1 - Indictment against Kordic and others, 10 November 1995, para. 37.
2 - U.N. Doc. S/RES/827 (1993). On 13 May 1998, the Statute was amended to allow the establishment of a third Trial Chamber in order to enable the large number of accused awaiting trial to be tried without delay, U.N. Doc. S/RES/1166 (1998).
3 - Report of the Secretary-General pursuant to paragraph 2 of Security Council resolution 808 (1993), U.N. Doc. S/25704 (hereafter “Report of the Secretary-General”).
4 - The Rules have been successively amended on a number of occasions. The Rules referred to in this Judgement are those in force at the time of the relevant motion, order or decision in accordance with Sub-rule 6(D), which reads: “An amendment shall enter into force seven days after the date of issue of an official Tribunal document containing the amendment, but shall not operate to prejudice the rights of the accused in any pending case.”
5 - Article 1 of the Statute.
6 - The indictment was amended against co-accused Tihomir Blaskic on 22 Nov. 1996 and 23 May 1997 and that against co-accused Dario Kordic and Mario Cerkez on 30 Sept. 1998. The case against the former proceeded under Case No.: IT-95-14 (“the Blaskic case”) and the case against the two latter proceeded under Case No.: IT-95-14/2. The indictment was withdrawn against the two remaining co-accused Ivan Santic and Pero Skopljak on 19 Dec. 1997. The trial of the accused was severed from that of the trial of the other co-accused by a decision of Trial Chamber I on 25 Sept. 1997.
7 - Order of the President Assigning a Judge to the Trial Chamber, Case No.: IT-95-14/1-PT, 25 June 1997.
8 - At his request, Mr. Mikulicic was released from the assignment as of 29 March 1999.
9 - Order for the Protection of Victims and Witnesses, Case No.: IT-95-14/1-PT, 25 Sept. 1997.
10 - Decision of Trial Chamber I on the Defence Motion of 19 June 1997 in Respect of Defects in the Form of the indictment, Case No.: IT-95-14/1-PT, 25 Sept. 1997.
11 - Decision of Trial Chamber I in Respect of the Motion of 19 June 1997 Requesting Separation of Trials, Case No.: IT-95-14/1-PT, 25 Sept. 1997.
12 - Decision on the Motion of the Prosecutor for the Taking of Depositions, Case No.: IT-95-14/1-PT, 25 Sept. 1997.
13 - Order of the President, Case No.: IT-95-14/1-PT, 20 Nov. 1997.
14 - With the departure of Mr. Mikulicic, Mr. Joka was the sole counsel to the accused.
15 - Decision Denying a Request for Provisional Release, Case No.: IT-95-14/1-T, 23 Jan. 1998.
16 - French provisional transcript of trial proceedings (hereinafter “FPT”), p. 2789.
17 - Decision Granting Leave for the Admission of Evidence, Case No.: IT-95-14/1-T, 22 Oct. 1998.
18 - Decision Rejecting a Request for Leave to Admit a Witness Testimony into Evidence, Case No.: IT-95-14/1-T, 3 Nov. 1998.
19 - FPT p. 2949-2950. The Prosecution requested the proceedings to be stayed in an application of 11 Nov. 1998.
20 - Decision on Application of the Prosecution for leave to Appeal: (1) the Trial Chamber’s Decision to Admit Further Defence Evidence; and (2) the Trial Chamber’s Decision to Deny the Prosecutor’s Motion to Admit Further Evidence in Reply, Case No.: IT-95-14/1-AR73, 18 Dec. 1998; Order Regarding the Prosecution’s Application for Leave to Appeal Filed on 6 November 1998, Case No.: IT-95-14/1-AR73, 4 Feb. 1999; Decision on Prosecutor’s Appeal on Admissibility of Evidence, Case No.: IT-95-14/1-AR73, 16 Feb. 1999; and Dissenting Opinion of Judge Patrick Robinson, Case No.: IT-95-14-AR73, 16 Feb. 1999.
21 - Exhibit D-35A to D35D/31.
22 - Witness X in the present case. Exhibit P139.
23 - Decision on the Prosecutor’s Request that the Blaskic Trial Chamber Permit an Amendment of Certain Protective Measures, 9 Feb. 1999; Order Regarding the Admissibility of Certain Documents as Evidence, 19 Feb. 1999; and Decision Regarding the Admission of Certain Documents as Evidence, 5 March 1999.
24 - FPT pp. 3082 to 3083.
25 - Finding of Contempt of the Tribunal, Case No.: IT-95-14/1, 11 Dec. 1998. The decision is currently under appeal.
26 - Decision on the Motion of the Accused for Access to Non-Public Materials in the Lasva Valley and Related Cases, The Prosecutor v. Kordic and Cerkez, Case No.: IT-95-14/2-PT, 12 Nov. 1998.
27 - Opinion Further to the Decision of the Trial Chamber Seized of the Case The Prosecutor v. Dario Kordic and Mario Cerkez dated 12 November 1998, Case No.: IT-95-14/1-T, 8 Feb. 1999.
28 - The Republic of Croatia (hereafter “Croatia”) was recognised as an independent State by the European Community on 15 January 1992 and by the United States on 7 April 1992.
29 - Bosnia and Herzegovina was recognised by the European Community on 6 April 1992 and by the United States and Croatia on 7 April 1992.
30 - This entity later became known as Republika Srpska.
