herzegovina that the federal Yugoslav system

18 be maintained intact was, in this context, designed to establish a new

19 federal State dominated by the Serbs.

20 It appears that the project was inspired by a desire for

21 partition. In a speech in November 1991, Radovan Karadzic asserted, and I

22 quote in part:

23 " ... Let us separate as many things as possible. Like in the

24 days of the Turks. One Serbian town centre, one Turkish town centre;

25 Serbian affairs, Turkish affairs; Serbian cafes, theatres, schools, and

Page 941

1 everything else. This is the only solution."

2 The solution advocated is based on a principle of national

3 exclusion. In the above-mentioned speech, evoking the discrimination of

4 which the Serbs had allegedly been the victims and the supposed risks

5 which lay ahead, especially in Sarajevo, Radovan Karadzic also said, and I

6 quote:

7 "It is not always good to disclose one's plans, but it is not bad

8 to say that we will not give them up because we will complain in public:

9 "You must not sell land to Muslims!" You must not! Because this is a

10 fight to the finish, for our survival, a battle for our living space."

11 The territory of the Republic of Bosnia and Herzegovina was

12 inhabited by a very mixed population. According to the last census in

13 1991, out of a population of 4.4 million inhabitants, the Bosnian Muslims

14 represented 44 per cent, the Serbs 31 per cent, and the Croats 17 to 18

15 per cent. The distribution of the population, however, was extremely

16 complex, and it seems that there were many marriages between members of

17 different nationalities. According to Mr. Kupusovic, Mayor of Sarajevo

18 between 1994 and 1996, called as a witness by the Prosecution, before the

19 war, I quote:

20 "30 per cent of the marriages were mixed ... and the children

21 born of the marriages considered themselves Yugoslav or Bosnian and did

22 not really think that they belonged to a distinct ethnic group."

23 As tensions began to rise, the central authorities in both Bosnia

24 and Herzegovina and Sarajevo attempted to promote the idea of a common

25 State and a common multi-ethnic city.

Page 942

1 The SDS position on the future of Bosnia and Herzegovina, at least

2 from the fall of 1991, was that resort to force in order to modify the

3 organisation of that republic, should it leave the Federation, should not

4 be ruled out. Threats were made against groups or individuals who did not

5 subscribe to the SDS plans, specifically directed at the Bosnian Muslims.

6 In a speech of 14 to 15 October 1991 to the Assembly of Bosnia and

7 Herzegovina, addressing himself to those members of parliament who

8 favoured the independence of the Republic of Bosnia and Herzegovina,

9 Radovan Karadzic declared, and I quote:

10 "You want to take Bosnia and Herzegovina down the same highway of

11 hell and suffering that Slovenia and Croatia are travelling. Be careful.

12 Do nothing that will lead Bosnia to hell and do nothing that may lead the

13 Muslim people to their annihilation, because the Muslim cannot defend

14 themselves if there is war. How will you prevent everyone from being

15 killed in Bosnia?"

16 It appears that the SDS programme ought to realise the consent of

17 a Greater Serbia in the form of a national or ethnically homogeneous

18 territory which, according to Professor Guarde, particularly in Bosnia and

19 Herzegovina, represented an utopian vision which could be achieved only

20 through violence. The precursor of this violence was the conflict in

21 Croatia which coincided with the positions expressed by Radovan Karadzic

22 already analysed. According to a witness, Paul Guarde - this is the

23 quotation:

24 "The notion of Greater Serbia does not necessarily imply ethnic

25 cleansing, but the example of what happened during the war in Croatia

Page 943

1 demonstrates that it did, in fact, imply just that."

2 From that moment on, resort to force seemed to have been envisaged

3 by the president of the SDS as a way of separating the nationally diverse

4 populations. The Trial Chamber must now consider whether there existed

5 military and institutional preparations designed to achieve that plan.

6 Institutional preparations for taking power in Bosnia and

7 Herzegovina - the constitution of a parallel institutional structure and

8 the definition of the territory:

9 Even before the elections of November 1990 were held in the

10 Republic of Bosnia and Herzegovina, a Serbian National Council of Bosnia

11 on Herzegovina was established in Banja Luka. An unofficial body supposed

12 to represent the interests of the Serbs, it was composed of members of the

13 SDS with Radovan Karadzic as its president. Its first decision dated that

14 the Serbian people of Bosnia and Herzegovina would not agree to the change

15 in status of that republic unless it was voted for by referendum of the

16 Serbian people. On 23 October 6 October 1991, the President of the

17 Serbian deputies of the Assembly, Vojislav Maksimovic, invited the

18 representatives of the Serbian parties to attend the session dedicated to

19 establishing a "Assembly of the Serbian people in Bosnia and Herzegovina"

20 which was held the following day. The event followed the vote by the

21 Parliament of Bosnia and Herzegovina on 14-15 October 1991, which declared

22 itself in favour of sovereignty for Bosnia and Herzegovina and its

23 withdrawal from the Yugoslav Federation. On 24 October 1991, the new

24 "Assembly of the Bosnian Serbs," presided over by the former President of

25 the Assembly of Bosnia and Herzegovina, Momcilo Krajisnik, decided that

Page 944

1 the Serbian people had to remain in the joint State of Yugoslavia and

2 stated the following:

3 "Pursuant to the right to self-determination and for the purpose

4 of the full and permanent protection of the rights and interests of the

5 Serbian people, the Serbian people in Bosnia and Herzegovina determine

6 that the Serbian people in Bosnia and Herzegovina remain in the joint

7 State of Yugoslavia, with Serbia, Montenegro, Serbian Autonomous District

8 of Krajina, Serbian Autonomous District of Slavonija, Baranja and Western

9 Srem, and others who have expressed the same wish."

10 By the spring of 1991, the SDS had begun to establish autonomous

11 Serbian regions or district, including the Autonomous Serbian Region of

12 Krajina. None considered itself bound any longer to the power of the

13 central institutions of Bosnia and Herzegovina. It appears that the

14 establishment of an institutional structure parallel to the legal central

15 power also included a new definition of the territory. During the

16 hearings, Professor Guarde stated: So long as Yugoslavia existed as a

17 federal State, the purpose of the Serbian nationalists was merely to

18 reinforce centralisation in the State. As that ideal began to recede ...

19 the notion developed that it might be wise to accommodate oneself to the

20 fact that there were borders between the republics and that, consequently,

21 their position should be modified. That was when the idea of a

22 redistribution of territories began to take shape."

23 By a similar process, Croatia also witnessed the formation of

24 Serbian autonomous regions on its territory, which are referred to in the

25 decision of the Assembly of the Serbian People of Bosnia and Herzegovina.

Page 945

1 The decision rather clearly expresses the project under consideration,

2 that is to say, the establishment of autonomous regions not under the

3 control of each of those republics and a union of those regions in a new

4 Yugoslav State.

5 On 24 October 1991, the Assembly of the Serbian People in Bosnia

6 and Herzegovina decided that it would also authorise several people as its

7 representatives within the bodies of the Federation and in its relations

8 with other States and international organisations and institutions.

9 Radovan Karadzic, President of the SDS, was given the responsibility of

10 representing the "Assembly" at the Presidency of the Socialist Federative

11 Republic of Yugoslavia. On 21 November 1991, the Assembly of the Serbian

12 People of Bosnia and Herzegovina adopted a decision on "the verification

13 of the proclaimed Serbian autonomous district in Bosnia and Herzegovina."

14 This referred to a territorial delineation of the various regions which

15 remained imprecise and which constituted "federal units in the joint State

16 of Yugoslavia." One month later, the same body decided to create the

17 "Republic of the Serbian People of Bosnia and Herzegovina" and to set up

18 a council of Ministers for it. On 9 January 1992, the National Assembly

19 of the Serbian people in Bosnia and Herzegovina was proclaimed. The first

20 article of this declaration includes the definition of the territory of

21 the "Republic." It included the autonomous regions and district, the

22 "other Serbian ethnic entities" and, last, "the regions in which the

23 Serbian people remained in the minority due to the genocide conducted on

24 it in World War II." For its authors, this expression leaves the

25 definition of the territory broad and revert to a powerful national myth

Page 946

1 already invoked in Radovan Karadzic's speech when the SDS was being

2 established and to which reference has already been made. Article 2 of

3 the proclamation specified that "the Republic" shall remain within "the

4 Yugoslav federal State." The Constitution of the republic was proclaimed

5 on 28 February 1992. Article 6 states that "citizens of the republic have

6 the citizenship of the republic and of Yugoslavia." Article 9 asserts

7 that "the capital of the republic is Sarajevo." The proclamation of the

8 constitution was made the day before the referendum on independence which

9 was organised on the territory of the Republic of Bosnia and Herzegovina

10 at the request of the European Community. Out of 63 per cent of the

11 voters, more than 90 per cent of them declared themselves in favour of

12 independence for the republic. The voting was boycotted by the SDS.

