IN THE TRIAL CHAMBER

Before:
Judge Richard May, Presiding
Judge Patrick Robinson
Judge O-Gon Kwon

Registrar:
Mr. Hans Holthuis

Order of:
10 April 2003

PROSECUTOR
v.
SLOBODAN MILOSEVIC

_________________________________________________

DECISION ON PROSECUTION MOTION FOR JUDICIAL NOTICE OF ADJUDICATED FACTS

_________________________________________________

The Office of the Prosecutor

Ms. Carla Del Ponte
Ms. Hildegard Uertz-Retzlaff
Mr. Geoffrey Nice
Mr. Dermot Groome

The Accused

Slobodan Milosevic

Amici Curiae

Mr. Steven Kay, QC
Mr. Branislav Tapuskovic
Mr. Timothy L.H. McCormack

 

THIS TRIAL CHAMBER of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 (“International Tribunal”),

BEING SEISED of the “Prosecution Motion for Judicial Notice of Adjudicated Facts”, filed by the on 12 December 2002 (“the Motion”), in which the Prosecution requests the Trial Chamber to take judicial notice of adjudicated facts derived from four cases which have been the subject of final appeal decisions,1

NOTING the Prosecution arguments in favour of admission of the adjudicated facts, inter alia, as follows:

(a) The Statute requires that trials be fair and expeditious and by taking judicial notice of previously adjudicated facts the Chamber will serve the interests of judicial economy;
(b) There is a public interest in greater use of Rule 94(B), in the sense that it would reduce the lengths of trials generally, permit the trials of other accused awaiting trial to begin as soon as possible and maintain international confidence in the work of this Tribunal; and
(c) There is no prejudice to the accused, because even if the adjudicated facts are admitted, they would not establish the personal liability of the accused, the Prosecution still being obliged to prove beyond reasonable doubt (1) that the previously adjudicated facts constitute the commission of crimes within the jurisdiction of this Tribunal ; and (2) that these crimes relate to acts of the accused or his co-perpetrators in the joint criminal enterprise,

NOTING the “Amici Curiae Observations on the ‘Prosecution Notice of Adjudicated Facts’ filed on 12 December 2002”, filed by the amici curiae on 6 February 2003, in which the Trial Chamber is requested to deny the application for admission of adjudicated facts for the following reasons:

(a) By admitting these facts, the Trial Chamber would prevent the accused from challenging any of such facts which will be proved beyond reasonable doubt within the context of his trial, and this will breach the right of the Accused to a fair and public hearing under Article 21(2) of the Statute and the right to be tried in his presence under Article 21(4)(d) of the Statute;
(b) The accused would not have the opportunity to test the evidence taken from other trials, which would contravene his right to examine the witnesses against him pursuant to Article 21(4)(e) of the Statute; and
(c) The witnesses in other cases may well have been cross-examined in a different manner than the accused would do so, the circumstances of each case differing significantly,

NOTING that the application is made pursuant to Rule 94(B) of the Rules of Procedure and Evidence (“Rules”), which provides that a Trial Chamber may “decide to take judicial notice of adjudicated facts or documentary facts or documentary evidence from other proceedings of the Tribunal relating to matters at issue in the current proceedings”.

CONSIDERING the approach taken by this Trial Chamber in previous applications to the admission of adjudicated facts pursuant to Rule 94 (B),2 the relevant features of which can be set out as follows:

(a) The purpose of taking judicial notice is to promote judicial economy and narrow the factual issues;
(b) A balance between judicial economy and the right of the accused to a fair trial must be achieved;
(c) Trial Chambers may take judicial notice of factual findings in other cases but not of the legal characterisation of such facts;
(d) The Trial Chamber may only take judicial notice of facts which are not the subject of reasonable dispute; and
(e) For a fact to be capable of admission under Rule 94(B) it should have been the subject of adjudication and not based upon an agreement between parties in previous proceedings ; and

NOTING the holding in the Krajisnik case3 to the effect that taking judicial notice of a fact has the effect of creating a presumption and that the burden of proof thereafter shifts to the opposing party , which may challenge the fact thereafter by submitting its own evidence,4

CONSIDERING that for a fact to be capable of admission under Rule 94 (B), it is critical that the fact not be capable of reasonable dispute,

CONSIDERING that the wholesale admission of facts taken from a judgment based upon the assessment by another Trial Chamber of the evidence before it is not an appropriate exercise of a Trial Chamber’s discretion under Rule 94 (B), and is in conflict with the accused’s right to a fair trial,

CONSIDERING that, in the Trial Chamber’s view, a fact, if admitted, is a fact that is accepted by the Chamber and cannot give rise to a presumption,

CONSIDERING that the first 130 paragraphs of facts set out in Annex A to the Prosecution Motion constitute facts properly characterised as historical and geographical background information and not subject to reasonable dispute,

CONSIDERING HOWEVER that some of these paragraphs contain paraphrasing of the original text or incorrect paragraph numbering,

CONSIDERING that the remainder of the facts sought to be admitted under Rule 94 (B) are facts which may be the subject of reasonable dispute and judicial notice may not therefore be taken of these facts,

PURSUANT TO Rule 94 of the Rules

HEREBY ADMITS the first 130 paragraphs of facts set out in Annex A to the Motion, but does so in the form set out in the attached Schedule under the heading “Actual Text”, and DOES NOT ADMIT the remainder of the facts set out by the Prosecution in Annex A to its Motion.

 

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

___________________________
Richard May
Presiding Judge

Dated this tenth day of April 2003
At The Hague
The Netherlands

[Seal of the Tribunal]

 

SCHEDULE A TO DECISION ON PROSECUTION MOTION FOR JUDICIAL NOTICE OF ADJUDICATED FACTS

Para. Prosecution version of the text. Actual Text

1.

For centuries the population of Bosnia and Herzegovina, more so than any other republic of the former Yugoslavia, has been multi-ethnic. TJ 56.

For centuries the population of Bosnia and Herzegovina, more so than any other republic of the former Yugoslavia, has been multi-ethnic.

2.

Serbs, Croats and Muslims comprised the most numerous ethnic groups in Bosnia and Herzegovina. TJ 56 - 57.

