1 Friday, 17 October 2003
3 [Open session]
4 [The accused entered court]
5 --- Upon commencing at 10.01 a.m.
6 JUDGE MUMBA: Good morning.
7 Madam Registrar, please call the case.
8 THE REGISTRAR: Good morning, Your Honours. Case number
9 IT-95-9-T, the Prosecutor versus Blagoje Simic, Miroslav Tadic, and Simo
11 JUDGE MUMBA: May I have the parties, please.
12 The Prosecution.
13 MR. DI FAZIO: Good morning, Your Honours. If Your Honours
14 please, my name is Di Fazio, I appear on behalf of the Prosecution,
15 together with my colleagues, Mr. Re, Mr. Weiner, Mr. Barag, and Ms.
17 JUDGE MUMBA: Thank you. The Defence, please.
18 MR. PANTELIC: Good morning, Your Honours. On behalf of Mr.
19 Blagoje Simic, attorneys Pantelic and Vukic. Thank you.
20 JUDGE MUMBA: Yes.
21 MR. LUKIC: Good morning, Your Honour. On behalf of Mr. Miroslav
22 Tadic's Defence, Novak Lukic and Dragan Krgovic.
23 JUDGE MUMBA: Yes.
24 MR. PISAREVIC: [Interpretation] Good morning, Your Honours. I'm
25 Borislav Pisarevic, Defence counsel for Mr. Zaric and with me is my
1 colleague, Aleksandar Lazarevic.
2 JUDGE MUMBA: Thank you. May I find from the accused's persons
3 whether they can follow the proceedings.
4 Dr. Blagoje Simic, can you hear the proceedings?
5 THE ACCUSED SIMIC: [Interpretation] Yes, Your Honour.
6 JUDGE MUMBA: Thank you.
7 Mr. Miroslav Tadic, please.
8 THE ACCUSED TADIC: [Interpretation] Yes, Your Honour.
9 JUDGE MUMBA: Mr. Simo Zaric, please.
10 THE ACCUSED ZARIC: [Interpretation] Yes, Your Honour.
11 JUDGE MUMBA: Trial Chamber II is sitting this morning to deliver
12 judgement in the trial of the three accused persons, Dr. Blagoje Simic,
13 Miroslav Tadic, and Simo Zaric, who are jointly charged under the Fifth
14 Amended Indictment of 30th May 2002, with individual criminal
15 responsibility pursuant to Article 7(1) of the Statute of the Tribunal,
16 for two counts of crimes against humanity under Article 5 of the Statute,
17 namely persecutions, and deportation; and one count of a grave breach of
18 the Geneva Conventions of 1949 under Article 2 of the Statute, namely
19 unlawful deportation and transfer. For purposes of this hearing, the
20 Trial Chamber delivers a summary of its findings and the disposition.
21 This is a summary only and forms no part of the judgement. The only
22 authoritative account of the Trial Chamber's findings, and its reasons
23 for those findings, is found in the written judgement, copies of which
24 will be made available to the parties and to the public at the conclusion
25 of this hearing. The summary of the findings delivered today represent
1 the ruling of the Majority. A separate and partly dissenting opinion of
2 Judge Lindholm, is appended to the Judgement.
3 The Accused were originally indicted together with Slobodan
4 Miljkovic, aka "Lugar", Milan Simic, and Stevan Todorovic, in the first
5 indictment brought against them on 21 July 1995. Following guilty pleas
6 by Stevan Todorovic and Milan Simic, the proceedings against these two
7 were separated from the other Accused, and upon the passing away of
8 Slobodan Miljkovic, the proceedings against him were terminated.
9 The trial of the Accused covered events which occurred in the
10 Municipalities of Bosanski Samac and Odzak, located as shown in the map
11 appended to the Judgement, and elsewhere in the territory of Bosnia and
12 Herzegovina. The town of Bosanski Samac was of strategic importance for
13 the conduct of military operations. The Municipality formed part of the
14 so-called Posavina Corridor, a narrow strip of flat land along the Sava
15 River connecting the Serb-controlled areas within Croatia and the Bosnian
16 Serb territories and the Republic of Serbia. The Corridor was the
17 easiest and shortest way to establish a ground route between the
18 Serb-controlled areas within Croatia to the west (Republika Srpska
19 Krajina), and Serbia to the east.
20 Factual findings
21 The accused held central positions within these areas covered in
22 the Indictment. Dr. Blagoje Simic, a medical doctor, was President of
23 the Municipal Board of the Serbian Democratic Party and the President of
24 the Serb Crisis Staff in the Municipality of Bosanski Samac, he continued
25 as President when the Crisis Staff was renamed the War Presidency. He
1 was the highest ranking civilian official in the Municipality. Miroslav
2 Tadic, a retired schoolteacher, was Assistant Commander for Logistics
3 within the 4th Detachment, Commander of the Civil Protection Staff, an
4 ex-officio member of the Crisis Staff, and a responsible member of the
5 Exchange Commission in the Municipality of Bosanski Samac. Simo Zaric
6 was assistant commander for intelligence, reconnaissance, morale, and
7 information in the 4th Detachment, Chief of National Security in Bosanski
8 Samac from 29th April 1992 to 19th May 1992, and Deputy to the President
9 of the Civilian Council in Odzak.
