1. 1 Monday, 19th January 1998

    2 (11.20am)



    5 (In open session)

    6 JUDGE CASSESE: May I ask the Registrar to

    7 call out the case number, please?

    8 THE REGISTRAR: Case number IT-95-13A-T

    9 Prosecutor versus Slatko Dokmanovic.

    10 JUDGE CASSESE: Thank you, can we have the

    11 appearances please?

    12 MR. NIEMANN: If your Honours please, my name

    13 is Niemann and I appear with my colleagues,

    14 Mr. Williamson, Mr. Waespi, Ms. Sutherland and Mr. Vos.

    15 MR. FILA: Your Honour, my name is Toma Fila

    16 and together with my colleagues, Petrovic and Ms.

    17 Lopicic, I will defend Zlatko Dokmanovic in these

    18 proceedings. Thank you.

    19 JUDGE CASSESE: Thank you. We can therefore

    20 start with the Prosecutor's opening statement.

    21 MR. NIEMANN: Your Honours, this is a case

    22 which concerns events that started at the Vukovar

    23 hospital on 20th November 1991. It is a case about 200

    24 Croatian and other non-Serb persons, most of them

    25 patients of that hospital who were removed from their

  2. 1 sick beds on the morning of 20th November 1991,

    2 transported to military barracks in Vukovar and then

    3 subsequently, in the afternoon, to a collective farm,

    4 at Ovcara. It is a case where many of these patients

    5 from the hospital were severely beaten. The beatings

    6 were so severe that two of them died.

    7 It is a case where, after these horrendous

    8 beatings, and after some of them were separated out,

    9 the remainder of them were transported to a place just

    10 nearby where, in the course of the evening and night,

    11 they were summarily executed and buried in a mass

    12 grave.

    13 It is the case of Slavko Dokmanovic, the

    14 president of the municipality of Vukovar, who actively

    15 participated in the events which led to the death of

    16 these innocent victims.

    17 By virtue of his participation, Slavko

    18 Dokmanovic is charged with violations of the laws and

    19 customs of war, grave breaches of the Geneva

    20 Conventions of 1949, and crimes against humanity.

    21 The accused is not the only person

    22 responsible for these terrible acts. He knowingly acted

    23 in concert with others, including Mile Mrksic, Miroslav

    24 Radic, and Veselin Sljivancanin. These participants are

    25 no less culpable than the accused himself. Throughout

  3. 1 the course of these proceedings your Honour may hear

    2 these names mentioned from time to time.

    3 The events for which the accused stands trial

    4 were part of a widespread and systematic large-scale

    5 attack against the non-Serb residents of the

    6 municipality of Vukovar. All the various stages in the

    7 chain of events which led to, and indeed ended in, the

    8 mass grave at Ovcara, form part of a well-orchestrated

    9 and continuous course of action. The acts contained in

    10 the indictment are the intentional acts, wilful acts

    11 and omissions of the accused, as the highest Serbian

    12 civilian authority in the municipality of Vukovar and

    13 his fellow commanding military and paramilitary

    14 conspirators and associates.

    15 There can be no justification for these

    16 crimes. The criminal activity that underscored these

    17 offences was on a scale that shocks the consciousness

    18 of mankind. The motivation for these murders was hatred

    19 based on prejudice and intolerance. The basis for the

    20 selection and subsequent execution of these captives

    21 was national, ethnic, religious and political. The

    22 victims were chosen by their executioners for killing

    23 because they were not the same ethnic group as the

    24 perpetrators. These innocent victims were not

    25 casualties of war, killed in the course of armed

  4. 1 conflict, but many of them were civilians and

    2 non-combatants removed from their hospital beds and

    3 slaughtered.

    4 It is the Prosecution case that the accused

    5 is individually responsible for the crimes alleged

    6 against him in the indictment, pursuant to Article 7(1)

    7 of the Statute of the Tribunal. Individual criminal

    8 responsibility includes committing, planning,

    9 instigating, ordering, or otherwise aiding and abetting

    10 the planning, preparation or execution of any of the

    11 crimes referred to in Articles 2-5 of the Tribunal

    12 Statute.

    13 However, the accused's criminal

    14 responsibility for the crimes committed on

    15 20th November 1991 in and around Ovcara is not only

    16 based on his direct and active participation, but also

    17 by virtue of his position of authority, where the

    18 evidence suggests not a direct involvement, but

    19 a failure to prevent, stop, or punish such crimes.

    20 This latter responsibility, individual

    21 responsibility, for omissions -- this latter principle

    22 of individual responsibility for omissions, long

    23 recognised under international criminal law, was

    24 reaffirmed by Article 7(3) of the Statute.

    25 If I may, for a short moment, turn to the

  5. 1 accused himself, your Honours, the accused, Slavko

    2 Dokmanovic, was born on 14th December 1949 in Trpinja

    3 in the Republic of Croatia of what then was the

    4 Socialist Federal Republic of Yugoslavia. He is

    5 a graduate of the Faculty of Agriculture in Osijek

    6 which, is also in Croatia. He claims to be currently

    7 without citizenship and to have refugee status in the

    8 Federal Republic of Yugoslavia. He is a Serb by

    9 nationality.