13 Now, local control:

14 In addition to the centralised parallel institutional structure

15 which was based on a broad definition of the territory in question, the

16 SDS worked on establishing an institutional network on the local level

17 which first took shape with the Serbian autonomous district and regions.

18 On 19 December 1991, confidential instructions were issued by the SDS to

19 set up local crisis committees. The instructions were to apply to "the

20 entire territory of Bosnia and Herzegovina, that is, to all local communes

21 where the Serbian people live," whether or not the Serbian population was

22 in the majority. The local crisis committees were composed of people in

23 the municipality who were members of the SDS, in particular, members of

24 the police. They were required to set up parallel municipal bodies, to

25 prepare to exercise control over personnel, facilities, and material and

Page 947

1 to work with the armed forces command. Information and propaganda had to

2 be "intensified for the purposes of informing the Serbian people rapidly

3 and thoroughly about the political and security conditions in the

4 municipality." The final provisions explained that "the roles, measures,

5 and other activities indicated in those instructions applied only on

6 orders from the president of the SDS in Bosnia and Herzegovina, according

7 to a secret procedure set into place for that purpose." The local

8 structures were linked by a secret communications network, as shown in the

9 confidential directives from the president of the SDS in August 1991 and

10 in March 1992.

11 Now it would be appropriate to move on to the use of the media and

12 propaganda.

13 The media seemed to have played a vital role in the rise and

14 development of nationalism and the crisis in the former Yugoslavia.

15 Around 1990, the massacres of the Second World War were continuously

16 recalled in the press. The idea that there was an international plot

17 against the Serbs was omnipresent and based on a rewriting of history.

18 The Serbs who practised the Orthodox religion and whose church has its own

19 patriarch are said to have always been the target of great multinational

20 empires, such as the Ottoman Empire and the Habsburg Empire and have been

21 dominated by religions like Islam and Catholicism which are also

22 international. In addition, they are said to have suffered from the

23 domination of international communism through the regime of Marshall

24 Tito. The government, in national opposition presses, joined forces to

25 develop nationalist themes.

Page 948

1 The importance of controlling the media is illustrated by Radovan

2 Karadzic in the above-mentioned speech in November 1991. He said:

3 "We cannot have a radio chairman or a newspaper editor-in-chief

4 who does not implement the policy of the party in power. Those are the

5 functions of a State ... I am, therefore, asking you to oust this week,

6 through an Executive Committee decision, all radio chairman and

7 editors-in-chief who do not listen to you and who do not respect the

8 official policy. In all municipalities where we have the radio, we have

9 power."

10 The material submitted in the case file supports the inference

11 that the institutional control at the level of the republic and the

12 municipalities was supplemented by military preparations.

13 This brings us now to military preparations for the takeover by

14 the SDS in Bosnia and Herzegovina.

15 Since 1991, contacts seemed to have been established between the

16 SDS and the Yugoslav People's Army, the JNA, as well as the

17 representatives of the "Serbian bloc" within the federal institutions.

18 After the latter became paralysed, the army had no civil authority over it

19 and for a while became an autonomous force. From mid-1991 to 1992, the

20 JNA, whose officer corps was mainly Serbian but whose reserve force was

21 multinational, became a force entirely comprised of Serbian military

22 personnel. The change in the composition of the army coincided with the

23 change in its role. In a book published in Belgrade in 1993,

24 General Kadijevic, the Federal Secretary of National Defence and Chief of

25 staff of the Supreme Command of the Republic of Yugoslavia, of its armed

Page 949

1 forces, rather, between 15 May 1988 and 6 January 1992, explained that the

2 option chosen by the JNA from spring 1991 onwards, meant in practice:

3 "protecting and defending the Serb people outside of Serbia and

4 assembling the JNA the JNA within the borders of the future Yugoslavia."

5 Within this new context, the first operations of the JNA were

6 carried out in Slovenia and then this Croatia, particularly at Vukovar.

7 This Trial Chamber has reviewed several events related to the capture of

8 that city by the JNA. In particular, there's a decision that was

9 delivered on the 3rd of April of this year.

10 Now, according to General Kadijevic:

11 "The principal ideas behind the basic concept for deploying the

12 JNA in the Yugoslav region were total defeat of the Croatian army, if the

13 situation so allowed ... full coordination with the Serb insurgents in the

14 Serbian Krajina; completion of the pull-out from Slovenia of remaining JNA

15 forces; fully awareness of the role of the Serb Nation in Bosnia and

16 Herzegovina would be instrumenting to the future of the Serb Nation at

17 large. The location of the JNA forces was to be adjusted according lie."

18 Now, close contacts between the JNA and the SDS party were brought

19 out during the Tadic trial by several high-ranking military officers who

20 were serving in that army at the time. In respect of coordination in the

21 military preparations, these contacts might permit clarifying the official

22 requests of the parallel institutions created by the SDS in Bosnia and

23 Herzegovina. On 11 December 1991, the Serbian People's Assembly in Bosnia

24 and Herzegovina asked the JNA to just whatever means it had available to

25 protect the territories of Bosnia and Herzegovina considered Serbian as

Page 950

1 part of the State of Yugoslavia.

2 From the material submitted to the Trial Chamber at this stage, it

3 seems that the military preparations for the takeover by the SDS in Bosnia

4 and Herzegovina comprised two types of action: armament and logistic

5 support for the Serbian populations in the regions controlled by the SDS

6 authorities, which underlay the preparation for a more direct military

7 intervention by the JNA. At the beginning of September 1991, in a

8 confidential note to the President of the SDS, Radovan Karadzic, Velibor

9 Ostojic, an SDS leader, reported on the conversation that he'd had with

10 high officials of the government of the Republic of Serbia. The

11 discussions and agreements seem to have focused mainly on arms supply and

12 communications material. It appears that during 1991, some of the units

13 of the Territorial Defence, composed of reservists which were under the

14 partial command of the authorities of the federated republics were obliged

15 to surrender their military equipment to the JNA, which allegedly deprived

16 the non-Serbian populations of their traditional means of defence. The

17 weapons which had been surrendered were allegedly distributed by the JNA

18 to other units of the Territorial Defence dominated by the Serbs. It

19 appears that starting in the spring of 1992, a large-scale distribution of

20 weapons to the police forces began. This is confirmed by the words of the

21 President of Serbia, Slobodan Milosevic, who said in May 1993:

22 "In the past two years, the republic of Serbia, by assisting

23 Serbs outside Serbia, has forced its economy to make massive efforts and

24 its citizens to make substantial sacrifices."

25 Further on:

Page 951

1 "Most of the assistance was sent to people and fighters in Bosnia

2 and Herzegovina ... following a year of war and long-term peace

3 negotiations, the Serbs have gained their freedom and have regained the

4 quality taken from them when the war started. Most of the territory in

5 the former Bosnia-Herzegovina belongs now to Serb provinces. This is a

6 sufficient reason to halt the war."

7 And further on:

8 "Serbia has lent a great deal of assistance to the Serbs in

9 Bosnia. Owing to the assistance, they have achieved most of what they

10 wanted."

11 The JNA also seemed to be preparing for a more direct military

12 intervention in Bosnia and Herzegovina. After the war in Croatia, JNA

13 troops and equipment were massively redeployed in Bosnia and Herzegovina.

14 According to General Kadijevic, who has already been quoted:

15 "Assessing the further development of events, we felt that after

16 leaving Croatia, we should have strong JNA forces in Bosnia and

17 Herzegovina."

18 Several testimonies in the case file give credence to the thesis

19 of the training of paramilitary groups by the JNA.

20 Now, all this material shows that preparations were being made in

21 Bosnia and Herzegovina in order to carry out the SDS programme. The

22 preparations were carried out at several levels. An institutional

23 structure ensuring the establishment of a cohesive chain of command was

24 put into place by the SDS in 1991 and early 1992. Furthermore, by the

25 fall of 1991, the SDS was in contact with the federal authorities

Page 952

1 dominated by the republic of Serbia and the Yugoslav People's Army, the

2 JNA. In other words, by arming the Serbian population and organising a

3 more direct JNA intervention, the contacts permitted the SDS to take power

4 in the territory of Bosnia and Herzegovina.

5 We're now going to address that under Part B, the seizure of power

6 and implementation of ethnic cleansing.

7 We'll begin with the taking of power by the SDS.

8 The material tendered to the Chamber by the Prosecutor justifies

9 the finding that between March and May 1992, SDS forces, with wide-ranging

10 military support from the JNA, engaged in attacks against certain

11 strategic points of Bosnia and Herzegovina, in particular, Foca, Bosanski

12 Samac, Vlasenica, Brcko and Prijedor, where the majority of the population

13 was non-Serb. These large-scale military offensives were usually

14 conducted in collusion with paramilitary units, such as groups led by

15 Zeljko Raznjatovic, alias Arkan; Vojislav Seselj, the White Eagles at

16 Foca; and the Grey Wolves at Bosanski Samac, which had been formed with

17 the complicity of the Federal Ministry of the Interior and had the support

18 of SDS members. These offensives gave the SDS control over the peripheral

19 territory of Bosnia and Herzegovina, and during the same period, the JNA

20 initiated the military preparations for the siege of Sarajevo.

