1 Friday, 30 June 2006
3 [Open session]
4 [The accused entered court]
5 --- Upon commencing at 2.31 p.m.
6 JUDGE AGIUS: Madam Registrar, could you call the case, please.
7 THE REGISTRAR: Good afternoon, Your Honours. This is case number
8 IT-03-68-T, the Prosecutor versus Naser Oric.
9 JUDGE AGIUS: I thank you, Madam Registrar, and good afternoon to
10 you, too.
11 Mr. Oric. Mr. Oric, good afternoon to you. I want to make sure
12 that you can follow the proceedings in a language that you can understand.
13 THE ACCUSED: [Interpretation] Good afternoon, Your Honours, ladies
14 and gentlemen. Yes, I can follow the proceedings in my native language.
15 JUDGE AGIUS: I thank you.
16 For the record, my name is Carmel Agius, and I am presiding. To
17 my right I have Judge Hans Hendrik Brydensholt from the Kingdom of
18 Denmark; to my left, I have Judge Professor Albin Eser from Germany.
19 I come now to appearances.
20 Appearances for the Prosecution.
21 MS. SELLERS: Good afternoon, Your Honours. I am Patricia Sellers
22 on behalf of the Prosecution. With me today are co-counsel, Mr. Gramsci
23 Di Fazio, Mr. Jose Doria, and Ms. Donnica Henry-Frijlink is our case
25 Good afternoon to the Defence.
1 JUDGE AGIUS: I thank you, Madam Sellers, and good afternoon to
2 you, too, and your team.
3 Appearances for Naser Oric.
4 MS. VIDOVIC: [Interpretation] Good afternoon, Your Honours. Good
5 afternoon to my colleagues from the Prosecution. My name is Vasvija
6 Vidovic. Together with John Jones, I represent the Defence of Mr. Oric.
7 We have our legal assistants, Ms. Jasmina Cosic, Ms. Adisa Mehic, and
8 Mr. Geoff Roberts.
9 JUDGE AGIUS: I thank you, Madam Vidovic, and good afternoon to
10 you, too.
11 Are there any preliminary matters you would like to raise before
12 we proceed with the summary of the Judgement? I see none. I thank you.
13 And we are therefore proceeding with the summary.
14 Trial Chamber II of the International Criminal Tribunal for the
15 former Yugoslavia is sitting today to deliver its Judgement in the trial
16 of Naser Oric. This case deals with crimes of murder and cruel treatment
17 of prisoners and of wanton destruction of cities, towns, or villages
18 alleged to have happened in Srebrenica in 1992 and 1993 for which the
19 accused was indicted way back on 13th March 2003.
20 The accused stood trial for the following charges: First, under
21 Count 1, he is charged with individual criminal responsibility under
22 Article 7(3) of the Statute of the Tribunal, for murder as a violation of
23 the laws or customs of war pursuant to Article 3 of the Statute. Under
24 Count 2, the accused is charged with individual criminal responsibility
25 under Article 7(3) of the Statute for cruel treatment as a violation of
1 the laws or customs of war pursuant to Article 3 of the Statute.
2 The Prosecution never alleged that these crimes of murder and
3 cruel treatment were committed by the accused, but only accused him
4 pursuant to Article 7(3) of the Statute as being responsible for these
5 crimes committed by his subordinates while he was holding a position of
6 superior authority. More specifically, the imputed criminal
7 responsibility of the accused consists in the alleged failure on his part
8 to take necessary and reasonable steps to prevent or to punish the crimes
9 of his subordinates.
10 Second, under Count 3 the accused is charged with individual
11 criminal responsibility, again under Article 7(3) of the Statute, for
12 wanton destruction of cities, towns, or villages, not justified by
13 military necessity, as a violation of the laws or customs of war pursuant
14 to Article 3(b) of the Statute of this Tribunal in relation to all the
15 attacks that I will be mentioning. Here too, the alleged responsibility
16 is that of a superior for having failed to take the necessary and
17 reasonable measures to prevent these crimes.
18 Finally, under Count 5, the accused is charged with individual
19 criminal responsibility under Article 7(1) of the Statute for wanton
20 destruction of cities, towns, or villages not justified by military
21 necessity as a violation of the laws or customs of war pursuant to
22 Article 3(b) of the Statute in relation to some of the attacks; whereas,
23 in Count 3 the accused is charged with responsibility pursuant to
24 Article 7(3) of the Statue for crimes committed by his subordinates while
25 he was holding a position of superior authority. Here in Count 5 the
1 charge is brought under Article 7(1) of the Statute and alleges that the
2 accused instigated as well as aided and abetted through acts and omissions
3 the commission of these crimes.
4 Initially, the accused was also charged with plunder of public or
5 private property pursuant to Article 7(3) and 7(1) of the Statute. Those
6 were respectively Counts 4 and 6 of the indictment. However, in its
7 Rule 98 bis decision of 8th June 2005, the Trial Chamber unanimously
8 acquitted the accused of these charges upon reaching the conclusion that
9 the Prosecution had failed to adduce evidence capable of supporting the
10 conviction of the accused under the same two counts.
11 During the trial proceedings, which commenced on the 6th October,
12 2004 and ended on 10th April 2006, the Trial Chamber was confronted with a
13 large amount of evidence consisting of testimony and documents. It sat
14 196 trial days, during which it had the viva voce evidence of 50
15 Prosecution witnesses, 29 Defence witnesses, and one witness called by the
16 Trial Chamber. In total, 625 and 1024 exhibits were tendered into
17 evidence by the Prosecution and by the Defence respectively.
18 For the purpose of this hearing, we shall briefly summarise the
19 Trial Chamber's findings and the underlying reasons for them. We
20 emphasise, however, that this is only a summary and that it does not in
21 any way form part of the Judgement of the Trial Chamber. The only
22 authoritative account of the findings of the Trial Chamber is in a written
23 Judgement which will be available to the parties after this hearing is
24 concluded. The public can equally consult it on the web site of the
25 Tribunal, once this hearing is over.
1 We shall now deal -- give you some background of the case. Bosnia
2 and Herzegovina was one of the -- of six constituent republics of the
3 former Yugoslavia. In the early 1990s, tensions increased between the
4 country's different ethnic groups. And by April 1992, when armed conflict
5 broke out in Bosnia and Herzegovina, the Bosnian Serb side heavily relied
6 on the Serb-dominated JNA, the Yugoslav People's Army, and was thus
7 militarily far superior. By contrast, the Bosnian Muslims found
8 themselves insufficiently prepared for the conflict, as they had neither
9 the structures nor the logistics to match the might of the Bosnian Serb
11 Reflective of the overall situation in Bosnia and Herzegovina,
12 tensions broke out also and intensified in Srebrenica. Prior to the
13 outbreak of the conflict, approximately three-quarters of the 37.000
14 inhabitants of Srebrenica municipality were Bosnian Muslims and
15 one-quarter was Bosnian Serbs.