    10 Before entering politics, the accused worked

    11 for almost eight years as an agricultural expert at the

    12 collective farm of Ovcara, the same place where these

    13 tragic events occurred. As such he gained an in-depth

    14 knowledge of the physical layout of Ovcara. At the

    15 occasion of the first multi-party elections in 1990,

    16 the accused Dokmanovic entered politics and was elected

    17 to the Vukovar municipal assembly as a member of the

    18 Party for Democratic Change.

    19 Subsequently, Dokmanovic was elected

    20 president of the municipal assembly. In this capacity,

    21 he carried out the executive functions of the assembly,

    22 and as such, acted as the chief executive authority in

    23 the municipality. He held this position from June 1990

    24 until June 1991. At this time, citing fears for his

    25 safety, he refused to continue going to Vukovar, which

  6. 1 led to the Croatian authorities to name a replacement.

    2 Even during this period when Serb forces were

    3 besieging Vukovar, the accused Dokmanovic still

    4 maintained a presence on the local political scene, and

    5 to many Serbs was considered the legitimate president

    6 of the municipal assembly.

    7 Immediately after the city of Vukovar fell to

    8 the JNA, the accused Dokmanovic resumed his role as

    9 president of the municipality for a short period, and

    10 then entered into the government of the rebel Serb

    11 autonomous region. In 1994 he resumed his position of

    12 president of the municipal assembly of Vukovar, a post

    13 he held up until April of 1996.

    14 Your Honours, the city of Vukovar is located

    15 in the Eastern Slavonian region of Croatia on the banks

    16 of the Danube River which there marks the borders

    17 between the Republic of Serbia and the Republic of

    18 Croatia. The city straddles the Vuka River which flows

    19 into the Danube just north of the city centre.

    20 South-East of Vukovar the terrain consists mostly of

    21 rolling hills and bluffs along the Danube.

    22 North of Vuka, the terrain is very flat, as

    23 it is to the south and west. The area is primarily

    24 agricultural, most of the land is cultivated and there

    25 are relatively few forested areas.

  7. 1 To assist your Honours, we have some maps

    2 prepared which we would like to take you to now, if we

    3 may, on the television screen, to indicate some of the

    4 places that we have spoken of, and with the assistance

    5 of the technician, might I ask that the first map be

    6 displayed, that being B1-1, a map of the western

    7 Vulkans area, be displayed. (Map displayed)

    8 Your Honours, this is a very large map and it

    9 is not very easy to see individual places on it,

    10 looking at it on the screen, but your Honours may be

    11 able to see that there -- the red lines mark the

    12 division between the various Republics of Yugoslavia,

    13 Bosnia, Croatia, Serbia, Slovenia, et cetera. A more

    14 precise and clear map is B1-2, and if we could have

    15 that, I think it may be easier for your Honours to see

    16 it. (Map shown)

    17 That is much clearer for your Honours.

    18 I think you can see there in the purple section towards

    19 the top the Vukovar -- is marked, and the name,

    20 "Vukovar", appears.

    21 Again, perhaps if we can now have B1-3, your

    22 Honours, this is a large map which shows the

    23 municipality of Vukovar. Your Honours well understand

    24 that there is -- the municipalities in Yugoslavia are

    25 often named after the largest towns which appear, so

  8. 1 there is the city of Vukovar and the municipality of

    2 Vukovar. That is a consistent pattern that runs across

    3 the whole of Yugoslavia.

    4 Finally, if we could have B1-4 on the

    5 screen. (Map shown). This, your Honour, is a more

    6 expanded version of the map that we have just had. Your

    7 Honours can see clearly there the city of Vukovar, and

    8 if I ask the technician, he might kindly mark that for

    9 us, and because these events are so concerned with the

    10 collective farm at Ovcara, I would ask the technician

    11 if he would be so kind to put a marking there. You can

    12 see the pin mark now appearing. That gives you the

    13 relative distance of Vukovar to Ovcara.

    14 Thank you very much.

    15 In the 1991 census, the population of the

    16 Vukovar municipality was 84,189 persons, of which

    17 36,910 were Croats (43.8 per cent), 31,445 were Serb

    18 (37.4 per cent), 1,375 were Hungarian (1.6 per cent),

    19 6,124 were Yugoslavian (7.3 per cent), and 8,335, being

    20 "others", were 9.9 per cent.

    21 During World War II the region around Vukovar

    22 was relatively peaceful and it seems to have escaped

    23 much of the ethnic fighting which occurred in other

    24 areas of Yugoslavia. After the war, however, the

    25 significant ethnic German population were forced from

  9. 1 the region by the Tito government, leading to an influx

    2 of settlers from other parts of Yugoslavia.

    3 Some of the newcomers were forcibly sent to

    4 Eastern Slavonia but most, apparently, came on their

    5 own, from the poorer areas of Krajina, these were

    6 primarily Serb people, and from Herzegovina, and these

    7 were primarily Croats. They were seeking the rich

    8 farmland for which the area was known.