21 A series of maps produced at the hearing showed that the zones

22 held in November 1992 by the military forces in the SDS administration in

23 Bosnia and Herzegovina corresponded to a large extent to the territories

24 which had been declared autonomous by the SDS as specified by the Assembly

25 of the Serbian people January People in Bosnia and Herzegovina on 21

Page 953

1 November 1991. Some zones were taken, though they were not among the

2 autonomous territories; thus for instance, the town of Brcko and the

3 municipalities in the Drina Valley, including Bratunac and Srebrenica.

4 According to Professor Paul Guarde, "The additional advances were

5 especially bloody" since it was in those areas that the policy of

6 persecution was the most violent.

7 From May 1992 on, there was a change within the JNA. It was

8 reorganised and a specific military structure, which was linked directly

9 to the republic of the Serbian people of Bosnia and Herzegovina, was

10 established. At the same time, according to General Kadijevic:

11 "The JNA provided the basis for the formation of three armies,

12 the army of the Federal Republic of Yugoslavia, the army of the Republic

13 of Srpska, and the army of the Republic of Serbian Krajina."

14 He went on to note - this is another quote:

15 "The units and headquarters of the JNA formed the backbone of the

16 army of the Serb Republic, complete with weaponry and equipment."

17 According to General Kadijevic, the army of the Serbian Republic

18 formed the same functions as those of the JNA:

19 "In Bosnia and Herzegovina, first the JNA and later the army of

20 the Republic of Srpska, which the JNA put on its feet, helped to liberate

21 Serb territory, protect the Serb Nation, and create the favourable

22 military pre-conditions for achieving the interests and rights of the Serb

23 Nation in Bosnia and Herzegovina by political means, to the extent and

24 under the conditions that international circumstances allowed."

25 Some of the material in the case file would tend to confirm those

Page 954

1 statements and lend credence to the view that the army of the Republic of

2 the Serbian People of Bosnia and Herzegovina, which became the army of the

3 Republic of Srpska, would be but a new name for the former Yugoslavia

4 military structure, which continued to exist in Bosnia and Herzegovina.

5 In this respect, the instructions for withdrawal would seem to

6 amount mainly to a reshuffling of mean so that the majority of the members

7 of the Serb republic would be from Bosnia on Herzegovina. The federal

8 Yugoslav army and the Belgrade political authorities apparently went on

9 exercising major control over the army of the Republic of Srpska, which

10 seemingly was sometimes even exercised against the Bosnian Serb

11 administration. There is evidence that the Yugoslav army went on

12 providing materiel and equipment, as well as also intervening directly in

13 Bosnia and Herzegovina after May 1992.

14 The offensive of the Serbian forces in Bosnia and Herzegovina

15 enabled SDS-controlled parallel Serbian structures to be established very

16 rapidly in municipalities, that is, in particular, set up Crisis Staffs

17 which seem already to have been extent. In some towns, the Serbian forces

18 did not seize power but exerted constant military pressure as, for

19 example, in the siege of Sarajevo. The Chamber has not been seized by the

20 Prosecutor of the entirety of the military offensive and of the political

21 seizure of power conducted by the Serbian forces in Bosnia and

22 Herzegovina. It does appear, however, relative to the events subject to

23 its review, that a deliberate and systematic line of conduct called

24 "ethnic cleansing" has been substantiated, which shall now be analysed.

25 The policy of ethnic cleansing:

Page 955

1 In the spring of 1992, throughout the municipalities where the

2 Prosecutor carried out investigations relating to the first indictment,

3 that is to say, Foca, Bosanski Samac, Vlasenica, Brcko, and Prijedor, the

4 same deliberate line of conduct was adopted. On the basis of the case

5 file, it may be considered that in each of these municipalities, the SDS

6 Crisis Staffs made themselves the true holders of power. They issued

7 ultimatums ordering the non-Serbian inhabitants of villages to lay down

8 their arms and to pledge allegiance to the new authorities.

9 Discriminatory administrative measures were established and arbitrary

10 murders and rapes were committed. The non-Serbian men and women, or those

11 not having pledged allegiance, were separated and then interned in

12 detention facilities under the control of the SDS police or military

13 authorities. It was in such facilities that the atrocities described in

14 III above were committed. Among the camps may be mentioned Omarska's

15 Commander, Zeljko Meakic; Keraterm Commander, Dusko Sikirica; Trnopolje

16 Commander, Slobodan Kuruzovic; Luka Commander Goran Jelisic; Manjaca

17 Commander, Bozidar Popovic; Susica Commander, Dragan Nikolic; KP Dom Foca

18 Commander, Milorad Krnojelac. People not loyal to the SDS were deported

19 following their internment or transferred to other camps. Those who were

20 not detained were forced to flee, abandoning their property. The extent

21 of the damage and the determination systematically to destroy sacred

22 symbols devoid of any military significance or outside combat zones were

23 part of a "memory-cide," as some put it, a policy of "cultural

24 cleansing ... aiming at eradicating memory." That policy resulted in a

25 radical change in the make-up of the population. The municipality of Foca

Page 956

1 had 40.513 inhabitants, of whom 51.6 per cent were Muslim Bosnians.

2 According to the Serbian authorities, there were only nine Muslims in the

3 city in August 1992. Bosanski Samac had 32.835 inhabitants, of whom 45

4 per cent were Croats, 41 per cent Serbs, and 7 per cent Muslims.

5 According to the Prosecutor's office, 10 Croats and 250 Muslims were still

6 there in March 1995. In Prijedor municipality, 88 per cent of the Muslim

7 population of about 49.000 people was killed or deported. The estimates

8 of the United Nations High Commissioner for Refugees, the HCR, presented

9 by Dr. James Gow, showed that in July 1994, about 750.000 non-Serbs were

10 deplaced from Northern and Eastern Bosnia, the population of the Republic

11 of Bosnia and Herzegovina in 1991 being some 4.4 million. This policy

12 apparently went on throughout the conflict, as attested to by the creation

13 by the Security Council of the United Nations of safe areas to halt the

14 forced departures and the policy of ethnic cleansing. At Srebrenica, the

15 takeover of the enclave in July 1995 entailed the execution or deportation

16 of its 40.000 inhabitants.

17 Now, the material in the case file demonstrates that the takeover

18 by the SDS and its military allies in Bosnia and Herzegovina was followed

19 by a systematic implementation of that policy. This was not coincidental,

20 since it corresponded to the project of the SDS, expressed as early as

21 1991, to establish a new entity inhabited homogeneously by Serbs and which

22 might be part of a new federal State dominated by the republic of Serbia.

23 Radovan Karadzic, in an interview published on 16 July 1995, said:

24 "Our number one priority is to be part of Serbia; our second

25 priority is to be part of Yugoslavia as a federal unit."

Page 957

1 He went on to say:

2 "The Muslim enclaves in Bosnia are not viable and must

3 disappear. Otherwise, we will make them disappear by force." And further

4 on, "The Muslims and the International Community must accept the reality

5 that this country is totally Serbian."

6 These plans illustrate fully the spirit and the political means of

7 the SDS in Bosnia and Herzegovina, a policy of ethnic cleansing.

8 According to Professor Guarde:

9 "Ethnic cleansing is a practice which means that you act in such

10 a way that in a given territory, the members of an ethnic group are

11 eliminated, aiming that a given territory will be ethnically pure. In

12 other words, that the territory would contain only members of the ethnic

13 group that took the initiative of cleansing the territory."

14 According to Elizabeth Rehn, the amicus curiae already quoted, the

15 policy practised "is aimed at the removal of a population belonging to a

16 given ethnic group and necessarily calls for quite serious methods."

17 Now, those methods of ethnic cleansing include, in particular,

18 murder, sexual assault, intimidation, harassment, and the destruction of

19 sacred and cultural buildings. Such acts have been described in Part III

20 above.

21 In the light of the material tendered at the hearings, the Chamber

22 considers, however, that certain features of the policy of ethnic

23 cleansing warrant elaboration.

24 The Chamber would first examine the siege and shelling of and

25 sniping in cities, and in particular, in capital of Bosnia and

Page 958

1 Herzegovina, Sarajevo. On 19 April 1992, that is to say before the siege,

2 the Municipal Assembly of Sarajevo adopted a communique stating in

3 particular:

4 "The city of Sarajevo, with more than five centuries of history

5 marked by the coexistence of a multi-cultural, multi-confessional, and

6 multinational community, is indivisible."