10 The Trial Chamber finds that the events which took place in the
11 Municipalities of Bosanski Samac and Odzak between 17th April 1992 and
12 the 31st of December 1993 constituted a widespread and systematic attack
13 on the civilian population. This attack included the forcible takeover
14 of power in Bosanski Samac by members of the paramilitaries and Serb
15 police, and the subsequent acts of persecution and deportation against
16 non-Serb civilians. The Trial Chamber is also satisfied that some
17 members of the 17th Tactical Group of the JNA were present in the town of
18 Bosanski Samac on the 17th of April 1992. A state of armed conflict
19 existed in the Republic of Bosnia and Herzegovina during the
20 above-mentioned period and there was a nexus between the armed conflict
21 and the acts of the Accused persons.
22 The Trial Chamber does not consider whether or not the armed
23 conflict was international in character. In the Trial Chamber's view,
24 the Prosecution's pleading in the Indictment of a state of armed conflict
25 did not inform the Defence of the material facts of the jurisdictional
1 requirements of the charge of unlawful deportation or transfer, based on
2 Article 2 of the Statute. The Trial Chamber holds that in determination
3 of the charges against the Accused, it cannot make a legal assessment of
4 the facts that do not conform to the Indictment, and consequently
5 dismisses Count 3 of the Indictment.
6 The Trial Chamber finds that the Amended Indictment and the
7 Prosecution's submissions were not detailed and specific enough to have
8 put the Defence on notice that the Prosecution intended to rely on a
9 joint criminal enterprise theory beyond a basic form of joint criminal
10 enterprise. The Trial Chamber has, therefore, considered only the basic
11 form of joint criminal enterprise, pursuant to Article 7(1) of the
12 Statute, in addition to the other forms of criminal responsibility listed
13 in this Article.
14 The Trial Chamber proceeds to state its findings on individual
15 criminal responsibility for the underlying acts of persecution as charged
16 in Count 1 of the Indictment of each Accused. The Trial Chamber begins
17 with its findings on the Accused's participation through a joint criminal
18 enterprise to commit persecutions.
19 Individual Criminal Responsibility, Joint Criminal Enterprise,
20 Article 7(1)
21 The Trial Chamber is satisfied upon the evidence that members of
22 the Crisis Staff, including Blagoje Simic as President; the Serb police,
23 including the Chief of Police, Stevan Todorovic, who was also a member of
24 the Crisis Staff; Serb paramilitaries, including "Debeli" (Srcko
25 Radovanovic, "Pukovnik"), "Crni" (Dragan Djordjevic), "Lugar" (Slobodan
1 Miljkovic), and "Laki" (Predrag Lazarevic), and the 17th Tactical Group
2 of the JNA; were participants in a basic form of joint criminal
3 enterprise, sharing the same intent to execute the common plan to
4 persecute non-Serb civilians in the Bosanski Samac Municipality.
5 The Trial Chamber infers the common plan of the joint criminal
6 enterprise from all the circumstances. There is sufficient evidence to
7 conclude that participants in the joint criminal enterprise acted in
8 unison to execute a plan that included the forcible takeover of the town
9 of Bosanski Samac, taking over vital facilities and institutions in the
10 town, and persecuting non-Serb civilians in the Municipality of Bosanski
11 Samac, within the period set forth in the Amended Indictment. This
12 common plan was aimed at committing persecutions against non-Serbs,
13 including acts of unlawful arrest and detention, cruel and inhumane
14 treatment, including beatings, torture, forced labour assignments and
15 confinement under inhumane conditions, deportations and forcible
17 Dr. Blagoje Simic, as President of the Municipal Assembly and the
18 Crisis Staff (later renamed the War Presidency), was at the apex of the
19 joint criminal enterprise at the municipal level. He was the
20 highest-ranking civilian in Bosanski Samac Municipality. He knew that
21 his role and authority were essential for the accomplishment of the
22 common goal of persecutions. The Trial Chamber is convinced that Blagoje
23 Simic and the other participants acted in the shared -- with the shared
24 intent to pursue their common goal of persecutions. The Trial Chamber
25 holds that while Blagoje Simic was a participant in the joint criminal
1 enterprise, there was no evidence to conclude that Miroslav Tadic and
2 Simo Zaric were participants.
3 The Trial Chamber turns now to deliver its specific findings on
4 Dr. Blagoje Simic's participation in the joint criminal enterprise to
5 commit these underlying acts of persecutions, and in addition, to give
6 its findings on the responsibility of Miroslav Tadic and Simo Zaric
7 pursuant to Article 7(1) of the Statute for the crime of persecutions
8 charged in Count 1 of the Indictment.
