The Prosecutor v. Blagoje Simic, Miroslav Tadic, Simo Zaric - Case No. IT-95-9-T

“Judgement”

17 October 2003
Trial Chamber II (Judges Mumba [Presiding], Williams and Lindholm)

Background

The three Accused (“the Accused”), Blagoje Simic, Miroslav Tadic and Simo Zaric, were originally indicted together with Slobodan Miljkovic, a/k/a “Lugar”, Milan Simic and Stevan Todorovic on 21 July 1995. Following guilty pleas by Stevan Todorovic¹ and Milan Simic², the proceedings against these two were separated from the others.³ Proceedings against Slobodan Miljkovic were terminated upon his death on 8 August 1998.

According to the Fifth Amended Indictment dated 30 May 2002 (“Indictment”), the Accused were charged with individual criminal responsibility pursuant to Article 7(1) of the Statute of the Tribunal (“Statute”) for: two counts of crimes against humanity under Article 5 of the Statute (Count 1: persecutions; Count 2: deportation ) and one count of a grave breach of the Geneva Conventions of 1949 under Article 2 of the Statute (Count 3: unlawful deportation and transfer).

Factual Findings

The trial of the Accused covered the events which occurred in the Municipalities of Bosanski Samac and Odzak. The town of Bosanski Samac was of strategic importance for the conduct of military operations. The municipality formed part of the so-called Posavina Corridor, a narrow strip of flat land along the Sava River connecting the Serb-controlled areas within Croatia to the Bosnian Serb territories and the Republic of Serbia. The Corridor was the easiest and shortest way to establish a ground route between the Serb-controlled areas within Croatia to the west (Republika Srpska Krajina ) and Serbia to the east.

The Accused held central positions in these areas. Dr. Blagoje Simic, a medical doctor, was President of the Municipal Board of the Serbian Democratic Party and President of the Serbian Crisis Staff in the municipality of Bosanski Samac. He continued as President when the Crisis Staff was renamed the War Presidency. He was the highest ranking civilian official in the municipality. Miroslav Tadic, a retired school teacher, was Assistant Commander for Logistics within the 4th Detachment, Commander of the Civil Protection Staff, ex-officio member of the Crisis Staff, and a member of the Exchange Commission in the municipality of Bosanski Samac. Simo Zaric was Assistant Commander for Intelligence, Reconnaissance, Morale and Information in the 4th Detachment, Chief of National Security in Bosanski Samac from 29 April 1992 to 19 May 1992, and Deputy to the President of the Civilian Council in Odzak.

The Trial Chamber found that the events which took place in the Municipalities of Bosanski Samac and Odzak between 17 April 1992 and 31 December 1993 constituted a widespread and systematic attack on the civilian population. This attack included the forcible takeover of power in Bosanski Samac by members of the paramilitary forces and Serb police, and the subsequent acts of persecution and deportation committed against non-Serb civilians.

The Trial Chamber was satisfied upon the evidence that members of the Crisis Staff (including its President Blagoje Simic); the Serb police (including its Chief of Police Stevan Todorovic, who was also a member of the Crisis Staff); Serb paramilitaries (including “Debeli” (Srcko Radovanovic, “Pukovnik”), “Crni” (Dragan Djordjevic), “Lugar” (Slobodan Miljkovic), and “Laki” (Predrag Lazarevic)); and the 17th Tactical Group of the JNA were all participants in a basic form of joint criminal enterprise, sharing the same intent to execute the common plan to persecute non-Serb civilians in the Bosanski Samac municipality.

The Trial Chamber inferred the common plan of the joint criminal enterprise from all the circumstances. It found that there was sufficient evidence to conclude that the participants in the joint criminal enterprise acted in unison to execute a plan that included the forcible takeover of the town of Bosanski Samac, taking over vital facilities and institutions in the town and persecuting non-Serb civilians in the municipality of Bosanski Samac, within the period set forth in the Indictment. This common plan was aimed at committing persecution against non-Serbs, including acts of unlawful arrest and detention, cruel and inhumane treatment including beatings, torture, forced labour assignments and confinement under inhumane conditions, and deportations and forcible transfer.