For each, Bosnia and Herzegovina is of particular interest, containing as it does substantial Serb and Croat populations as well as an even larger Muslim population but having no single ethnic group as a majority of the population; as of 1991, some 44 percent of Bosnians were Muslim, 31 percent Serb and 17 percent Croat. TJ 57

3.

Centuries ago, Serbs were encouraged to settle along what is now the northern and western boundaries of Bosnia and Herzegovina, which at that time formed the military frontier between the Austro-Hungarian Empire and its predecessors, and that of the Ottoman Turks. TJ 56.

For more than 400 years Bosnia and Herzegovina was part of the Ottoman Empire. Its western and northern borders formed the boundary with the Austro-Hungarian Empire or its predecessors; a military frontier along that boundary was established as early as the sixteenth century to protect the Hapsburg lands from the Ottoman Turks. TJ 56

4.

The large Muslim population of Bosnia and Herzegovina owes its religion and culture, and hence its identity, to the long Turkish occupation, during which time many Slavs adopted the Islamic faith. TJ 56.

The large Muslim population of Bosnia and Herzegovina owes its religion and culture, and hence its identity, to the long Turkish occupation, during which time many Slavs adopted the Islamic faith

5.

The Bosnian Croats live principally in the south-west part of Bosnia and Herzegovina, adjacent to Croatia’s Dalmatian coast. TJ 56.

The third ethnic population living in Bosnia and Herzegovina, also sizeable, are the Croats, living principally in the south-west adjacent to Croatia’s Dalmatian coast. TJ 56

6.

As of 1991, some 44 percent of Bosnians were Muslim, 31 percent were Serb, and 17 percent were Croat. TJ 57 / CJ 99.

As of 1991, some 44 percent of Bosnians were Muslim, 31 percent were Serb, and 17 percent were Croat

7.

For Serbs the heroic but unsuccessful resistance of the Serb nation to Turkish invasion, culminating in their defeat in the battle of Kosovo, remains an emotional event, symbolic of Serb courage. TJ 57.

For Serbs the heroic but unsuccessful resistance of the Serb nation to Turkish invasion, culminating in their defeat in the battle of Kosovo, remains an emotional event, symbolic of Serb courage.

8.

Until 1878 Bosnia and Herzegovina remained under Ottoman rule. TJ 58.

Until 1878 Bosnia and Herzegovina remained under Ottoman rule

9.

In 1878, the Austro-Hungarian Empire occupied Bosnia and Herzegovina and began to administer it. TJ 58.

In that year, the Austro-Hungarian Empire occupied Bosnia and Herzegovina and began to administer it

10.

In 1908, the Austro-Hungarian Empire formally annexed Bosnia and Herzegovina. TJ 58.

In 1908, it formally annexed Bosnia and Herzegovina.

11.

Immediately after the First World War, and as part of the break-up of the Hapsburg empire, the Kingdom of Serbs, Croats and Slovenes was created out of the union of the Kingdom of Serbia, which in the nineteenth century had already achieved independence from Turkey, with Montenegro, which had also been an independent principality, and with Croatia, Slovenia, and Bosnia and Herzegovina. TJ 58.

Immediately after the First World War, and as part of the break-up of the Hapsburg empire, the Kingdom of Serbs, Croats and Slovenes was created out of the union of the Kingdom of Serbia, which in the nineteenth century had already achieved independence from Turkey, with Montenegro, which had also been an independent principality, and with Croatia, Slovenia, and Bosnia and Herzegovina.

12.

In 1929 the Kingdom of Serbs, Croats and Slovenes changed its name to the Kingdom of Yugoslavia, that is, the Kingdom of the southern Slavs. TJ 58.

In 1929 that Kingdom changed its name to the Kingdom of Yugoslavia, that is, the Kingdom of the southern Slavs.

13.

For many centuries Roman Catholicism had predominated in the northern and western sectors of the territory of the former Yugoslavia, whereas Orthodox Christianity and Islam prevailed in its southern and eastern sectors under the rule of the Ottoman Empire. TJ 58.

For many centuries Roman Catholicism had predominated in the northern and western sectors, whereas Orthodox Christianity and Islam prevailed in its southern and eastern sectors under the rule of the Ottoman Empire.

14.

This same general religious division persisted into this century and indeed still persists. TJ 58.

This same general religious division persisted into this century and indeed still persists.

15.

During the Axis occupation of the Second World War, a portion of the territory of the state of Yugoslavia was annexed by Italy and two other areas were transferred to Bulgarian and Hungarian control respectively. TJ 60.

During the time of Axis occupation, a portion of the territory of the state was annexed by Italy and two other areas were transferred to Bulgarian and Hungarian control respectively.

16.

Much of what remained of Yugoslavia became the formally independent, but, in fact, Axis puppet state of Croatia. TJ 60.

Much of what remained of Yugoslavia became the formally independent, but, in fact, Axis puppet state of Croatia.

17.

The Axis puppet state of Croatia extended far beyond previous, and subsequent Croatian boundaries. TJ 60.

Axis puppet state of Croatia extending far beyond previous, and subsequent Croatian boundaries.

18.

Large parts of Bosnia and Herzegovina, including opstina Prijedor, were included in the Axis puppet state of Croatia. TJ 61.

Large parts of which, including opstina Prijedor, were included in the Axis puppet state of Croatia

19.

The Axis puppet state of Croatia was divided between the Italian and German zones. TJ 60.

Much of what remained became the formally independent but in fact Axis puppet state of Croatia, extending far beyond previous, and subsequent, Croatian boundaries and divided between Italian and German zones; TJ 60

20

During the Second World War, a much reduced Serbia became a so-called German protectorate. TJ 60.

A much reduced Serbia became a so-called German protectorate.

21.

The Second World War was a time of prolonged armed conflict in Yugoslavia, in part the product of civil war, in part a struggle against foreign invasion and subsequent occupation. TJ 61.

It was a time of prolonged armed conflict in Yugoslavia, in part the product of civil war, in part a struggle against foreign invasion and subsequent occupation.

22.

The wartime situation which lasted from 1941 to 1945, left bitter memories in Yugoslavia. TJ 61.