31 - Exhibit P122.
32 - Exhibit P126A.
33 - FPT p. 1564.
34 - FPT pp. 1612 and 1702. On 21 July 1992 an agreement was signed in Zagreb between the President of the Croatia, Dr. Franjo Tudjman, and the President of the Presidency of Bosnia and Herzegovina, Mr. Alija Izetbegovic, according to which “(t(he armed component of the Croatian Defence Council is a constituent part of the united armed forces of the Republic of Bosnia and Herzegovina. The Croatian Defence Council will have its representatives in the joint command of the armed forces of Bosnia and Herzegovina.” See Exhibit D-7, Article 6 of the “Agreement on Friendship and Co-operation Between the Republic of Bosnia and Herzegovina and The Republic of Croatia”.
35 - FPT pp. 1167 and 1612.
36 - FPT p. 1624.
37 - FPT p. 1589.
38 - Annex B.
39 - Annex C.
40 - Annex A.
41 - Prosecution’s opening statement and closing arguments, FPT pp. 19-20 and 3088.
42 - Prosecution’s closing arguments, FPT p. 3095.
43 - The Prosecutor’s Closing Brief (hereafter “Prosecution’s closing brief”), paras. 50 and 51.
44 - Prosecution’s Closing Brief, paras. 66-79.
45 - Prosecution’s closing arguments, FPT p. 3117.
46 - Final Trial Brief Submissions by the Defence (hereinafter “Defence’s closing brief”), p. 38.
47 - Defence’s closing arguments, FPT p. 3216.
48 - In its closing arguments, the Defence requested that the terms “internee” and “internment” be used instead of “detainee” and “detention”, since it is the contention of the Defence that there is a difference in law between the two expressions, FPT p. 3220. For the purpose of setting out the principle submissions of the Defence, the Trial Chamber adheres to this preference of the Defence without passing on whether there actually exists a difference in law between the two expressions.
49 - Defence’s closing arguments, FPT pp. 3240-3241, and closing brief, p. 57.
50 - Defence’s closing brief, p. 24.
51 - Defence’s closing brief, p. 51-56, and closing arguments, FPT p. 3243.
52 - Defence’s closing brief, pp. 24 -27 and 60.
53 - Defence’s closing brief, p. 15 and 46, and closing arguments, FPT pp. 3229-3230.
54 - One of the witnesses (Witness L.) was detained during both periods.
55 - Journalist working for “Sky News”.
56 - Witness McLeod, FPT p.134.
57 - Following an objection by the Defence based on hearsay evidence (FPT pp.116-118).
58 - Three witnesses appeared twice.
59 - Prosecutor v. Tadic, Case No. IT-94-1-AR72, Appeals Chamber Decision on Jurisdiction, Oct. 2, 1995, paras. 67 and 70 .
60 - Ibid.
61 - Ibid.
62 - Defence’s closing brief, p. 38.
63 - Attached is a dissenting Opinion of Judge Rodrigues regarding the applicability of Article 2 of the Statute in the present case.
64 - Attached is a joint Opinion of Judges Vohrah and Nieto-Navia regarding the applicability of Article 2.
65 - In its discussion of the legal ingredients of a crime pursuant to Article 3 of the Statute, the Trial Chamber is guided by the Tadic Decision, at para. 94 in particular.
66 - Tadic Decision, para. 87.
67 - Commentary to Geneva Convention IV, p. 25-26.
68 - The language used could not be more clear: “the following acts are and shall remain prohibited at any time and in any place whatsoever …”
69 - At the Diplomatic Conference of 1949, a considerable number of delegations were opposed to the unqualified application of the Convention to internal armed conflicts. The regime of individual protection under the Convention was meant to apply to international armed conflicts. Many delegations feared that if the Convention were extended to apply to internal armed conflicts, individual protection would come at the expense of the equally legitimate survival of the State, for rebels or common brigands would be accorded recognition as belligerents, and possibly even a certain degree of legal recognition. The French delegation proposed the solution that eventually broke the deadlock: in cases of civil war, it is the principles of the Convention that should be applicable. This proposal sought to limit the provisions in the Convention which applied to internal armed conflicts. Thus the carefully-developed rules of the Convention would not apply. The drafting task was given to the Working Group to cull those provisions of the Convention that were to be equally applicable to internal armed conflicts. Among the three proposals put to the Joint Committee, the text finally adopted obtained a clear majority after much debate.
70 - Corfu Channel case, Merits, I.C.J. Reports 1949, p. 22, cited in the Nicaragua case, I.C.J. Reports 1986, p.114.
71 - PCNICC/1999/WGEC/INF.1, 19 February 1999. Under the Rome Statute, the elements are intended to assist the Court in the interpretation and application of the substantive Articles.
72 - International humanitarian law and human rights law instruments and the relevant case law comprising a review of cases from the Leipzig Trials, post World War II trials, including the Nuremberg and Tokyo trials as well as national case law, and decisions from the International Tribunal for the Former-Yugoslavia and the International Criminal Tribunal for Rwanda.
73 - Celebici Judgement, para. 543.
74 - ECHR, Ireland v. United Kingdom, Publications of the European Court of Human Rights, Series A: Judgements and Decisions, vol. 26, 1978, p. 14.
