The Prosecutor v. Vasiljevic - Case No. IT-99-32-T

"Judgement"

29 November 2002
Trial Chamber II (Judges Hunt [Presiding], Janu and Taya)

Summary of the charges

Mitar Vasiljevic (hereinafter the “Accused”) is charged under the second amended Indictment (hereinafter the “Indictment”), dated 12 July 2001, with ten counts of crimes against humanity under Article 5 of the Statute and violations of the laws and customs of war under Article 3 of the Statute. The Accused was alleged to have joined Milan Lukic’s paramilitary group¹ and to have participated in the ethnic cleansing of the Visegrad area. He is charged with individual criminal responsibility together with Milan and Sredoje Lukic for having planned, instigated, ordered, committed and otherwise aided and abetted in the planning, preparation and execution of the crimes charged in the Indictment. The two specific incidents pleaded in the Indictment, in relation to Mitar Vasiljevic , are the Drina River incident and the Pionirska Street incident:

· The Drina River incident: It is alleged that on or about 7 June 1992 the Accused together with his two co-accused (Milan Lukic and Sredoje Lukic ) and other unidentified individuals, led seven Bosnian Muslim men to the bank of the Drina River. There, they forced them to line up on the bank of the river, facing the river, and opened fire at them. It is alleged that five of the seven died as a result of the shooting while the other two escaped without serious physical injury.

· The Pionirska Street incident: It is alleged that on or about 14 June 1992 the Accused directed 65 Bosnian Muslim women, children and elderly men to a house on Pionirska Street in Nova Mahala in the Visegrad municipality. Later the same day, it is alleged that the Accused, in concert with the co-accused and other individuals, forcibly moved the group to a nearby house also on Pionirska Street, where he participated in barricading the people in one room, placed an incendiary device in the house and set it on fire. It is further alleged that the Accused shone a light on people who tried to escape through the windows while the co-accused fired upon them with automatic weapons. Approximately 70 people died as a result of this incident, and a number of them survived, some with serious physical injuries.

Based on his alleged participation, sometime in May and July 1992, in concert with the co-accused and other unknown individuals, the Accused is charged under Count 1 with extermination as a crime against humanity, with regard to the Pionirska Street incident only. For the same period and together with the two co-accused, he is charged under Count 3 with persecution on political, racial or religious grounds as a crime against humanity, with regard to both the Drina River and the Pionirska Street incidents . He is charged under Count 4 with murder as a crime against humanity, under Count 5 with murder as a violation of the laws and customs of war, under Count 6 with inhumane acts as a crime against humanity, and under Count 7 with violence to life and person as a violation of the laws and customs of war. Counts 4 through 7 relate to the Drina River incident only. In addition he is charged under Count 10 with murder as a crime against humanity, under Count 11 for murder as a violation of the laws and customs of war, under Count 12 with inhumane acts as a crime against humanity, and under Count 13 with violence to life and person as a violation of the laws and customs of war. Counts 10 through 13 relate to the Pionirska Street incident.

Several counts relate to charges against the two co-accused, Milan Lukic (Counts 1, 4 to 7, and 10 to 13) and Sredoje Lukic (Counts 1 and 10 to 13), who have not yet been transferred to the International Tribunal and for whom a separate trial has been ordered.

The Judgement

The Trial Chamber convicted Mitar Vasiljevic under Count 3 (persecution as a crime against humanity) for the murder of five Muslim men and the inhumane acts inflicted on two other Muslim men, and under Count 5 (murder as a violation of the laws and customs of war) for the murder of five Muslim men, in relation to the Drina River incident. Mitar Vasiljevic was acquitted of all counts in relation to the Pionirska Street incident and all other counts in relation to the Drina River incident. The Trial Chamber sentenced him to 20 years imprisonment.²

Joint Criminal Enterprise

The Prosecution pleaded Article 7(1) in its entirety, alleging inter alia that the Accused “acted in concert” with Milan Lukic, Sredoje Lukic and other unknown individuals with respect to the acts of extermination, persecution, murder, inhumane acts and violence to life and person. By “acting in concert” the Prosecution meant to rely upon a joint criminal enterprise but conceded that it was not pleading the extended form of joint criminal enterprise whereby a participant would be responsible for all its natural and foreseeable consequences.

The Trial Chamber recalled that for individual criminal liability to arise under a joint criminal enterprise, the Prosecution must establish the existence of a joint criminal enterprise and the participation of the accused in it.³ Regarding the alleged responsibility of the Accused for murder in relation to the Pionirska Street Incident, the Trial Chamber held that “[t]o establish that the Accused’s responsibility on this basis [joint criminal enterprise], the Prosecution must establish that the Accused entered into an agreement with the Milan Lukic’ group to murder these people and that each of the participants, including the Accused , shared the intent of this crime”.⁴

The Accused’s relationship with the paramilitary group led by Milan Lukic

The Trial Chamber was not satisfied that the Accused was a member of Milan Lukic’s paramilitary group or that his association with this group was such that it was possible to draw an inference that the Accused shared its general homicidal intentions . It found, however, that the Accused did have some association with that group in that he willingly acted as an informant to that group and that this willingness arose from his close relationship with Milan Lukic.