9 Crimes Against Humanity, Persecution, Count 1
10 (a) Forcible Takeover
11 With respect to the act of forcible takeover, as charged as an underlying
12 act of persecutions in Count 1, the Trial Chamber concludes that it does
13 not reach the level of gravity as the other crimes against humanity and
14 on its own does not amount to persecutions. The Trial Chamber notes
15 however that a forcible takeover may serve as the basis for perpetration
16 of other persecutory acts as it provides the conditions necessary for
17 adoption and enforcement of policies infringing upon basic rights of
18 citizens on the basis of their political, ethnic, or religious
20 (b) Unlawful Arrest and Detention
21 The Trial Chamber is satisfied that following the takeover in
22 Bosanski Samac Municipality on 17th April 1992, and continuing throughout
23 1992, large-scale arrests of Bosnian Muslim and Bosnian Croat civilians
24 were carried out in the Municipality by members of the local Serb police,
25 and paramilitaries from Serbia. Some members of the 4th Detachment also
1 conducted arrests. Non-Serbs were arrested on racial and political
2 grounds, not because there was a reasonable suspicion that they had
3 committed any offences, pursuant to national or international law.
4 Non-Serb civilians were detained in facilities in Bosanski Samac, the
5 Police Station (SUP), Territorial Defence Buildings, (TO), Primary and
6 Secondary Schools, Zasavica, Crkvina, and elsewhere in Bosnia and
7 Herzegovina, including Brcko and Bijeljina. The arrests and continued
8 detention were arbitrary and without lawful basis. Detainees were not
9 given reasons for their arrests and continued detention, and in the very
10 few instances where trials were conducted in Bijeljina and Batkovic,
11 these did not respect rights to a fair trial, the liberty and security of
12 the person, as enshrined in Articles 5 and 6 on if European Convention on
13 Human Rights, and Articles 9 and 14 of the International Covenant on
14 Civil and Political Rights.
15 The Trial Chamber finds that the only reasonable inference that
16 can be drawn from these facts is that Blagoje Simic shared the intent of
17 the other participants in the joint criminal enterprise, in executing the
18 common plan of persecutions, and participated in this joint criminal
19 enterprise through the unlawful arrest and detention of non-Serb
20 civilians. The police, paramilitaries, Crisis Staff, and 17th Tactical
21 Group of the JNA, worked together to maintain the system of arrests and
22 detention. As President of the Crisis Staff, Blagoje Simic presided over
23 meetings where the operations of Municipal authorities were discussed.
24 The Chief of Police, Stevan Todorovic, reported to the Crisis Staff on
25 the situation of arrests and detentions in Bosanski Samac. Blagoje Simic
1 was in a position of strong influence and control, and did not take any
2 significant steps in this position to prevent the continued arrests and
4 The Trial Chamber is not satisfied that there is sufficient
5 evidence that Miroslav Tadic participated in the unlawful arrest and
6 detention of non-Serbs. While Miroslav Tadic had knowledge of the
7 discriminatory intent of the joint criminal enterprise, through his
8 position as a member of the Exchange Commission, the actions or omissions
9 of Miroslav Tadic cannot be considered to have had a substantial effect
10 on the perpetration of unlawful arrests and detentions, and as such did
11 not aid and abet the joint criminal enterprise.
12 The Trial Chamber is not satisfied that Simo Zaric participated
13 in the unlawful arrest and detention of non-Serbs. In his position as
14 Assistant Commander for Intelligence, Reconnaissance, Morale and
15 Information in the 4th Detachment, he conducted interrogations of
16 detainees at the SUP and in Brcko. The Trial Chamber is not satisfied
17 that these acts had a substantial effect on the perpetration of the
18 unlawful arrests and detentions. Simo Zaric did not order any arrests,
19 and in several instances advocated the release of detainees.
20 (c) Interrogations
21 With respect to the charge against Simo Zaric of interrogation of
22 Bosnian Croats and Bosnian Muslims and other non-Serb civilians who had
23 been arrested and detained and forcing them to sign false and coerced
24 statements, the Trial Chamber finds that while there is evidence that
25 Simo Zaric conducted interrogations of detainees in the police station in
1 Bosanski Samac and in Brcko, there is no evidence that he forced them to
2 sign false and coerced statements. Furthermore, the Trial Chamber holds
3 that interrogations as charged alone, do not meet the seriousness -- the
4 serious requirement to constitute persecution and a crime against
5 humanity. The Trial Chamber has accordingly considered acts of
6 interrogation together with the charge of persecution for acts of cruel
7 and inhumane treatment.
8 Judge Williams will now deliver the next part of the judgement.
9 JUDGE WILLIAMS: (d) Cruel and Inhumane Treatment
10 The Trial Chamber considers that as the pleading of "cruel and
11 inhumane treatment [...] including beatings, torture, forced labour
12 assignments and confinement under inhumane conditions" (emphasis added),
13 is too vague and unspecific to have provided notice to the Defence of the
14 incidents not explicitly set out in the Amended Indictment, this
15 materially impaired the ability of the Accused to effectively prepare
16 their defence. Therefore, the Trial Chamber does not consider any cruel
17 and inhumane treatment falling outside the categories of beatings, forced
18 labour assignments, and confinement under inhumane conditions. The Trial
19 Chamber is, however, satisfied that torture was not pleaded as an
20 underlying act of cruel and inhumane treatment, but rather, that cruel
21 and inhumane treatment and torture were pleaded on the same level, as
22 underlying acts of persecution.