16 During the early months of 1992, Serb paramilitaries arrived in
17 the Srebrenica area and began, with the help of the JNA, to distribute
18 arms and military equipment to the local Bosnian Serb population. On
19 18 April 1992, Srebrenica was forcibly taken over by the Bosnian Serbs.
20 Madam Usher will now put on the ELMO an aerial photo of Srebrenica
21 town, which will give you an impression of -- a visual impression of the
22 town itself, and with an indication of some of the landmarks that I will
23 be referring to as I proceed with this summary.
24 So on the 18th of April, 1992, Srebrenica was forcibly taken over
25 by the Muslim -- Bosnian Serbs after most of its Bosnian Muslim
1 inhabitants had fled. However, sporadic resistance from small groups of
2 Bosnian Muslim men inflicted losses of the Bosnian Serb side. After one
3 of their leaders was killed in an ambush on the 8th of May, 1992, the Serb
4 forces retreated from Srebrenica leaving a lot of destruction behind, and
5 the Bosnian Muslims returned to their town.
6 Although they had retaken Srebrenica, the town itself remained
7 encircled by Serb forces. Between June 1992 and March 1993, Srebrenica
8 and other isolated patches of Bosnian Muslim-held land in the area were
9 subjected to Serb military assaults, resulting in a great number of
10 refugees and casualties. During this time, a number of Bosnian Serb
11 villages and hamlets were raided by Bosnian Muslims, mainly in search of
12 food, but also to acquire weapons and military equipment. In late January
13 or early February 1993, the Bosnian Serbs started a major offensive
14 against Muslim-held territory in the area, taking over many villages and
15 considerably reducing the overall size of the Srebrenica enclave. This is
16 referred to in the Judgement as the Serb winter offensive.
17 In the second half of 1992 and in early 1993, several tens of
18 thousands of refugees arrived in and lived crammed inside the town of
19 Srebrenica and its surrounding area. Conditions of life in Srebrenica
20 were dire and horrid. There was a constant and acute shortage of food,
21 bordering on starvation, and hygienic conditions were appalling. In the
22 winter people were living in the streets in freezing temperatures. The
23 situation had deteriorated dramatically when, in March 1993, an UNPROFOR
24 delegation headed by French General Philippe Morillon succeeded in
25 bringing most of the fighting to a halt and to secure some humanitarian
1 relief. In April 1993, Srebrenica was declared a safe area by the
2 Security Council of the United Nations. In the spring of 1995, the
3 accused was called to Tuzla and did not return to Srebrenica. The
4 subsequent fate of Srebrenica has been the subject matter of other
5 Judgements of this Tribunal and has not been dealt with in this case.
6 I'll deal now with the structure of the Srebrenica military and
7 civilian authorities.
8 By 18th April 1992, the day Srebrenica fell to the Serbs, nearly
9 all representatives of the municipal authorities had left town. After
10 Srebrenica was re-captured by Bosnian Muslims in May 1992, a pressing need
11 was felt to organise an effective defence. On 20th May 1992, an informal
12 group of Bosnian Muslim men, who had already set up individual fighting
13 groups in the area, met in the nearby hamlet of Bajramovici to establish
14 the Srebrenica TO staff. The accused, who was present during this
15 meeting, was elected as commander. His employment was subsequently
16 confirmed by Sefer Halilovic, chief of the Supreme Command staff of the
17 Army of the Republic of Bosnia and Herzegovina, and by Alija Izetbegovic,
18 the president of the Republic of Bosnia and Herzegovina. On the 3rd of
19 September, 1992, the Srebrenica TO staff was renamed Srebrenica armed
20 forces staff. During this time and thereafter, meetings were held
21 regularly in an attempt to achieve cohesive military activity.
22 Until demilitarisation in April 1993, military authority in and
23 around Srebrenica was never incorporated under a single unitary command.
24 During this period, initiatives such as the creation of the -- of a
25 subregion and a so-called Drina Division were conceived, both intended to
1 group together Bosnian Muslim fighters in the municipalities of
2 Srebrenica, Zvornik, Vlasenica, and Bratunac, with a view to improving
3 defence capabilities. However, the subregion never materialised and the
4 so-called Drina Division did little to bring together the various fighting
5 groups operating in the area. In the spring of 1992, fighting groups had
6 been formed on territorial bases and local leaders were chosen for their
7 personal qualities, such as courage and achievement. Consequently, a
8 number of them, including Akif Ustic, Hakija Meholjic, Ahmo Tihic, and
9 Ejub Golic, to name a few, asserted independence in the early days of the
10 conflict and persisted in this attitude throughout the period relevant to
11 the indictment.
12 The Srebrenica armed forces also lacked the characteristics of a
13 fully organised army. With few exceptions, they lacked weapons and
14 uniforms, and fighters, for the most part, resided with their families or
15 in make-shift accommodation. Communications, both within Srebrenica and
16 beyond were greatly impaired by the unavailability of adequate equipment,
17 lack of electricity and the severing of phone lines. In the summer of
18 1992, authorities were established in Srebrenica town in an attempt to
19 restore law and order and to give some sense of normalcy to life in a
20 besieged and isolated enclave. On the 1st of July, 1992, the Srebrenica
21 military police were established by the Srebrenica TO staff and Mirzet
22 Halilovic was appointed its commander. He remained in this position until
23 the 22nd of November, 1992, when he was replaced by Atif Krdzic. Also on
24 1st July 1992, the Srebrenica War Presidency was created, assuming all
25 competencies of the pre-war Municipal Assembly, and this was envisaged to
1 be the highest governmental organ on the territory of Srebrenica. Because
2 individuals were often members of both the War Presidency and the armed
3 forces staff and attended meetings where issues of both military and
4 civilian nature were discussed, there emerged a grey area where
5 jurisdiction and hierarchy between the two institutions became a matter of
6 disagreement and friction. However, it became generally accepted that the
7 Srebrenica War Presidency was the highest authority in Srebrenica whilst
8 the armed forces staff gradually asserted its own jurisdiction.
9 The Trial Chamber assessed the crimes charged in the indictment
10 and the responsibility of the accused against this very specific backdrop.
11 We'll deal now with Counts 1 and 2 of the indictment, that is as
12 they are called in the indictment, murder and cruel treatment. We'll deal
13 first with the law, with the legal aspects.