It found that Blagoje Simic, as President of the Municipal Assembly and the Crisis Staff (later renamed the War Presidency), was at the apex of the joint criminal enterprise at the municipal level. He was the highest-ranking civilian in Bosanski Samac municipality. He knew that his role and authority were essential for the accomplishment of the common goal of persecution. The Trial Chamber was convinced that Blagoje Simic and the other participants acted with the shared intent of pursuing their common goal of persecution. The Trial Chamber held, however, that while Blagoje Simic was a participant in the joint criminal enterprise, there was no evidence to conclude that Miroslav Tadic and Simo Zaric were participants.

Judgement

The Trial Chamber found Blagoje Simic guilty of Count 1 (crime against humanity of persecutions based upon the unlawful arrest and detention of Bosnian Muslim and Bosnian Croat civilians, cruel and inhumane treatment including beatings, torture, forced labour assignments, and confinement under inhumane conditions, and deportation and forcible transfer). It found him criminally responsible for the deportation of non-Serb civilians as a crime against humanity (Count 2), but did not enter a conviction as it found it to be impermissibly cumulative with Count 1.⁵ It dismissed Count 3 (unlawful deportation or transfer as a grave breach of the Geneva Conventions of 1949) due to defects in the form of the Indictment.⁶ The Trial Chamber, by a majority, Judge Per-Johan Lindholm dissenting, sentenced Blagoje Simic to seventeen years’ imprisonment.

The Trial Chamber, by a majority, Judge Per-Johan Lindholm dissenting, found Miroslav Tadic guilty of Count 1 (persecutions based upon deportation and forcible transfer ). It found him criminally responsible for Count 2, but did not enter a conviction as it found it to be impermissibly cumulative with Count 1. It dismissed Count 3 due to defects in the form of the Amended Indictment. The Trial Chamber, by a majority, Judge Per-Johan Lindholm dissenting, sentenced Miroslav Tadic to eight years’ imprisonment.

The Trial Chamber, by a majority, Judge Per-Johan Lindholm dissenting, found Simo Zaric guilty of Count 1 (persecutions based upon cruel and inhumane treatment including beatings, torture, and confinement under inhumane conditions). It acquitted him of Count 2 and dismissed Count 3 due to defects in the form of the Amended Indictment. The Trial Chamber, by a majority, Judge Per-Johan Lindholm dissenting, sentenced Simo Zaric to six years’ imprisonment.

Legal Findings

The Trial Chamber inter alia addressed the definition of the crime of persecution as a crime against humanity with regard to the acts of forcible transfer, unlawful arrest and interrogation. It also reviewed the law on deportation and forcible transfer.

Forcible takeover as persecution

The crime of persecution may encompass both acts which are listed in the Statute⁷ and acts which are not.⁸ Acts or omissions enumerated under other paragraphs of Article 5 of the Statute are by definition serious enough, while those either listed under other Articles of the Statute or not listed in the Statute at all must reach the same level of gravity as the other crimes against humanity enumerated in Article 5. This test will only be met by gross or blatant denials of fundamental human rights.⁹

The forcible takeover of the Bosanski Samac Municipality was charged in the Indictment as an act of persecution. As this crime is not listed in the Statute, the Trial Chamber had to determine whether such acts could reach the same level of gravity as those acts enumerated in the Statute.

The Trial Chamber first referred to the findings of other Chambers which have concluded that an attack on cities, towns or villages is analogous to an “attack, or bombardment, by whatever means, of undefended towns, villages, dwellings, or buildings” and thus constitutes “a violation of the laws or customs of war enumerated under Article 3(c) of the Statute”.¹⁰ As such, it “must have caused deaths and/or serious bodily injury within the civilian population or damage to civilian property”.¹¹ It then noted that the forcible takeover of a town has been qualified as an illegal coup d’état¹², which the Trial Chamber defined as “a political move to overthrow an existing government by force ”.¹³

It expressed its view that a forcible takeover “does not necessarily encompass all the elements and the gravity associated with an attack on cities, towns or villages ”¹⁴ and noted that it had been previously held by Trial Chamber III, in the Kordic Trial Judgement, that the exclusion of Bosnian Muslims from government did not rise to the same level of gravity as the other crimes against humanity and consequently did not constitute persecution.¹⁵