The Drina River incident

The Trial Chamber found that the Accused incurred individual criminal responsibility for the crime of murder (as a crime against humanity) under Count 4 of the Indictment and for murder (as a violation of the laws and customs of war under) under Count 5 in respect of Meho Dzafic, Ekrem Dzafic, Hasan Kustura, Hasan Mutapcic and Amir Kurtalic. He also incurred individual criminal responsibility for the crime of persecution (as a crime against humanity) charged in Count 3 of the Indictment in relation to the murder of those five men and for the inhumane acts (as a crime against humanity) charged in Count 6 of the Indictment in relation to the two survivors

The Pionirska incident and identification evidence

In response to the Prosecution’s allegation that he personally participated in the looting, the transfer of the group to the Omeragic’s house, and the setting on fire of that house, the Accused raised a defence of alibi. He claimed that at the time of those events he was either on his way to, or present in the General Hospital in Uzice.

The Trial Chamber did not accept all of the Accused’s alibi evidence of the Accused and expressed serious doubts as to the reliability of the evidence of the witnesses who claimed to have seen or identified the Accused at the time of events. It expressed the view that “identification evidence involves inherent uncertainties due to the vagaries of human perception and recollection” and that “[t]he fact that a witness gives evidence honestly is insufficient to establish the reliability of that evidence”.⁵ In the present case, the Prosecution sought to bolster the identification evidence of its witnesses by having those witnesses identify the Accused from a photo array but the Trial Chamber held that “[i]n any event, identification from a photograph is usually inherently unreliable where the witness was not previously familiar with the Accused”, as “[a] photograph is only two-dimensional, and it records what a person looks like in the one split second when that person may have been moving his or her features, and which may not therefore always provide a safe impression of what that person really looks like”.⁶

The Trial Chamber found that the Prosecution had not eliminated the reasonable probability that the Accused was not at the scene of the crime but was in hospital at the time of the looting, transfer and fire. It found that the Accused deliberately tried to keep the group of victims together in the house and knew that some evil would befall them. It found, however, that the Prosecution had failed to identify that evil and to establish what the Accused knew was to happen, namely that the members of the groups would be submitted to murder, extermination or inhumane acts. One of the reasons why the Trial Chamber could not draw such a conclusion is that, at the relevant time, “ethnic cleansing of non-Serbs residents in the form of forced transfer an deportation was widespread in the Visegrad area” and that consequently “the Accused may well have thought that those people would likewise be forcibly transferred or deported, rather than being killed or subjected to inhumane acts as charged in the Indictment”.⁷

Violence to Life and Person

The Accused was charged under Counts 7 and 13 of the Indictment pursuant to Article 3 of the Statute with “violence to life and person”. Violence to life and person , as noted by the Trial Chamber, appears in the 1949 Geneva Conventions under Common Article 3 as “one of the acts which must be prohibited at any time and in any place of an armed conflict not of an international character”.⁸

The Trial Chamber noted that the Appeals Chamber in the Tadic case stated that “customary international law imposes criminal liability for all serious violations of Common Article 3”.⁹ It accepted that “violence to life and person” generally constitutes a serious violation of Common Article 3 and noted that it was making “no definite finding in that respect ”.¹⁰ It found, however, that it needed, “[f]rom the perspective of the nullum crimen sine lege principle”, to determine whether the criminal conduct in question was “sufficiently defined and (…) sufficiently accessible at the relevant time for it to warrant a criminal conduct and sentencing ”.¹¹ In this regard it recalled the Blaskic Judgement, in which the Trial Chamber defined “violence to life and person” as “a broad offence which, at first glance, encompasses murder, mutilation , cruel treatment and torture and which is accordingly defined by the cumulation of the elements of these specific offences”.¹² The Trial Chamber nevertheless regretted the Blaskic Trial Chamber’s failure to identify the sources of its propositions, and could not itself find “any conclusive elements of state practice -prior to 1992- which would point towards the definition of that crime”.¹³ It further asserted that “[t]he residual character of a criminal prohibition such as Article 3 of the Statute does not by itself provide for the criminalisation by analogy to any act which is even vaguely or potentially criminal”.¹⁴

The Trial Chamber clearly stated that “under no circumstances may [a] court create new criminal offences after the act charged against an accused either by giving a definition to a crime which had none so far, thereby rendering it prosecutable and punishable, or by criminalising an act which had not until the present time been regarded as criminal”.¹⁵ Conversely a Trial Chamber “must be satisfied that a given act is criminal under customary international law because for instance, a vast number of national jurisdictions have criminalised it or a treaty provision which provides for its criminal punishment has come to represent customary international law”.¹⁶ In its view “Draft Codes of the International Law Commission (…) may reflect legal considerations largely shared by the international community, and (…) may expertly identify rules of international law, but (…) do not constitute state practice relevant to the determination of a rule of customary international law”.¹⁷ Furthermore the Trial Chamber declared that “[o]nce it is satisfied that a certain act or set of acts is indeed criminal under customary international law, the Trial Chamber must satisfy itself that this offence with which the accused is charged was defined with sufficient clarity under customary international law for its general nature, its criminal character and its approximate gravity to have been sufficiently foreseeable and accessible”. It added that “[t]he requirement of sufficient clarity of the definition of a criminal offence is in fact part of the nullum crimen sine lege requirement, and it must be assessed in that context”.¹⁸