75 - It can be noted, however, that the ECHR held that "with respect to a person deprived of freedom, any use of force, which is not rendered strictly necessary due to the behaviour of that person, affects human dignity and constitutes, in principle, a violation of the right protected by article 3." /unofficial translation/ ECHR, Ribitsch v. Austria, Reports of Judgements and Decisions, Series A, vol. 336, para. 38; Tekin v. Turkey, ibid. at para. 52-53.
76 - United Nations General Assembly Resolution 217 A (III) (1948) of 10 December 1948.
77 - American Declaration of the Rights and Duties of Man (Article XXV); African Charter on Human and Peoples’ Rights (Article 5); European Convention on Human Rights (Article 3); Inter-American Convention on Human Rights (Article 5).
78 - International Covenant on Civil and Political Rights (Article 7).
79 - Report by the Special Rapporteur, Mr. P. Kooijmans, E/CN.4/1986/15, 19 February 1986, paras. 97-98.
80 - ICRC Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, para. 3047.
81 - For example: being subject to torture; being used as a human shield.
82 - The Prosecutor v. Dusko Tadic, IT-94-1-T (hereinafter Tadic), Judgement of Trial Chamber II, 7 May 1999, paras. 670-692, pp. 261-273.
83 - The Prosecutor v. Zejnil Delalic, Zdravko Mucic alias “Pavo”, Hasim Delic and Esad Land`o alias “Zenga”, IT-96-21-T (hereinafter Celebici), Judgement of Trial Chamber II, 16 November 1998.
84 - The Prosecutor v. Anto Furundzija, IT-95-17/1-T (hereinafter Furund`ija), Judgement of Trial Chamber II, 10 December 1998.
85 - The Prosecutor v. Jean-Paul Akayesu, ICTR-96-4-T (hereinafter Akayesu), 2 September 1998.
86 - Tadic, para. 689, p. 269.
87 - Tadic, para. 689, p. 269.
88 - Tadic, para. 674, p. 261.
89 - Tadic, para. 679, p.264.
90 - Tadic, para. 687, p. 268.
91 - For a detailed analysis of the case-law, see inter alia, Furund`ija, paras. 200-215, pp. 77-82.
92 - Prosecutor’s Closing Brief, para. 68, p. 29.
93 - Tadic, para. 690, p. 269.
94 - Akayesu, para. 693, p. 277.
95 - Furundzija, para. 274, p. 103.
96 - Indictment, para. 37.
97 - Prosecutor’s Closing Brief, para. 80, p. 34.
98 - See in particular the commentary of the Additional Protocol, para. 3543, p. 1037 which states three similar criteria.
99 - Draft articles of the ILC, official document of the General Assembly, 51st session, UN DOC. A/51/10 (1996) (hereinafter “ILC draft articles”).
100 - Article 28: 1. A military commander or person effectively acting as a military commander shall be criminally responsible for crimes within the jurisdiction of the Court committed by forces under his or her effective command and control, or effective authority and control as the case may be, as a result of his or her failure to exercise control properly over such forces, where: (a) That military commander either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes; and (b) That military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.
101 - Celebici, para. 346, p. 128.
102 - After having used very different prerequisites in her Closing Brief (p. 40), the Prosecutor chose the three constituent elements established in the Celebici case in her closing argument, FPT p. 3117.
103 - Final Trial Brief Submissions by the Defence, pp. 48-49.
104 - Final Trial Brief Submissions by the Defence, p. 47. “there is no concept for the imputed criminal liability for other people’s conduct that would prevent or would be able to foresee unlawful conduct that the law expects to be prevented.”
105 - ILC draft articles, p. 36.
106 - Celebici, para. 334, p. 122: the criminal responsibility of superiors for failing to take measures to prevent or repress the unlawful conduct of their subordinates is best understood when seen against the principle that criminal responsibility for omissions is incurred only where there exists a legal obligation to act.
107 - Closing brief, para. 93, p. 36.
108 - Closing arguments, FPT p. 3117.
109 - Closing arguments, FPT p. 3117.
110 - Closing arguments, FPT p. 3118.
111 - United States v. Oswald Pohl et al, LAW REPORTS, Vol. V., p. 598.
112 - Closing argument, FPT p. 3118.
113 - Final Trial Brief Submission by the Defence, p. 50.
114 - Final Trial Brief Submission by the Defence, p. 61.
115 - Final Trial Brief Submission by the Defence, p. 63.
116 - Defence Closing Brief, p. 49.
117 - Final arguments, FPT p. 3231.
118 - Final arguments, FPT p. 3236.
119 - Final arguments, FPT p. 3219.
120 - ILC draft articles, Article 6, p. 37.
121 - Final report of the Commission of Experts established pursuant to Security Council resolution 780 (1992), UN. Doc. S/1994/674 (27 May 1994), para. 57, p. 16: “Political leaders and public officials have also been held liable under this doctrine in certain circumstances”.
122 - Celebici, para. 356, p. 131.
123 - Celebici, para. 370, pp. 136-137.
124 - United States v. Soemu Toyoda, Official transcript of record of trial, pp. 5005-5006.
125 - Official transcripts of the Tokyo trials, pp. 49820-49821.
126 - Tokyo War Crimes Trial, The International Military Tribunal for the Far East, Judgement, Official Transcript, Annex A-6, reprinted in R. John Pritchard and Sonia Magbanua Zaide (eds.), “The Tribunal is of the opinion that HIROTA was derelict in his duty in not insisting before the Cabinet that immediate action be taken to put an end to the atrocities, failing any other action open to him to bring about the same result”.