The Trial Chamber concluded that “a forcible takeover, per se, does not reach the same level of gravity as the other crimes against humanity and on its own does not amount to persecution”. It noted, however, that “a forcible takeover may serve as the basis for perpetration of other persecutory acts as it provides the conditions necessary for adoption and enforcement of policies infringing upon basic rights of citizens on the basis of their political, ethnic, or religious background”.¹⁶

Unlawful arrest as persecution

The Indictment charged the unlawful arrest, detention, and confinement of Bosnian Croats, Bosnian Muslims and other non-Serb civilians as acts of persecution. While the unlawful confinement of civilians is a grave breach of the Geneva Conventions of 1949 (Article 2(g) of the Statute)¹⁷ and the crime of imprisonment is listed as a crime against humanity in Article 5 (e) of the Statute, unlawful arrest and detention do not appear as separate offences under Article 5 or other provisions of the Statute. The Blaskic Trial Chamber, however, considered unlawful detention as a form of the crime of persecution and defined unlawful detention as “unlawfully depriving a group of discriminated civilians of their freedom”.¹⁸ The Kupreskic Trial Chamber also held that the organised detention of civilians may constitute persecution.¹⁹ It remained for the Trial Chamber to determine whether unlawful arrest could be of the same gravity as a crime enumerated in the Statute and therefore constitute a crime of persecution as a crime against humanity.

Unlawful arrest had never been defined in the jurisprudence of the Tribunal. Relying on the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment²⁰ and on the right to be free from arbitrary arrest and imprisonment as enshrined in International Conventions²¹, the Trial Chamber held that “the act of unlawful arrest means to apprehend a person, without due process of law”.²²

The Trial Chamber found that “while unlawful arrest may in itself not constitute a gross or blatant denial of a fundamental right reaching the same level of gravity as the other acts prohibited under Article 5, when considered in context, together with unlawful detention or confinement, such acts may constitute the crime of persecution as a crime against humanity”.²³

Interrogation as persecution

The acts of interrogating Bosnian Croats, Bosnian Muslims and other non-Serb civilians who had been arrested and detained, and forcing them to sign false and coerced statements were charged as persecution in the Indictment. Those acts, however, do not appear as separate offences in the Statute and have never been considered by the Tribunal to be of sufficient gravity to constitute offences charged in the Statute, such as persecution or torture, as crimes against humanity.²⁴

The Trial Chamber considered that “the underlying conduct of interrogation and forcing non-Serb civilians to sign false and coerced statements is relevant to the consideration of whether non-Serbs who were arrested and detained were deprived of their liberty arbitrarily, without any legal basis”.²⁵ It concluded:

“the interrogation of Bosnian Croats, Bosnian Muslims and other non-Serb civilians who had been arrested and detained, and forcing them to sign false and coerced statements, as alleged in themselves, do not meet the seriousness requirement to constitute persecution and a crime against humanity. They may, however, form part of a series of acts which comprise an underlying persecutory act”.²⁶

Deportation and forcible transfer

The crime of deportation is defined in the Tribunal’s case law as the forced displacement of persons by expulsion or other coercive acts from the area in which they are lawfully present, across a national border, without lawful grounds.²⁷ The crime of forcible transfer has been defined as a forced removal or displacement of people from one area to another which may take place within the same national borders.²⁸

The Trial Chamber noted that both deportation and unlawful or forcible transfer relate to the involuntary and unlawful displacement of persons from the territory in which they reside. It sets out which common elements needed to be proven for the underlying acts to be established: (i) the unlawful character of the displacement ; (ii) the area where the person displaced lawfully resided and the destination to which the person was displaced; and (iii) the intent of the perpetrator to deport or forcibly transfer the victim.

Unlawful character of displacement

The displacement of persons is illegal where it is forced²⁹ and “when it occurs without grounds permitted under international law”.³⁰ The question before the Trial Chamber in the present case was whether the adoption and implementation of agreements for “exchanges”³¹ supervised by the International Committee of the Red Cross (“ICRC”) and the presence of members of international organisations (ICRC, UNPROFOR³²) may have an impact on the voluntary nature and the lawfulness of a person’s displacement.