    9 In 1991, the year that the charged events

    10 took place, Vukovar was a prosperous town in Croatia,

    11 due primarily to its location as a service centre for

    12 the surrounding areas, and it was reputed to be the

    13 richest farmland in all of the former Yugoslavia. The

    14 regional economy was also supplemented by nearby oil

    15 and natural gas deposits, as well as by the large

    16 Borovo factory which employed thousands of persons and

    17 manufactured shoes, leather and rubber goods.

    18 Your Honours, we have a short video which

    19 video the Defence have. We have taken very short

    20 excerpts of it to show the city of Vukovar as it was

    21 before the siege, and if I could ask the technicians in

    22 the booth to kindly play that video, in segments 1, 2

    23 and 3. (Video played).

    24 "Scenes of Vukovar prior to the battle".

    25 Understand, your Honours, that most of these scenes

  10. 1 were shot in the early part of 1991.

    2 Perhaps if the technicians could fast forward

    3 now slightly onto the final segment, it is segment 3.

    4 If that can be done very quickly, otherwise we will

    5 move on. (Video played).

    6 This, your Honours, as I understand, is

    7 a shot of the agricultural lands surrounding Vukovar.

    8 Thank you. I think that is enough.

    9 Your Honours, the ethnic tension first

    10 manifested itself in the Vukovar region in early 1991.

    11 The atmosphere of tension was exacerbated by Serbian

    12 and Croatian radicals, who visited the area calling for

    13 violent responses to the other side's "provocations".

    14 On both sides the introduction of more and more

    15 well-armed ultra-nationalists caused the situation to

    16 deteriorate.

    17 An incident on 2nd May 1991 when 12 Croatian

    18 policemen were shot in the neighbouring village of

    19 Borovo Selo marked the beginning of the slide into

    20 armed conflict in the region and from the time of that

    21 incident on, there were gun battles occurring between

    22 the Serbs and the Croats on an increasingly regular

    23 basis.

    24 After the referendum of 17th May 1991, the

    25 Republic of Croatia decided to no longer remain in the

  11. 1 Socialist Federation of Yugoslavia, so it declared its

    2 independence on 25th June 1991, but at the urging of

    3 the European Community the effective date of

    4 independence was postponed for three months until

    5 8th October 1991.

    6 Croatia's transition from a Federal Republic

    7 to that of an independent state in its own right was

    8 not smooth or free of conflict. In August of 1991,

    9 after attacking some of the surrounding villages, the

    10 JNA, the Yugoslavia People's Army, laid siege to the

    11 city of Vukovar. On 25th August 1991, the JNA launched

    12 a full-scale assault on Vukovar, including land, air

    13 and naval forces, which were all utilised in

    14 a co-ordinated attack.

    15 The battle of Vukovar lasted just short of

    16 three months and resulted in great damage to the city,

    17 and to the death of many hundreds of persons.

    18 Ultimately Vukovar fell on 18th November 1991. The JNA

    19 and the Serb paramilitary forces occupied what remained

    20 of the city. The remaining Croatian defenders

    21 surrendered, although significant numbers of them were

    22 killed on the spot, or were executed shortly

    23 thereafter.

    24 We have now some scenes on the video relating

    25 to that battle and to the city and aftermath of the

  12. 1 battle, and if segments 4 and 5 could now be shown on

    2 the screen, these segments, if your Honours please,

    3 relate to the siege of Vukovar and its aftermath.

    4 (Video played). "Scenes of Vukovar during and in the

    5 aftermath of the battle".

    6 Thank you.

    7 Your Honours, by the time the city fell, the

    8 JNA had amassed in excess of 30,000 troops in the

    9 Vukovar area. These JNA forces were joined by

    10 significant numbers of Serb regular troops, coming from

    11 Territorial Defence units, as well as volunteers in

    12 paramilitary units who had flocked to the area from

    13 Serbia, Montenegro and the Serbian regions of Croatia.

    14 The Serbian units with primary responsibility

    15 for the attack and subsequent occupation of Vukovar was

    16 the Belgrade-based Guards Brigade, commanded by Colonel

    17 Mile Mrksic. Subordinate to Colonel Mrksic was Major

    18 Veselin Sljivancanin, who had direct operational

    19 command of JNA forces in the immediate area of the

    20 city. Major Sljivancanin was the commanding officer for

    21 the Belgrade Guards, and he also commanded a military

    22 police battalion which was part of the brigade. Another

    23 part of the brigade that took an active role in the

    24 siege and occupation of the city was the special

    25 infantry unit commanded by Captain Miroslav Radic,

  13. 1 a close associate of Major Sljivancanin.

    2 Your Honours, the Vukovar hospital is located

    3 in the centre of the city. The hospital was well

    4 signposted, on its roof was painted a large red cross,

    5 and a big linen Red Cross sign was displayed in the

    6 courtyard of the hospital, but instead of being saved

    7 from bombardment, including aerial bombardment, the

    8 hospital was constantly attacked. Notwithstanding the

    9 constant shelling throughout the course of the siege,

    10 the Vukovar hospital kept functioning. Chief physician

    11 and director of the hospital, Dr. Bosanac, who will give

    12 evidence in these proceedings, maintained contact with

    13 the outside world and international organisations.