14 Regarding the crime of murder, the Prosecution was required to
15 prove the following elements beyond reasonable doubt: First, that the
16 person alleged to have been killed in the indictment is indeed dead;
17 second, that the death was caused by an act or an omission,
18 notwithstanding an obligation to act, of the accused, or by a person for
19 whose acts or omissions the accused bears criminal responsibility; and
20 third, the act or omission was committed with an intent to kill or inflict
21 grievous bodily harm or serious injury in the knowledge and with the
22 acceptance that such act or omission was more likely than not to cause
24 Regarding the crime of cruel treatment, the Prosecution was
25 required to prove the following elements beyond reasonable doubt: First,
1 an act or omission notwithstanding an obligation to act, of the accused or
2 of a person for whose acts or omissions the accused bears criminal
3 responsibility, causing serious mental or physical suffering, serious
4 injury, or constituting a serious attack on human dignity; and lastly, the
5 act or omission was committed with the intent to inflict serious mental or
6 physical suffering or cause serious injury or a serious attack upon human
8 Findings: Between 24th September and 16th October 1992, and again
9 from 27 December 1992 to 20th March 1993, a number of Serbs were captured
10 by Bosnian Muslim fighters and detained at the Srebrenica police station -
11 we will be showing you photos of this building - and during the second
12 time period also at a building behind the Srebrenica municipal building,
13 to which we shall be referring as "the building" during this summary. You
14 should also be seeing now in the background the second building, which
15 will be referred to -- which we will be referring to as the building.
16 While they were generally exposed to the same appalling living conditions
17 as the local population, the condition of the prisoners was significantly
18 exacerbated by the maltreatment that we will now describe.
19 On the 24th of September, 1992, Dragutin Kukic was captured by
20 Bosnian Muslim fighters and transferred to the Srebrenica police station.
21 The next day, he was taken to the reception room in that building.
22 Perhaps Madam Usher can show a layout of this building. And the
23 reception room is the room at the extreme bottom left of the -- of the
25 So the next day he was taken to the reception room in that
1 building where he was beaten. After Kukic cursed the mothers of two
2 guards who were beating him, one of them, a certain Kemo Mehmetovic, known
3 as Kemo, forcefully hit Kukic on the chest with a log of wood. Kukic lost
4 any sign of life immediately and all attempts to revive him proved
5 fruitless. The following day Kemo disposed of Kukic's corpse in a water
6 reservoir outside of Srebrenica and fired several shots at it. For the
7 reasons explained in the Judgement, the Trial Chamber is satisfied beyond
8 reasonable doubt that the circumstances of Dragutin Kukic's death
9 fulfilled the elements of murder.
10 Jakov Djokic, he was confined in a stable in the area of Cerska
11 under horrid conditions for almost eight months before being brought to
12 Srebrenica in January 1993. After a short period of detention at the
13 Srebrenica police station, he was transferred to the building. At both
14 locations, he was routinely beaten and maltreated with various objects,
15 including sticks and rifle-butts. Jakov Djokic was last seen alive on
16 21st March 1993. There is no direct evidence of the death of Jakov
17 Djokic. As to circumstantial evidence, there is only vague evidence
18 hinting that subsequently he succumbed to injuries caused by beatings
19 while in detention. This vague evidence, however, does not reach the
20 standard of proof required as detailed in the Judgement. The Trial
21 Chamber cannot conclude with certainty that he was killed, as alleged,
22 while being detained at the building.
23 Dragan Ilic, Milisav Milovanovic, Kostadin Popovic, and Branko
24 Sekulic. They were all detained at the Srebrenica police station and at
25 the building as of December 1992 or January 1993. They were routinely
1 beaten and maltreated with various objects. Dragan Ilic died on an
2 unspecified date between 9th February and 20th March 1993. Milisav
3 Milovanovic died in early February 1993, after repeated beatings by a
4 youth who was allowed to enter the building. Kostadin Popovic died on or
5 about the 6th of February, 1993. Branko Sekulic died on or about the 19th
6 of March, 1993. For the reasons stated in the Judgement, the Trial
7 Chamber is satisfied that all these incidents of killings fulfil the
8 elements of murder.
9 Between 24th September and 16th October 1992, Nedjeljko Radic,
10 Zoran Brankovic, Nevenko Bubanj, and Veselin Sarac were detained in a
11 small cell at the Srebrenica police station. On the 5th of October, 1992,
12 they were joined by Slavoljub Zikic. Apart from being interrogated, all
13 of them were subjected to severe beatings and other maltreatment while in
14 confinement, maltreatment sometimes resulting in bone fractures. On one
15 occasion, some of the teeth of Nedjeljko Radic were forcibly extracted by
16 Kemo, who afterwards urinated in his mouth, purportedly to disinfect the
17 wound. Maltreatment took place mostly at night, both inside the cell and
18 in the reception room, and was inflicted by, or in the presence of Kemo, a
19 certain Mrki, a certain Beli, and others, who had entered the police
20 station from the outside. On one occasion, Slavoljub Zikic was also
21 beaten by Mirzet Halilovic, the military police commander. Zikic
22 described the other detainees as more like dead people than people who
23 were still alive. All of them were eventually exchanged. For the reasons
24 stated in the Judgement, the Trial Chamber finds that the treatment
25 suffered by these individuals is serious enough to amount to cruel
1 treatment within the meaning of Article 3 of the Statute and that it was
2 inflicted with the required intent.
3 Between 27th December 1992 and 20th March 1993, Ilija Ivanovic,
4 Ratko Nikolic, Rado Pejic, Stanko Mitrovic, and Mile Trifunovic were
5 confined at the Srebrenica police station for a few days before being
6 transferred to the building, where they were interrogated and severely
7 maltreated. Ilija Ivanovic, for example, was beaten all over his body
8 with rifle-butts, metal rods, and baseball bats, and was also stabbed with
9 knives. His cheek-bone was broken and he frequently lost consciousness.
10 Five of Ratko Nikolic's ribs were broken when unidentified men stomped on
11 him. The body-weight of Rado Pejic was reduced to some 30 kilogrammes
12 during his time in Srebrenica. Maltreatment occurred usually at night,
13 both by guards and persons who entered both buildings from outside. On
14 occasions, even Bosnian Muslim fighters participated in the maltreatment.
15 All of these detainees were eventually exchanged. For the reasons stated
16 in the Judgement, the Trial Chamber finds that the treatment suffered by
17 them is serious enough to amount to cruel treatment within the meaning of
18 Article 3 of the Statute and that it was inflicted with the required
20 Responsibility of the accused.
21 We shall now consider whether the accused, Naser Oric, is
22 criminally responsible for these crimes as a superior. Since this is a
23 summary, we do not go into the details of the Trial Chamber's legal
24 assessment elaborated in the Judgement, but this summary is limited to the
25 following salient points.
1 As stated earlier, the accused is only charged with superior
2 criminal responsibility under Article 7(3) of the Statute and not with
3 having committed murder and cruel treatment himself.
4 The Trial Chamber finds that four elements must be fulfilled to
5 establish criminal responsibility of a superior: First, an act or
6 omission incurring criminal responsibility according to Articles 2 to 5
7 and 7(1) of the Statute has been committed by a principal perpetrator by
8 acts or omissions; second, the accused stood in a superior-subordinate
9 relationship with the principal perpetrator; third, the accused, as a
10 superior, knew or had reason to know that the subordinate was about to
11 commit such crimes or had done so; and fourth, the accused, as a superior,
12 failed to take the necessary and reasonable measures to prevent such
13 crimes or punish the perpetrator.