Although this wartime situation was short-lived, lasting only from 1941 to 1945, it left bitter memories, not least in Bosnia and Herzegovina, large parts of which, including opstina Prijedor, were included in the puppet state of Croatia. TJ 61

23.

Although none of these three Yugoslav forces was predominantly Muslim, Muslims were to be found in the ranks of both the Ustasa and the Partisans. TJ 61.

Although none of these three Yugoslav forces was predominantly Muslim, Muslims were to be found in the ranks of both the Ustasa and the Partisans.

24.

Many of the hard-fought and bloody conflicts of the Second World War in Yugoslavia took place in Bosnia and Herzegovina. TJ 62.

Many of these hard-fought and bloody conflicts took place in Bosnia and Herzegovina.

25.

Many of the outrages against civilians committed during the Second World War, especially though by no means exclusively by Ustasa forces against ethnic Serbs, took place in Bosnia and Herzegovina, particularly in the border area between Croatia and Bosnia and Herzegovina, where the Partisans were especially active, and is the very area in which opstina Prijedor lies. TJ 62.

Many of the outrages against civilians, especially though by no means exclusively by Ustasa forces against ethnic Serbs, took place there, particularly in the border area between Croatia and Bosnia and Herzegovina, where the Partisans were especially active, and is the very area in which opstina Prijedor lies.

26.

During the Second World War, a minister of the wartime Croatian puppet government promised to kill a third of the Serbs in its territory, deport a third and by force convert the remaining third to Catholicism. TJ 62.

A minister of the wartime Croatian puppet government promised to kill a third of the Serbs in its territory, deport a third and by force convert the remaining third to Catholicism.

27.

Another wartime minister urged the cleansing of all of the greatly enlarged Croatia of "Serbian dirt". TJ 62.

Another urged the cleansing of all of the greatly enlarged Croatia of "Serbian dirt".

28.

Wholesale massacres of Serbs ensued during the Second World War. TJ 62.

Wholesale massacres of Serbs ensued.

29.

In six months of 1941 the Ustasa may have killed well over a quarter of a million Serbs, although the exact number is a subject of much controversy. TJ 62.

In six months of 1941 the Ustasa may have killed well over a quarter of a million Serbs, although the exact number is a subject of much controversy.

30.

Bulgarian and Hungarian occupying forces in other parts of Yugoslavia also engaged in massacres of Serbs and in ethnic cleansing. TJ 62.

Bulgarian and Hungarian occupying forces in other parts of Yugoslavia also engaged in massacres of Serbs and in ethnic cleansing.

31.

Following World War II in opstina Prijedor, particularly in rural areas, the three ethnic groups (or "nationalities"), Serbs, Croats and Muslims, tended to live separately so that in many villages one or another ethnicity so predominated that they were generally regarded as Serb or Croat or Muslim villages. TJ 64.

However, at least in opstina Prijedor, particularly in rural areas, the three populations, Serbs, Croats and Muslims, tended to live separately so that in very many villages one or another nationality so predominated that they were generally regarded as Serb or Croat or Muslim villages. TJ 64

32.

During the post-war years until 1991, intercommunal relations in opstina Prijedor were relatively good, with friendships across ethnic and coincident religious divides, with intermarriages and generally harmonious relations. TJ 64 / CJ 99.

Many witnesses speak of good intercommunal relations, of friendships across ethnic and coincident religious divides, of intermarriages and of generally harmonious relations. TJ 64

33.

Following the Second World War, Marshal Tito and his communist regime took stern measures to suppress and keep suppressed all nationalist tendencies. TJ 65 / CJ 92.

Marshal Tito and his communist regime took stern measures to suppress and keep suppressed all nationalist tendencies.

34.

Under the Yugoslav Constitution of 1946, the country was to be composed of six Republics: Serbia, Croatia, Slovenia, Bosnia and Herzegovina, Macedonia, and Montenegro and two autonomous regions, Vojvodina and Kosovo. TJ 65 / CJ 91.

Under its Constitution of 1946, the country was to be composed of six Republics: Serbia, Croatia, Slovenia, Bosnia and Herzegovina, Macedonia, and Montenegro and two autonomous regions, Vojvodina and Kosovo.

35.

The Republic of Bosnia and Herzegovina was unique because unlike the other Yugoslav Republics, it possessed no one single majority ethnic grouping. TJ 65 / CJ 91.

The situation of Bosnia and Herzegovina was unique; although it was one of the six Republics, it, unlike the others, possessed no one single majority ethnic grouping

36.

Because the Republic of Bosnia and Herzegovina possessed no one single majority ethnic grouping, there was no constitutional recognition of a distinct Bosnian nation (people). TJ 65 / CJ 91.

The situation of Bosnia and Herzegovina was unique; although it was one of the six Republics, it, unlike the others, possessed no one single majority ethnic grouping and thus there was no recognition of a distinct Bosnian nation.

37.

With the proclamation of the SFRY Constitution of 1974, however, the Muslims of Bosnia and Herzegovina were considered to be one of the nations or peoples of federal Yugoslavia. TJ 65 / CJ 91.

However, by 1974 the Muslims were considered to be one of the nations or peoples of federal Yugoslavia.

38.

Throughout the years of Marshal Tito’s communist Yugoslavia, religious observance was discouraged. TJ 66.

Throughout the years of Marshal Tito’s communist Yugoslavia, religious observance was discouraged.

39.

In spite of the government’s efforts, the Yugoslav population remained very conscious of so-called ethnic identity, as Serb, Croat or Muslim. TJ 66.

Nevertheless, the population remained very conscious of so-called ethnic identity, as Serb, Croat or Muslim.

40.

The territorial division between Roman Catholic and Orthodox branches of the Christian faith had run through the territory of Yugoslavia for many centuries. TJ 67.

The territorial division between Roman Catholic and Orthodox branches of the Christian faith had run through the territory of Yugoslavia for many centuries.

41.

When the Ottoman empire, not stopping at the conquest of Constantinople, extended throughout much of the Balkans, the fluctuating boundary between Catholic Christianity and Islam, which also sheltered a numerous Christian Orthodox population, was usually to be found passing through or near Bosnia. TJ 67.