127 - Government Commission at the General Military Government Tribunal in the French Occupation Zone in Germany v. Herman Roechling et al., indictment and judgement of the General Military Government Tribunal in the French Occupation Zone in Germany, Law Reports, Vol. XIV, p. 1075, para. 1092.
128 - ILC draft articles, p. 37.
129 - Prosecutor Closing Brief, para. 124, p. 45.
130 - Prosecutor’s Closing Brief, para. 124, p. 46.
131 - Celebici, para. 386. p. 143.
132 - Commentary of Additional Protocol I, para. 3548, p. 1039.
133 - ILC Draft Articles, p. 56 (French).
134 - Celebici, para. 395, p. 147.
135 - Witness Percinlic, FPT p. 2047.
136 - Witness Osmancevic, FPT p. 457; Witness Bilic; Witness Ivancevic. Cf. infra para. 101.
137 - See in particular the statements by Witnesses E (FPT p. 578) and Osmancevic (FPT p. 445) relating that a detainee was hit during the search.
138 - For more details about these crimes, see the draft about the conditions of detention.
139 - Witnesses Dautovic, T, L, M, E.
140 - For the reasons set out above, the testimony of witnesses T and Dautovic will only be given an indicative value.
141 - Witness M, FPT p. 1248.
142 - Witness L, FPT p. 1211.
143 - Witnesses E and H.
144 - Closing arguments, FPT p. 3117.
145 - Closing brief, para. 88, p. 34.
146 - Exhibit D-21B.
147 - Closing brief, para. 83, p. 33.
148 - Final Defence submissions, p. 46.
149 - Closing arguments, FPT p. 3221.
150 - See for instance the testimony of Witnesses E, FPT p. 587; B, FPT pp. 492 and 512; Osmancevic, FPT p. 457; H, FPT p. 757; R, FPT p. 1392 and S, FPT p. 140.
151 - See for instance the testimony of Witnesses Vujica, FPT p. 2324 and DA, FPT pp. 2891-2894.
152 - FPT p. 2007.
153 - Exhibit admitted during Witness McLeod’s testimony.
154 - FPT p. 150.
155 - Witness Percinlic, FPT p. 2050; Exhibit D-21A.
156 - Final Defence submissions, p. 14.
157 - Witnesses W; B, FPT p. 492; Novalic, FPT p. 391; F, FPT pp. 684-685; N, FPT p. 1301; O, FPT p. 1336; R, FPT p. 1392 and S, FPT p. 1407.
158 - Witness A, FPT p. 415; Witness Hajdarevic, FPT p. 327.
159 - Witness Percinlic, FPT p. 2003 and Witness Vujica, FPT p. 2322.
160 - Final Defence submissions, p. 17
161 - Witness Percinlic, FPT p. 2085.
162 - Witness Percinlic, FPT p. 2036.
163 - Witness Percinlic, FPT p. 2001.
164 - Witness Percinlic, FPT p. 2004.
165 - Witness Juric, FPT p. 2452; Witness Vujica, FPT p. 3116.
166 - Comments by the accused related by Witness McLeod, FPT pp. 105-109.
167 - See in particular the testimony of Bla`enka Vujica, FPT p. 2323; Jerkovic, FPT p. 2094; Percinlic FPT p. 2020.
168 - Witness Jerkovic, FPT p. 2152; information corroborated by Witness Hajdarevic, FPT p. 380; and by Witness N, FPT pp. 1506 and 1304.
169 - Witness Percinlic, FPT. 2020; statements corroborated by Witness Jerkovic, FPT p. 2130.
170 - Witness Batinic, FPT p. 2181.
171 - Witness Vujica, FPT p. 2324; Witness Percinlic, FPT p. 2021; Witness Jerkovic, FPT p. 2116; Witness Anto Juric, FPT p. 2456.
172 - Witnesses McLeod, FPT p. 148; O, FPT p. 1336; Q; S; U; Bahtija Sivo, FPT p. 231; M, FPT p. 1242; I, FPT p. 840; Garanovic. Some witnesses explained that the accused was not always wearing a uniform, but sometimes wore civilian clothing (Witness H, FPT p. 757).
173 - Witnesses H; Garanovic, FPT p. 811; Meho Sivro, FPT p. 870.
174 - Witness McLeod, FPT p. 134; Witness Jerkovic. Witness Percinlic, FPT p. 2020, did however explain that the civilians who combined civilian and military clothing were mainly refugees who had fled without having the time to take all their clothes.
175 - FPT p. 2126.
176 - Witness DA, FPT p. 2883. “When the war broke out, he was summoned and he joined, or rather was included in the reserve police force, alongside the regular police force”.
177 - Witness Vujica, FPT p. 2339, 1. 5-6 and pp. 3012-3013 (Exhibit D-27).
178 - Exhibits 21-B and 21-C, Witness Percinlic, FPT p. 2010.
179 - Witness Vujica, FPT p. 2357.
180 - Witness Percinlic, FPT p. 2047.
181 - Witness Osmancevic, FPT p. 457.
182 - Witness Bilic; Witness Ivancevic.