23 The Trial Chamber finds that detainees were subject to repetitive
24 beatings by paramilitaries and Serb police, causing severe pain and
25 suffering, both mentally and physically, that constituted cruel and
1 inhumane treatment. These acts were committed on discriminatory grounds,
2 constituting persecution. Other acts that included sexual assaults, the
3 extraction of teeth and threat of execution constituted torture. These
4 acts caused severe physical and mental pain and suffering and occurred in
5 order to discriminate on ethnic grounds against the victims. Non-Serb
6 civilians who were detained in facilities in Bosanski Samac, and Crkvina
7 and Bijeljina, were confined under inhumane conditions which constituted
8 cruel and inhumane treatment. They did not have sufficient space, food
9 or water, and were subject to humiliation and degradation. They suffered
10 from unhygienic conditions and did not have appropriate access to medical
11 care. The Trial Chamber finds that they were confined under inhumane
12 conditions on discriminatory grounds. The Trial Chamber is not, however,
13 satisfied beyond reasonable doubt that the living conditions of the
14 non-Serbs who were held in Zasavica amounted to confinement under
15 inhumane conditions.
16 The Trial Chamber is satisfied that Blagoje Simic participated in
17 the joint criminal enterprise to persecute non-Serb prisoners in the
18 detention facilities in the town of Bosanski Samac through cruel and
19 inhumane treatment, including beatings, torture, and confinement under
20 inhumane conditions. The Trial Chamber, however, is not satisfied that
21 he participated in the joint criminal enterprise to persecute non-Serb
22 detainees through cruel and inhumane treatment in the detention
23 facilities in Crkvina, Brcko, and Bijeljina.
24 The Trial Chamber is not satisfied that the Prosecution has
25 adduced sufficient evidence to prove that Miroslav Tadic's conduct had a
1 substantial effect on the perpetration of the crime. The Trial Chamber
2 is not satisfied that Miroslav Tadic had the authority to restrain any
3 perpetrator from committing persecutory acts including beatings, torture,
4 and confinement under inhumane conditions against the non-Serb prisoners
5 in the detention centres in Bosanski Samac, Crkvina, Brcko, or Bijeljina.
6 The Trial Chamber is satisfied that Simo Zaric aided and abetted
7 the joint criminal enterprise to persecute non-Serb prisoners in the
8 detention facilities in Bosanski Samac through cruel and inhumane
9 treatment, including beatings, torture, and confinement under inhumane
10 conditions. Simo Zaric conducted interrogations with non-Serb prisoners
11 who had been beaten. The Trial Chamber accepts that he did not take part
12 in the beatings and that he -- and that he did not approve of them.
13 However, the Trial Chamber finds that his participation in the
14 interrogations and in the interview of non-Serb prisoners by TV Novi Sad
15 gave encouragement and moral support to the perpetrators of the cruel and
16 inhumane treatment of non-Serb prisoners. In this context, the Trial
17 Chamber takes into consideration that Simo Zaric was a former chief of
18 the SUP in Bosanski Samac, Assistant Commander for Intelligence in the
19 4th Detachment, and a person highly engaged and respected in the social
20 and cultural life in Bosanski Samac. The Trial Chamber, however, does
21 not place any weight on his brief appointment as Chief of National
22 Security. The Trial Chamber finds that these characteristics of Simo
23 Zaric prove beyond a reasonable doubt that his participation in
24 interrogations had a substantial effect on the perpetration of the
25 mistreatment. While the Trial Chamber is not satisfied that Simo Zaric
1 shared the discriminatory intent of the perpetrators, the Trial Chamber
2 finds that Simo Zaric was aware of such intent. For these reasons, the
3 Trial Chamber is satisfied beyond reasonable doubt that Simo Zaric
4 incurred criminal responsibility as an aider and abettor of persecutions.
5 His criminal responsibility covers cruel and inhumane treatment committed
6 until July 1992 when he was appointed assistant president of the civilian
7 military council in Odzak Municipality.
8 The Trial Chamber is not, however, satisfied that Simo Zaric
9 shared or was aware of the discriminatory intent of the perpetrators of
10 persecution through cruel and inhumane treatment including beatings,
11 torture, and confinement under inhumane conditions, in Brcko and
12 Bijeljina. The evidence adduced by the Prosecution does not prove beyond
13 reasonable doubt that Simo Zaric had such awareness. Simo Zaric himself
14 only acknowledged that he knew of persecutions against non-Serb civilians
15 in the detention facilities in Bosanski Samac. The Trial Chamber is not
16 satisfied beyond reasonable doubt that Simo Zaric made a substantial
17 contribution to the persecution of non-Serb prisoners through cruel and
18 inhumane treatment, including beatings, torture, and confinement under
19 inhumane conditions in Crkvina.
