Page 4950
1 Friday, 29 November 2002
2 [Open session]
3 [Judgement]
4 [The accused entered court]
5 --- Upon commencing at 10.01 a.m.
6 JUDGE HUNT: Call the case, please.
7 THE REGISTRAR: Case number IT-98-32-T, the Prosecutor versus
8 Mitar Vasiljevic.
9 JUDGE HUNT: Appearances, please.
10 MR. GROOME: For the Prosecution, Dermot Groome, Frederic Ossogo,
11 Sabine Bauer, with the assistance of David Bruff.
12 JUDGE HUNT: Thank you. For the accused?
13 MR. DOMAZET: Your Honours, Vladimir Domazet, lead counsel and
14 Mr. Radomir Tanaskovic, co-counsel for Mitar Vasiljevic.
15 JUDGE HUNT: Thank you. Mr. Vasiljevic are you able to hear the
16 proceedings in a language which you understand?
17 THE ACCUSED: [Interpretation] Yes, Your Honour.
18 JUDGE HUNT: Thank you. Sit down, please.
19 Trial Chamber II is sitting today to deliver judgement in the
20 trial of Mitar Vasiljevic. For the purposes of this hearing I propose to
21 summarise briefly the issues which arose during the trial and the findings
22 of the Trial Chamber in relation to those issues. I emphasise that this
23 is a summary only and that it forms no part of the judgement which is
24 delivered. The only authoritative account of the Trial Chamber's findings
25 and of its reasons for those findings is to be found in the written
Page 4951
1 judgement, copies of which will be made available to the parties and to
2 the public at the conclusion of this hearing.
3 The trial arose out of events which took place in 1992 in the town
4 of Visegrad located on the bank of the Drina River in the Visegrad
5 Municipality in south-eastern Bosnia-Herzegovina close to the border with
6 the Republic of Serbia. Prior to the armed conflict the majority of the
7 people who lived in the municipality were of Muslim ethnicity which
8 outnumbered the Serb minority by almost two to one. Ethnic tensions
9 flared up after the multi-party elections in November of 1990 returned a
10 municipal council which closely matched the ethnic composition of the
11 municipality.
12 Members of the Serb and Muslim ethnicities armed themselves and
13 early in 1992, violence between them followed. The attack upon the
14 non-Serb civilian population took many forms, starting with the Serb
15 takeover of the town and the systematic and large-scale criminal campaign
16 of murders, rapes, and mistreatment of the non-Serb population of the
17 municipality, particularly the Muslims, which eventually culminated in one
18 of the most comprehensive and ruthless campaigns of ethnic cleansing in
19 the Bosnian conflict. Hundreds of mostly Muslim men and women, children
20 and elderly people were killed. One of the most violent of the
21 paramilitary groups operating in the area was led by Milan Lukic, a former
22 resident of Visegrad. This paramilitary group entered the town of
23 Visegrad and committed many very serious crimes there with the complicity
24 or at least with the acquiescence, of the Serb authorities who had taken
25 control of the area.
Page 4952
1 The trial was principally -- was concerned principally with two
2 incidents which took place in Visegrad between the month of June, 1992.
3 The first took place on the 7th of June. Milan Lukic and a number
4 of other men led seven Bosnian Muslim men to the bank of the Drina River
5 where they forced the Muslim men to line up on the bank of the river and
6 to face the river. Despite pleas by the Muslims for their lives they were
7 shot from behind. When it appeared that someone was still alive, the men
8 lying in the water were shot at again at close range. Five of the Muslim
9 men were killed but the other two men escaped by pretending to be dead as
10 they lay in the water. This has been referred to as the Drina River
11 incident.
12 The second incident took place on the 14th of June, 1992. About
13 70 Bosnian Muslim women, children, and elderly men were directed to enter
14 a house in Pionirska Street in the Mahala neighbourhood of the Visegrad
15 municipality. An inflammable substance had been spread in the area in
16 which the Muslims were locked before land. When this large group had been
17 forced inside that house it was set on fire with an incendiary device.
18 Most of the group died in the fire. Some escaped before the fire and
19 others were successful in escaping during the fire. This has been
20 referred to as the Pionirska Street incident.
21 The accused, Mitar Vasiljevic, was charged separately in relation
22 to each of the two incidents with a number of crimes, alleging that he
23 acted in concert with Milan Lukic and others to commit murder, both as a
24 crime against humanity and as a violation of the laws or customs of war,
25 inhumane acts as a crime against humanity and violence to life and person,
Page 4953
1 as a violation of the laws or customs of war. In relation to the
2 Pionirska Street incident, the accused was also charged with extermination
3 in concert with Milan Lukic and others, as a crime against humanity.