    14 Dr. Bosanac was instrumental in planning for the sick

    15 and wounded of the hospital to be evacuated under the

    16 supervision of the European Community Monitoring

    17 Mission and the International Committee of the Red

    18 Cross.

    19 There are some short video segments of this

    20 process of evacuation that was arranged and organised

    21 by Dr. Bosanac, and if we could see briefly those

    22 segments now, 6, 7 and 8. (Video played). The first

    23 part shows the hospital and then the second part goes

    24 on to the evacuation itself.

    25 By the time the city surrendered, many of the

  14. 1 Croatian/Serbian people who had been trapped in Vukovar

    2 by the JNA siege had assembled in the Vukovar hospital,

    3 where several hundred people gathered in the belief

    4 that it would be evacuated in the presence of neutral,

    5 international observers. In addition to the sick and

    6 wounded, civilian families and families of hospital

    7 staff, and soldiers who had been defending the city,

    8 some posing as patients or hospital staff, gathered in

    9 the hospital and on the hospital grounds.

    10 I think we now have that on the screen, your

    11 Honours, so perhaps if that could be played. (Video

    12 played).

    13 On 18th November 1991 representatives of the

    14 Republic of Croatia, the JNA, the International

    15 Committee of the Red Cross, and other international

    16 humanitarian bodies reached an agreement regarding

    17 a convoy to evacuate the wounded and sick from the

    18 Vukovar hospital, which contained a guarantee of

    19 a cease-fire during the period of the evacuation, an

    20 agreement to provide suitable vehicles, recognition of

    21 the neutrality of the Vukovar hospital during the

    22 evacuation period, and the placing of the hospital

    23 staff under the protection of the International

    24 Committee of the Red Cross.

    25 The agreement was followed by more detailed

  15. 1 memorandum of understanding in which the signatories

    2 agreed that all wounded and sick combatants would be

    3 treated in accordance with Geneva Conventions I and II,

    4 and that all captured combatants would be treated in

    5 accordance with Geneva Convention III, and that all

    6 civilians would be treated in accordance with Articles

    7 70 to 149 of Geneva Convention IV, including the grave

    8 breach provisions of Article 147.

    9 On the afternoon of 19th of November 1991,

    10 Major Veselin Sljivancanin entered the hospital with

    11 the JNA units and assumed control. Early in the morning

    12 of 20th November 1991, Major Sljivancanin ordered the

    13 nurses and doctors of the hospital to assemble for

    14 a meeting in the basement of the hospital. Meanwhile,

    15 on the orders of Major Sljivancanin, a list of all

    16 those present at the hospital had been prepared. During

    17 the meeting of the medical staff, the JNA and Serb

    18 paramilitary soldiers separated the men from the women.

    19 By the time the medical staff meeting with

    20 Major Sljivancanin had concluded, the soldiers had

    21 removed almost all the men who were at the hospital

    22 using the list that had been prepared previously. Among

    23 those removed in this way were wounded patients,

    24 hospital staff, soldiers who had been defending the

    25 city, Croatian political activists and other civilians.

  16. 1 No regard was had to the fact that the

    2 majority of the men patients were sick or wounded. Many

    3 of them bore wound drains, plaster casts and medical

    4 paraphernalia.

    5 The soldiers loaded about 300 of these men

    6 onto five or six civilian buses and held them on the

    7 buses under guard. Later that morning, the buses left

    8 the hospital compound and proceeded through the centre

    9 of Vukovar to the JNA barracks on the south side of the

    10 city. The men were kept inside the buses at the

    11 barracks for about two hours. During that time, at

    12 least fifteen of the men were removed from the buses,

    13 apparently because these men were part of the hospital

    14 staff or who were related to staff members. Those who

    15 had to remain on the buses were then verbally abused

    16 and threatened. Survivors of this bus journey will

    17 testify before this Chamber.

    18 Around noon or shortly thereafter, the

    19 remainder of the men were then driven to a building at

    20 the Ovcara farm about four kilometres south-east of

    21 Vukovar.

    22 Your Honours, for your assistance we have had

    23 prepared, and this has been disclosed to the Defence as

    24 well, a very short video segment showing the route that

    25 was taken from the hospital compound to the JNA

  17. 1 barracks, and then subsequently from the JNA barracks

    2 to the Ovcara hangar. These are video segments 9 and

    3 10, and if they could be played, please. (Video

    4 played).

    5 That is the hospital, your Honours.

    6 That spot marks the JNA barracks, your

    7 Honours.

    8 From that spot, your Honours, they then go

    9 from the JNA barracks out to the collective farm at

    10 Ovcara where the buses halt at a hangar.

    11 Your Honours, the JNA and Serb paramilitary

    12 soldiers took -- we are now being shown the short

    13 distance from the hangar to the grave, your Honours.

    14 The JNA and Serb paramilitary soldiers took

    15 the men from the buses and forced them to run between

    16 two lines of soldiers to the entrance of the hangar. As

    17 they passed, the men were severely beaten. Once inside

    18 the hangar, the men were ordered to stand and face the

    19 wall, or sit down on the ground. The evidence will show

    20 that what had happened, thus far, was only a prelude to

    21 scenes of unimaginable cruelty and brutality.