In the Naletilic Trial Judgement, the Trial Chamber found that “an agreement between two military commanders or other representatives of the parties in a conflict does not have any implications on the circumstances under which a transfer is lawful ” as it found that “[m]ilitary commanders or political leaders cannot consent on behalf of the individual” (para. 523). In the Stakic Trial Judgement, the Trial Chamber stated that “with regard to a […] legal evaluation of the behaviour of a warring party, assistance by humanitarian agencies is not a factor rendering a displacement lawful” (para. 673).

The Trial Chamber found that “the adoption of similar agreements, such as those concluded under the auspices of the ICRC in the present case, as well as the presence of ICRC or UNPROFOR members, has no impact on whether the persons’ displacement was voluntary”.³³ It held that “what matters is the personal consent or wish of an individual, as opposed to collective consent as a group, or a consent expressed by official authorities, in relation to an individual person, or a group of persons”.³⁴

Destination following displacement

Deportation and forcible transfer both involve the displacement of persons from one location to another. While it it has been held that, for deportation, the displacement has to be across a national border³⁵, the Trial Chamber considered that in the case of a forcible transfer, the destination of the displacement is unclear. It noted that, for forcible transfer, some definitions refer to displacement from the area or territory where the persons reside to a place that is not of their choosing.³⁶ In its view, the right of the victim to stay in his or her home and community and the right not to be deprived of his or her property are among the legal values protected by the prohibition on deportation and forcible transfer.³⁷ It concluded that “the location to which the victim is forcibly displaced is sufficiently distant if the victim is prevented from effectively excercising these rights”.³⁸

Intent of the perpetrator

The question as to whether the intent to deport or forcibly transfer a person requires an element of permanency has not been extensively dealt with in the Tribunal’s case law. In the Naletilic Trial Judgement, the Trial Chamber inferred from the Commentary to Geneva Convention IV³⁹ that “deportation and forcible transfer are not by their nature provisional, which implies an intent that the transferred persons should not return”.⁴⁰ It held that the Prosecution “needs to prove the intent to have the person (or persons ) removed, which implies the aim that the person is not returning”.⁴¹

In the Krnojelac Appeals Judgement, the Appeals Chamber found that the “ forced character of displacement and the forced uprooting of the inhabitants of a territory entail the criminal responsibility of the perpetrator, not the destination to which these inhabitants are sent”.⁴² In view of the Trial Chamber, the Appeals Chamber’s use of the word “uprooting” clearly indicates that “the mens rea of a forcible displacement comprises the intent of the perpetrator that the victim is not returning”.⁴³ It held: “a finding of forced displacement, either as deportation or forcible transfer, requires an element of permanency in relation to the intention of the accused”.⁴⁴

The Trial Chamber then made it clear that “whether persons forcibly displaced [ are] able to return to their former place of residence at a later time has no bearing on the assessment of the legality of the original displacement”.⁴⁵ It added that “the duration of the displacement has no impact on its illegality” as otherwise the perpetrator who had the intent to displace permanently the victim would “unjustifiably benefit from such return”.⁴⁶

Separate and Partly Dissenting Opinion of Judge Per-Johan Lindholm

In his Separate and Partly Dissenting Opinion, Judge Per-Johan Lindholm inter alia dissociated himself from the concept of joint criminal enterprise, held that Miroslav Tadic should have been found not guilty on Counts 1 and 2, and stated that Simo Zaric should have been found not guilty of Count 1.

Joint Criminal Enterprise

Judge Per-Johan Lindholm dissociated himself from the concept of joint criminal enterprise both in this case and in general. In his view, the “so-called basic form of joint criminal enterprise does not […] have any substance of its own” and is nothing more than a “new label” affixed to a concept or doctrine well-established in most jurisdictions as well as in international criminal law, namely co-perpretation (para. 2). He gave his reasons for his dissociation and concluded that “the concept or ‘doctrine’ has caused confusion and a waste of time, and is […] of no benefit to the work or the development of international criminal law” (para. 5).