4 Finally, in relation to both incidents, taken cumulatively the
5 accused has been charged with persecution on political racial or religious
6 grounds as a crime against humanity by participating in the murder of
7 Bosnian Muslim and other non-Serb civilians, the harassment, terrorisation
8 and psychological abuse of such civilians and the theft and destruction of
9 personal property of such civilians.
10 Mitar Vasiljevic was a member of the Serb minority in Visegrad.
11 He had worked as a waiter in various establishments around town. The
12 Prosecution claimed that he was also a member of or was associated with
13 the Serb paramilitary group led by Milan Lukic. Such an association was
14 put forward by the Prosecution as establishing that the accused shared the
15 homicidal intent of that paramilitary group. There was a close family
16 relationship between the two men. Evidence was also led from a number of
17 witnesses that they had seen the accused with Milan Lukic and others when
18 serious crimes were committed by them. In almost every case, evidence of
19 the participation of the accused in the activities of the paramilitary
20 group was given by one witness only and the evidence of identification by
21 that witness was poor.
22 The Trial Chamber has concluded that the only association of the
23 accused with the Milan Lukic group, which was established, other than in
24 relation to the two incidents with which the trial was concerned, was that
25 he participated in the search of a Muslim family's home in the village of
Page 4954
1 Musici and that he was a ready source of local information for the group
2 about the location of Muslims in the area. The Trial Chamber is satisfied
3 that he gave that information to the group with the full realisation that
4 it would be used by the group to persecute Muslims.
5 In relation to the first incident, the accused admitted that he
6 had been present at the shooting of the men on the bank of the Drina
7 River. He claimed that his presence there was accidental and that he had
8 not realised that the men were to be killed until they were approaching
9 the river, when he tried to persuade Milan Lukic to spare the lives of
10 these men. The Trial Chamber is satisfied that the accused did not try to
11 persuade Milan Lukic to spare their lives, that he willingly accompanied
12 Milan Lukic and his group with the seven Muslim men to the Drina River,
13 and that he was participating with that group in a joint criminal
14 enterprise that all seven of the men be killed. As only five died he has
15 been found to have incurred individual criminal responsibility for the
16 murder of those five men, both as a crime against humanity and as a
17 violation of the laws or customs of war. In relation to the two men who
18 escaped being killed in that shooting, the Trial Chamber is satisfied that
19 the attempted killing amounted to a serious attack on the human dignity of
20 these two men and that it caused them immeasurable mental suffering. The
21 accused has thus been found to have incurred individual criminal
22 responsibility for inhumane acts as a crime against humanity.
23 The Trial Chamber is not satisfied that the charge of a violation
24 to life and person as a violation of the laws or customs of war
25 constitutes an offence under customary law giving rise to individual
Page 4955
1 criminal responsibility, and the accused has been acquitted of this
2 charge.
3 In relation to the second incident, the accused admitted that he
4 had been present in Pionirska Street during the course of the afternoon of
5 the 14th of June, 1992, but he denied participating in any way in relation
6 to the Pionirska Street incident. The Prosecution alleged that the
7 accused took part in looting from the Muslim group late in the afternoon
8 but the Trial Chamber is not satisfied that the evidence of identification
9 is sufficiently reliable as to warrant the conclusion that the accused was
10 present at that time.
11 The Trial Chamber is satisfied that the forcing of the Muslims
12 into the house which was then burnt down did not take place before 9.30
13 p.m. that day. The accused accepts that earlier that day he did speak
14 with a group of people there, but he says that after he had done so, and
15 well before the Muslims were forced to enter that house, he was riding a
16 horse bareback through Visegrad when the horse slipped. He fell to the
17 ground and the horse fell on top of him breaking his leg. He was taken
18 first to the Visegrad health centre and then to the Uzice hospital, a trip
19 which would have taken at least an hour. In other words, the accused
20 relies upon an alibi. There was a considerable amount of evidence led in
21 relation to this alibi.
22 It should be clearly understood that when an issue of alibi arises
23 upon the evidence, the accused bears no onus of proof in relation to it.
24 An alibi means only that the accused denies being where the Prosecution
25 alleges he was at the time the crime was committed. As part of its case
Page 4956
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Page 4957
1 of proving beyond reasonable doubt that the accused was at Pionirska
2 Street when the Muslims were forced into the house which was then burnt
3 down, the Prosecution must eliminate any reasonable possibility that the
4 alibi upon which the accused relies is true. In this case, the
5 Prosecution had to eliminate any reasonable possibility that the accused
6 was in or on the way to the Uzice hospital at 9.30 p.m., the earliest time
7 when the Muslims were forced into that house.