183 - Following a discussion, the accused agreed to ask the military police which prisoners might be considered civilians and accordingly released (FPT pp. 105-109). The release of a detainee by the accused at the behest of Witness McLeod (FPT p. 111) does not constitute a sufficient element to establish that the accused held any power whatsoever in the release of prisoners. This release is in fact an isolated case which took place outside the framework of the exchanges in the course of which most Muslim detainees were released.
184 - Witness Junhov, FPT pp. 964-967.
185 - Witness Zlotrg, FPT p. 906.
186 - Witness Surkovic, FPT p. 938; Witness Kaknjo, FPT p. 191.
187 - Witness Kaknjo, relating the release of 60 elderly persons, indicated that the accused was present but did not sign the documents for that release.
188 - FPT p. 238.
189 - FPT p. 1273.
190 - FPT p. 1283.
191 - See supra II, B, 2.
192 - FPT p. 2357.
193 - Witness Jerkovic, FPT p. 2132.
194 - Witnesses H; Garanovic, FPT p. 811; Meho Sivro, p. 870.
195 - See Notes 150 and 151 above.
196 - Witness Hajdarevic, FPT p. 327.
197 - Witness F, FPT p. 717.
198 - Witness E, Witness H.
199 - FPT p. 595.
200 - Witness Vujica, FPT pp. 2334-2335 and 2363; Anto Jerkovic, FPT p. 2135.
201 - Witness Vujica, FPT p. 2333.
202 - Witness Vujica, FPT p. 2333.
203 - Witness Vujica, FPT p. 2363.
204 - Witness McLeod; Witness Junhov, FPT p. 952.
205 - Journalist Daniel Damon explained having been authorised by Dario Kordic, FPT p. 1133.
206 - Witness Jerkovic, FPT p. 2118.
207 - Witnesses L and M.
208 - These witnesses accused in particular one Goran Medugorac and one Anto Cakic, who were referred to as guards by other witnesses.
209 - See supra developments concerning the accused’s responsibility pursuant to Article 7(1), III, A, 1, a) pp. 36ff.
210 - Witness Jerkovic, FPT p. 2118.
211 - Witness Jerkovic, FPT p. 2136.
212 - Closing brief, p. 46.
213 - Closing arguments, FPT pp. 3122-3123.
214 - Closing brief, para. 126, p. 46, and para. 130, p. 47.
215 - FPT p. 1284.
216 - FPT p. 1267; cited in Prosecutor’s closing brief, para. 130, p. 47.
217 - Final Defence submissions, pp. 18-19.
218 - Witness Jerkovic, FPT p. 2131.
219 - Witness McLeod, FPT p. 134.
220 - Witness L, Witness M, Witness T, Witness Dautovic, Witness E, FPT p. 578.
221 - Witness McLeod, FPT p. 104.
222 - Witness McLeod, FPT p. 104.
223 - Closing arguments, FPT p. 3121.
224 - Closing brief para.136, p. 55.
225 - Ibid, p.64.
226 - Exhibit D-25 is relative to a report by the accused concerning the unauthorised entry of a member of the military police into the compound complex; Exhibit D-22 is relative to a report notifying the Travnik military tribunal that two detainees had been killed outside of the prison.
227 - Witness Vujica, FPT p. 2364.
228 - Witness Percinlic, FPT p. 2005.
229 - As seen previously, the testimony by Witnesses T and Dautovic was not taken into consideration. For further details concerning these testimonies see infra III, B.
230 - Prosecutor’s closing brief, para. 78, p. 31.
231 - Prosecutor’s closing brief, para. 117, p. 44.
232 - Final Defence submissions, para. 1.3c, p. 15.
233 - Final Defence submissions, p. 15.
234 - An initial group of 13 persons was taken to the village of Skradno and then to Strane (Witnesses N, O, Q, S); another group was taken the following day to the village of Merdani (Witnesses P, R).
235 - Witness N, FPT p. 1304; Witness S.
236 - Witness S, FPT p. 1409.
237 - Witness O, FPT p. 1336.
238 - Witness Novalic, FPT p. 397.
239 - Witness P, FPT p. 1360; Witness R, FPT pp. 1391-1392.
240 - Witness R, FPT p. 1392.
241 - Witness McLeod, reporting what Aleksovski said, FPT p. 107; Witness Rajic (secretary of the Travnik defence department), FPT p. 2479; Witness Juric (HVO commander), FPT pp. 2446-2447; Witness Lukin (“Domobrani” prison guard).
242 - Witnesses Stipo Juric and Lukin said that HVO soldiers were in charge of transporting detainees; Witnesses Juric and Vujica, FPT p. 2358, explained that these orders were executed by soldiers of the military police.
243 - Many former inmates said they could not distinguish between HVO soldiers and prison guards, and therefore could not describe the status of the guards accurately. However, they all said that the guards were persons distinct from the soldiers who took them to and guarded them at the trench site. See for example the statements by Witnesses G, FPT p. 744; E , FPT p. 577; A, FPT p. 438; B, FPT p. 515 or W, FPT pp. 2776-2777.
244 - Witness Vujica, FPT p. 2358. According to Witness Kaknjo the person called “inspector” was named Zarko Petrovic, FPT p. 189.
245 - Ibid.
246 - Witness Jerkovic, FPT p. 2109.
247 - Witness F, FPT p. 699.
248 - Witness I, FPT p.842. Witness Osmancevic said that the accused was never present when the list of prisoners sent off on trench-digging missions was drawn up, FPT pp. 457-458. Witness H explained that a commander of the locality of Bare came and got 30 men for trench-digging. He picked them out himself, without any apparent involvement by the accused, FPT p. 757.