When the Ottoman empire, not stopping at the conquest of Constantinople, extended throughout much of the Balkans, the fluctuating boundary between Catholic Christianity and Islam, which also sheltered a numerous Christian Orthodox population, was usually to be found passing through or near Bosnia.

42.

Today, in Bosnia and Herzegovina, whether practising or non-practising, the great majority of Serbs remain Orthodox Christian and the Croats Roman Catholic, while the title Muslim speaks for itself. TJ 67.

Today, in Bosnia and Herzegovina, whether practising or non-practising, the great majority of Serbs remain Orthodox Christian and the Croats Roman Catholic, while the title Muslim speaks for itself.

43.

Initially Marshal Tito’s Yugoslavia had a close relationship with the Soviet Union. TJ 68.

Initially Marshal Tito’s Yugoslavia had a close relationship with the Soviet Union.

44.

The Yugoslav Constitution was framed on the Soviet model. TJ 68.

Its Constitution was framed on the Soviet model.

45.

Post-war Yugoslavia was, at first, a highly centralist State, with substantial power exercised federally from Belgrade. TJ 68 / CJ 92.

Post-war Yugoslavia was, at first, a highly centralist State, with substantial power exercised federally from Belgrade.

46.

During the 1960s and on into the 1970s, there was a trend towards devolution of power to the governments of the Republics. TJ 68 / CJ 92.

In the 1960s and on into the 1970s, there was a trend towards devolution of power to the governments of the Republics.

47.

The increased authority of the Republics was recognised and enhanced in the new Constitution adopted in 1974, and this devolution of power continued on into the 1980s. TJ 68 / CJ 92.

Then, in the 1960s and on into the 1970s, there was a trend towards devolution of power to the governments of the Republics, a trend enhanced by a new Constitution adopted in 1974 and which continued on into the 1980s.

48.

In October 1988, the authorities governing Vojvodina were removed and in March 1989 a new Constitution was adopted in Serbia which removed the autonomy of the province of Kosovo. CJ 97.

In October 1988, the authorities governing Vojvodina were removed and in March 1989 a new Constitution was adopted in Serbia which removed the autonomy of the province of Kosovo.

49.

Serbia’s incorporation of Vojvodina and Kosovo ended what Serbs regarded as a discriminatory feature of the Yugoslav federation, that the one entire nation of Serbs, consisting of Serbia and the two provinces, was, alone of the Republics, denied a single, united identity. TJ 69.

In the mid to late 1980s, the Republic of Serbia had already begun measures to deprive Yugoslavia’s two autonomous provinces, Vojvodina and Kosovo, of their separate identity and effectively to incorporate them into the Republic. This it achieved in substance in 1990, thereby ending what Serbs regarded as a discriminatory feature of the federation, that the one entire nation of Serbs, consisting of Serbia and the two provinces, was, alone of the Republics, denied a single, united identity.

50.

Kosovo is part of the historical homeland of the Serbs of past centuries and has particular significance for present-day Serbs who regarded its autonomy as a province to be especially hurtful, depriving Serbia of coherent statehood and control over what it considered to be ancestral Serbian territory. TJ 69.

Kosovo is part of the homeland of the Serbs of past centuries and has particular significance for present-day Serbs who regarded its autonomy as a province to be especially hurtful, depriving Serbia of coherent statehood and control over what it considered to be ancestral Serbian territory.

The Disintegration of the Socialist Federal Republic of Yugoslavia

51.

With Tito’s death in 1980 and the escalation of a serious economic crisis, cracks began to appear in the unity of the federal State. CJ 96.

With Tito’s death in 1980 and the escalation of a serious economic crisis, cracks began to appear in the unity of the federal State.

52.

The political disintegration of the former Yugoslavia began in the late 1980’s. TJ 70.

What developed into the total disintegration of Yugoslavia as Marshal Tito knew it perhaps began, to the extent that gradual political processes have a definite beginning, in the late 1980s.

53.

Yugoslavia had long pursued its own unique system of socialist self-management which set it apart from the rest of the communist world. TJ 70.

Yugoslavia had long pursued its own unique system of socialist self-management which set it apart from the rest of the communist world.

54.

During the 1980s this system came to be widely regarded as responsible for Yugoslavia’s protracted economic crisis. TJ 70.

During the 1980s this system came to be widely regarded as responsible for the country’s economic crisis.

55.

Towards the end of the 1980s, the economic crisis in Yugoslavia developed into a major political one. TJ 70.

Towards the end of the 1980s, what had begun as an economic crisis developed into a major political one.

56.

By the end of the 1980’s, at the same time that communism was in decline everywhere in Eastern Europe, Yugoslavia’s one-party state, with all political power in the hands of the League of Communists, was increasingly regarded as outmoded. TJ 70/ CJ 96.

Yugoslavia’s one-party state, with all political power in the hands of the League of Communists, was increasingly regarded as outmoded.

57

In 1988, a sweeping reform of the Yugoslav political and constitutional scene occurred. The whole structure of Yugoslav socialist self-management, entrenched as it had been in the federal Constitution, was abolished. TJ 71.

In 1988, a sweeping reform of the political and constitutional scene occurred. The whole structure of socialist self-management, entrenched as it had been in the federal Constitution, was abolished

58

The many constitutional references to the Yugoslav working class as the political actors and possessors of political power were removed and the leading political role of the League of Communists was brought to an end. TJ 71.

The many constitutional references to the Yugoslav working class as the political actors and possessors of political power were removed and the leading political role of the League of Communists was brought to an end.

59

In 1988 and 1989 events in both Serbia and Slovenia suggested impending threats to the unity of the federation. TJ 72.

In 1988 and 1989 events in both Serbia and Slovenia suggested impending threats to the unity of the federation.

60

In 1989 at the fourteenth Congress of the League of Communists, Serbian delegates also sought to alter to the advantage of more populous Republics such as Serbia a fundamental feature of the Constitution, that of the voting equality of Republics, substituting for it the one person one vote principle. TJ 72.

In 1989 at the fourteenth Congress of the League of Communists, Serbian delegates also sought to alter to the advantage of more populous Republics such as Serbia a fundamental feature of the Constitution, that of the voting equality of Republics, substituting for it the one person one vote principle.