7 During the whole siege of Sarajevo, the civilian population was

8 subjected to shelling, which concentrated on civilian gatherings, and to

9 selective sniping at selected individual victims. Further, the minimum

10 conditions for subsistence imposed on the inhabitants seem to have

11 contributed to the demoralisation and gradual weakening of the population,

12 which was ethnically mixed, continues according to witness Kupusovic,

13 former Mayor of Sarajevo, nearly 40.000 Sarajevan Serbs refused the

14 authority of the SDS and remained in the city throughout the siege. At

15 Sarajevo, it would seem that it was the example of peaceful coexistence

16 between the various groups which was targeted, as expressed in the plans

17 for petition voiced by Radovan Karadzic. Thus in the aforequoted

18 interview, he also affirmed, "Sarajevo will become two cities, two

19 neighbouring cities, if the Muslims want it so, or if not, a Serbian city,

20 because the city was built in a Serbian area." Further on, "We insist on

21 half the city becoming Serbian or we will take over the entire city."

22 Only the basis of the material submitted to the Chamber, the siege

23 should be assessed in the context of the policy had ethnic cleansing. It

24 has all the features of an instrument aimed at expelling nub Serbs and

25 Serbs rejecting the SDS plan, and thereby to make Sarajevo, like other

Page 959

1 towns in Bosnia and Herzegovina, an ethnically homogenous territory.

2 Further, the Chamber considers that among the methods of ethnic

3 cleansing, sexual assaults warrant special attention owing to their

4 systematic nature and the gravity of the suffering thereby inflicted on

5 civilians. The Chamber wished to hear an amicus curiae in relation to

6 this issue as a whole.

7 Now, in his indictment of 25 July 1995, the Prosecutor focused on

8 the sexual assaults committed in the detention facilities of the Bosnian

9 Serbs. Camp guards or commanders, soldiers, members of the police, of

10 paramilitary groups and even civilians had access to those camps and

11 allegedly perpetrated sexual assaults on civilian Bosnian Muslim and

12 Bosnian Croat detainees. It seems to the Chamber, however, that sexual

13 assaults in the camps constitute but one aspect of a broader practice.

14 Sexual assaults were committed by individual groups before the conflict

15 broke out in the context of looting and intimidation of the population.

16 During military attacks on given gatherings, there was sexual abuse, in

17 particular, public rapes. It seems that some women were particularly

18 affected by the practice of sexual assault. Some camps were especially

19 devoted to rape, with the aim of forcing the birth of Serbian offspring,

20 the women often being interned until it was too late to have an abortion.

21 It would seem that there were also hostels or private homes where women

22 were raped for the soldiers' entertainment.

23 On the basis of the features of all these sexual assaults, it may

24 be inferred that they were part of a widespread policy of ethnic

25 cleansing. The victims were mainly non-Serb civilians, the have a

Page 960

1 majority being Muslims. Sexual assaults occurred in several regions of

2 Bosnia and Herzegovina in a systematic fashion and using recurring

3 methods, e.g. gang-rape, sexual assault in camps, use of brutal means,

4 together with other violations of international humanitarian law. They

5 were performed together with an effort to displace civilians and such as

6 to increase the shame and humiliation of the victims and of the community

7 they belonged to in order to force them to leave. It would seem that the

8 aim of many rapes was enforced impregnation. Several witnesses also said

9 that the perpetrators of sexual assault, often soldiers, had been given

10 orders to that effect and that the camp commanders and officers had been

11 informed thereof and participated therein.

12 Lastly, the Chamber considers it important to mention an inherent

13 aspect of the policy of ethnic cleansing in Bosnia and Herzegovina,

14 confirming the conclusions of the reports by the first Special Rapporteur

15 of the United Nations Commission on Human Rights, Mr. Tadeusz Mazowiecki,

16 referred to before the Chamber by his successor, Mrs. Elizabeth Rehn:

17 "Ethic cleansing indeed seems to be not a by-product of the war initiated

18 by the SDS and its military allies but, rather, its aim.

19 Now we're going to have a look at the position of the -- position

20 of the accused and the type of responsibility incurred.

21 The description of the offences has demonstrated that those

22 committing them were part of an institutional, political, and military

23 organisation whose purpose was to establish a territory with a homogenous

24 population and which covered all the regions of Bosnia and Herzegovina

25 held by the Bosnian Serb administration.

Page 961

1 According to the two indictments, the offences charged were

2 committed by the military and police personnel obeying the orders of the

3 Bosnian Serb administration. Both indictments indicate that the

4 perpetrators were acting under the control, command, or direction of

5 Radovan Karadzic and Ratko Mladic. All of the charges would therefore

6 involve the individual criminal responsibility of those in superior

7 authority. Two provisions of the International Tribunal's Statute are

8 germane in this connection. Article 7(1):

9 "A person who planned, instigated, ordered, committed, or

10 otherwise aided and abetted in the planning, preparation, or execution of

11 a crime referred to in Articles 2 to 5 of the present Statute shall be

12 individually responsible for the crime."

13 And Article 7(3):

14 "The fact that any of the acts referred to in Articles 2 to 5 of

15 the present Statute was committed by a subordinate does not relieve his

16 superior of criminal responsibility if he knew or had reason to know that

17 the subordinate was about to commit such acts or had done so and the

18 superior failed to take the necessary and reasonable measures to prevent

19 such acts or to punish the perpetrators thereof."

20 In all the counts of the indictment of 25 July 1995, with the

21 exception of the first (genocide), the Prosecutor refers to both paragraph

22 1 and 3 of Article 7. For the charge of genocide in Count 1, the

23 individual criminal responsibility of the accused would be implicated only

24 through the operation of paragraph 3; that is to say that they would be

25 responsible for having known or had reason to know that their subordinates

Page 962

1 were committing genocide and not taking necessary and reasonable measures

2 to prevent such acts or to punish the perpetrators. The indictment of 16

3 November 1995 stipulates that the accused are individually responsible for

4 the prohibited acts pursuant to Article 7(1), but "also, or alternatively"

5 pursuant to Article 7(3).

6 The Chamber now turns to assess the individual criminal

7 responsibility of Radovan Karadzic and Ratko Mladic. It will examine the

8 position of each of the accused in the overall organisation described with

9 a view to determining their institutional functions and how they exercised

10 their powers.

11 Radovan Karadzic:

12 Radovan Karadzic has been the President of the Serbian Democratic

13 Party (SDS) since its inception in July 1990. He was thus vested with the

14 executive power of the party's activities. According to the regulation of

15 the SDS, the president is one of the party's six main organs. He is

16 elected by the Assembly and his functions are to coordinate the work of

17 the party's organs, to convene the Main and the Executive Boards, to

18 oversee the implementation of the party's platform and objectives, as well

19 as to represent the SDS. He is an ex officio president of the Main Board,

20 the party's supreme organ when the Assembly is not in session, consisting

21 of 57 members and having functions such as preparing all the acts on which

22 the Assembly votes, adoption of any decision delegated bit Assembly in

23 executing the Assembly's decisions. The party's president is also the

24 head of the 11-member Executive Board which prepares and executes the

25 decisions of the Main Board, implements all party policy, and deals with

Page 963

1 everyday affairs. His powers were, mover, expanded during 1991.

2 The SDS is also built upon a vast organisation spread over the

3 territory of Bosnia and Herzegovina, at the regional, subregional,

4 municipal, and communal level. The local organs have some autonomy in

5 assessing the political situation in the territory of their competence and

6 for decisions pertaining to personnel matters. The central organs, and

7 the president in particular, retain the party's political power. They

8 exercised it by adopting decisions and dispatching orders or instructions

9 to subordinates. The principles of discipline, cooperation, and

10 coordination were deemed necessary for the SDS's functioning and an

11 efficient system for the transmission of information between the party's

12 various organisational levels was developed (See Part 4.A above).

13 Radovan Karadzic also holds a central position in the whole

14 parallel structure set up by the SDS in Bosnia and Herzegovina. For

15 instance, when on 13 October 1990 a Serbian Assembly of Bosnia and

16 Herzegovina established a Serbian National Council to guarantee the civil

17 and political equality of the Serbs of Bosnia and Herzegovina, Radovan

18 Karadzic was appointed as president. On 24 October 1991, Radovan Karadzic

19 was entrusted with representing the Bosnian Serb people vis-a-vis the

20 Yugoslavia Presidency, and a decision of 21 November 1991 of the Assembly

21 of the Serbian People of Bosnia and Herzegovina authorised him in

22 particular to negotiate with the Muslim and Croatian people to arrange

23 future living together in the territory of Bosnia and Herzegovina. On 19

24 November 1991, an SDS Crisis Staff instructed the party's municipal

25 councils to set up local Crisis Staffs made up of party members,

Page 964

1 accordingly coming under the orders of its central organs and, in

2 particular, of the president.

3 The decisive step in the institutional preparation of the seizure

4 of power by the Serbs of Bosnia and Herzegovina occurred on 28 February

5 1992 with the proclamation of the Serbian Republic of Bosnia and

6 Herzegovina. In this phase again, Radovan Karadzic was quickly to assume

7 a position of authority within the parallel power structure.