14 The Trial Chamber explains in detail in the Judgement that
15 superior criminal responsibility under 7(3) of the Statute is not
16 restricted to positive acts of subordinates but includes acts of omissions
17 and participation. Consequently, for the purpose of superior criminal
18 responsibility under Article 7(3) of the Statute, the direct perpetrators
19 of a crime punishable under the Statute need not be identical to the
20 subordinates of a superior. It is only required that the relevant
21 subordinates, by their own acts or omissions, be criminally responsible
22 for the injuries inflicted on the victims.
23 At the outset, the Trial Chamber notes that none of the
24 perpetrators of murder and cruel treatment known by name or nickname, such
25 as Kemo or Mrki or Beli, were identified to be members of the Srebrenica
1 military police. Nevertheless, based on the evidence given by Nedret
2 Mujkanovic, Becir Bogilovic, as well as on documentary evidence, including
3 the 2001 suspect interview of the accused with the Office of the
4 Prosecutor, the Trial Chamber finds that both groups of Serb prisoners
5 detained at the Srebrenica police station and the building between
6 September 1992 and March 1993 were kept under the responsibility of the
7 Srebrenica military police.
8 From the very moment it detained prisoners, the Srebrenica
9 military police assumed all duties and responsibilities under
10 international law relating to the treatment of prisoners in time of
11 conflict. Yet the evidence demonstrates that Mirzet Halilovic, the
12 commander of the military police until 22nd November 1992, did not
13 exercise adequate supervision of the detention facility or the activities
14 of the guards while carrying out their duties. To the contrary, Mirzet
15 Halilovic even contributed to the cruel treatment of the Serb detainees.
16 The replacement of Mirzet Halilovic with Atif Krdzic on the 22nd of
17 November, 1992 did not benefit the detainees. Not one person or document
18 refers to his presence in either of the two buildings where the prisoners
19 were kept. In addition, during his term as commander, more murders and
20 more cruel treatment took place.
21 For all the reasons stated in the Judgement, the Trial Chamber is
22 satisfied that the Srebrenica military police, through its commanders,
23 Mirzet Halilovic and Atif Krdzic, is responsible for the injuries
24 inflicted on the victims.
25 The Trial Chamber is further satisfied that the accused exercised
1 effective control over the military police, but only as of the 22nd
2 November 1992. Whereas prior to this date there is no evidence as to how,
3 if at all, the Srebrenica armed forces and the accused exercised effective
4 control over the military police, it is clear that an attempt aimed at
5 restructuring and improving its performance was made in October and
6 November 1992, such as with the replacement of Mirzet Halilovic by Atif
7 Krdzic. Documentary evidence shows that the new military police commander
8 reported to Osman Osmanovic, the Chief of Staff of the Srebrenica armed
9 forces, who reported to the accused. Moreover, in January and February
10 1993, Hamed Salihovic appears to have interrogated a number of Serb
11 detainees on behalf of the armed forces staff.
12 Based on the evidence given by witnesses Nedjeljko Radic and
13 Slavoljub Zikic as well as on the suspect interview of the accused
14 himself, the Trial Chamber is further satisfied that the accused visited
15 the Srebrenica police station between 24th September and 16th October 1992
16 on at least two occasions, that he had actual knowledge of the death of
17 Dragutin Kukic and of the cruel treatment of the Serbs detained there at
18 the time. However, having found that the accused did not have effective
19 control over the military police during that period, this knowledge
20 becomes relevant only for the purpose of establishing his actual or
21 imputed knowledge of the subsequent murders and cruel treatment.
22 As explained in the Judgement, the Trial Chamber has not found
23 sufficiently reliable evidence that the accused ever visited either of the
24 two detention facilities between December 1992 and March 1993, when the
25 second group of Serb prisoners were held there. Although the accused was
1 aware that Serbs were detained in Srebrenica, there is no evidence that
2 anyone kept him informed about their condition.
3 Nonetheless, since the accused was aware that incidents of murder
4 and cruel treatment had previously occurred, the Trial Chamber finds that
5 he was put on notice that the security and well-being of all Serbs
6 detained henceforth in Srebrenica was at risk and that this issue needed
7 to be adequately addressed and monitored. The accused also knew that the
8 severe malnutrition and the psychological effects of being under siege had
9 severely affected the Judgement of people in Srebrenica, several of who
10 behaved erratically. For the reasons explained in detail in the
11 Judgement, the Trial Chamber finds that the accused had reason to know
12 about acts of murder and cruel treatment committed at the Srebrenica
13 police station and the building between 27 December 1992 and 20 March
14 1993. However, the security and well-being of Serb prisoners disappear
15 from the accused's agenda after an investigation into the alleged killing
16 of a prisoner by Mirzet Halilovic and his eventual replacement with Atif
17 Krdzic. In his 2001 interview with the Office of the Prosecutor, the
18 accused is reported as stating that because of the deteriorating military
19 situation, the detention of prisoners was not on his mind, as there were
20 others responsible for it.
21 The Trial Chamber holds that, as a general rule, the treatment of
22 prisoners in armed conflict, including their physical and mental
23 integrity, cannot be relegated to a position of importance inferior to
24 other considerations, military or otherwise, however important they may
25 be. This general rule is, of course, predicated on the assumption that at
1 all times the person entrusted with this responsibility is in a position
2 to fulfil this obligation. It does not and cannot apply when there is the
3 impossibility to act or when it would be utterly unreasonable to expect
4 one to act, as in the case of a life-threatening situation.
5 In this case, the Trial Chamber is dealing with the responsibility
6 of a commander who could discharge such responsibilities by delegating
7 part of them to a subordinate and inquiring from time to time, and in the
8 absence of reports to at least require them in whatever format.
9 What is unacceptable for the Trial Chamber is that commanders, who
10 like the accused, positively know that detainees have been exposed to
11 murder and cruel treatment are discharged from their said obligations to
12 protect prisoners under international law by merely delegating the
13 responsibilities in that regard to subordinates without further inquiries.
14 In the present case, the evidence is unequivocal: The accused
15 never inquired about the fate of the Serb prisoners kept at the two
16 detention facilities in Srebrenica from the day Atif Krdzic was appointed
17 commander of the Srebrenica military police in lieu of Mirzet Halilovic.
18 In addition, he expressed and explained his lack of further involvement on
19 the basis of his military commitments elsewhere and that there were others
20 in charge of prisoners.
21 Regarding the accused's failure to prevent or punish these crimes,
22 the Trial Chamber rejects the Defence submission that no measures could
23 have been taken due to the lack of adequate means in Srebrenica at the
24 time. The replacement of Mirzet Halilovic and the investigation of his
25 alleged killing of a Serb prisoner shows that this could be achieved, even
1 in the absence of sophisticated structures and well-trained personnel.
2 With respect to the --
3 [B/C/S on the English channel].