61

The conduct of the Serbian delegates caused the resignation of the Slovenian leadership from the League and a walkout from the Congress of the representatives of Croatia and of Bosnia and Herzegovina. TJ 72 / CJ 98.

This caused the resignation of the Slovenian leadership from the League and a walkout from the Congress of the representatives of Croatia and of Bosnia and Herzegovina.

62

In Slovenia in the 1980s there was a growing sense of nationalism, of Slovenia for the Slovenes, and with it growing hostility towards those Yugoslavs who were not ethnic Slovenes. TJ 73.

In Slovenia in the 1980s there had been a growing sense of nationalism, of Slovenia for the Slovenes, and with it growing hostility towards those Yugoslavs who were not ethnic Slovenes.

63

In 1989 Slovenia formally amended the Republic’s Constitution to empower the Slovene Assembly to take measures to protect the Republic’s status and rights from violation by organs of the federation. TJ 73.

In 1989 Slovenia formally amended the Republic’s Constitution to empower the Slovene Assembly to take measures to protect the Republic’s status and rights from violation by organs of the federation.

64

Yugoslavia’s constitutional court declared the Slovene amendment to be unconstitutional. TJ 73.

This amendment was declared unconstitutional by Yugoslavia’s constitutional court

65

In December 1989 Slovenia chose to ignore the decision of the Yugoslav constitutional court. TJ 73.

In December 1989 Slovenia chose to ignore the decision of the court.

66

During 1990 and 1991, other Yugoslav Republics increasingly ignored federal authority. TJ 73.

In the following 18 months other Republics increasingly ignored federal authority.

67

In May 1990, a new government was elected into office in Slovenia after its first multi- party elections. CJ 98.

In May 1990, a new government was elected into office in Slovenia after its first multi- party elections.

68

In December 1990, a plebiscite was held in Slovenia, resulting in an overwhelming majority vote for independence from Yugoslavia. TJ 73.

In December 1990, a plebiscite was held in Slovenia, resulting in an overwhelming majority vote for independence from Yugoslavia.

69

In Croatia, the 1990 elections produced a strongly nationalistic government led by Franjo Tudjman. TJ 74 / CJ 98.

In Croatia, the elections of 1990 produced a strongly nationalistic government led by Franjo Tudjman

70

Upon his assumption of power, Franjo Tudjman amended the Republic’s Constitution to recreate Croatia as the national state of the Croatian nation, with citizens of other ethnic groups as minorities, not having the status of nations. TJ 74 / CJ 98.

In Croatia the elections of 1990 produced a strongly nationalistic government led by Franjo Tudjman who, upon assuming power, amended the Republic’s Constitution to recreate Croatia as the national state of the Croatian nation, with citizens of other ethnic groups as minorities, not having the status of nations.

71

Franjo Tudjman declared that in Croatia, the Croats alone were sovereign. TJ 74.

Franjo Tudjman declared that in Croatia, the Croats alone were sovereign

72

A plebiscite in Croatia in May 1991 produced an overwhelming majority for independence. TJ 74.

A plebiscite in Croatia in May 1991 produced an overwhelming majority for independence.

73

Just before the holding of the Croatian plebiscite, Serbia and Montenegro, aided by the votes of the two formerly autonomous provinces now controlled by Serbia, blocked for a time the customary rotation of the collective Presidency of the federation, preventing the appointment of a Croat whose turn it was, according to the convention, to be President of the federation. This caused intense disquiet among the other Republics. TJ 75 / CJ 101.

Just before the holding of the Croatian plebiscite, Serbia and Montenegro, aided by the votes of the two formerly autonomous provinces now controlled by Serbia, blocked for a time the customary rotation of the collective Presidency of the federation, preventing the appointment of a Croat whose turn it was, according to the convention, to be President of the federation. This caused intense disquiet among the other Republics.

74

In August 1990, the Serbs living in the Krajina region of Croatia held a referendum on self-autonomy and certain towns were declared to be part of Serbia. TJ 76 / CJ 98.

In August 1990, the Serbs living in the Krajina region of Croatia held a referendum on self-autonomy and certain towns were declared to be part of Serbia.

75

Croatian influence and control was effectively excluded from those Serb autonomous regions. TJ 76.

A consequence was that along the Bosnian border, in strongly Serb areas, local Serbs began to declare autonomous regions within Croatia; one in Krajina, another further to the east in Eastern Slavonia, thereby effectively excluding Croatian influence and control from those regions.

76

On 25 June 1991 Slovenia and Croatia declared their independence from the Socialist Federal Republic of Yugoslavia. TJ 77 / CJ 100.

On 25 June 1991 Slovenia and Croatia declared their independence from the Socialist Federal Republic of Yugoslavia.

77

In Bosnia and Herzegovina, the Parliament declared the sovereignty of the Republic on 15 October 1991. TJ 78 / CJ 105.

In Bosnia and Herzegovina, the Parliament declared the sovereignty of the Republic on 15 October 1991.

78

The Bosnian Serb deputies of the Parliament of Bosnia and Herzegovina proclaimed a separate Assembly of the Serb Nation on 24 October 1991. TJ 78/ CJ 105.

The Bosnian Serb deputies of that Parliament proclaimed a separate Assembly of the Serb Nation on 24 October 1991.

79

In March 1992 Bosnia and Herzegovina declared its independence following a referendum held in February 1992 sponsored by the Bosnian Muslims with some support from Bosnian Croats. TJ 78 / CJ 106.

In March 1992 Bosnia and Herzegovina declared its independence following a referendum held in February sponsored by the Bosnian Muslims with some support from Bosnian Croats.

80

The holding of the February referendum was opposed by Bosnian Serbs, who very largely abstained from voting. TJ 78/ CJ 106

The holding of the referendum had been opposed by Bosnian Serbs, who very largely abstained from voting.

81

The European Community and the United States of America recognised the independence of the Republic of Bosnia and Herzegovina in April 1992. TJ 78/ CJ 106.

The European Community and the United States of America recognised the independence of the Republic of Bosnia and Herzegovina in April 1992.