8 Since 12 May 1991, Radovan Karadzic has been the president of what

9 was then called the Serbian Republic of Bosnia and Herzegovina, a

10 self-styled republic. On that day, three people were elected members of

11 the Presidency of the republic by the Assembly of the Serbs of Bosnia and

12 Herzegovina: Radovan Karadzic, Biljana Plavsic, Nikola Koljevic. Within

13 that Presidency, Radovan Karadzic was elected president. Several months

14 later, the Assembly would elect a President of Republika Srpska directly.

15 As president, consistent with the Constitution of that entity, he assumed

16 functions typical of a head of State, including representing the

17 republic. Following an amendment to the Constitution on 12 May 1992, the

18 president became the commander-in-chief of the army and to appoint,

19 promote, and dismiss his officers. These constitutional powers were most

20 extensive in the event of war or of an immediate danger of war. He may

21 then legislate by decree.

22 However, the position of authority of the president of that

23 republic must be assessed in the light of other legislative texts granting

24 him considerable power in the Bosnian Serb political and military

25 administration. He presides ex officio over the National Security

Page 965

1 Council, which was established by the Assembly of the Serbian people on 27

2 March 1992 with extensive powers over security issues pertaining to the

3 Serbian people of Bosnia and Herzegovina. The Bosnian Serb Act on

4 People's Defence on 28 February 1992 grants him the role of ensuring the

5 unity and indivisibility of the national defence system. In the event of

6 war or any other emergency, he directs the use of the police forces and

7 the deployment of Territorial Defence units. Pursuant to the Act on

8 Internal Affairs adopted on the same day, in the event of an emergency,

9 the mobilisation of the reserve police forces may be ordered by the

10 president of the republic as well.

11 Thus Radovan Karadzic, as President of the SDS and the then of the

12 so-called Serbian Republic of Bosnia and Herzegovina, acceded to broad

13 institutional powers making him the head of a political organisation of

14 the armed forces throughout Bosnian Serb-held territory of Bosnia and

15 Herzegovina.

16 The Trial Chamber shall now consider the effective exercise of

17 those powers by, and the political decisions of, Radovan Karadzic, on the

18 basis of documents tendered.

19 In his public appearances, the SDS president rapidly took on a

20 polemical tone. He advocated a Bosnian Serb republic united with the

21 other Serbian lands and the separation between the country's

22 nationalities. He called the Muslims the people they should be defending

23 themselves against in order to preserve "vital space" and speaks of

24 "bloody and hard" war. In the speech he gave on 14 and 15 November 1991,

25 already cited in Part 4.A, he said that in a war, the Muslims were

Page 966

1 defenseless and that they might disappear.

2 The Prosecutor tendered to the Chamber various documents signed by

3 Radovan Karadzic containing orders or instructions to the SDS's various

4 bodies. Radovan Karadzic often stressed the need for strong and

5 centralised control of the party's activities. The SDS's whole structure

6 tended to ensure such control, as indicated above.

7 On 18 October 1991, Radovan Karadzic declared an emergency for all

8 party organs, whereupon daily orders were addressed to the municipal

9 councils. In his capacity as president of the SDS, he represented the

10 party vis-a-vis Bosnian and foreign authorities.

11 As president of the self-proclaimed republic of the Serbs of

12 Bosnia and Herzegovina, Radovan Karadzic made full use of his powers as

13 commander-in-chief of the Bosnian Serb army. He placed the army and

14 police under a unified command, promoted officers who had carried out

15 victorious operations during the war, and supported publicly the actions

16 of his military subordinates. It bears mentioning that following a

17 decision by the interim Presidency on 15 April 1992, as confirmed by the

18 Assembly on 12 May, 1992, a general and standing mobilisation of the

19 Territorial Defence system over the whole territory of Bosnia and

20 Herzegovina was ordered. By virtue of his institutional powers, Radovan

21 Karadzic had control over the exceptional measures taken in the context

22 immediately upon taking office. In addition, Radovan Karadzic himself

23 stated he was the head of the Bosnian Serb administration and was treated

24 as such by the officers under his orders and the other party to the

25 conflict. He also signed numerous agreements on behalf of the Bosnian

Page 967

1 Serb administration, which were all subsequently executed by the latter's

2 authorities.

3 Furthermore, Radovan Karadzic knew the obligations under

4 international humanitarian law and had been informed of the many United

5 Nations resolutions condemning the violations of the international

6 humanitarian law committed in Bosnia and Herzegovina. A witness said, in

7 particular, that Radovan Karadzic was aware of the living conditions in

8 the detention facilities run by the Serbian forces in Bosnia and

9 Herzegovina and that a large number of transfers of prisoners between the

10 various camps occurred in direct execution of his orders, which would show

11 his command and control over these camps. Radovan Karadzic's control over

12 his troops in relation to the shelling of civilian gatherings has been

13 attested to. His statements in connection with the hostage taking of

14 United Nations peacekeepers has demonstrated his knowledge of those acts

15 and that they were carried out in compliance with his orders. Lastly, it

16 has been sufficiently established that Radovan Karadzic took no measure

17 whatsoever to punish his subordinates who committed grave breaches of

18 international humanitarian law.

19 With regard more specifically to the events at Srebrenica, Radovan

20 Karadzic did not hesitate to tell the press that the Muslim enclaves had

21 to disappear, even if it was necessary to resort to force, in a way

22 denying that civilians had been targeted and then saying that he was

23 satisfied that his own instructions had been executed when the safe area

24 was taken.

25 Likewise, with respect to the siege of Sarajevo and the killing of

Page 968

1 several thousand inhabitants, the evidence submitted on video by the

2 Prosecutor confirms the direct presence and control of Radovan Karadzic.

3 Radovan Karadzic's central role in the political and military

4 preparation of the takeover of the Serbs of Bosnia and Herzegovina is

5 clearly apparent. All of the evidence and testimony tendered by the

6 Prosecutor shows that since July 1990, Radovan Karadzic has been the

7 unchallenged leader of the Bosnian Serbs. His actions and statements

8 demonstrate not only that he was abreast of his subordinates' doings, but

9 also notably that he endorsed their behaviour, that he participated from

10 the first moment on in the planning of the policy of ethnic cleansing in

11 Bosnia and Herzegovina and that he himself was in a position to order the

12 Bosnian Serbs' operations which led to the commission of prohibited acts.

13 It has been ascertained that Radovan Karadzic always held a

14 position of authority in the Serbian administration of Bosnia and

15 Herzegovina and that effectively exercised his functions. His career

16 demonstrates a constant ascent to the key positions to seize power,

17 initially at the head of the SDS and then in the various parallel power

18 structures set up by the Bosnian Serbs.

19 Now the Trial Chamber will review the position and, therefore,

20 responsibility of Ratko Mladic.

21 Ratko Mladic was a career officer in the Yugoslav People's Army,

22 the JNA, until May 1992. From 1989 to 1991, he served as the head of the

23 Education Department of the Third Military District of Skopje. From

24 January to June 1991, he was the Deputy Commander of the Pristina Corps in

25 Kosovo. In June 1991, he was sent to Knin as Commander of the Knin Corps

Page 969

1 during the fighting against the Croatian forces. Two months after his

2 arrival in Knin, his combat exploits gained him a promotion to the rank of

3 Brigadier General.

4 In April and May 1992, the JNA was fighting in Bosnia and

5 Herzegovina. Meanwhile, on 19 May 1992, the JNA withdrew officially from

6 the territory of Bosnia and Herzegovina. In fact, it involved but

7 organising or reorganising the troops. The JNA units in Bosnia were to

8 comprise henceforth almost exclusively Serbian soldiers from that

9 republic. All the units and their equipment stayed in Bosnia.

10 It is in that context that Ratko Mladic was appointed Chief of

11 Staff of the Second Military District of Sarajevo, succeeding Generals

12 Stankovic and Kukanjac who were recalled to Belgrade. Once the official

13 withdrawal of the JNA took place, Ratko Mladic, in all likelihood in close

14 liaison with the build authorities, began setting up an autonomous command

15 structure for Bosnia and Herzegovina. He himself apparently described in

16 process in detail in an interview with the magazine "Knin" of Belgrade.

17 On 12 May 1992, the Assembly of the Serbian People of Bosnia and

18 Herzegovina decided to create the army of the Serbian Republic of Bosnia

19 and Herzegovina and appointed Lieutenant General Ratko Mladic its chief of

20 staff. This event did not involve any major changes in the way the

21 Bosnian army was organised and operated. All the financing of the army,

22 including officers' pay, continued to be provided by the federal

23 authorities and the structure, of the army, including officers' pay,

24 continued to be provided by the federal authorities, and the structure,

25 arms, and tactics of the Bosnian Serb army replicated those of the JNA.

Page 970

1 Ratko Mladic is the highest-ranking officer in the army of the

2 self-styled Bosnian Serb republic. He is assisted by Deputy Commander

3 Milan Gvero. He commands the five-member General Staff, holding

4 assistance functions and those delegated to it by the commander-in-chief.