    22 The men were beaten for several hours. This

    23 was done in a systematic way. JNA and paramilitary

    24 soldiers would come into the hangar from outside and

    25 start to beat and kick the people inside severely. As

  18. 1 they got tired, the beaters were replaced by others who

    2 had fresh energy to continue the beatings. The evidence

    3 will show that at least two of the men in the hangar

    4 did not survive.

    5 The accused was present at these beatings for

    6 an extended period of time. The evidence will

    7 demonstrate that he paced up and down the hangar and

    8 acted in a position of authority. The accused also

    9 singled out certain individuals who were subsequently

    10 beaten even more severely.

    11 About seven of the men were released. Seven

    12 of the victims were released after Serbs intervened on

    13 their behalf. These men were removed from the hangar in

    14 which the beatings took place, and assembled outside.

    15 Later on, they were driven back to Vukovar. The

    16 Prosecution will call evidence from one of these

    17 survivors who will testify that the soldiers who

    18 intervened on his behalf knew that those who remained

    19 at the farm were to be killed.

    20 The accused, Dokmanovic, was present when

    21 these men were saved. The accused was also present as

    22 final preparation were being made for the execution,

    23 acts which signalled clearly what the fate of the

    24 captives would be. He was present as preparation were

    25 being made in all openness for ensuring mass execution.

  19. 1 To this end, the Prosecution will adduce evidence in

    2 relation to the steps taken to prepare the mass grave.

    3 Thereafter, identifying information about

    4 each man was listed, and then the men were divided into

    5 groups of 10-20. Each group was loaded in turn onto

    6 a truck, which left the farm building with that group,

    7 and then returned empty a short while later.

    8 Clearly, these events, in their entirety,

    9 demonstrate that those at the Ovcara hangar, including

    10 the accused, were well aware of the up-coming

    11 execution, and by his actions and presence, the accused

    12 was an integral part of the preparation thereto.

    13 The truck that transported the captives to

    14 their death travelled south from the Ovcara building on

    15 the road leading to Grabovo. Approximately one and

    16 one-tenth kilometres south-west of the building, the

    17 vehicle turned left and then travelled north-east on

    18 a dirt field road which ran between a cultivated field

    19 on the left, and a wooded ravine on the right.

    20 The sole survivor of this fateful journey,

    21 and whose testimony we will hear in the course of these

    22 proceedings; one man managed to leap undetected from

    23 one of the truck. He is the last survivor on what was

    24 the road to a summary cruel and certain death.

    25 At the end of the ravine, approximately

  20. 1 900 metres from the Ovcara/Grabovo road, the soldiers

    2 removed the men from the truck. At this spot, JNA and

    3 Serb paramilitary troops were assembled on the north

    4 side of the site where a mass grave site had been

    5 prepared. During the evening hours of 20th November

    6 1991, these soldiers, firing in a southerly direction,

    7 shot and killed, or otherwise killed, at least 198 men

    8 and two women.

    9 The remains of these men have since been

    10 exhumed from the place where the executions took place.

    11 The Prosecution will produce numerous exhibits which

    12 provide painstaking documentation and a poignant and

    13 grisly testimonial of the crimes that were there

    14 committed.

    15 The Prosecution will show that the accused's

    16 participation in the beatings, and his presence and his

    17 actions with respect to the planning and implementation

    18 of the mass execution, are criminal offences under

    19 Article 7(1) of the Statute, and that his failure to

    20 prevent the violations as a superior results in

    21 criminal liability under Article 7(3) of the Statute.

    22 Your Honours, the final demonstration that

    23 I wish to show you is a map, B1-6, and on that map

    24 I wish to show you some of the towns that may be

    25 referred to during the course of the evidence. It is an

  21. 1 expanded map of the Vukovar municipality and contains

    2 some of the well-known places, and with the assistance

    3 of the technicians, could that be displayed now,

    4 please? (Map shown).

    5 It appears on the computer monitor.

    6 Your Honours, I would ask the technician to

    7 mark these towns quickly for me, if he would; Vukovar,

    8 Vinkovci -- you cannot see all of Vinkovci, your

    9 Honours, but it is where it is being marked now.

    10 Ovcara, Borovo, and Trpinja. And last but not at least,

    11 Ilok.

    12 If your Honours please:

    13 Now turning to the indictment itself, the

    14 accused in this case, Slavko Dokmanovic is charged with

    15 some six counts in the indictment. The charges are

    16 grave breaches of the Geneva Conventions of 1949,

    17 violations to the laws and customs of war, and crimes

    18 against humanity. Counts 1, 2 and 3 are concerned

    19 primarily with the beatings that took place in the farm

    20 building at Ovcara, and counts 4, 5 and 6 are primarily

    21 concerned with murder, or are concerned with the

    22 murders that took place at the grave site.

    23 None of the counts are in the alternative,

    24 the counts are cumulative.

    25 Turning now to grave breaches.

  22. 1 The accused is charged with grave breaches of

    2 the Geneva Conventions under Article 2 of our Statute.

    3 The common element of grave breaches is that the

    4 victims are persons protected by one of the Geneva

    5 Conventions, that the actions or omissions occurred

    6 during an armed conflict or partial or total

    7 occupation, in which the laws for international armed

    8 conflict applies.