8 The Trial Chamber does not accept a great deal of the evidence
9 which was led on behalf of the accused in support of the alibi. There
10 were, however, some pivotal pieces of evidence tendered, the admission
11 ledgers of the Uzice hospital and the case history of a man by the name of
12 Mitar Vasiljevic, who was admitted to that hospital on the 14th of June,
13 1992, at 9.35 p.m. These records were subjected by the Prosecution to
14 extensive and repeated forensic analysis, and was conceded by the
15 Prosecution that they showed no sign of forgery. The Prosecution
16 therefore had to eliminate any reasonable possibility that the accused was
17 the man who was admitted under the name of Mitar Vasiljevic to the Uzice
18 hospital on the date and at the time recorded in those hospital records.
19 Dr. Moljevic was a doctor at the orthopaedic ward of the hospital
20 and a member of the triage team at its admission centre at the relevant
21 time. He knew the accused well and he was notified of the imminent
22 arrival of the accused because of his friendship with him. He had a clear
23 recollection of the events of that day although he did rely upon the
24 admission ledgers, the authenticity of which the Prosecution was unable to
25 challenge for the date and precise time of admission. The Trial Chamber
Page 4958
1 accepts the evidence of Dr. Moljevic that the accused was in Uzice
2 hospital by 9.35 p.m. on the day of the fire as corroboration of the
3 admission ledgers. The Prosecution has thus failed to establish beyond
4 reasonable doubt that the accused was in Pionirska Street at the time the
5 Muslims were forced into the house and when it was burnt down.
6 This places a substantial degree of importance upon the activities
7 of the accused at the time when he admits he was in Pionirska Street
8 earlier in the afternoon. The Prosecution argued that the accused had
9 sought to persuade the group of Muslims in Pionirska Street to stay
10 together so that he could inform Milan Lukic of their whereabouts, who
11 would then commit the crimes which were in fact subsequently committed,
12 including looting. The Trial Chamber is satisfied that the accused did
13 seek to ensure that the group stayed together because he knew that some
14 evil was to befall them. This would have made him a participant in a
15 joint criminal enterprise to commit whatever crime he knew was to
16 befall them, or at least to have incurred an individual criminal
17 responsibility by aiding and abetting in that crime. The Prosecution,
18 however, failed to establish beyond reasonable doubt just what the evil
19 was which the accused knew was to befall the group of Muslims in Pionirska
20 Street.
21 In those circumstances, the Prosecution failed to establish any
22 of the three crimes charged separately in relation to the Pionirska Street
23 incident, murder, as both a crime against humanity and as a violation of
24 the laws or customs of war, and inhumane acts as a crime against humanity.
25 The Trial Chamber is therefore acquitted the accused of those charges.
Page 4959
1 The charge of violence to life and person has failed for the same reason
2 as it failed in relation to the Drina River incident. The additional
3 charge in relation to the Pionirska Street incident, that of
4 extermination, has also failed because of the failure of the Prosecution
5 to establish beyond reasonable doubt that the accused was in Pionirska
6 Street at the relevant time or that he was aware that these people were to
7 be killed.
8 This leaves the charge of persecution on political, racial, or
9 religious grounds as a crime against humanity, which has to be considered
10 in relation to all of the relevant acts of the accused in their context
11 and their cumulative effect. As a result of the findings already made,
12 these acts were effectively only those giving rise to the accused's
13 individual criminal responsibility for murder as both a crime against
14 humanity and as a violation of the laws or customs of war and inhumane
15 acts as a crime against humanity in relation to the Drina River incident.
16 The Trial Chamber is satisfied that the five Muslim men were killed and
17 that the inhumane acts were committed against the other two Muslim men
18 only because they were Muslims and that they had been singled out for
19 religious or political reasons. The acts were thus discriminatory
20 both in fact and in intent. The accused is therefore been found to have
21 incurred individual criminal responsibility for the crime of persecution
22 as a crime against humanity in relation to the five men and the inhumane
23 acts committed against the two survivors.
24 The question of cumulative convictions then arises. It is
25 permissible to record a conviction for the crime of murder as a violation
Page 4960
1 of the laws or customs of war pursuant to Article 5 of the Tribunal's
2 statute. Together with a crime -- together with a conviction for a crime
3 against humanity pursuant to Article 3, despite the fact that both
4 convictions arise out of the same set of facts. The real issue in
5 relation to cumulative convictions in the present case arises in relation
6 to the three crimes against humanity in relation to which the accused has
7 been found to have incurred individual criminal responsibility. As
8 persecution incorporates the ingredients of both murder as a crime against
9 humanity and inhumane acts, and it is -- and as it is more specific than
10 either of those crimes, a conviction for persecution must be entered in
11 lieu of convictions for murder and inhumane acts.