4 JUDGE AGIUS: There is a problem? Is it all right? Is it fixed
5 now? It seems to be fixed, yes.
6 With respect to the duty to prevent the crimes of subordinates,
7 the Trial Chamber acknowledges that the accused operated under most
8 adverse circumstances and not in a properly structured army with adequate
9 means of communication between superiors and subordinates. Still, as of
10 September or October 1992, he had been on notice that the Serb detainees
11 kept at the Srebrenica police station were cruelly treated and that one of
12 them had been killed. The Trial Chamber, therefore, fails to understand
13 how, notwithstanding the predicament he faced on a daily basis, the
14 accused could from that time onwards safely assume that such incidents
15 could not reoccur and that there was not even the need to at least seek to
16 verify whether the detainees were maltreated again. It is striking that
17 the accused appears not to have taken any action regarding Serb detainees
18 after Atif Krdzic assumed command over the Srebrenica military police on
19 22nd November 1992. Rather, the accused, as already stated, repeated that
20 because of the deteriorating military situation, the detention of
21 prisoners was not on his mind, as there were others responsible for it.
22 The Trial Chamber is convinced that had the accused at least made
23 an effort he would have been able to redistribute available resources to
24 provide the required amount and quality of guards, if necessary, also from
25 his own fighters, to prevent reoccurrence of maltreatment. He could also
1 ask for a report in whatever format. Between 22nd November 1992 and early
2 January 1993, the accused was not always on the front line and found time
3 to attend meetings in Srebrenica, at least until the Serb winter offensive
4 started in late January or early February 1993. Yet, he did nothing of
5 the sort.
6 The conclusion that the Trial Chamber arrives at is that it was
7 not impossibility that stood in the way of the accused in preventing the
8 maltreatment and murder of prisoners; it was his preference not to give
9 the matter any further attention.
10 The Trial Chamber therefore finds that the accused failed to take
11 necessary and reasonable measures to prevent the occurrence of crimes at
12 the Srebrenica police station and the building between December 1992 and
13 March 1993.
14 With respect to the duty to punish, the Trial Chamber comes to a
15 different conclusion; namely, that the accused cannot be held responsible
16 for having failed to punish the crimes committed. The Judgement explains
17 why the Trial Chamber comes to the conclusion that there is insufficient
18 evidence of effective control over the military police prior to
19 22nd November 1992, when the accused had actual knowledge of murder and
20 cruel treatment. Thereafter, when the accused exercised effective
21 control, the Trial Chamber only found that he had reason to know of the
22 crimes. However, whereas for the duty to prevent, it suffices that the
23 accused was put on notice that crimes may possibly occur or reoccur, the
24 duty to punish presupposes that crimes have in fact been committed and
25 that the superior was aware of sufficient indications to assume their
1 occurrence. Since such indications in the present case are absent, the
2 accused cannot be held responsible for having failed to take the necessary
3 and reasonable measures to punish his subordinates for the commission of
4 these crimes.
5 And I now come to Counts 3 and 5 dealing with charges of wanton
7 I ask the usher to put on the ELMO a map of the Podravanje area,
8 which has marked on it the various sites which were the subject of the
9 various attacks that I will be dealing with.
10 In order to prove the crime of wanton destruction of cities,
11 towns, or villages not justified by military necessity, the Prosecution
12 must establish the following elements beyond reasonable doubt: First, the
13 destruction of property occurred on a large scale; second, the destruction
14 was not justified by military necessity; third, the perpetrator acted with
15 the intent to destroy the property in question.
16 As regards the extent of the destruction, contrary to the
17 submission of the Defence, the Trial Chamber finds that it would amount to
18 an overtly narrow reading of the prohibition of wanton destruction to
19 require proof of total destruction of a city, town, or village. Rather,
20 the destruction needs to be assessed on a case-by-case basis to establish
21 whether it is substantial enough to rise to the level required for the
22 crime of wanton destruction. To constitute a crime under international
23 law, wanton destruction must not be justified by military necessity. In
24 this context, an object shall not be attacked when, according to the
25 information available to and in the circumstances of the person
1 contemplating the attack, that object is not being used to make an
2 effective contribution to military action. The Trial Chamber also finds
3 that, in principle, destruction can no longer be justified by military
4 necessity after the fighting has ceased.
5 Our findings, and I will be dealing firstly with Ratkovici,
6 Gornji Ratkovici, and Ducici.
7 On the 21st of June, 1992, Ratkovici, Gornji Ratkovici, and Ducici
8 were attacked by Bosnian Muslim fighters from two nearby villages and
9 followed by a crowd of Bosnian Muslim civilians. At the time of the
10 attack, there were village guards, as well as Bosnian Serb civilians in
11 the Ratkovici area. The attack met with resistance only in
12 Gornji Ratkovici. Both in Ratkovici and in Gornji Ratkovici Bosnian
13 Muslim fighters and civilians burned property on a large scale. Further
14 destruction was caused by a subsequent Bosnian Serb counter-attack. There
15 is insufficient evidence to establish that Ducici was destroyed on a large
16 scale as well.
17 Considering that Bosnian Muslim villages in the vicinity of
18 Ratkovici had previously been attacked by Bosnian Serbs, also from
19 Ratkovici, the Trial Chamber does not exclude that a military
20 justification for the attack on Ratkovici is conceivable. However, such
21 justification cannot extend to the resulting wanton destruction of
22 property, especially since this was neither of a military nature nor was
23 it used in a manner such as to make an effective contribution to the
24 military actions of the Bosnian Serbs. Consequently, the destruction of
25 property in Ratkovici and Gornji Ratkovici on 21st June 1992 by Bosnian
1 Muslims fulfils the elements of wanton destruction of cities, towns, or
2 villages, not justified by military necessity.