82

The Republic of Serbian People of Bosnia and Herzegovina (later to become the Republika Srpska) was declared on 9 January 1992, to come into force upon any international recognition of the Republic of Bosnia and Herzegovina. TJ 78 / CJ 105.

The Republic of Serbian People of Bosnia and Herzegovina was declared on 9 January 1992, to come into force upon any international recognition of the Republic of Bosnia and Herzegovina.

83

Serbia and Montenegro continued to support the concept of a federal state, no longer under its old name but to be called the Federal Republic of Yugoslavia and wholly Serb dominated, consisting only of Serbia and Montenegro. TJ 78 / CJ 116.

Serbia and Montenegro meanwhile continued to support the concept of a federal state, no longer under its old name but to be called the Federal Republic of Yugoslavia and wholly Serb dominated, consisting only of Serbia and Montenegro. NB Paragraph 79 and not 78

84

The Federal Republic of Yugoslavia was formally established in April 1992. TJ 78 / CJ 116.

it was formally established in April 1992. NB. Paragraph 79 and not 78

85

The establishment of the Federal Republic of Yugoslavia completed the dissolution of the former Socialist Federal Republic of Yugoslavia. TJ 79.

This completed the dissolution of the former Socialist Federal Republic of Yugoslavia.

86

What had taken the place of state socialism in Yugoslavia were the separate nationalisms of each of the Republics of the former Yugoslavia, other than Bosnia and Herzegovina, which alone possessed no single national majority. TJ 79.

What had taken the place of state socialism in Yugoslavia were the separate nationalisms of each of the Republics of the former Yugoslavia, other than Bosnia and Herzegovina, which alone possessed no single national majority.

Bosnia and Herzegovina

87

In 1990 the first free, multi-party elections were held in Bosnia and Herzegovina, for both opstina assemblies and for the Republican Legislature. TJ 81.

In 1990 the first free, multi-party elections were held in Bosnia and Herzegovina, for both opstina assemblies and for the Republican Legislature.

88

The most prominent political parties in Bosnia and Herzegovina were the Muslim Party of Democratic Action ("SDA"), the Serb Democratic Party ("SDS") and the Croat Democratic Union ("HDZ"). TJ 81 / CJ 98.

The most prominent were the Muslim Party of Democratic Action ("SDA"), the Serb Democratic Party ("SDS") and the Croat Democratic Union ("HDZ").

89

In the elections for both the Republic Assembly and the opstina assembly in Prijedor, the SDA party gained a narrow margin over the SDS. TJ 81 / CJ 99.

In both ballots the SDA party gained a narrow margin over the SDS.

90

The outcome of the elections was, in effect, little more than a reflection of an ethnic census of the population with each ethnic group voting for its own nationalist party. TJ 81/CJ 99.

The outcome of the elections was, in effect, little more than a reflection of an ethnic census of the population with each ethnic group voting for its own nationalist party.

91

A coalition government was thus formed headed by a seven member State Presidency, with the leader of the SDA, Alija Izetbegovic, as the first President. CJ 99.

A coalition government was thus formed headed by a seven member State Presidency, with the leader of the SDA, Alija Izetbegovic, as the first President.

92

In the Republican Assembly, co-operation between the Muslim and Serbian political parties proved increasingly difficult as time went by. TJ 82.

In the Republican Assembly, co-operation between the Muslim and Serbian political parties proved increasingly difficult as time went by.

93

The coalition government of the Republic broke down in October 1991 and failed completely in January 1992. TJ 82.

What was initially a coalition government of the Republic broke down in October 1991 and failed completely in January 1992.

94

The disintegration of multi-ethnic federal Yugoslavia was thus swiftly followed by the disintegration of multi-ethnic Bosnia and Herzegovina, and, as a result, the prospect of war in Bosnia and Herzegovina increased. TJ 83.

The disintegration of multi-ethnic federal Yugoslavia was thus swiftly followed by the disintegration of multi-ethnic Bosnia and Herzegovina, and the prospect of war in Bosnia and Herzegovina increased.

95

Further, the Bosnian Serbs retained vivid memories of their suffering at the hands of the Croats during the Second World War. TJ 83.

Further, its large Serbian minority retained vivid memories, albeit now some 50 years old, of their wartime suffering at Croat hands.

96

In March 1992, the Assembly of Serbian People of Bosnia and Herzegovina promulgated the Constitution of the Serb Republic of Bosnia and Herzegovina and proclaimed itself a distinct republic. TJ 102.

In March 1992, the Assembly of Serbian People of Bosnia and Herzegovina promulgated the Constitution of the Serb Republic of Bosnia and Herzegovina and proclaimed itself a distinct republic.

97

The March 1992 Assembly session was transmitted live on television. TJ 102.

The Assembly session was transmitted live on television.

The Role of the JNA

98

The SFRY devised a defence system known as " All People’s Defence" ( or "Total National Defence") to protect SFRY from external attack. CJ 93.

A defence system known as "All People’s Defence" (or "Total National Defence") was devised to protect the SFRY from external attack.

99

Prior to the break-up of the former Yugoslavia, the totality of Yugoslav armed forces included the regular army, navy and air force, collectively known as the JNA, consisting of an officer corps, non-commissioned officers and conscripts, together with a reserve force, and, as well as and distinct from the JNA, the TOs. TJ 105 / CJ 94.

the totality of Yugoslav armed forces included the regular army, navy and air force, collectively known as the JNA, consisting of an officer corps, non-commissioned officers and conscripts, together with a reserve force, and, as well as and distinct from the JNA, the TOs.

100

The JNA was an entirely federal force with its headquarters in Belgrade. TJ 105.

The JNA was an entirely federal force with its headquarters in Belgrade.

101

There was a distinct TO in each Republic, funded by that Republic and under the control of the Minister of Defence of that Republic. TJ 105 / CJ 94.

There was a distinct TO in each Republic, funded by that Republic and under the control of the Minister of Defence of that Republic.

102

The JNA was a powerful national army, comprised of 45,000 - 70,000 regular officers and soldiers along with 110,000-135,000 conscripts who served on a more short-term basis, equipped with all the conventional weapons and equipment that modern European armies possess. TJ 105 / CJ 94.