The Trial Chamber held that “[i]f customary international law does not provide for a sufficiently precise definition of a crime listed in the Statute, the Trial Chamber would have no choice but to refrain from exercising its jurisdiction over it, regardless of the fact that the crime is listed as a punishable offence in the Statute”.¹⁹ It also held that “[i]n the absence of any clear indication in the practice of states as to what the definition of the offence of ‘violence to life and person’ identified in the Statute may be under customary law, the Trial Chamber is not satisfied that such an offence giving rise to individual criminal responsibility exists under that body of law”.²⁰ Accordingly, it acquitted the Accused of the charge of violence to life and person pleaded in Counts 7 (Drina River incident) and 13 (Pionirska Street incident) of the Indictment.

Extermination

The Accused was charged with “extermination” as a crime against humanity for the Pionirska Street incident. The Trial Chamber conducted a review of international law in order to find a precise definition of the crime. It noted that several Trial Chambers have defined the crime of “extermination” and entered convictions under that heading,²¹ accepted that the definition laid down in those cases is largely consistent with the principles which it itself adopted, but departed from these definitions as regards the scale of the crime. It made clear that “criminal responsibility only attaches to those individuals responsible for a large number of deaths, even if their part therein was remote or indirect” and that “[r]esponsibility for one or for a limited number of such killings is insufficient”.²² It added inter alia, that “the act of extermination must be collective in nature rather than directed towards singled out individuals”, and found the elements of the crimes of extermination to be as follows:

“1. The material element of extermination consists of any one act or combination of acts which contributes to the killing of a large number of individuals (actus reus).

2. The offender must intend to kill, to inflict grievous bodily harm, or to inflict serious injury, in the reasonable knowledge that such act or omission is likely to cause death, or otherwise intends to participate in the elimination of a number of individuals, in the knowledge that his action is part of a vast murderous enterprise in which a large number of individuals are systematically marked for killing or killed (mens rea).”²³

On the basis of evidential reasons the Trial Chamber acquitted the Accused of the charge of extermination as a crime against humanity (Count 1).

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1. According to the Indictment the paramilitary organisation, often referred to by the locals as the White Eagles, was organised by Milan Lukic when he returned to Visegrad during the spring of 1992. This unit operated with the police and various military units stationed in Visegrad and was responsible for crimes against the local Muslim civilian population. Milan Lukic’s cousin, Sredoje Lukic, was also a member of that group.
2. Mitar Vasiljevic is entitled to the credit for the time he has served since he was arrested on 25 January 2000 (2 years, 10 months and 4 days) and for the period he will serve in custody pending a determination by the President as to the State where the sentence is to be served. On 27 December 2002 his Counsel filed a Notice of Appeal against the Judgment.
3. See Krnojelac, IT-97-25-PT, Decision on Form of the Second Amended Indictment, 11 May 2000, Judicial Supplement No. 15.
4. Para. 212.
5. Para. 16.
6. Para. 18.
7. Para. 191.
8. Para. 193. See Common Article 3(1)(a) of the Geneva Conventions of 12 August 1949.
9. Tadic, IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (hereinafter “Tadic Appeal Jurisdiction Decision”), 2 October 1995, para. 134.
10. Para. 193.
11. Ibid.
12. Blaskic, IT-95-14-T, Judgement, 3 March 2000, para. 182.
13. Para. 194.
14. Para. 195.
15. Para. 196.
16. Para. 199.
17. Para. 200.
18. Para. 201.
19. Para. 202. The Trial Chamber explained that “[t]his is so because, to borrow the language of a US military tribunal in Nuremberg, anything contained in the statute of the court in excess of existing customary international law would be a utilisation of power and not of law” (Trials of War Criminals Before The Nuremberg Military Tribunals Under Control Council Law No 10 (“Hostage case”), Vol. 11, 1240).
20. Para. 203.
21. See, inter alia, Akayesu, ICTR-96-4-T, Judgement , 2 September 1998, paras. 591-592 and 735-744; Rutaganda ICTR-96- 3-T, Judgement, 6 December 1999, paras. 82-84 and 403-418; Musema, ICTR-96-13-T, Judgement, 27 January 2000, paras. 217-219 and 942-951, Kayishema and Ruzindana, ICTR-95-1T, Judgement, paras. 141-147 and 576-579.
22. Para. 227. The Trial Chamber noted that the definition given in the Kayishema and Ruzindana Trial Judgement at its paragraph 147, allowed that a limited number of killings or even one single killing qualify as extermination if it forms part of a mass killing event. It noted, however, that the Kayishema and Ruzindana Trial Chamber had omitted to provide any state practice to support its ruling.
23. Para. 229.