20 (e) Forced Labour Assignments as Cruel and Inhumane Treatment
21 The Trial Chamber is satisfied that in violation of the norms of
22 international humanitarian law, civilians were forced to dig trenches,
23 build bunkers and work on other military assignments on the front line
24 where they were exposed to dangerous conditions and were under a high
25 risk of being injured or killed. The Trial Chamber accepts that the acts
1 of forcing civilians to work in life-threatening circumstances fail to
2 meet the obligation for humane treatment of civilians enshrined in the
3 Geneva Conventions and amount to cruel and inhumane treatment. The Trial
4 Chamber is satisfied that these assignments were made on a discriminatory
5 basis and that they reach the level of seriousness required for
7 The Trial Chamber furthermore is satisfied that non-Serb
8 civilians were subjected to humiliating forced labour. While single
9 instances of humiliating assignments may not reach the level of gravity
10 required for persecution, the Trial Chamber accepts that these
11 assignments were part of a pattern targeting the Bosnian Muslim and
12 Bosnian Croat political and economic leadership. The Trial Chamber is
13 satisfied that the humiliating assignments reach the level of gravity to
14 amount to persecution.
15 The Trial Chamber accepts that certain types of work, that
16 included food preparation, maintaining the water and power supply
17 systems, and agricultural work, were necessary for the welfare of the
18 community and even if compulsory, were permissible under international
19 humanitarian law.
20 It has not been established beyond reasonable doubt that the
21 conditions under which this labour was rendered were such as to amount to
22 cruel and inhumane treatment, or that the assignments are of sufficient
23 gravity to constitute persecution.
24 The Trial Chamber accepts that the Bosnian Muslims and Bosnian
25 Croats who were forced to loot the houses of people whom they sometimes
1 knew well and highly respected, were subjected to humiliating treatment.
2 It is not satisfied, however, that the Crisis Staff's participation in
3 forcing civilians to loot through the forced labour programme has been
4 established beyond reasonable doubt.
5 The Trial Chamber finds that the Secretariat for National
6 Defence, the body responsible for administrating the forced labour
7 programme, was accountable to the Crisis Staff. Therefore, it finds that
8 the Crisis Staff was ultimately responsible for sending people to work in
9 dangerous conditions.
10 The Trial Chamber is satisfied that the dangerous and humiliating
11 forced-labour assignments to which Bosnian Muslims and Bosnian Croats
12 were subjected were part of the joint criminal enterprise to persecute
13 non-Serb civilians in the municipalities of Bosanski Samac and Odzak.
14 The Trial Chamber is satisfied that Blagoje Simic intended to subject
15 Bosnian Muslims and Croats to dangerous or humiliating work. As the
16 President of the Crisis Staff, and later War Presidency, he participated
17 in the appointment and the dismissal of the head of the Municipal
18 Department for Defence. He was aware of the overall situation in the
19 Municipality and of the fact that civilians were used for trench digging
20 and other dangerous military assignments. He did not take any measures
21 within his authority to stop this practice.
22 While the Trial Chamber is satisfied that Miroslav Tadic was
23 aware of the existence of the forced labour programme, it is not
24 satisfied that he shared or was aware of Blagoje Simic's intent and that
25 of the other participants in the joint criminal enterprise to subject
1 Bosnian Muslims and Bosnian Croats to dangerous or humiliating work.
2 While the evidence supports the fact that Miroslav Tadic was involved in
3 the forced labour programme, the Trial Chamber is not satisfied that he
4 participated in forcing non-Serbs to do dangerous or humiliating work.
5 The Trial Chamber is not satisfied that the evidence presented
6 supports a finding that Simo Zaric substantially contributed to the
7 dangerous or humiliating forced labour assignments.
8 (f) Plunder
9 The Trial Chamber accepts that immediately after the forcible
10 takeover of Bosanski Samac, individual looting on a large school
11 occurred. While it has been established that paramilitaries, individual
12 members of the 4th Detachment, policemen, and ordinary Serb civilians,
13 were involved in acts of plundering of non-Serb property, the Trial
14 Chamber is not satisfied that the role of the Crisis Staff in these acts
15 has been proved beyond reasonable doubt. The Trial Chamber accepts the
16 evidence of Defence witnesses that some measures were taken by the Crisis
17 Staff to protect property left behind by individual families or property
18 solely owned by public companies.
19 While the Trial Chamber accepts that some civilians who gathered
20 every morning in front of the local commune building for their work
21 assignments were involved in looting, it is not satisfied that there is
22 evidence beyond a reasonable doubt that a Crisis Staff ordered the
23 looting. Witnesses who were forced to loot testified that sometimes they
24 received instructions from Serb civilians, who were looting along with
25 them, or from the drivers who were looting for their private purposes,
1 that looted goods were loaded onto private vehicles, and that there was
2 no control of any kind.