Liability of Miroslav Tadic

Judge Per-Johan Lindholm undertook a review of the Tribunal’s case law on duress ⁴⁷ and adopted the requirements of duress stated by the United Nations War Crimes Commission (“UNWCC”):

“(i) the act charged was done to avoid an immediate danger both serious and irreparable ;

(ii) there was no adequate means of escape;

(iii) the remedy was not disproportionate to the evil”.⁴⁸

In his view, Miroslav Tadic’s participation in the deportation of non-Serbs, especially those held in the detention facilities, was aimed at sparing them the persecutory acts they were exposed to in the municipality of Bosanski Samac. He found that the exchanges, arranged with the Red Cross, were the “only possibility of getting safely through the battle lines surrounding Bosanski Samac, and there was no other adequate means of escaping the horrors of the detention facilities in Bosanski Samac than by exchange” (para. 22). Further, he was convinced that Tadic’s participation in the deportation was “not disproportionate to the evil avoided” (para. 23) and that he should therefore have been found not guilty in respect of Counts 1 and 2 (para. 28).

Liability of Simo Zaric

Judge Per-Johan Lindholm found that the Prosecution had failed to prove its case against Simo Zaric beyond reasonable doubt and that he should therefore have been found not guilty in respect of Count 1. In his view, Zaric’s presence and conduct during the interrogations at the SUP (Secretariat of Interior) did not have any effect on the perpetration of the persecutions committed by means of cruel and inhumane treatments (paras. 29-34).