249 - Witness Osmancevic, FPT pp. 457-458.
250 - Witness Rajic, FPT p. 2464.
251 - Final Defence submissions, pp. 51-2.
252 - Witness McLeod, FPT p. 107.
253 - Witness McLeod, FPT p. 107.
254 - See developments on Article 7(1), II, B, 1, pp. 23ff.
255 - Closing brief, para. 99, p. 39
256 - Closing brief, para. 111, p. 42.
257 - Closing brief, para. 113, p. 43.
258 - Closing brief, p. 76.
259 - See, for instance, testimony of witnesses Stipo Juric, Lukin, Vujica, or that of prosecution witness Zlotrg.
260 - Closing brief, para. 84, p. 33.
261 - Cf. note 242.
262 - Witness McLeod, relating what Aleksovski said, FPT p. 107; testimony of Mr. Rajic, FPT p. 2479; Witness Anto Juric (head of battalion), FPT pp. 2446-2447; Witness Lukin.
263 - indictment, para. 51.
264 - Witness Jerkovic, FPT p. 2109.
265 - Closing arguments, FPT p. 3221.
266 - As examined in chapter “B. Kaonik prison: facts and discussion”, par. 139.
267 - Prosecutor’s Closing Brief, para. 57, p. 23.
268 - Final Trial Brief Submissions by the Defence, p. 57
269 - Final Trial Brief Submissions by the Defence, p. 57.
270 - Final Trial Brief Submissions by the Defence, p. 25.
271 - Annex A.
272 - Witness H., FPT pp. 787 and 789.
273 - Fuad Kaknjo, FPT p. 194; Witness M, FPT p.1278.
274 - Witnesses Vujica, H., Daniel Damon.
275 - Defence Final Brief, p. 55; Witness Kaknjo, FPT p. 186.
276 - Annex B.
277 - Witness Surkovic, FPT p. 932.
278 - Witness Zlotrg, FPT p. 903.
279 - Witness Jerkovic, FPT p. 2119.
280 - Witness Vujica, FPT p. 2322; Witness Jerkovic, FPT pp. 2096 and 2113.
281 - Witness Vujica.
282 - Witness I, FPT p. 851. Witness F referred to a 70 by 25 metre warehouse in the middle of the compound. He was however the only one to testify that he was incarcerated there.
283 - Annex C.
284 - Witness Vujica, FPT p. 2342.
285 - Witness D, FPT p. 668.
286 - Witness McLeod, FPT p. 104. Information confirmed by Witness L who explained that about 400 people were released on 8 February 1993.
287 - The witnesses also used the term “Vitez cinema”.
288 - See the testimony of Bahtija Sivro, FPT p. 225. These individuals had in common the fact that they all held important positions in the political, social and economic life of the Vitez municipality. Some were physicians, others engineers, and still others members of the SDA, the Party of Democratic Action (This was the case inter alia of two witnesses who appeared before the Trial Chamber: Fuad Kaknjo and Bahtija Sivro) defined by witness McLeod as the political organisation underpinning the Army of Bosnia and Herzegovina, FPT p. 89. The Prosecutor’s evidence, however, demonstrates that the charges brought against the accused concern only detainees at Kaonik. The Trial Chamber will therefore confine its analysis to the acts which occurred within Kaonik prison.
289 - Witness Osmancevic was detained for two months and six days, FPT p. 469. Witness I said that he was released on 26 or 27 April 1993 along with five other detainees, that is for a much shorter time (approximately 12 days), FPT p.851. It appears that they were drivers for the Red Cross and were released the day after the visit by the Red Cross.
290 - Six witnesses heard during the trial were released on that date: Witnesses E, M, Dautovic, Osmancevic, H and L.
291 - Witness E, FPT p. 596.
292 - Witness Dautovic’s status is not very clear.
293 - Witness Osmancevic, FPT p. 449.
294 - FPT p. 105.
295 - Witness Osmancevic, FPT p. 442.
296 - Witnesses L and M.
297 - Witness M, FPT p. 1234.
298 - Final Trial Brief Submission by the Defence, pp. 53 and 72.
299 - Witness D, FPT p. 556; Witness F, FPT p. 682.
300 - In his testimony witness McLeod stated that the civilian detainees were men about 20 to 40 years of age, FPT p. 141.
301 - Witness B, FPT pp. 596-597; Witness W, FPT p. 3565; Witness Hajdarevic, FPT pp. 362-397.
302 - Witness M, FPT p. 1272; Witness J; Witness H.
303 - Most of the witnesses described the cells as being 2 or 3 x 3 metres. Some witnesses, however, said that their cells were considerably larger. Witnesses Zlotrg and V spoke of 12mē cells. Witness Surkovic said that he was held in cell no. 13 which, according to him, was 15-16 square metres.
304 - Only one witness spoke of 40 people, Witness V, FPT p. 2707. In general, the number given by the witnesses usually varied from about 10 to 25-30. According to Witness McLeod there were between four to ten Bosnian Muslims per cell, FPT, p. 145.
305 - Witness M, FPT. p. 1243.
306 - Witness T said that he had been held in cell 4. Dautovic said that he had been held in cell 3.
307 - Witness Surkovic, FPT p. 935.