5 The commanders of the Zec army corps spread over the entire territory of

6 Serb-held Bosnia and Herzegovina are likewise under the direct orders of

7 Ratko Mladic. They have some freedom in conducting military operations in

8 the territory under their responsibility but must comply with the overall

9 strategy laid down by the Staff and the commander-in-chief.

10 Ratko Mladic thus has control over the Bosnian Serb army. He has

11 repeatedly demonstrated absolute control over his troops. The

12 commander-in-chief of that army remains, however, Radovan Karadzic, the

13 president and political leader of the Bosnian Serb republic whose

14 authority is recognised by Ratko Mladic himself. In this way, the two

15 accused work in close cooperation.

16 The evidence tendered by the Prosecution has provided the Trial

17 Chamber with clear indications of how Ratko Mladic exercised his powers.

18 First, it emerges that Ratko Mladic had full control over his

19 generals and that he was often involved personally in the operational

20 decisions of the various corps, going so far as to change commanders'

21 orders and to take tactical decisions in their stead.

22 His power also extended to the political level. He played an

23 essential part in decisions by the Bosnian Serb administration, and on the

24 latter's behalf participated in the negotiations and signed several

25 agreements which were all subsequently implemented by his troops.

Page 971

1 His knowledge of and involvement in the offences in the

2 indictments have been sufficiently proved at this stage of the

3 proceedings. A number of detention facilities were administered by

4 members of the armed forces under his command and were inspected by senior

5 army officers. At least on one occasion, he showed that he was aware of

6 living conditions in the camps. His control over the bombings of civilian

7 gatherings has been demonstrated by the implementation of the agreements

8 signed and by testimony. It is proven that Ratko Mladic controlled even

9 the movement of civilians in the territory of Bosnia and Herzegovina. On

10 19 May 1992, for instance, he held a group of 3.000 women and children

11 hostage at Ilidza and agreed only to release them after negotiations three

12 days later. His understanding of the obligations under international

13 humanitarian law and, generally speaking, of the prohibited acts

14 committed, as well as the absence of any disciplinary measures to punish

15 the serious violations perpetrated by his subordinates have been

16 sufficiently proven at this stage of the proceedings.

17 As regards more specifically the events at Srebrenica described in

18 the indictment of 16 November 1995, there is direct evidence concerning

19 the type of responsibility incurred by Ratko Mladic. His knowledge of the

20 offences is manifest through his presence and behaviour at Bratunac and

21 Potocari and at several other places at different times during the events,

22 allegedly even at mass execution sites. According to testimony, the

23 taking of Srebrenica had all the features of an operation prepared in

24 advance. Ratko Mladic's participation in that preparation, but also his

25 sway over the whole process of seizing Srebrenica and the evacuation and

Page 972

1 extermination of Muslim refugees has been corroborated by testimony and by

2 his own statements.

3 Individual criminal responsibility of the accused:

4 In the light of the analysis of the institutional functions and

5 the effective exercise of power by the two accused, the Chamber may now

6 consider the alleged individual criminal responsibility.

7 The conditions for the responsibility of superiors under Article

8 7(3) of the Statute, that is those constituting criminal negligence of

9 superiors, have unquestionably be fulfilled.

10 The Bosnian Serb military and police forces committing the

11 offences alleged were under the control, command, and direction of Radovan

12 Karadzic and Ratko Mladic during the whole period covered in the

13 indictment.

14 Through their position in the Bosnian Serb administration, Radovan

15 Karadzic and Ratko Mladic would have known or had reason to know that

16 their subordinates committed or were about to commit the offences in

17 question.

18 Lastly, it has been established that Radovan Karadzic and Ratko

19 Mladic would have failed to take the necessary and reasonable measures to

20 prevent such acts or to punish the perpetrators thereof.

21 The Chamber does consider, however, that the type of

22 responsibility incurred is better characterised by Article 7(1) of the

23 Statute. The evidence and testimony tendered all concur in demonstrating

24 that Radovan Karadzic and Ratko Mladic were not only informed of the

25 crimes allegedly committed under their authority but also, and in

Page 973

1 particular, that they exercised their power in order to plan, instigate,

2 order, or otherwise aid and abet in the planning, preparation, or

3 execution of the said crimes.

4 On account of his position as leader of the Serbian Democratic

5 Party, and as often elucidated in his speeches, the very conception of the

6 policy of ethnic cleansing would have to be attributed to Radovan

7 Karadzic, probably in collusion with others not accused in the

8 indictment. The fact that he has always held key posts in the parallel

9 power structures attest to a central role in the SDS's plans to seize

10 power in Bosnia and Herzegovina and the institutional organisation towards

11 that end. His position of authority after taking power within the

12 self-styled Serbian Republic of Bosnia and Herzegovina, the effective

13 exercise of his functions in the political as well as the military sphere,

14 and his own public statements would tend to show that he also ordered and

15 aided and abetted in the preparation and execution of the poll sill of

16 ethnic cleansing, and in particular, the crimes with which he is charged.

17 The Chamber considers that on the basis of the material tendered by the

18 Prosecutor, that responsibility is also incurred for the crimes committed

19 in July 1995 during the taking of Srebrenica.

20 Ratko Mladic was in full command of the army of the Serbs of

21 Bosnia and Herzegovina over the whole period covered by the two

22 indictments. His statements and the way he exercised his powers, not only

23 in the military but also in the political domain, showed that he fully

24 subscribed to the policy of ethnic cleansing pursued by the Bosnian Serb

25 administration and became one of its main protagonists. It appears that

Page 974

1 from his position of authority at the head of the entire military

2 structure, he planned and organised the crimes described in the

3 indictments allegedly committed by troops under his command. Further,

4 corroborated testimony tends to show that his role was not restricted to

5 planning an overall strategy but also that Ratko Mladic was present on the

6 scene where some of the crimes were committed and that he personally

7 supervised some operations, including the takeover of Srebrenica and the

8 ensuing atrocities down to the last detail.

9 Moreover, very careful consideration should be given to the

10 individual criminal responsibility for the crime of genocide as described

11 in Count 1 of the indictment of 25 July 1995. The Chamber is of the view

12 that the evidence and testimony submitted suffices at this stage to

13 demonstrate the active participation of the highest political and military

14 leaders in the commission of the crimes by Bosnian Serb military and

15 police forces in the detention facilities. The uniform methods used in

16 committing the said crimes, their pattern, their pervasiveness throughout

17 all of the Bosnian Serb-held territory, the movements of prisoners between

18 the various camps and the tenor of some of the accused's statements are

19 strong indications tending to show that Radovan Karadzic and Ratko Mladic

20 planned, ordered or otherwise aided and abetted in the planning,

21 preparation or execution of the genocide perpetrated in the detention

22 facilities.

23 Accordingly, the Chamber considers that Count 1 (genocide) of the

24 indictment of 25 July 1995 should be supplemented in order to demonstrate

25 the individual criminal responsibility of the two accused pursuant to

Page 975

1 Article 7(1) of the Statute.

2 Lastly, the Chamber, in thus determining the type of

3 responsibility incurred by the accused, namely governmental or

4 military-command responsibility, can but encourage the Prosecutor's office

5 to investigate the decision-making responsibility at the same or higher

6 echelons.

7 Now we shall examine the legal classification of the offences.

8 The Trial Chamber is satisfied that there are reasonable grounds

9 for believing that the offences charged in the indictment were planned and

10 ordered by the accused or, at the very least, were not prevented or

11 punished by them. It remains to verify that the jurisdictional

12 requirements have been met for those offences to fall within the

13 competence of the Tribunal, that is, that they may be given the legal

14 classification of war crimes, crimes against humanity, or genocide.

15 Now, first, war crimes: Grave breaches of the Geneva Conventions

16 of 1949/violations of the laws or customs of war.

17 The Prosecutor has classified as war crimes several acts described

18 under Part III. It should therefore be here ascertained whether the

19 general conditions for the application of Article 2 (breaches of the

20 Geneva Conventions of 1949) and Article 3 (violations of the laws or

21 customs of war) as enumerated by the Appeals Chamber in its decision of 2

22 October 1995 have been satisfied in this case. The existence of an armed

23 conflict is a prerequisite for the application of Articles 2 and 3 of the

24 Statute of the Tribunal. In the Tadic case, the Appeals Chamber stated:

25 "An armed conflict exists whenever there is a resort to armed

Page 976

1 force between States or protracted armed violence between governmental

2 authorities and organised armed groups or between such groups within a

3 State."

4 According to the expert witness Professor Guarde, whose testimony

5 is similar to the report of Dr. Gow submitted in the case file, an armed

6 conflict has been in progress in the territory of the former Yugoslavia

7 ever since the summer of 1991. It was clearly revealed in the course of

8 the hearings that the conflict had not ceased by the date of the most

9 recent acts which the Trial Chamber is considering, that is, in July

10 1995. As regards the republic of Bosnia and Herzegovina, at this stage it

11 can be assumed that the hostilities began in April of 1992 with the

12 seizure of several municipalities and the beginning of the siege of

13 Sarajevo.

14 In addition, in the above-mentioned in case, the Appeals Chamber

15 stated that Article 2 of the Statute is applicable only if the conflict

16 could be classified as international. At this stage, the Trial Chamber,

17 without prejudice to the unfettered discretion of the Trial Judges, must

18 consider to what extent the materials submitted to it are sufficient to

19 evaluate the international character of the conflict.