The JNA was a powerful national army, comprised of 45,000 - 70,000 regular officers and soldiers along with 110,000-135,000 conscripts who served on a more short-term basis, equipped with all the conventional weapons and equipment that modern European armies possess.

103

The TOs were equipped with essentially infantry weapons; rifles, light machine-guns, some small calibre artillery, mortars, anti-personnel mines and the like. TJ 105.

The TOs were equipped with essentially infantry weapons; rifles, light machine-guns, some small calibre artillery, mortars, anti-personnel mines and the like.

104

The TOs had no tanks and their transport would vary depending on the adequacy of a particular Republic’s funding of its TO and on how much each received by way of JNA cast-offs. TJ 105.

They had no tanks and their transport would vary depending on the adequacy of a particular Republic’s funding of its TO and on how much each received by way of JNA cast-offs.

105

In the early 1990s the traditional predominance of Serb officers in the JNA swiftly increased so that very soon very few non-Serb officers remained in the JNA. TJ 108.

In the early 1990s this predominance of Serb officers in the JNA swiftly increased so that very soon very few non-Serb officers remained in the JNA.

106

From 1991 to early 1992, the Serb component of JNA conscripts rose from just over 35 to some 90 percent. TJ 109.

The change that overtook the JNA in the early 1990s is best illustrated by the change in the ethnic mix of conscripts between pre-June 1991 and early 1992. During that time, the Serb component rose from just over 35 to some 90 percent.

107

The JNA remained in substantial force in Bosnia and Herzegovina, despite the secession of that Republic. TJ 113.

It remained in substantial force in Bosnia and Herzegovina, despite the secession of that Republic.

108

On 15 May 1992 the Security Council, by resolution 752, demanded that all interference from outside Bosnia and Herzegovina by units of the JNA cease immediately and that those units either be withdrawn, be subject to the authority of the Government of the Republic of Bosnia and Herzegovina, or be disbanded and disarmed. TJ 113.

On 15 May 1992 the Security Council, by resolution 752, demanded that all interference from outside Bosnia and Herzegovina by units of the JNA cease immediately and that those units either be withdrawn, be subject to the authority of the Government of the Republic of Bosnia and Herzegovina, or be disbanded and disarmed.

109

The remainder of the former JNA was to become the army of the new Federal Republic of Yugoslavia (Serbia and Montenegro), known as the VJ. TJ 114 /CJ 117.

The remainder of the former JNA was to become the army of the new Federal Republic of Yugoslavia (Serbia and Montenegro), known as the VJ.

110

The formal withdrawal of the JNA from Bosnia and Herzegovina took place on 19 May 1992. TJ 115.

The formal withdrawal of the JNA from Bosnia and Herzegovina took place on 19 May 1992.

111

The VRS was in effect a product of the dissolution of the old JNA and the withdrawal of its non-Bosnian elements into Serbia. TJ 115.

The VRS was in effect a product of the dissolution of the old JNA and the withdrawal of its non-Bosnian elements into Serbia.

112

The weapons and equipment with which the new VRS was armed were those that the units had had when part of the JNA. TJ 115.

The weapons and equipment with which the new VRS was armed were those that the units had had when part of the JNA.

113

The Muslim-dominated government of Bosnia and Herzegovina instructed the Bosnian population not to comply with the JNA’s mobilisation order. TJ 122.

The Muslim-dominated government of Bosnia and Herzegovina instructed the Bosnian population not to comply with the JNA’s mobilisation order.

114

In October 1991, the Government of the Republic of Croatia declared that the JNA was an invading force. TJ 123.

By its incursion into Croatia, the JNA, which the Government of the Republic of Croatia declared in October 1991 to be an invading force,

115

In early 1992, the SDS disassociated itself from the legislature and government of the independent Republic of Bosnia and Herzegovina and formed the independent Serb government of Republika Srpska. TJ 124.

the SDS disassociated itself from the legislature and government of the independent Republic of Bosnia and Herzegovina and formed the independent Serb government of Republika Srpska.

The Importance of the Opstina Prijedor

116

The opstina (municipality) of Prijedor is located in north-western Bosnia and Herzegovina. TJ 55.

The area with which this trial is primarily concerned is north-western Bosnia and Herzegovina; more specifically, opstina (district) Prijedor,

117

The opstina of Prijedor includes the town of Prijedor and the town of Kozarac some 10 kilometres to its east. TJ 55.

opstina of Prijedor which includes the town of Prijedor and the town of Kozarac some 10 kilometres to its east.

118

The opstina of Prijedor was significant to the Serbs because of its location as part of the land corridor that linked the Serb-dominated area in the Croatian Krajina to the west with Serbia and Montenegro to the east and south. TJ 127.

opstina Prijedor was significant to the Serbs because of its location as part of the land corridor that linked the Serb-dominated area in the Croatian Krajina to the west with Serbia and Montenegro to the east and south.

119

Opstina Prijedor was essential for supplying units of the VRS as it was the only land connection between western Bosnia and Serbia. TJ 127.

Opstina Prijedor was significant to the Serbs because of its location as part of the land corridor that linked the Serb-dominated area in the Croatian Krajina to the west with Serbia and Montenegro to the east and south, which was said to be essential for supplying units of the VRS as it was the only land connection between western Bosnia and Serbia.

Opstina Prijedor Before the Take-over

120

Before the take-over opstina Prijedor was ethnically a relatively mixed area: in 1991 Muslims were the majority in the opstina; out of a total population of 112,000, 49,700 (44%) were Muslims and about 40,000 (42.5%) Serbs, with the remainder made up of Croats (5.6%), Yugoslavs (5.7%) and aliens (2.2%). TJ 128.

Before the take-over opstina Prijedor was ethnically a relatively mixed area: in 1991 Muslims were the majority in the opstina; out of a total population of 112,000, 49,700 (44%) were Muslims and about 40,000 (42.5%) Serbs, with the remainder made up of Croats (5.6%), Yugoslavs (5.7%) and aliens (2.2%).

121

During the November 1990 elections for the Prijedor Municipal Assembly, the SDA won 30 seats, the SDS 28, the HDZ 2 and 30 seats went to other parties: the so-called opposition parties, namely the Social Democratic, the Liberal Alliance, and the Reformist parties. TJ 132.