308 - Witness C, FPT pp. 546-547.
309 - Witness R, FPT p. 1391.
310 - There was only one blanket for two detainees. Some detainees even claimed that there was only one for three to four prisoners (testimony of Witness B.).
311 - Witness R, FPT p. 1391.
312 - Witness Bahtija Sivro, FPT p. 870.
313 - Witness Osmancevic.
314 - Witness I, FPT p. 852.
315 - Witness M, FPT pp. 1464-1465.
316 - Witness E, FPT p. 586; Witness Osmancevic, FPT p. 461.
317 - Witness Osmancevic, FPT p. 478.
318 - Witness L, FPT p. 1218.
319 - Witness Vujica, FPT p. 2348.
320 - Witness E.
321 - Witness H, FPT p. 765.
322 - Witness Daniel Damon characterised the detention conditions at Kaonik as “inhumane” even though he did say that they were not the worst he had seen, FPT p. 1135.
323 - Witnesses D; E, FPT p. 590; M, FPT p. 1282; H. and Dautovic.
324 - FPT p. 141.
325 - Witness Novalic, FPT p. 401.
326 - Witness Stapic, FPT p. 1912; Witness Ivancevic, FPT p. 2015; Witness Vidovic, FPT p. 1992.
327 - Witness Stapic, FPT p. 1907.
328 - Witness Vujica, FPT pp. 2349-2350.
329 - Prosecutor’s Closing Brief, para. 29, p. 14.
330 - Witnesses G and Hajdarevic.
331 - Witness M, FPT p. 1287.
332 - Witness G.
333 - Witness B, FPT p. 507.
334 - Witness Meho Sivro, FPT p. 872.
335 - Witness Osmancevic, FPT p. 449.
336 - Witness I, FPT p. 852.
337 - Witness Zlotrg, FPT p. 907.
338 - Witness E, FPT p. 589.
339 - Testimony of witnesses Damon, FPT p. 1135, B and Zlotrg.
340 - Witness G for the first period, Witness Osmancevic for the second period.
341 - Witnesses Osmancevic, FPT p. 465; Garanovic, FPT p. 815; Surkovic, FPT p. 932; G, FPT p. 733.
342 - Witness Zlotrg.
343 - Witness T, FPT p. 1467.
344 - Witnesses Zlotrg, FPT p. 914; Osmancevic, FPT p. 478.
345 - The barracks was the HVO brigade headquarters for the Busovaca region.
346 - Witness Vujica and Witness A, FPT p. 416. The house in question corresponds to Building A in the annex.
347 - Witness Jerkovic stated that there was a food shortage for about twenty days and that during that time detainees received only two meals a day, FPT p. 2120.
348 - Witness McLeod, FPT p. 106.
349 - Witness Bilic. Only Witness Dautovic mentioned an infirmary within the prison, FPT p. 258.
350 - Witnesses M and E.
351 - Witnesses I, FPT pp. 845-846.
352 - Witness B.
353 - The beatings took place in the presence of the accused.
354 - Witness E, FPT p. 696.
355 - FPT p. 2758.
356 - Inter alia Witness Dautovic.
357 - Witness L, FPT p. 1200.
358 - Witness Vujica, FPT p. 2337.
359 - Witness W, FPT p. 2578.
360 - Defence witnesses.
361 - Witness M, FPT p. 1293.
362 - Witness Stapic, physician at the Busovaca medical centre, FPT p. 1901; Witness Stapic, FPT p. 1935.
363 - Witness Cosic, FPT p. 1969 and Witness Stapic.
364 - Witness Cosic, FPT p. 1968.
365 - Witness F, FPT p. 717.
366 - Witness Garanovic, FPT pp. 810-812.
367 - Witness Surkovic, FPT p. 935.
368 - Witness A, FPT p. 429.
369 - Witness Stapic, FPT p. 1908.
370 - Witness Stapic, FPT p. 1902.
371 - Witness Garanovic, FPT pp. 811-813.
372 - Witness Surkovic, FPT p. 935.
373 - Witness C, FPT p. 531.
374 - Witness D, FPT p. 553 (the witness acknowledges that nothing was taken from him); Witness O, FPT p. 1335; Witness Q, FPT p. 1382.
375 - Witness Novalic, FPT p. 391.
376 - FPT p. 756.
377 - Witness Bahtija Sivro, FPT p. 869.
378 - Witnesses E, FPT p. 578; Osmancevic, FPT p. 445.
379 - Witnesses J, FPT p. 994; Osmancevic, FPT p. 445.
380 - Witness M, FPT 1242.
381 - Witness Garanovic, FPT p. 809.
382 - Witness L, FPT p. 1210.
383 - Witness Osmancevic, FPT p. 448.
384 - Witness E, FPT p. 577.
385 - Witness I, FPT p. 854.
386 - Witness J, FPT p. 994.
387 - Witness L, FPT p. 1210.
388 - Witness Garanovic, FPT pp. 807-808.
389 - FPT p. 869.
390 - Witness I, FPT p. 854; Witness L, FPT p. 1210.
391 - Witness McLeod, FPT p. 145.
392 - Witness I, FPT p. 155.
393 - Witnesses A, C, F, G and L.
394 - Witness Osmancevic, FPT pp. 468 and 498-499.
395 - Witnesses C, FPT p. 544; Garanovic, FPT p. 982; B, FPT p. 498; F, FPT p. 685; G, FPT p. 740.