    9 The jurisdictional prerequisite then, with

    10 respect to Article 2, is that the conflict must be

    11 shown to have been international in character, and that

    12 the victims were persons protected by the Geneva

    13 Conventions. These elements are derived from the 1949

    14 Conventions. The Appeals Chamber held that Article 2 of

    15 the Statute is based on the Geneva Conventions of 1949,

    16 and more specifically, the provisions of those

    17 Conventions relating to grave breaches of the

    18 Conventions.

    19 As previously stated, it is the Prosecution

    20 position that at all relevant times a state of

    21 international armed conflict existed in the territory

    22 of the former Yugoslavia. At all relevant times all

    23 victims were protected by the Geneva Conventions of

    24 1949, and, at all relevant times, the accused was

    25 required to abide by the laws and customs governing the

  23. 1 conduct of war, including the Geneva Conventions of

    2 1949.

    3 With respect to the question of

    4 internationality, in order for the Geneva Conventions

    5 to be operative, the internationality requirement must

    6 be fulfilled. Croatia had declared its independence in

    7 June 1991, and although this was initially suspended at

    8 the request of the international community, it did

    9 become effective from 8th October 1991 and well before

    10 the events in this case. This was a war waged by the

    11 government of Yugoslavia in Belgrade against an

    12 independent Croatia, thus a war between two sovereign

    13 states; or an international conflict for the purposes

    14 of the Convention.

    15 It is therefore the Prosecution's position

    16 that, at all relevant times, the armed conflict in

    17 Vukovar was one between two separate states which were

    18 unambiguously international in character.

    19 At all relevant times, the JNA were the

    20 military force representing the Federal Republic of

    21 Yugoslavia, and were under the command and direction of

    22 Yugoslavia authorities in Belgrade. This military

    23 entity was supported by other Serbian forces and

    24 paramilitaries. The antagonists were the forces of the

    25 Republic of Croatia. They constitute approximately 1800

  24. 1 men who had been loosely formed into a volunteer

    2 Defence force for the city.

    3 At first, this force was poorly organised and

    4 contained few professional soldiers. However, it

    5 organised itself in time into a more effective unit

    6 within the structure of an infantry brigade with

    7 a clear chain of command and with designated areas of

    8 responsibility. The Croatian forces also included

    9 policemen from the Croatian Ministry of the Interior,

    10 and, as tensions rose in the area, the Croatian

    11 authorities also despatched significant numbers of the

    12 Croatian National Guard.

    13 The two sides were clearly drawn. Each side

    14 with a military presence under the directives of

    15 a distinct state. As such, the conflict meets the

    16 requirements of internationality, and in accordance

    17 with the provisions of the Geneva Conventions, the laws

    18 governing international armed conflict continue to

    19 apply until conclusion of peace is reached.

    20 Touching briefly, if I may, on armed conflict

    21 itself, in order to invoke the operation of the grave

    22 breach provisions of the Geneva Conventions, a conflict

    23 must not only be international but it must be "armed".

    24 These provisions apply to protected persons only to the

    25 extent that they are the subject of an armed conflict.

  25. 1 There is no doubt that at all relevant times

    2 in Vukovar there existed a conflict of sufficient

    3 intensity and organisation to amount to an armed

    4 conflict. From late August 1991, the city of Vukovar

    5 was subjected to a massive land, naval, and air

    6 offensive by forces of the JNA, assisted by various

    7 Serbian paramilitary groups. Despite the organisation

    8 of armed resistance, the city of Vukovar was captured

    9 around the 18th November 1991, after intense shelling

    10 and a siege of almost three months.

    11 Clearly, the events arising out of the

    12 indictment against the accused occurred during the

    13 course of an international armed conflict.

    14 The second requirement, then, in order to

    15 invoke the grave breaches provisions, is the

    16 requirement that the victims of the offences committed

    17 be "protected persons".

    18 According to the Appeals Chamber, it is the

    19 status of the victim as a "protected person" that

    20 makes the grave breach provisions operative. It was

    21 decided in the Tadic decision on jurisdiction that:

    22 "Offences under Article 2 can only be

    23 prosecuted when perpetrated against persons or property

    24 regarded as 'protected' by the Geneva Conventions under

    25 the strict conditions set out by the Conventions

  26. 1 themselves."

    2 The Prosecution's evidence will demonstrate

    3 that the victims in the present case are protected

    4 persons under Geneva Conventions I, III, or IV.

    5 Under these Conventions, three categories of

    6 protected persons are established, specifically

    7 civilians, prisoners of war, and wounded combatants and

    8 medical staff. The requirement specified for each

    9 category will now be considered.

    10 Turning firstly to "civilian", Article 4 of

    11 the Geneva Convention IV, defines those civilians who

    12 fall under the protection of that Convention,

    13 "protected persons", are those who:

    14 "... at a given moment and in any manner

    15 whatsoever, find themselves, in the case of a conflict

    16 or occupation, in the hands of a party to the conflict

    17 or occupying power of which they are not nationals."