20 Taken as a whole, the conflict in the former Yugoslavia soon

21 involved several States, as demonstrated by the many documents included in

22 the case file and presented during the hearings. More specifically,

23 whether considering the conflict in the republic of Bosnia and

24 Herzegovina, for the following reasons, the materials submitted to the

25 Trial Chamber tend to show that the conflict had an international

Page 977

1 character.

2 The beginning of the military operations in Bosnia and Herzegovina

3 could be placed in April 1992, by which time that State was already

4 independent. The operations were conducted by the JNA together with the

5 local Serbian forces and paramilitary groups. At that time, the JNA was

6 under the control of or acted along with the authorities of the Federal

7 Republic of Yugoslavia, which was dominated to a large extent by the

8 republic of Serbia. The Trial Chamber therefore considers that at the

9 time it began in Bosnia and Herzegovina, the present conflict was

10 international in character insofar as it involved two distinct States, the

11 republic of Bosnia and Herzegovina and the Federal Republic of

12 Yugoslavia.

13 According to the Appeals Chamber in the above-mentioned decision:

14 "International humanitarian law applies from the initiation of

15 armed conflicts and extends beyond the cessation of hostilities until a

16 general conclusion of peace is reached."

17 In accordance with that ruling, as well as some of the provisions

18 of the Geneva Convention invoked by the Prosecutor in the brief he

19 submitted on 24 June 1996 - that is Article 6, paragraph 4 of the Fourth

20 Geneva Convention - it may be considered that the laws governing

21 international armed conflict continue to apply million peace has been

22 restored. Peace had not been restored at the time the last offences

23 charged were committed.

24 Furthermore, the Trial Chamber has noted that some factual

25 material which the Prosecutor presented to it permits classifying the

Page 978

1 conflict as international until the date the last offences charged were

2 committed. It appears that the JNA continued to be involved in Bosnia and

3 Herzegovina after it had officially withdrawn. The JNA, which became the

4 Yugoslav army, allegedly permitted the establishment of the Bosnian Serb

5 army in May 1992, and for a long time therefore continued to exercise

6 control over that army.

7 In addition, the Appeals Chamber has stated that in order to

8 conclude that Article 2 of the statute is applicable, the victims of the

9 criminal acts must be "persons who are protected under the provisions of

10 the relevant Geneva Convention." At this stage, it appears that the

11 victims of the acts which have been described may be considered as such.

12 The Trial Chamber considers that, without prejudice to the

13 unfettered discretion of the Trial Judges, a classification of crimes

14 against humanity or genocide is more proper for the totality of acts

15 charged in both indictments and summarised under III. An exception should

16 be made for the acts covered in Part III of the first indictment, which

17 can only be classified as a war crime, that is, the taking hostage of

18 UNPROFOR soldiers and using them as human shields.

19 So now against that backdrop, we're going to address crimes

20 against humanity and genocide.

21 The analysis of Parts III and IV of this decision allows us to

22 consider that the acts on which the two indictments are based, except for

23 those covered by Part III of the first indictment mentioned above, are

24 similar in nature. The acts target the members of an identified civilian

25 population, conceived as one or more groups, national or political, the

Page 979

1 commission of the acts follow the same pattern. The acts are planned and

2 organised at a State level. They appear to have a common objective:

3 permitting the establishment of ethnically pure territories and thus

4 creating a new State. The acts constitute the means to implement the

5 policy of ethnic cleansing decided by the SDS, together with others, or

6 shall we say in complicity or coordination with others and applied by the

7 official bodies in Bosnia and Herzegovina.

8 Article 5 of the Statute corresponding to crimes against humanity

9 reads as follows:

10 "The International Tribunal shall have the power to prosecute

11 persons responsible for the following crimes when committed in armed

12 conflict, whether international or internal in character, and directed

13 against any civilian population: (a) murder; (b) extermination; (c)

14 enslavement; (d) deportation; (e) imprisonment; (f) torture; (g) rape; (h)

15 persecutions on political, racial and religious grounds; (i) other

16 inhumane acts."

17 Now, this Article has been interpreted by the Secretary-General in

18 the following terms, Secretary-General of the United Nations: United

19 Nations, and this consistent with his report pursuant to is he Security

20 Council Resolution 808:

21 "Crimes against humanity refer to inhumane acts of a very serious

22 nature, such as wilful killing, torture or rape, committed as part of a

23 widespread or systematic attack against any civilian population on

24 national, political, ethnic, racial or religious grounds."

25 In a previous decision - this was the Nikolic case, decision of 20

Page 980












12 Blank pages inserted to ensure pagination corresponds between the French and

13 English transcripts.Pages 980 to 984.













Page 985

1 October 1995 - this Trial Chamber specified the context in which the

2 criminal acts listed in Article 5 must have occurred to be classified as

3 crimes against humanity. Furthermore, in another case, in the Vukovar

4 case - that was Messrs. Radic, Sljivancanin case, that was the decision of

5 3 April 1996 - the Chamber considered that although the criminal acts must

6 target a such population, individuals who at a given moment are able to

7 perform acts of resistance may, under certain conditions, be the victims

8 of crimes against humanity. In that same decision, it confirmed that the

9 acts which constitute crimes against humanity must be widespread or

10 present a systematic character.

11 The Trial Chamber therefore considers that the above-mentioned

12 acts can more specifically be classified as a crime against humanity.

13 Now, with regard to Article 4(2) of the Statute which relates to

14 genocide. It specifies that:

15 "Genocide means any of the following acts committed with intent

16 to destroy, in whole or in part, a national, ethnical, racial or religious

17 group as such:

18 "(a) killing members of the group; (b) causing serious bodily or

19 mental harm to members of the group; (c) deliberately inflicting on the

20 group conditions of life calculated to bring about its physical

21 destruction in whole or in part; (d) imposing measures intended to prevent

22 births within the group; (e) forcibly transferring children of the group

23 to another group."

24 According to the Article, the following acts shall be punishable:

25 "(a) genocide; (b) conspiracy to commit genocide; (c) direct and

Page 986

1 public incitement to commit genocide; (d) attempt to commit genocide; (e)

2 complicity in genocide."

3 This definition demonstrates that genocide requires that acts be

4 perpetrated against a group, with an aggravated criminal intent, namely

5 that of destroying the group in whole or in part. The degree to which the

6 group was destroyed in whole or in part is not necessary to conclude that

7 genocide has occurred. That one of the acts enumerated in the definition

8 was perpetrated with a specific intent suffices.

9 Some of the acts presented to the Trial Chamber may be classified

10 pursuant to (a), (b), and (c) of paragraph 2 of Article 4. Thus the

11 killing of members of the group 4. Thus (a) the killing of members of a

12 group or groups has been sufficiently described in Part III of this

13 decision; (b) the causing of serious bodily or mental harm to the harm to

14 the member or members of the group through inhumane treatment, torture,

15 rape, and deportation; (c) deliberate inflicting on the group conditions

16 of life calculated to bring about its physical destruction in whole or in

17 part was common coin in the detention camps and through the siege and

18 shelling of cities and protected areas.

19 The Trial Chamber considers that it must focus more specifically

20 on the analysis of the intention "to destroy in whole or in part a

21 national, ethnical, religious or racial group." Insofar as it is

22 considering command responsibility, it must carry out its examination in

23 order to discover whether the line of conduct, which has been referred to

24 as ethnic cleansing, as submitted for review reveals such a genocidal

25 intention throughout.

Page 987

1 The intent which.

2 The intent which is peculiar to the crime of genocide need not be

3 clearly expressed. As Trial Chamber noted in the above-mentioned Nikolic

4 case, the intent may be entered from a certain number of facts such as the

5 general political doctrine which gave rise to the acts possibly covered by

6 the definition in Article 4 or to repeat the destructive, discriminatory

7 acts. The intent maim also man inferred from the perpetration of acts

8 which violator which the perpetrators themselves consider to violate the

9 very foundation of the group, acts which are not in themselves covered in

10 the list in Article 4(2) but which are committed as part of the same line

11 of conduct.

12 In this case, the plans of the SDS in Bosnia and Herzegovina

13 contain elements which would lead to the destruction of the non-Serbian

14 groups. A project of an ethnically homogenous State formulated against

15 the backdrop of mixed populations necessarily envisages the exclusion of

16 any group not identified with the Serbian one. The concrete expressions

17 of these plans by the SDS before of the conflict would confirm the

18 existence of an attempt to exclude those groups by violence. The protect

19 envisages inter alia the use of force against civilian populations.