3 In view of the above, the Trial Chamber is not satisfied that the
4 widespread plundering and looting of the property of Bosnian Muslims and
5 Croats was part of the common plan to persecute non-Serb civilians.
6 While the Accused's knowledge of the occurrence of acts of looting is not
7 contested in this case, the Trial Chamber is not satisfied that their
8 intentional participation in any form has been proved beyond reasonable
10 (g) the issuance of orders, policies, decisions, and other
11 regulations in the name of the Serb Crisis Staff and War Presidency
12 Although the Crisis Staff of the Serbian Municipality of
13 BosanskiSamac issued some decisions violating the right to equal
14 treatment of non-Serb civilians, the Trial Chamber is not satisfied that
15 such decisions were of sufficient gravity to constitute persecution.
16 (h) Deportation and transfer
17 The Trial Chamber is satisfied that non-Serb civilians were
18 deported from the Municipality of Bosanski Samac to Croatia and from
19 Batkovic to Lipovac. Other non-Serb civilians were also transferred
20 within Bosnia and Herzegovina, namely from the Municipality of Bosanski
21 Samac to Dubica. The Trial Chamber is not satisfied beyond reasonable
22 doubt that transfers of non-Serb civilians from the Municipality of
23 Bosanski Samac to Zasavica and Crkvina were conducted with the intention
24 to permanently displace them, and for this reason concludes that these
25 non-Serbs were not forcibly transferred. Similarly, the Trial Chamber is
1 not satisfied that the relocation of non-Serb prisoners from one
2 detention centre to another within the Serb-held territory in Bosnia and
3 Herzegovina constituted forcible transfer in the absence of the Accused
4 intent that the victims will not return. The Trial Chamber finds that
5 none of the Accused's intent that the victims will not return. The Trial
6 Chamber finds that none of the Accused is criminally responsible for
7 forcibly transferring non-Serb prisoners from one detention facility to
8 another, as the Trial Chamber is not satisfied that the Accused had the
9 intent to permanently displace these prisoners.
10 With regard to the criminal responsibility of Blagoje Simic, the
11 Majority is satisfied that he took part in the joint criminal enterprise
12 to persecute non-Serb civilians by deporting and forcibly transferring
13 them. The Trial Chamber considered that the Crisis Staff of which
14 Blagoje Simic was the President was regularly informed about the
15 exchanges by Miroslav Tadic. On 2nd October 1992 Blagoje Simic, as the
16 President of the War Presidency, signed the appointment of the civilian
17 Exchange Committee that reported on its activities on a monthly basis to
18 the War Presidency. The Trial Chamber also considered that the system of
19 exchanges took place over a period of about one and a half years, and
20 finds that Blagoje Simic did not take sufficient measures to prevent
21 non-Serbs from being unlawfully displaced. The Trial Chamber is
22 satisfied that Blagoje Simic was aware of the non-Serb ethnicity of the
23 people who were unlawfully displaced. The Trial Chamber is convinced
24 that the extensive and continuing mistreatment of non-Serb civilians and
25 their subsequent displacement proves that the participants in the joint
1 criminal enterprise to persecute them had the shared intent to
2 permanently displace them. The only reasonable inference from all these
3 persecutory acts is that the perpetrators intended that the victims
4 should not return. Thus, the Trial Chamber is satisfied that Blagoje
5 Simic had a discriminatory intent with regard to the unlawful
6 displacement of these non-Serb civilians. For these reasons, the Trial
7 Chamber finds that Blagoje Simic participated in the joint criminal
8 enterprise to persecute through deportation and forcible transfer.
9 With respect to the criminal responsibility of Miroslav Tadic,
10 the Trial Chamber finds that it has not been proved beyond reasonable
11 doubt that Miroslav Tadic participated in a joint criminal enterprise to
12 persecute non-Serb civilians by unlawfully displacing them; however, it
13 is satisfied beyond reasonable doubt that Miroslav Tadic substantially
14 contributed to the deportation of non-Serb civilians as an aider and
15 abettor. Miroslav Tadic was aware that the participants in the joint
16 criminal enterprise to persecute non-Serb civilians through deportation
17 acted with a discriminatory intent. In this context, the Trial Chamber
18 takes into account that Miroslav Tadic knew of the non-Serb ethnicity of
19 the prisoners in Bosanski Samac who were later displaced, and he knew
20 about their arrest, detention, and cruel and inhumane treatment in the
21 detention facilities in Bosanski Samac. With regard to Miroslav Tadic's
22 intent to permanently displace non-Serb civilians, the Trial Chamber does
23 not accept Miroslav Tadic's statements that he never wished that some of
24 his fellow citizens would leave forever, and that there was always a
25 possibility to return. The Trial Chamber is satisfied beyond reasonable
1 doubt that the Prosecution has adduced sufficient evidence to prove that
2 Miroslav Tadic had the intent to permanently displace non-Serb civilians
3 from their homes in the Municipality of Bosanski Samac. The Trial
4 Chamber is satisfied that the only inference from his substantial and
5 continuing activity in the exchange of non-Serb civilians is that
6 Miroslav Tadic had the intent that these non-Serb civilians would not
7 return, or that he at least knew that his actions were likely to
8 permanently displace these non-Serb civilians and was reckless thereto.