3 On 27th June 1992, Bradjevina was attacked by Bosnian Muslim
4 fighters. Only some of the attackers were identified as being locals from
5 the surrounding Bosnian Muslim villages, and they were followed by a crowd
6 of Bosnian Muslim civilians. At the time of the attack, there were 12
7 armed village guards in Bradjevina. They, however, put no resistance to
8 the attack. Bosnian Muslim fighters and civilians burned property in
9 Bradjevina on a large scale. Considering that Bosnian Muslim villages in
10 the vicinity of Bradjevina had previously been attacked by Bosnian Serbs,
11 also from Bradjevina, the Trial Chamber does not exclude that a military
12 justification for the attack on Bradjevina is conceivable. However, such
13 justification also in this case cannot extend to the resulting wanton
14 destruction of the property, especially since this was neither of a
15 military nature nor was it used in a manner such as to make an effective
16 contribution to the military actions of the Bosnian Serbs. Consequently,
17 the Trial Chamber is satisfied that the destruction of property in
18 Bradjevina on 27th June 1992 by Bosnian Muslims fulfils the elements of
19 wanton destruction of cities, towns, or villages not justified by military
21 On 8th August 1992, Jezestica was attacked by Bosnian Muslim
22 fighters from Susnjari, Jaglici, and Glogova, as well as by Bosnian Muslim
23 fighters on the 16th Muslim Brigade from Tuzla. The fighters were
24 followed by a huge crowd of Bosnian Muslim civilians. At the time of the
25 attack, there were relatively well-armed village guards as well as Bosnian
1 Serb civilians in Jezestica. Evidence indicates that there was also
2 Bosnian Serb military presence in the area. The attack met with some
3 resistance before the Bosnian Serbs withdrew. Bosnian Muslim fighters and
4 civilians burned property in Jezestica on a large scale. Further
5 destruction may have been caused by a subsequent Bosnian Serb
7 Considering that Bosnian Muslim villages in the vicinity of
8 Jezestica had previously been attacked by Bosnian Serbs, also from
9 Jezestica, the Trial Chamber does not exclude that a military
10 justification for the attack on Jezestica is conceivable. However, such
11 justification cannot extend to resulting wanton destruction of property,
12 especially since there -- this was neither of a military nature nor was it
13 used in a manner such as to make an effective contribution to the military
14 actions of the Bosnian Serbs. Consequently, the Trial Chamber is
15 satisfied that the destruction of property in Jezestica on the 8th of
16 August, 1992 by Bosnian Muslims fulfils the elements of wanton destruction
17 of cities, towns, or villages, not justified by military necessity.
18 On 5th October 1992, Fakovici and Divovici were attacked by
19 Bosnian Muslim fighters from Osmace, Suceska, Kragljivoda, Zanjevo,
20 Jagodnja, Joseva, Tokoljaci. These were followed by thousands of Bosnian
21 Muslim civilians. The accused participated in this attack. At the time
22 of the attack, there were relatively well-armed village guards as well as
23 Bosnian Serb civilians in Fakovici and Divovici. Evidence indicates that
24 there were also Bosnian Serb military presence in Fakovici. The attack
25 met with resistance, and Bosnian Serbs fired on the attacking Bosnian
1 Muslims from houses. In the course of the attack, several houses began to
2 burn. On the afternoon of 5 October 1992, a Serb counter-attack, which
3 included shelling and bombing of that area was launched. Subsequently the
4 Bosnian Muslim fighters and some of the Bosnian Muslim civilians withdrew,
5 whereas other Bosnian Muslim civilians stayed behind to look for food and
6 building materials.
7 The Trial Chamber finds that there is insufficient evidence to
8 establish that Divovici was destroyed on a large scale.
9 As to Fakovici, the Trial Chamber finds that although houses were
10 damaged no witness could confirm that it was Bosnian Muslims who set the
11 burning houses on fire. It is likely that the destruction on a large
12 scale in Fakovici resulted from exchange of fire between Bosnian Muslims
13 and Bosnian Serbs and subsequent Serb shelling and thus cannot be
14 attributed solely to the Bosnian Muslims. Consequently, the Trial Chamber
15 is not satisfied that the destruction of property in Fakovici and Divovici
16 on 5 October 1992 by Bosnian Muslims fulfils the elements of wanton
17 destruction of cities, towns, or villages not justified by military
19 Between 14 and 19 December 1992, Bjelovac and Sikiric were
20 attacked by Bosnian Muslim fighters from Voljavica, Biljaca, Potocari,
21 Kazani, Luljaska, Suceska, Pale, Likari, and Srebrenica, Stari Grad.
22 They, too, were followed by thousands of Bosnian Muslim civilians. The
23 accused participated in this attack, too. At the time of the attack,
24 there were relatively well-armed village guards as well as Bosnian Serb
25 civilians in Bjelovac and Sikiric. Evidence indicates that there was also
1 Bosnian Serb military presence in the area. The attack met with
2 resistance. Furthermore, at different times during 14 December 1992, two
3 planes from the direction of Bratunac circled the area dropping bombs. In
4 the course of the attack, several houses began to burn. Some of the
5 houses were torched by Bosnian Muslims, and in the next few days, as
6 fighting continued, the Bjelovac area was alternately controlled by the
7 Bosnian Muslims and Bosnian Serbs. This rendered further destruction of
8 the property possible.
9 The Trial Chamber finds that the damage caused to houses in
10 Bjelovac and Sikiric likely resulted from all these circumstances. For
11 the reasons given in the Judgement, the Trial Chamber is not in a position
12 to know how many houses were destroyed by Bosnian Muslims and how many
13 were destroyed by other causes. Consequently, there is doubt whether the
14 amount of houses destroyed by the Bosnian Muslims fulfils the large-scale
15 requirement for the crime of wanton destruction. As a result, the Trial
16 Chamber is not satisfied that the destruction of property in Bjelovac and
17 Sikiric between 14th and 19th December 1992 by Bosnian Muslims fulfils the
18 elements of wanton destruction of cities, towns, or villages, not
19 justified by military necessity.
20 On the 7th and 8th January 1993, Kravica, Siljkovici, and
21 Jezestica were attacked by Bosnian Muslim fighters from Suceska, Glogova,
22 Biljeg, Mosici, Delici, Cerska, Skugrici, Jaglici, Susnjari, Brezova,
23 Njiva, Osmace, Konjevic Polje, Jagodnja, Joseva. Also the accused and
24 members of his group of fighters participated in the attack. The fighters
25 were followed by thousands of Bosnian Muslim civilians. At the time of
1 the attack, there were relatively well-armed village guards and some
2 Bosnian Serb civilians in Kravica, Siljkovici, and Jezestica. Evidence
3 shows that there was also Bosnian Serb military presence in the area. The
4 attack met with resistance. Bosnian Serbs fired artillery on the
5 attacking Bosnian Muslims from houses and other buildings. Houses in the
6 area were burning. In Jezestica, Bosnian Muslim fighters and civilians
7 set many houses on fire causing destruction on a large scale. In Kravica,
8 property was also destroyed on a large scale. However, the evidence is
9 unclear as to the number of houses that were wantonly destroyed by Bosnian
10 Muslims as opposed to other causes. As to Siljkovici, there is
11 insufficient evidence to establish that property was destroyed on a large
13 Considering that Bosnian Muslim villages in the vicinity of
14 Jezestica had previously been attacked by Bosnian Serbs also from
15 Jezestica, the Trial Chamber does not exclude that a military
16 justification for the attack on Jezestica is conceivable. However, such
17 justification cannot extend to the resulting wanton destruction of
18 property, especially since this was neither of a military nature nor was
19 it used in a manner such as to make an effective contribution to the
20 military actions of the Bosnian Serbs.
21 Consequently, the Trial Chamber is satisfied that the destruction
22 of property in Jezestica on 7th and 8th January 1993 by Bosnian Muslims
23 fulfils the elements of wanton destruction of cities, towns, or villages,
24 not justified by military necessity.