396 - Witness Kaknjo, FPT p. 182.
397 - Witness B; Witness C, FPT p. 544.
398 - Witness C, FPT p. 544.
399 - Witness L, FPT p. 1231.
400 - Witness F, FPT p. 685.
401 - Witness Garanovic, FPT pp. 1000 and 1017.
402 - Witness Kaknjo, FPT p. 182.
403 - Witness Zlotrg, FPT p. 906.
404 - Witness E, FPT p. 587.
405 - Witness H, FPT p. 770.
406 - Witness G, FPT p. 740; Witness F, FPT p. 722.
407 - Witnesses U; V, FPT p. 2707.
408 - Witnesses A; W.
409 - Witness Garanovic, FPT p. 827.
410 - Witness Surkovic.
411 - Witnesses W and F.
412 - Witnesses Hajdarevic, Novalic, A, N, P, R, S and L. The testimony of Witness L. focused primarily on the second period during which he too was detained.
413 - Witnesses D, G, V, Q, FPT p. 1386.
414 - Witnesses O, C and B.
415 - Witnesses Dautovic, L, M, T, Kaknjo, E, H.
416 - Witnesses Kaknjo, E and H.
417 - Witnesses Kavazovic, Surkovic, Meho Sivro and J.
418 - Witnesses Garanovic, Bahtija Sivro, U and Osmancevic.
419 - Witness McLeod, FPT p. 112.
420 - Witness McLeod, FPT p. 119.
421 - Witness McLeod, FPT pp. 133-134.
422 - See infra, para 205ff.
423 - According to Witness A, FPT p. 451, Anto Cakic was a guard.
424 - Witness M, FPT p. 1249.
425 - Neither witness was able to differentiate clearly between the guards and the HVO soldiers.
426 - Witness M, FPT p. 1248.
427 - Witness L, FPT p. 1210. On the basis of other testimony, it seems that Goran Medugorac was a guard.
428 - Witness M, FPT p. 1252.
429 - Witness L, FPT p. 1212.
430 - See supra, para. 36.
431 - Witness W, FPT p. 2705
432 - Witness F, FPT p. 691.
433 - Witness I, FPT p. 848.
434 - Witness U, FPT p. 1478.
435 - Witness detained during the second period.
436 - Witnesses F, FPT p. 685; Osmancevic, FPT p. 449.
437 - Witness B, FPT p. 506.
438 - Witnesses M and E, FPT pp. 586-587.
439 - Witness M, FPT p. 1276.
440 - Testimony confirmed by witness Junhov, according to whom the “Mujahedin” were released a week before 16 May.
441 - Witness O for the first detention period; Witnesses H., Zlotrg, Kaknjo, FPT p.182, and Garanovic for the second period.
442 - Witness D, FPT p. 556; Surkovic; Bahtija Sivro.
443 - Witness D, FPT p. 555.
444 - Annex A.
445 - FPT pp. 692-693.
446 - Witness Kaknjo, FPT pp. 188 and 197.
447 - Witnesses Surkovic, FPT p. 918; Bahtija Sivro and Zlotrg, FPT p. 914, confirmed that witness Kaknjo was beaten and had bruises all over.
448 - Witnesses E and H. Their testimony is corroborated by that of Witness Osmancevic, FPT p.467.
449 - Witness H.
450 - Witness E, FPT pp. 592-595.
451 - Witness E., FPT p. 593.
452 - See also witness K, FPT p. 1186.
453 - According to the witness, the Muslim detainees were held four to ten in a cell and did not have personal property whereas the Croats were only two to a cell and did have personal property, FPT p. 145.
454 - Witness Garanovic explained that he shared his cell with two Croatian soldiers serving a disciplinary sentence, FPT pp. 812-813.
455 - The lawfulness or otherwise of their detention is a separate question.
456 - It should be noted that in this case these were military judicial authorities.
457 - This is particularly so for the case of post traumatic stress described by one of the witnesses, or for those who suffered fractures.
458 - On this point at least, national laws often have specific provisions, for example those relating to violence against a handicapped person.
459 - Same observation as above, with reference to laws prohibiting violence committed over persons in a situation of inferiority or by a person in a position of authority.
460 - Prosecution closing brief, para. 184.
461 - Prosecution’s closing arguments FPT p. 3132.
462 - Prosecution’s closing arguments, FPT p. 3133.
463 - Due to a confidentiality issue, the Trial Chamber does not specify here why it deems the witness credible.
464 - Rule 101 reads: (A) A convicted person may be sentenced to imprisonment for a term up to and including the remainder of the convicted person’s life. (B) In determining the sentence, the Trial Chamber shall take into account the factors mentioned in Article 24, paragraph 2, of the Statute, as well as such factors as : (i) any aggravating circumstances; (ii) any mitigating circumstances including the substantial cooperation with the Prosecutor by the convicted person before or after conviction; (iii) the general practice regarding prison sentences in the courts of the former Yugoslavia; (iv) the extent to which any penalty imposed by a court of any State on the convicted person for the same act has already been served, as referred to in Article 10, paragraph 3, of the Statute. (C) The Trial Chamber shall indicate whether multiple sentences shall be served consecutively or concurrently. (D) Credit shall be given to the convicted person for the period, if any, during which the convicted person was detained in custody pending surrender to the Tribunal or pending trial or appeal.