The Prijedor Municipal Assembly, for which elections were held in November 1990, comprised a total of 90 seats, with opstina Prijedor divided into five electoral units. Each party had a total of 90 candidates on the ballot. In the outcome the SDA won 30 seats, the SDS 28, the HDZ 2 and 30 seats went to other parties: the so-called opposition parties, namely the Social Democratic, the Liberal Alliance, and the Reformist parties.

122

If the election results were followed the SDA would be entitled to 50 percent of the appointed positions with the SDS and HDZ entitled to the remaining 50 percent. TJ 132.

According to the SDA, if the election results were followed it would be entitled to 50 percent of the appointed positions with the SDS and HDZ entitled to the remaining 50 percent.

This has a different sense as it is the view of the SDA

123

The SDS, however, insisted upon 50 percent of the seats for itself and after negotiations supported by Radovan Karadzic, the President of the SDS, the parties eventually agreed that the SDS would receive 50 percent and the SDA would give the HDZ a certain proportion out of its 50 percent. TJ 132.

The SDS, however, insisted upon 50 percent of the seats for itself. Negotiations were conducted, including an impromptu meeting between Srdjo Srdic, the President of the Prijedor Municipal SDS Committee, Radovan Karadzic, President of the SDS, and Mirsad Mujadzic, the President of the Municipal Committee of the SDA of Prijedor. Radovan Karadzic encouraged the local SDS to reach an understanding and the parties eventually agreed that the SDS would receive 50 percent and the SDA would give the HDZ a certain proportion out of its 50 percent.

124

That agreement was implemented at the Municipal Assembly of Prijedor in January 1991 and Velibor Ostojic, then acting Minister for Information in the Government of the Republic of Bosnia and Herzegovina and one of Radovan Karadzic’s confidants, was present at that session to help mediate the agreement. TJ 132.

That agreement was implemented at the Municipal Assembly of Prijedor in January 1991. Velibor Ostojic, then acting Minister for Information in the Government of the Republic of Bosnia and Herzegovina and one of Radovan Karadzic’s confidants, was present at that session to help mediate the agreement.

Prelude to the Take-over of Opstina Prijedor

125

On the political front, the last meeting of the Prijedor Municipal Assembly prior to the take-over was very contentious. TJ 136.

On the political front, the last meeting of the Prijedor Municipal Assembly prior to the take-over was very contentious.

126

As a result of the increased tensions between the various ethnic communities, checkpoints were established and run by different groups. TJ 140.

As a result of the increased tensions between the various ethnic communities, checkpoints were established and run by different groups.

127

Negotiations were conducted between a delegation of Kozarac citizens and the Prijedor Crisis Staff but were unsuccessful. TJ 143.

Negotiations were conducted between a delegation of Kozarac citizens and the Prijedor Crisis Staff but to little avail.

128

There were three principal governmental or quasi-governmental entities in Bosnia and Herzegovina in 1992-1993: the Government of the Republic of Bosnia and Herzegovina based in Sarajevo, the Croatian Community of Herceg-Bosna based in Mostar and the Republika Srpska based in Pale. KJ 126.

There were three principal governmental or quasi-governmental entities in Bosnia and Herzegovina in 1992-1993: the Government of the Republic of Bosnia and Herzegovina based in Sarajevo, the Croatian Community of Herceg-Bosna based in Mostar and the Republika Srpska based in Pale.

129

Corresponding to these governmental or quasi-governmental divisions, there were various armed forces, Military Police, civilian police, paramilitary formations and village guards operating in central Bosnia in 1992-1993, which were at different times either joint or formed along ethnic lines. KJ 126.

Corresponding to these governmental or quasi-governmental divisions, there were various armed forces, Military Police, civilian police, paramilitary formations and village guards operating in central Bosnia in 1992-1993, which were at different times either joint or formed along ethnic lines.

Background to conflict in Foca

130

According to the 1991 Census, Foca municipality had a pre-war population of about 40,513 inhabitants of whom 52% were Muslim. KUJ 47

According to the 1991 Census, Foca municipality had a pre-war population of about 40,513 inhabitants of whom 52% were Muslim.

 


1 - Prosecutor v. Tadic, Judgment, Case No. IT-94-1-T, 7 May 1997, settled on appeal on 15 July 1999; Prosecutor v. Delalic et al., Judgment, Case No. IT-96-21-T (“Celebici Judgment”), 16 November 1998, decided on appeal on 20 February 2001; Prosecutor v. Kupreskic et al., Judgment, Case No. IT-95-16-T, 14 January 2000, settled on appeal on 23 October 2001; Prosecutor v. Kunarac et al., Judgement, Case No. IT-96-23-T & 23/1-T, 22 February 2000, settled on appeal on 12 June 2002.
2 - Prosecutor v. Simic et al., “Decision on the Pre-Trial Motion by the Prosecution Requesting the Trial Chamber to Take Judicial Notice of the International Character of the Conflict in Bosnia-Herzegovina”, Case No. It-95-9-PT, 25 March 1999; Prosecutor v. Sikirica et al., “Decision on Prosecution Motion for Judicial Notice of Adjudicated Facts”, Case No. IT-95-8-PT, 27 September 2000; and, Prosecutor v. Milosevic, “Decision on Prosecution’s Motion for Judicial Notice of Adjudicated Facts Relevant to the Municipality of Brcko”, 5 June 2002.
3 - Prosecutor v. Krajisnik, Case No. IT-00-39-PT, “Decision on Prosecution Motion for Judicial Notice of Adjudicated Facts and for Admission of Written Statements of Witnesses Pursuant to Rule 92 bis”, 28 February 2003. This Chamber notes the approach taken recently by Trial Chamber I in the Krajisnik case, to the effect that judicial notice may be taken of facts over the objection of the opposing party, provided they are truly adjudicated, meaning they are concrete and identifiable; they are restricted to factual findings, not legal characterisations; the facts were contested at trial and either not appealed or finally settled on appeal; they do not go to the accused’s criminal responsibility; they are not the subject of reasonable dispute between the parties; they are not based on plea agreements in previous cases, and they do not impact upon the right of the Accused to a fair trial (para. 15).
4 - Ibid., para. 16.