25 We will deal now with responsibility of the accused. We shall now
1 deal with the question whether the accused, Naser Oric, is criminally
2 responsible for these crimes of wanton destruction in terms of
3 Articles 7(1) and then Article 7(3) of the Statute.
4 We shall start with the alleged individual criminal responsibility
5 of the accused pursuant to Article 7(1) of the Statute, specifically with
6 the aspects of instigating and/or aiding and abetting and also the
7 omission which the Prosecution attributes to him.
8 The Trial Chamber holds that instigating requires influencing the
9 direct perpetrator by way of inciting, soliciting, or otherwise inducing
10 him or her through acts or culpable omissions to commit the crime in
11 question. The instigation must substantially contribute to the
12 perpetration of the crime, and the instigator must intend not only his or
13 her conduct, but also the ultimate crime. Aiding and abetting may be
14 constituted by an accused's contribution, through acts or culpable
15 omissions, to the planning, preparation, or execution of a completed
16 crime, provided that the contribution is substantial enough to make the
17 commission of the crime possible or at least easier. The aider and
18 abettor must act with an intent to further the contribution, as well as to
19 effect the completion of the crime by the direct perpetrator. In both
20 modes of liability, the contribution can be indirect as well as removed in
21 time and place from the actual commission of the crime.
22 The Trial Chamber examined the alleged criminal responsibility of
23 the accused pursuant to Article 7(1) of the Statute, only in respect of
24 the attack on Jezestica on 7th and 8th January 1993, as the elements of
25 crime of wanton destruction are not fulfilled with regard to the other
1 attacks for which such responsibility has been charged. The Trial Chamber
2 has no doubt that the accused was generally aware that Bosnian Serb
3 property was destroyed by Bosnian Muslims, primarily civilians, who
4 followed fighters during the attacks. However, the Prosecution has failed
5 to adduce reliable evidence that he instigated wanton destruction. On the
6 contrary, evidence indicates that the accused opposed this kind of
8 With respect to aiding and abetting, the Trial Chamber finds that
9 the accused, by virtue of his authority as leader of a group of fighters,
10 had the responsibility to prevent the commission of wanton destruction by
11 his subordinates. This duty extended to preventing wanton destruction by
12 other fighters and civilians if the accused knew that such wanton
13 destruction was being or was about to be committed in the course of
14 attacks in which his subordinates participated. As a minimum, he had a
15 duty to prevent civilians from being present during such attacks.
16 However, it has not been established that the accused could have prevented
17 wanton destruction by civilians who were present before, during, and after
18 attacks in massive numbers and such that -- and such as being beyond any
20 With respect to fighters, the Trial Chamber is not convinced that
21 in the particular circumstances of the attack on Jezestica on 7th and
22 8th January 1993 the accused could have prevented fighters from committing
23 destruction or aiding and abetting civilians to commit such destruction.
24 There is no evidence that his own fighting group had any involvement in
25 the wanton destruction that occurred during the attack. Furthermore,
1 there is no sufficient evidence that the accused had control over, or even
2 communication with the other fighting groups during the attack. In
3 addition, although the accused participated in the attack, there is no
4 evidence that his presence was that or amounted to one of approving
5 spectator which is a qualification required to hold the accused
6 responsible for active participation under Article 7(1) of the Statute.
7 In the light of the above, the Trial Chamber concludes that the
8 Prosecution failed to establish that the accused in any way instigated or
9 aided or abetted pursuant to Article 7(1) of the Statute, the commission
10 of wanton destruction not justified by military necessity in Jezestica on
11 the 7th and 8th January 1993.
12 The Trial Chamber also examined in the Judgement the superior
13 responsibility of the accused pursuant to Article 7(3) of the Statute only
14 in respect of the attacks on Ratkovici and Gornji Ratkovici, which
15 occurred on the 21st of June, 1992, and Bradjevina, which occurred on the
16 27th of June, 1992, and Jezestica, which occurred on the 8th of August,
17 1992, and 7th and 8th of January, 1993. As the elements -- this is so
18 because the elements of wanton destruction are not fulfilled with regard
19 to the other attacks for which such responsibility has been charged and
20 with which I dealt with earlier on.
21 Regarding all four attacks, the Trial Chamber heard evidence that
22 Bosnian Muslim fighters and civilians perpetrated acts of wanton
23 destruction, but there is almost no evidence that would further identify
24 these perpetrators. However, such identification in any case is not
25 required by law, provided it can be established that those responsible
1 were under the control of the superior.
2 With respect to the question of the existence or otherwise of
3 effective control by the accused over the perpetrators, it has already
4 been explained that effective control can be based on a de jure as well as
5 on a de facto position of authority.
6 We have also already explained how on 20th May 1992 the accused
7 was elected as commander of the Srebrenica TO staff, and at the time of
8 the attacks of Ratkovici and Gornji Ratkovici and Bradjevina in June 1992
9 still held this position in which he was confirmed on the 27th of June and
10 again on the 8th of August 1992.
11 In addition, by January 1993, when Jezestica was attacked the
12 second time, the accused had in the meantime been appointed as commander
13 of the subregion which was proclaimed on 4th of November, 1992. Thus, on
14 a de jure basis, the accused was considered as superior to all Bosnian
15 Muslim armed groups operating in the Srebrenica area during the time
16 period relevant to Count 3 of the indictment.
17 However, while the Trial Chamber finds that the accused exercised
18 effective control over his own fighting group from Potocari, there is
19 insufficient evidence to establish that he de facto exercised effective
20 control over the various groups of fighters participating in these
21 attacks, not to speak of the civilians who followed the fightings. The
22 picture that emerges from the evidence is not one of an organised army
23 with a fully functioning command structure, but one of local groups of
24 fighters remaining relatively independent and voluntary and a mass of
25 uncontrollable civilians that were present at every attack.
1 Therefore, the Trial Chamber has come to the conclusion that
2 regarding all four attacks under consideration, the accused cannot be held
3 criminally responsible under Article 7(3) of the Statute for wanton
4 destruction of cities, towns, or villages not justified by military
6 Now we come to sentencing.
7 The Trial Chamber has examined all the parties' submissions in
8 their written and oral form when determining the sentence for the crimes
9 of which the accused has been found guilty. Bearing in mind that the
10 accused will not be convicted for the crimes of his subordinates -- will
11 not be convicted for the crimes of his subordinates, but only for his
12 failure to prevent them, the Trial Chamber underlines its belief that the
13 sui generis nature of a superior responsibility pursuant to Article 7(3)
14 of the Statute allows for an even greater flexibility in the determination
15 of sentence.
16 Prosecution, referring to the gravity of the crimes as well as to
17 the number of aggravating factors, requested that the accused be sentenced
18 to 18 years' imprisonment. The Defence submitted that any punishment
19 would be highly inappropriate.
20 The Trial Chamber finds that the vulnerability of the victims is
21 the only aggravating circumstance to be taken into consideration.