    18 In general terms, the categories of persons

    19 intended to be covered as civilians are "enemy

    20 nationals" in an international armed conflict, or

    21 alternatively, "the whole population of occupied

    22 territories, excluding nationals of the occupying

    23 power".

    24 In the Opinion and Judgement rendered in the

    25 Tadic case on 7th May 1997, Trial Chamber II found

  27. 1 implicit in the definition a requirement that the

    2 victims were "in the hands of" a "party to the

    3 conflict or occupying power", and that the civilian

    4 victims were not nationals of the party or occupying

    5 power. This raises the issue of nationality of the

    6 victims, vis-à-vis the perpetrator, and implicitly, the

    7 proviso that persons are protected by this provision

    8 only to the extent that they are caught up in an

    9 international conflict.

    10 In the opinion of the International Committee

    11 of the Red Cross "commentary on Geneva Conventions IV",

    12 cited with approval by the Trial Chamber in the Tadic

    13 case, says that:

    14 "The expression, 'in the hands of', is used

    15 in an extremely general sense... the expression...

    16 need not necessarily be understood in the physical

    17 sense; it seems that the person in the territory under

    18 the control of the power in question."

    19 As such, persons removed from the Vukovar

    20 hospital and subjected to these acts specified in the

    21 indictment were undoubtedly "in the hands of" the

    22 occupying power. They were under the control of an

    23 enemy power which was comprised almost exclusively of

    24 Serb soldiers of the JNA in concert with paramilitary

    25 forces originating in the Republic of Serbia and

  28. 1 augmented by local Serbs.

    2 These captured persons, none of whom were

    3 Serbian nationals, included wounded patients, hospital

    4 staff and other civilians, who had sought refuge in the

    5 hospital. As civilians captured after the JNA siege on

    6 Vukovar, they were clearly "protected persons" under

    7 the Fourth Geneva Convention.

    8 Turning now to "prisoners of war", Article 4

    9 of the Geneva Convention III defines prisoners of war

    10 who are to be protected. Among the list of categories

    11 of persons included are members of armed forces,

    12 militia groups and volunteer corps.

    13 Accordingly, the Prosecution will call

    14 evidence to show that some of the victims of the Ovcara

    15 massacre were Croatian or non-Serb soldiers who had

    16 been defending the city and who had taken refuge at the

    17 hospital and who came into enemy hands when Vukovar

    18 fell to the JNA forces.

    19 The next category, "wounded and sick

    20 combatants or medical personnel".

    21 The status of wounded and sick combatants as

    22 protected persons is covered by Article 13 of Geneva

    23 Convention I, which sets out those categories of

    24 persons to be protected in times of war.

    25 Here again the categories of persons included

  29. 1 are members of the armed forces, militia groups and

    2 volunteer corps.

    3 However, those medical persons are assigned

    4 the status of "protected person" under two separate

    5 Articles of the convention.

    6 Clearly, then, all persons removed from the

    7 Vukovar hospital that served an armed force or militia

    8 group, or voluntary corps, or who were hospital staff

    9 engaged in either the care of civilians or wounded

    10 combatants, enjoyed the status of protected persons.

    11 Accepting that there existed at the relevant

    12 time an international armed conflict, and that the

    13 persons taken from Vukovar hospital were protected for

    14 the purposes of the grave breach provisions of the

    15 Geneva Conventions, I now turn to the charges

    16 themselves.

    17 The accused has been charged with aiding and

    18 abetting or otherwise participating in both wilfully

    19 causing great suffering to and wilfully killing persons

    20 removed from the Vukovar hospital.

    21 The relevant provisions are as follows;

    22 wilful killing is dealt with by Article 2(A), and the

    23 elements of these offences are: that the victim is

    24 dead; that the death resulted from an unlawful act or

    25 omission in which the accused -- act or omission of the

  30. 1 accused; and at the time of the acts or omissions, the

    2 accused (or a subordinate), had the intent to kill or

    3 inflict grievous bodily harm on the victim.

    4 Where an accused acts with the intent to

    5 commit grievous bodily harm, the accused possesses the

    6 requisite mens rea for a wilful killing if death in

    7 fact results. One who intends to inflict serious bodily

    8 injury necessarily acts in reckless disregard of the

    9 possibility that death might result.

    10 However, the offence of wilful killing is

    11 not limited to the commission of positive acts, as the

    12 term "wilful" encompasses the element of recklessness.

    13 A wilful omission intended to cause death qualifies as

    14 a wilful killing. For example, allowing protected

    15 persons in detention to starve to death or letting

    16 wounded persons die for want of crucial medical care

    17 could both be considered as wilful killings.

    18 Now, wilfully causing great suffering,

    19 Article 2(C) in the Statute, prohibits wilfully causing

    20 great suffering and the elements are: that the accused

    21 (or a subordinate) committed a specified act or

    22 omission upon the victim; that the accused (or

    23 a subordinate) committed the act or omission with the

    24 intention of unlawfully inflicting great suffering; and

    25 finally, that suffering was thereby inflicted.

  31. 1 In the context of the events at Ovcara and

    2 the criminal offences that give rise to this

    3 indictment, there is ample evidence to support each of

    4 these elements. In addition, it seems that the "great

    5 suffering" inflicted is of both a physical and a mental

    6 nature. Clearly the facts disclose evidence of both

    7 physical torment and mental anguish.