12 Accordingly, the accused has been convicted for the crimes of
13 persecution, that is as a crime against humanity under count 3, which
14 conviction incorporates his individual criminal responsibility for the
15 murder of the five men and the inhumane acts in relation to the two
16 survivors, and of murder as a violation of the laws or customs of war in
17 relation to the five men charged in count 5. He has been acquitted in
18 relation to counts 1, 4, 6, 7, 10, 11, 12 and 13.
19 In sentencing the accused for these two convictions, it is
20 important to emphasise that the accused is to be punished for the totality
21 of his criminal conduct and of his -- and his overall culpability and that
22 any prejudice which he will or may suffer because of cumulative
23 convictions have been based upon the same criminal conduct must be taken
24 into account. He is not to be punished for either the number of crimes
25 for which he has incurred individual criminal responsibility or the number
Page 4961
1 of convictions entered in relation to his conduct.
2 The principal issue raised in relation to sentencing is the claim
3 by the accused that at the time of the Drina River incident, his mental
4 responsibility for his actions was diminished. Considerable psychiatric
5 evidence was given by both parties on this issue but the Trial Chamber is
6 not satisfied that the accused claim has been made out. The Trial Chamber
7 has, however, taken into account in mitigation the general spirit of
8 cooperation, very properly shown by lead counsel for the accused, who trod
9 a careful path in assisting the Trial Chamber without in any way
10 compromising his obligations to the accused, conduct for which the accused
11 himself should be given credit. The personal circumstances of the
12 accused, in particular the fact that he's married and has two children
13 have also been taken into account by the Trial Chamber as a mitigating
14 factor.
15 The Trial Chamber accepts that the accused was not a commander,
16 that his crimes were geographically very limited and that there is no
17 evidence that his acts encouraged other offenders other than as found in
18 relation to the Drina River incident, or affected other victims of such
19 crimes within the broader context of the conflict. The Trial Chamber has
20 taken into account the fact that the position of the accused in the
21 hierarchy was a low one. It does not accept that the accused played any
22 particularly significant role in the broader context of this conflict but
23 it notes that an accused's level in the overall hierarchy in the conflict
24 is not ultimately decisive of the sentence given. The fact that he was a
25 low level offender in terms of the overall conflict in the former
Page 4962
1 Yugoslavia cannot alter the seriousness of the offences for which he has
2 been convicted or the circumstances in which he committed them. His
3 crimes were particularly serious in terms of the protected interests which
4 he violated. The life as well as the physical and mental integrity of the
5 victims, the consequences for the victims, death for five of them and
6 great suffering for the other two, and the reasons for which these crimes
7 were committed, that is no reason other than sheer ethnic hatred.
8 Relevant to sentencing is the discriminatory intent with which the
9 crimes were carried out. Such an intent is an ingredient of the crime of
10 persecution and it is relevant as such to the seriousness of that crime.
11 It may also be an aggravating feature in relation to the crime of murder
12 as a violation of the laws or customs of war. It is an aggravating
13 feature of that crime in this case. During the Bosnian conflict, ethnicity
14 was exploited variously to gain political prominence or to retain power,
15 to justify criminal deeds or for the purpose of obtaining moral absolution
16 for any act coloured by the ethnic cause. No such absolution is to be
17 expected from this Tribunal. The Trial Chamber considers that crimes
18 based upon ethnic grounds are particularly reprehensible. The Trial
19 Chamber also considers as aggravation the fact that the pleas by the men
20 for their lives were completely ignored by the accused, the cold-blooded
21 nature of the execution, and to perhaps a lesser extent the fact that one
22 of the victims was well known to the accused.
23 Mr. Vasiljevic, would you stand up, please?
24 Mitar Vasiljevic, you are sentenced to a single sentence of
25 imprisonment for 20 years. You are entitled to credit for the period of
Page 4963
1 two years, ten months and four days you have been in custody towards
2 service of the sentence imposed, together with a period you will serve in
3 custody pending a determination by the President of the Tribunal as to the
4 state where the sentence is to be served. You are to remain in custody
5 until such determination is made.
6 The Trial Chamber will now adjourn.
7 --- Whereupon the hearing adjourned at 10.28 a.m.
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