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1. Stevan Todorovic pleaded guilty on 13 December 2000 to one count of persecutions on political, racial and religious grounds as a crime against humanity. He was sentenced to 10 years’ imprisonment on 31 July 2001 and transferred to Spain on 12 December 2001 to serve his sentence.
2. Milan Simic pleaded guilty on 15 May 2002 to two counts of torture as crimes against humanity and was sentenced to 5 years’ imprisonment on 17 October 2002. He was granted early release on 27 October 2003, effective 3 November, and released from the custody of the Tribunal on 4 November 2003.
3. Todorovic, IT-95-9/1; Milan Simic, IT-95-9/2.
4. The following factual findings are taken from the summary of the Judgement (see Press Release No. 792). The summary and the full text of the Judgement are available at the “Judgements” page on the Tribunal’s website (www.un.org/icty).
5. Under the Tribunal’s case-law, cumulative convictions (i.e. convictions for different crimes under the Statute based on the same conduct) are permissible only if each crime involved has a materially distinct element not contained in the others. An element is materially distinct from another if it requires proof of a fact not required by the other. Where this test is not met, the Chamber must enter the conviction only for the crime with a materially distinct element, as being the more specific crime. See Delalic et al., IT-96-21-A, Judgement (“Celebici Appeals Judgement”), 20 February 2001, paras. 412-413, Judicial Supplement No. 23). The Trial Chamber followed the same reasoning for Miroslav Tadic.
6. In the words of the Appeals Chamber, “an Indictment, as the primary accusatory instrument, must plead with sufficient detail the essential aspect of the Prosecution case. If it fails to do so, it suffers from a material defect”. See Kupreskic et al., IT-95-19-A, Judgement (“Kupreskic Appeal Judgement”), 23 October 2001, para. 114, Judicial Supplement No. 28. In the present case, the Trial Chamber found that the Prosecution had failed to plead adequately the existence of an international armed conflict, which is one of the requisite jurisdictional elements for a charge based on Article 2 of the Statute (see paras. 104-120 of the Judgement). The Trial Chamber followed the same reasoning for Miroslav Tadic and Simo Zaric.
7. Kupreskic et al., IT-95-16-T, Judgement (“Kupreskic Trial Judgement”), 14 January 2000, para. 605, Judicial Supplement No. 11; Kvocka et al., Judgement (“Kvocka Trial Judgement”), 2 November 2001, para. 185, Judicial Supplement No. 29.
8. Tadic, IT-94-1-T, Judgement (“Tadic Trial Judgement”), 7 May 1997, para. 703; Kupreskic Trial Judgement, paras. 581 and 614; Kordic & Cerkez, IT-95-14/2-T, Judgement, (“Kordic Trial Judgement”), 26 February 2001, paras. 193-194 Judicial Supplement No. 23; Kvocka Trial Judgement, para. 185; Naletilic & Martinovic, IT-98-34-T, Judgement (“Naletilic Trial Judgement”), 31 March 2003, para. 635, Judicial Supplement No. 42.
9. Krnojelac Trial Judgement, para. 434; Kupreskic Trial Judgement, para. 621; Naletilic Trial Judgement, para. 635.
10. Kordic Trial Judgement, para. 203.
11. Blaskic Trial Judgement, para. 180.
12. Stakic, IT-97-24-T, Judgement (“Stakic Trial Judgement”), 31 July 2003, para. 84, Judicial Supplement No. 43.
13. The Trial Chamber relied on Black’s Law Dictionary, 6th Edition, 1990.
14. Judgement, para. 55.
15. The Kordic Trial Chamber further held that the criminal prohibition on the removal of members of government on discriminatory grounds had not reached the level of customary international law (Kordic Trial Judgement, para. 210).
16. Judgement, para. 56.
17. In the Krnojelac Trial Judgement (Krnojelac, IT-97-25-T, Judgement, 15 March 2002, para. 111, Judicial Supplement No. 31bis) and the Kordic Trial Judgement (paras. 301-302), unlawful confinement was held to constitute persecution and a crime against humanity.
18. Blaskic Trial Judgement, para. 234.
19. Kupreskic Trial Judgement, para. 629.
20. The Body of Principles for the Protection of all Persons under Any Form of Detention or Imprisonment, as adopted by General Assembly Resolution 43/173, 9 December 1988, defines an arrest as: “the act of apprehending a person for the alleged commission of an offence or by the action of an authority”.
21. Article 5 of the European Convention of Human Rights provides for the right to liberty and security and states that no one shall be deprived thereof except in particular cases detailed in that Convention and in accordance with a procedure prescribed by law (European Convention for the Protection of Human Rights and Fundamental Freedoms (1950), 213 U.N.T.S. 221, E.T.S. 5, Article 5). Article 9 of the International Covenant on Civil and Political Rights provides that everyone has the right to liberty and security of the person and states that no one shall be subjected to arbitrary arrest or detention, except in accordance with procedures established by law (Article 9 of the International Covenant on Civil and Political Rights (1976), 999 U.N.T.S. 171).
22. Judgement, para. 60.
23. Ibid., para. 62. The Trial Chamber also found “unlawful detention” to be an alternative term for “unlawful confinement” or “unlawful imprisonment” (para. 66). It therefore used the elements of this crime as defined in para. 115 of the Krnojelac Trial Judgement.