9 For these reasons, the Trial Chamber is satisfied that Miroslav Tadic
10 incurs criminal responsibility as an aider and abettor to persecutions
11 through deportation.
12 Turning to Simo Zaric, the Trial Chamber finds that he, together
13 with Miroslav Tadic and Bozo Ninkovic, was designated by the Crisis Staff
14 to be involved in compiling lists with the names of Serbs who were
15 detained in Odzak prior to the exchange in Dubica on 25/26 May 1992, as
16 he hailed from Trnjak Zorice in Odzak Municipality and could provide
17 information on many of these detained Serbs. However, the Trial Chamber
18 is not satisfied that the Prosecution did adduce sufficient evidence to
19 establish beyond reasonable doubt that Simo Zaric acted with a
20 discriminatory intent or was aware of the persecutory intent of the
21 participants in the joint criminal enterprise to persecute non-Serb
22 civilians through forcible transfers. The Trial Chamber is also not
23 satisfied that Simo Zaric participated in the unlawful deportation of
24 non-Serb civilians on 4th and 5th July 1992 in Lipovac. Although the
25 Trial Chamber accepts the evidence that Simo Zaric was present at the
1 exchange site, the Trial Chamber finds that the Prosecution has not
2 adduced sufficient evidence to prove beyond reasonable doubt that Simo
3 Zaric's presence or any other activity prior to this exchange constituted
4 a participation in the exchange.
5 Crimes Against Humanity, Deportation, Count 2
6 The Trial Chamber is satisfied beyond reasonable doubt that
7 Blagoje Simic and Miroslav Tadic are criminally responsible for the
8 deportation of non-Serb civilians, a crime against humanity pursuant to
9 Article 5(d) of the Statute, based on the same conduct that constituted
10 the underlying act of deportation under Count 1.
11 With regard to Simo Zaric, the Trial Chamber finds that the
12 Prosecution has not adduced sufficient evidence to establish beyond
13 reasonable doubt that he incurs criminal responsibility for deportation
14 pursuant to Article 5(d) of the Statute.
15 JUDGE MUMBA: Sentencing
16 The Trial Chamber now turns to the matter of sentencing. In
17 accordance with the Appeals Chamber jurisprudence on cumulative
18 convictions, the Trial Chamber takes into consideration in the
19 determination of sentence that convictions for different crimes under the
20 Statute based on the same conduct are permissible only if each crime
21 involved has a materially distinct element that requires proof of an
22 element not contained in the other. Where only one of the crimes
23 contains a materially distinct element, the Chamber must enter a
24 conviction for that crime only, as being the more specific one.
25 While the crime of deportation as a crime against humanity does
1 not contain a materially distinct element from the crime of persecution,
2 persecution requires the materially distinct element of discriminatory
3 intent. The Trial Chamber therefore finds that cumulative convictions
4 for deportation as a crime against humanity and persecution through
5 deportation are not permissible and enters a conviction for persecution
6 only, as being the more specific crime.
7 The Trial Chamber has therefore convicted Dr. Blagoje Simic of
8 crimes against humanity for persecutions, based upon unlawful arrest and
9 detention of Bosnian Muslim and Bosnian Croat civilians, cruel and
10 inhumane treatment including beatings, torture, forced labour assignments
11 and confinement under inhumane conditions, and deportation and forcible
12 transfer in Count 1. On the basis of cumulative convictions, no
13 conviction is recorded for Count 2. Miroslav Tadic is convicted of
14 crimes against humanity for persecutions, based upon deportation and
15 forcible transfer in Count 1, and on the basis of cumulative convictions.
16 No conviction is recorded for Count 2. Simo Zaric is convicted of crimes
17 against humanity for persecutions, based upon acts of cruel and inhumane
18 treatment including beatings, torture, forced labour assignments and
19 confinement under inhumane conditions in Count 1.
20 With regard to Dr. Blagoje Simic, the Trial Chamber considers his
21 position as a leading member of the joint criminal enterprise, whose
22 purpose was to take over power in the Bosanski Samac Municipality and to
23 remove the Bosnian Muslims and Bosnian Croats from this territory through
24 heinous persecutory acts, as an aggravating factor. Moreover, the Trial
25 Chamber emphasises that as the most important civilian leader in the
1 Municipality, Dr. Blagoje Simic had a particular responsibility towards
2 the entire population. The Trial Chamber also accepts that the victims'
3 vulnerable position, as held in detention, and the fact that as a medical
4 doctor, Dr. Blagoje Simic was well aware of their sufferings, constitute
5 an aggravating circumstances. As mitigating factors, the Trial Chamber
6 accepts Blagoje Simic's voluntary surrender to the custody of the
7 Tribunal, his general comportment towards the proceedings, good conduct
8 in detention and clean criminal record.