22 However, a number of relevant mitigating circumstances have been taken
23 into account. These are: Some cooperation with the Prosecution, some
24 expressions of remorse, the accused's expressed readiness to surrender to
25 the Tribunal if indicted, his young age at the time the crimes were
1 committed, his family circumstances, acts of consideration towards Serb
2 detainees, cooperation with SFOR, his general attitude towards the
3 proceedings, and, most importantly of all, the general circumstances
4 prevailing in Srebrenica and those particular to the accused and to the
5 crimes committed. All these are dealt with great detail in the Judgement
6 to which we refer you.
7 This last mitigating factor, that is the general circumstances
8 prevailing in Srebrenica and those particular to the accused and to the
9 crimes committed, is in the firm belief of the Trial Chamber the pivotal
10 consideration for the purpose of establishing the appropriate sentence in
11 this case.
12 As described throughout the Judgement, the conditions in
13 Srebrenica during the relevant time were abysmal and deteriorated by the
14 day. Militarily superior Serb forces had encircled Srebrenica, a threat
15 to which the Bosnian Muslims in town were almost entirely unprepared. An
16 unmanageable influx of refugees, critical shortages of food and other
17 essentials, general chaos, and the flight from Srebrenica of all prewar
18 authorities resulted in a total breakdown of society in Srebrenica,
19 including a collapse of law and order. These were the circumstances when,
20 at age 25, without any relevant military and administrative experience,
21 the accused found himself elected commander of voluntary fighters, who
22 were poorly trained, did not form part of a proper army, had very few
23 weapons at their disposal, and without -- and were without an effective
24 link to the Bosnia and Herzegovina army and Bosnia and Herzegovina
25 authorities. It was a continuous uphill struggle that, in actual fact,
1 achieved very few results. In addition, the accused had to rely on local
2 leaders, some of whom not only chose to act independently, but even
3 considered him inexperienced and scorned his authority. His situation
4 became worse with the passage of time as the Bosnian Serb forces increased
5 the momentum of their siege.
6 As stated earlier, however, there was an interval of time in
7 December 1992 and most of January 1993, during which the accused not only
8 had the duty to prevent the reoccurrence of murder and cruel treatment of
9 prisoners, but also was not in the impossibility of fulfilling it. Nor
10 was he reasonably impeded from carrying out this responsibility. Still,
11 it is the conviction of the Trial Chamber that he preferred to do nothing,
12 notwithstanding that he could have prevented the reoccurrence of these
13 crimes. This is the only wrongdoing he has been found guilty of.
14 However, the Trial Chamber understands that although his predicament at
15 this time was not as bad and perilous as it was during the ensuing Serb
16 winter offensive, it still was one which should have a strong mitigating
17 effect in the assessment of the sentence to be inflicted against him.
18 The Trial Chamber is finding the accused guilty and will be
19 sentencing him because he had reason to know that the reoccurrence of
20 murder and cruel treatment of prisoners was possible and because he
21 decided not to do anything about it, not even to at least try and inquire
22 about the situation of prisoners.
23 There is no other case in this Tribunal and there has not been any
24 other case in this Tribunal in which the accused was found guilty of
25 having failed to prevent murder and cruel treatment of prisoners in such a
1 limited manner and in such abysmal personal and circumstantial conditions
2 as in this case. Consequently, the sentence that is being meted out
3 reflects this uniquely limited criminal responsibility. However, the
4 Trial Chamber emphasises the fact that the leniency of the sentence which
5 we will very shortly impose on the accused does not and should not
6 diminish from the principle that the Trial Chamber has endeavoured to
7 articulate in its Judgement, namely that for the purpose of Article 7(3),
8 criminal responsibility, commanders should, throughout, maintain awareness
9 of the imperativeness required to be given to the protection of prisoners
10 in times of conflict.
11 Finally, the Trial Chamber wishes to state that all the
12 conclusions reached in this Judgement, legal and factual, including the
13 sentence itself, were arrived at unanimously.
15 Mr. Oric, would you please stand up.
16 [The accused stands up]
17 JUDGE AGIUS: For the reasons summarised above, this Trial
18 Chamber, having considered all of the evidence and the arguments of the
19 parties, the Statute, and the Rules, and basing itself on the factual and
20 legal findings as determined in the Judgement, decides as follows:
21 You are found not guilty and therefore acquitted of, under
22 Count 1: Failure to discharge your duty as a superior to take necessary
23 and reasonable measures to prevent the occurrence of murder from
24 24th September 1992 to 16th October 1992, pursuant to Articles 3 and 7(3)
25 of the Statute, and failure to discharge your duty as a superior, to take
1 necessary and reasonable measures to punish the occurrence of murder from
2 the 27th December -- from the 24th September 1992 to 16th October 1992 and
3 from the 27th December to 20th March 1993, pursuant to Article 3 and 7(3)
4 of the Statute.
5 Under Count 2: Failure to discharge your duty as a superior to
6 take necessary and reasonable measures to prevent the occurrence of cruel
7 treatment from 24th September 1992 to 16th October 1992 pursuant to
8 Articles 3 and 7(3) of the Statute, and failure to discharge your duty as
9 a superior to take necessary and reasonable measures to punish the
10 occurrence of cruel treatment from 27th December to 20th March 1993
11 pursuant to Articles 3 and 7(3) of the Statute.
12 You are, however, found guilty of: Under Count 1: Failure to
13 discharge your duty as a superior to take necessary and reasonable
14 measures to prevent the occurrence of murder from 27th December 1992 to
15 20th March 1993, pursuant to Article 3 and 7(3) of the Statute.
16 Under Count 2, you are found guilty of your failure to discharge
17 your duty as a superior to take necessary and reasonable measures to
18 prevent the occurrence of cruel treatment from 27th December 1992 to
19 20th March 1993, pursuant to Articles 3 and 7(3) of the Statute.
20 Lastly, you are found not guilty and therefore acquitted of the
21 following counts:
22 Count 3: Failure to discharge your duty as a superior to take
23 necessary and reasonable measures to prevent or punish the occurrence of
24 acts of wanton destruction of cities, towns, or villages, not justified by
25 military necessity, pursuant to Articles 3 and 7(3) of the Statute.
1 Count 5: Wanton destruction of cities, towns, or villages not
2 justified by military necessity, pursuant to Articles 3(b) and 7(1) of the
4 We sentence you, Naser Oric, to two years' of imprisonment.
5 According to the law of this Tribunal, you are entitled to credit for the
6 period of time you have been in custody towards the sentence which we are
7 meting out. You were arrested on the 10th of April, 2003; therefore, you
8 have been in custody for three years, two months, and 21 days. Since the
9 imposed sentence is less than the credit to be applied for the period of
10 time you have been in custody, the Trial Chamber orders that you be
11 released immediately from the United Nations Detention Unit after the
12 necessary practical arrangements have been made.
13 Thank you.
14 --- Whereupon the Judgement adjourned at 3.50 p.m.