24. The Tribunal considered acts of interrogation committed in conjunction with other acts, such as beatings, as torture (Krnojelac Trial Judgement, paras. 179, 181 and 185; Naletilic Trial Judgement, paras. 368-369), inhuman treatment (Aleksovski, IT-95-14/1-T, Judgement (“Aleksovski Trial Judgement”), 25 June 1999, para. 210, Judicial Supplement No. 6), cruel treatment (Krnojelac Trial Judgement, paras. 179, 181 and 185; Naletilic Trial Judgement, paras. 368-369), wilfully causing great suffering (Aleksovski Trial Judgement, para. 210; Krnojelac Trial Judgement, paras. 179, 181, 185; Naletilic Trial Judgement, paras. 368-369), and outrages upon personal dignity (Aleksovski Trial Judgement, para. 210).
25. Judgement, para. 68.
26. Ibid., para. 69.
27. Naletilic Trial Judgement, para. 670; Krnojelac Trial Judgement, para. 474, 476; Krstic, IT-98-33-T, Judgement (“Krstic Trial Judgement”), 2 August 2001, paras. 521, 531 and 532, Judicial Supplement No. 27. In Stakic, the Trial Chamber held that deportation pursuant to “Article 5(d) of the Statute must be read to encompass forced population displacements both across internationally recognized borders and de facto boundaries, such as constantly changing frontlines, which are not internationally recognized” and defined deportation “as the forced displacement of persons by expulsion or other coercive acts for reasons not permitted under international law from an area in which they are lawfully present to an area under the control of another party” (Stakic Trial Judgement, para. 679). See also Krnojelac, IT-97-25-A, Judgement (“Krnojelac Appeal Judgement”), 17 September 2003, Separate Opinion of Judge Schomburg, para. 15, present issue of the Judicial Supplement.
28. Krnojelac Trial Judgement, paras. 474. The Krstic Trial Judgement, at its paragraph 521, defines both deportation and forcible transfer as “the involuntary and unlawful evacuation of individuals from the territory in which they reside”. See footnote 214 of the Judgement.
29. Naletilic Trial Judgement, para. 519; Krstic Trial Judgement, para. 528.
30. Article 49 of Geneva Convention IV explicitly allows the “total or partial evacuation of a given area if the security of the population or imperative military reasons so demand”. However, “persons thus evacuated shall be transferred back to their homes as soon as hostilities in the area in question have ceased” (Krnojelac Trial Judgement, para. 475, footnote 1436, also mentioning Article 17 of Additional Protocol II. Article 17(2) states that “civilians cannot be compelled to leave their own territory for reasons connected with the conflict.” According to these provisions, the forced relocation of persons for their safety or for imperative military reasons may be lawful. The substance of these requirements has been found to be applicable to deportation or forcible transfer pursuant to Article 5(h) of the Statute, forcible transfer pursuant to Article 5(i) of the Statute and deportation pursuant to Article 5(d) of the Statute (Krstic Trial Judgement, paras 524-526). The Trial Chamber found that “in view of the drastic nature of a forced displacement of persons, recourse to such measures would only be lawful in the gravest of circumstances and only as measures of last resort” (footnote 218 of the Judgement).
31. The term “exchanges” characterises a situation in which, pursuant to an agreement concluded between national and/or international organisations or authorities, a person leaves an area and, reciprocally, another person comes to the area that the former person is leaving (footnote 225 of the Judgement).
32. United Nations Protection Forces.
33. Judgement, para. 127.
34. Ibid., para. 128. Emphasis added by the Trial Chamber.
35. See footnote 27.
36. See for example the Naletilic Trial Judgement, para. 519.
37. In the Stakic Trial Judgement, the Trial Chamber held: “The protected interests behind the prohibition of deportation are the right and expectation of individuals to be able to remain in their homes and communities without interference by an aggressor, whether from the same or another State” (para. 677).
38. Judgement, para. 130.
39. Commentary, Geneva Convention IV Relative to the Protection of Civilian Persons in Time of War (1949), International Committed of the Red Cross, Geneva, 1960, page 280. It states: “[unlike] deportation and forcible transfer, evacuation is a provisional measure”.
40. Naletilic Trial Chamber Judgement, footnote 1362.
41. Naletilic Trial Judgement, para. 520.
42. Krnojelac Appeals Judgement, para. 218 (emphasis by the Trial Chamber).
43. Judgement, para. 133. In paragraph 16 of his Separation Opinion to the Krnojelac Appeals Judgement, Judge Schomburg found that the “mens rea for deportation is the intent to remove the victim, which implies the intention that the victim can or will not return”.
44. Judgement, para. 134.
45. Ibid. In the Stakic Trial Judgement, the Trial Chamber held: “[i]f a victim were to return, this would consequently not have an impact on the criminal responsibility of the perpetrator who removed the victim” (para. 687).
46. Judgement, para. 134.
47. On the notion of duress, see Erdemovic, IT-96-22-A, Judgement, 7 October 1997, in which the majority of the Appeals Chamber found that duress does not afford a complete defence to a soldier charged with a crime against humanity and/or a war crime involving the killing of innocent human beings. Duress can only be accepted as a mitigating factor. See Erdemovic, IT-96-22-Tbis, Sentencing Judgement, 5 March 1998.
48. These features of duress were laid down by the UNWCC following a review of 2,000 decisions issued by the post-World War two international military tribunals (reproduced in the 1996 Report of the International Law Commission, Supplement No. 10, A/51/10, p. 93). This review showed the military tribunals had accepted duress as a defence for violations of international humanitarian law. See Erdemovic, IT-96-22-T, Sentencing Judgement, 29 November 1996.