9 With respect to Miroslav Tadic, the Trial Chamber takes into
10 consideration his active role in the process of exchanges and the status
11 of the victims, who due to the fact of their detention and other
12 circumstances, were not able to make a genuine choice regarding their
13 exchange. The Trial Chamber accepts as mitigating factors the fact that
14 Miroslav Tadic helped some Bosnian Muslims occur the war, his voluntary
15 surrender to the Tribunal, his remorse, and his personal circumstances as
16 well as the lack of prior convictions.
17 Regarding Simo Zaric, the Trial Chamber finds that his role as an
18 active member of the 4th Detachment, his position of power, and the
19 status of vulnerability of the victims who were subjected to regular
20 mistreatment in detention, constitute aggravating factors. The Trial
21 Chamber accepts as mitigating factors his attempts to alleviate the
22 suffering of some of the victims and his attempts to take measures
23 against some of the crimes, his remorse, voluntary surrender, personal
24 conditions and lack of prior criminal convictions.
25 The Trial Chamber now delivers this Disposition.
1 The accused, Dr. Blagoje Simic, will you please stand up. With
2 respect to you, Dr. Blagoje Simic, a conviction is entered for Count 1,
3 crimes against humanity, for persecutions, based upon unlawful arrest and
4 detention of Bosnian Muslim and Bosnian Croat civilians, cruel and
5 inhumane treatment including beatings, torture, forced labour
6 assignments, and confinement under inhumane conditions, and deportation
7 and forcible transfer. No conviction is recorded for Count 2, as the
8 Trial Chamber finds it to be impermissibly cumulative with Count 1.
9 Count 3 is dismissed due to defects in the form of the Amended
10 Indictment. Pursuant to Rule 101(C), following your voluntary surrender
11 to the custody of the Tribunal on 12th March 2001, and your subsequent
12 detention at the Tribunal's Detention Unit, you, Dr. Blagoje Simic, are
13 entitled to credit for 949 days towards service of the sentence that will
14 be imposed, together with the period you will serve in custody pending a
15 determination by the President pursuant to Rule 103(A) as to the State
16 where the sentence will be served. You are to remain in the custody of
17 the Detention Unit until such determination is made.
18 Dr. Blagoje Simic, you are sentenced to a term of 17 years
19 imprisonment. You may sit down.
20 Mr. Miroslav Tadic, please stand up.
21 With respect to you, Miroslav Tadic, the Trial Chamber enters a
22 conviction for Count 1, crimes against humanity, for persecutions, based
23 upon deportation and forcible transfer. No conviction is recorded for
24 Count 2, as the Trial Chamber finds it to be impermissibly cumulative
25 with Count 1. Count 3 is dismissed due to the defects in the form of the
1 Amended indictment. You, Miroslav Tadic, you are entitled to a credit
2 for 1.568 days towards service of your sentence, together with the period
3 you will serve in custody pending determination by the President pursuant
4 to Rule 103(A) as to the State where your sentence will be served. You
5 are to remain in the custody of the Tribunal until such determination is
7 You, Mr. Miroslav Tadic, are sentenced to a term of imprisonment
8 for 8 years. You may sit down.
9 Mr. Simo Zaric, please stand up.
10 With respect to you, Mr. Simo Zaric, the Trial Chamber enters a
11 conviction for Count 1, crimes against humanity, for persecutions, based
12 upon cruel and inhumane treatment including beatings, torture, and
13 confinement under inhumane conditions. The Trial Chamber acquits you of
14 Count 2. Count 3 is dismissed due to defects in the form of the Amended
15 Indictment. You, Mr. Simo Zaric, are entitled to credit for 1.558 days
16 towards service of the sentence imposed, together with the period you
17 will serve in custody pending a determination by the President pursuant
18 to Rule 103(A) of the Statute as to the State where the sentence is to be
19 served. You will remain in custody of the Tribunal until such
20 determination is made. Mr. Simo Zaric, you are sentenced to a term of
21 imprisonment for 6 years. Will you please sit down. Judge Lindholm will
22 pronounce his conclusions according to his separate and partly dissenting
24 JUDGE LINDHOLM: Your Honour, as said, I will only read out the
25 disposition contained in my partly dissenting opinion.
1 In agreement with the considerations of the Trial Chamber
2 regarding cumulative convictions, I agree with the Majority's conviction
3 of Blagoje Simic on Count 1, persecutions as a crime against humanity.
4 For the reasons I have given in my partly dissenting opinion, I
5 find a sentence to 7 years imprisonment proportionate and just. I
6 further find that Miroslav Tadic and Simo Zaric are not guilty of Count 1
7 and Count 2.
8 I concur with the majority in dismissing Count 3. Thank you.
9 JUDGE MUMBA: These proceedings are now closed, and the Court
10 will rise.
11 --- Whereupon the hearing adjourned at 10.57 a.m.