20 Furthermore, it appears that a certain group which had been targeted could

21 not, in accordance with the SDS plan, lay claim to any other specific

22 territory. In this case, the massive deportations may be construed as the

23 first step in a process of elimination. All the elements would confirm

24 that the project inspiring the acts presented to the Trial Chamber for its

25 review, perceived destruction of the non-Serbian groups and specifically

Page 988

1 of the Bosnian Muslim group as the final step.

2 In addition, certain methods used for implementing the project of

3 ethnic cleansing appear to reveal an aggravated intent as, for example,

4 the massive scale of the effect of the destruction. The number of the

5 victims selected alone on account of their membership in a group leads one

6 to the conclusion that intent to destroy the group, at least in part, was

7 present. Furthermore, the specific nature of some of the means used to

8 achieve the objective of ethnic cleansing tends to underscore that the

9 perpetration of the acts is designed to reach the very foundations of the

10 group or what is considered as such. The systematic rape of women to,

11 which materials submitted to the Trial Chamber attests, is in some cases

12 intended to transmit a new ethnic identity to the child. In other cases,

13 humiliation and terror serve to dismember the group. The destruction of

14 mosques or Catholic churches is designed to annihilate the centuries-long

15 presence of the group or groups. The destruction of the libraries is

16 intended to annihilate a culture which was enriched through the

17 participation of the various national components of the population.

18 At this stage, the Trial Chamber considers that certain acts

19 submitted for review could have been planned or ordered with the a

20 genocidal intent. The this intent derives from the combined effect of

21 speeches or projects laying the groundwork for and justifying the acts,

22 from the massive scale of the destructive effect and from their specific

23 nature, which aims at undermining what is considered to be the foundation

24 of the group. The national Bosnian groups, Bosnian Croat, and

25 specifically Bosnian Muslim, are the targets of those acts.

Page 989

1 The Trial Chamber therefore invites the Prosecutor to consider

2 broadening the scope of the characterisation of genocide to include other

3 criminal acts listed in the first indictment than those committed in the

4 detention camps.

5 The Trial Chamber will now consider the determination that

6 Republika Srpska and the Federal Republic of Yugoslavia have failed to

7 cooperate with the Tribunal.

8 Of initially confirming the indictments submitted to the Trial

9 Chamber, Judge Claude Jorda, on 25 July 1995, and Judge Fouad Riad, on 16

10 November 1995, issued warrants of arrest for Radovan Karadzic and Ratko

11 Mladic. They were sent, in particular, to the Bosnian Serb administration

12 and to the Federal Republic of Yugoslavia (Serbia and Montenegro). Both

13 indictments were transmitted to the competent authorities by the Registrar

14 of the Tribunal; the first on 1 October 1995, the second on 21 November to

15 the Federal Republic of Yugoslavia and on 2 November 1995 to the Bosnian

16 Serb administration. Further, at the Prosecutor's request, the Registrar

17 asked Republika Srpska, on 10 May 1996 and the Federal Republic of

18 Yugoslavia on 13 May 1996, to arrange the publication of the indictments

19 in their major newspapers pursuant to Rule 60.

20 Thus far, the indictments have not been served on Radovan Karadzic

21 and Ratko Mladic, and the arrest warrants have not been executed.

22 On the basis of all the Tribunal's rules and regulations, and in

23 particular Article 29 of the Statute and Rule 2(A) (State) of the Rules of

24 Procedure and Evidence, the Bosnian Serb administration, officially

25 entitled "Republika Srpska" following the peace agreement signed on 14

Page 990

1 December 1995, that is, the Dayton Accord, is bound to cooperate with the

2 International Tribunal. Despite the presence of Radovan Karadzic and

3 Ratko Mladic on the territory under its control, Republika Srpska has

4 neither served the two indictments on the accused nor executed the

5 warrants for their arrest.

6 The Trial Chamber believes that Radovan Karadzic and Ratko Mladic

7 were in the Federal Republic of Yugoslavia on several occasions. The

8 Prosecutor produced four letters sent by Judge Antonio Cassese, President

9 of the International Tribunal, to Mr. Slobodan Milosevic, President of the

10 Republic of Serbia. In those letters, on the several occasions when the

11 accused were on the territory of the Federal Republic of Yugoslavia,

12 President Antonio Cassese requested the assistance of the Yugoslav

13 authorities in order to execute the warrants of address issued by the

14 Tribunal. The letters related in particular to: Ratko Mladic's stay in

15 Belgrade for medical attention during the second half of September 1995,

16 letter of 18 September 1995; Radovan Karadzic's presence at Belgrade on 23

17 September 1995, letter of 27 September 1995; Radovan Karadzic's trip to

18 Belgrade for official talks with President Milosevic on 24 October 1995,

19 letter of 23 October 1995; Ratko Mladic's stay in Belgrade for medical

20 attention at the end of November 1995, letter of 29 November 1995.

21 The Federal Republic of July has never provided requested

22 assistance as required according to the terms of Article 29 of the

23 Statute. In addition, the Prosecutor has noted the presence of the

24 accused in Belgrade on several other occasions, particularly during

25 high-level meetings on 3 August 1995, 29 August 1995, and 7 February

Page 991

1 1996. Furthermore, on 22 May 1996, President Cassese sent a letter to the

2 press of the United Nations Security Council in which he indicated that,

3 despite the presence of Ratko Mladic in Belgrade on 21 May 1996 for the

4 funeral of General Djordje Djukic, the authorities of the Federal Republic

5 of Yugoslavia did not execute the warrants of arrest.

6 In addition, the Trial Chamber notes that during the negotiations

7 in Dayton, the Federal Republic of Yugoslavia committed itself to take all

8 the necessary steps to ensure that Republika Srpska fully respects and

9 complies with the obligations specified in Annexes 1A and 2 of the peace

10 agreement signed on 14 December 1995. Pursuant to Article 10 of Annex 1

11 A, Republika Srpska, inter alia, has undertaken the obligation to

12 "cooperate fully with all entities involved in the implementation of this

13 peace settlement, including the International Tribunal for the former

14 Yugoslavia." Therefore, the Federal Republic of Yugoslavia has given an

15 undertaking to ensure that Republika Srpska would cooperate fully with the

16 International Tribunal. That undertaking was given by the Federal

17 Republic of Yugoslavia at the request of the delegation of Republika

18 Srpska at Dayton to guarantee the international obligations of Republika

19 Srpska. As the Trial Chamber has noted above, Republika Srpska has not

20 honoured its obligations to the Tribunal, which also implies the failure

21 of the Federal Republic of Yugoslavia.

22 In light of all the above, the Trial Chamber considers that the

23 failure to execute the warrants of arrest issued against Radovan Karadzic

24 and Ratko Mladic may be ascribed to the refusal of Republika Srpska and to

25 the Federal Republic of Yugoslavia to cooperate with the Tribunal.

Page 992

1 Accordingly, the Trial Chamber so certifies for the purposes of notifying

2 the Security Council.

3 And now the Trial Chamber decides, for the foregoing reasons,

4 pursuant to Rules 59 bis and 61 of the Rules of Procedure and Evidence,

5 considering the decisions confirming the indictments issued by Judge Jorda

6 and Judge Riad on 25 July and 16 November 1995, considering the warrants

7 of arrest issued on 25 July and 16 November 1995, considering the

8 decisions of 18 June 1996 in which Judge Jorda and Judge Riad ordered the

9 Prosecutor to refer the case to the Trial Chamber, having heard the

10 comments of the Prosecutor, the presentation of the amici curiae and the

11 statements of the witnesses during the hearings of 27 and 28 June and 1,

12 2, 3, 4, 5 and 8 July 1996 at the seat of this Tribunal, the Trial

13 Chamber, ruling unanimously and in public, orders the joinder of cases

14 IT-95-5-R61 and IT-95-18-R61; invites the Prosecutor to supplement the

15 indictments; states that there are reasonable grounds for believing that

16 Radovan Karadzic and Ratko Mladic committed the offences with which they

17 are charged in the indictments issued on 25 July and 16 November 1995;

18 confirms the 16 counts of the indictment of 25 July 1995 and the 20 counts

19 of the indictment of 16 November 1995; issues international warrants of

20 address for Radovan Karadzic and Ratko Mladic; states that the warrants

21 shall be transmitted to all the States and, if necessary, to the

22 Implementation Force known as IFOR; notes that the failure to effect

23 personal service of the indictment can be ascribed to the refusal to

24 cooperate with the Tribunal by the Federal Republic of Yugoslavia (Serbia

25 and Montenegro) and by the Bosnian Serb administration in Pale which has

Page 993

1 become Republika Srpska, and entrusts the responsibility of so informing

2 the Security Council to the President of the Tribunal, pursuant to Rule

3 61(E).

4 Done in French and English, the French version being there are day

5 authoritative; dated this 11th day of July 1996, at the International

6 Criminal Tribunal at The Hague, the Netherlands.

7 The court stands adjourned.

8 --- Whereupon the proceedings adjourned.