    8 This is not precluded by the wording of the

    9 Statute, as the Conventions do not limit the term,

    10 "great suffering" to physical suffering. In fact, the

    11 International Committee of the Red Cross commentary on

    12 the Geneva Convention IV states that:

    13 "Since the Conventions do not specify that

    14 only physical suffering is meant, it can quite

    15 legitimately be held to cover mental sufferings also."

    16 Accordingly, the scope of "great suffering"

    17 includes acts or omissions intended to cause mental

    18 suffering as well as physical evidence of abuse. This

    19 has a particular relevance to the facts in issue here,

    20 for effectively the suffering borne by the victims at

    21 Ovcara began at the Vukovar hospital and continued

    22 until their untimely death at the Ovcara grave site.

    23 In effect, the verbal taunting and threats of death led

    24 the victims to be in constant fear for their lives,

    25 a fear that was ultimately realised.

  32. 1 The physical suffering sustained by

    2 protracted beatings is of course the more obvious basis

    3 for the charge of great suffering. These beatings, the

    4 witnesses will tell, lasted for hours. The solders took

    5 rotations on the prompting of a whistle. There can be

    6 no doubt that the brutal battering and unrestrained

    7 violence that took place in the Ovcara farm hangar, and

    8 that resulted in the death of at least two of the

    9 victims, constitutes "suffering" on a great scale.

    10 Turning now to the violations of the laws and

    11 customs of war, in relation to the violations of the

    12 laws or customs of war, counts 2 and 5, Article 3 of

    13 the Statute provides that the Tribunal shall have the

    14 power to prosecute persons violating the laws or

    15 customs of war, and specifically states that the

    16 enumerated offences in paragraphs (a)-(e) are not

    17 exhaustive.

    18 In addition to other codifications of the

    19 laws and customs of war, common Article 3 of the Geneva

    20 Conventions, and the 1977 Additional Protocols I and II

    21 are included within the parameters of the Statute.

    22 Further, there are recognised minimum rules

    23 applicable to all armed conflicts, regardless of their

    24 classification, which the enumerated offences in common

    25 Article 3 of the Geneva Conventions apply.

  33. 1 As the Appeal Chamber in the Tadic case

    2 noted, Article 3 confers on the International Tribunal,

    3 jurisdiction over serious offences against

    4 international humanitarian law, not covered by Articles

    5 2, 4, or 5.

    6 The Appeals Chamber then specified the

    7 jurisdictional prerequisites which must be met for

    8 offences to be subject to prosecution under Article 3

    9 of the Statute. In the present case, the accused is

    10 charged under Article 3 with murder and cruel

    11 treatment. These come within the purview of Article 3

    12 of the Tribunal Statute on the basis of common Article

    13 3(1)(a) of the Geneva Conventions.

    14 The Appeals Chamber has recognised that under

    15 international customary law the rules set forth in

    16 common Article 3 reflect "elementary considerations of

    17 humanity", applicable to all armed conflicts whether

    18 internal or international.

    19 The provisions of common Article 3 of the

    20 Geneva Conventions prohibit particular acts, including,

    21 "violence to life and persons, in particular murder of

    22 all kinds [and] cruel treatment", when committed "at

    23 any time and in any place whatsoever", against:

    24 "Persons taking no active part in

    25 hostilities, including members of the armed forces who

  34. 1 have laid down their arms and those placed hors de

    2 combat by sickness, wounds, detention, or any other

    3 cause [who] shall in all circumstances by treated

    4 humanely, without any adverse distinction founded on

    5 race, colour, religion or faith, sex, birth or wealth,

    6 or any other similar criteria."

    7 Accordingly, taking into account the rules of

    8 international customary law, and the provisions of

    9 common Article 3, in order to prove a violation of

    10 common Article 3, the Prosecutor must and will show

    11 beyond a reasonable doubt that:

    12 (i) the unlawful acts were committed in the

    13 context of an armed conflict;

    14 (ii) the accused was connected to one side

    15 involved in the armed conflict;

    16 (iii) the victims were persons taking no

    17 active part (or no longer taking part) in hostilities,

    18 which includes civilians, members of the armed forces

    19 who have laid down their arms, and those placed hors de

    20 combat by sickness, wounds, detention, or any other

    21 cause;

    22 (iv) the accused committed one of the

    23 enumerated acts listed in common Article 3 of the

    24 Geneva Convention.

    25 Turning, then, to cruel treatment, common

  35. 1 Article 3 deals with cruel treatment and the elements

    2 of that offence are: that the accused (or

    3 a subordinate) committed a specified act or omission

    4 against the victim; the victim was a non-combatant or

    5 hors de combat; and that the accused (or subordinate)

    6 thereby intended to subject the victim to cruel

    7 treatment.

    8 Put simply, an act or omission is cruel if

    9 the accused was indifferent to or gratified by the

    10 victim's suffering.

    11 Common Article 3(1) stipulates that all

    12 persons taking no active part in hostilities shall be

    13 treated humanely. To this end, common Article 3(1)(a)

    14 prohibits, "violence to life and person, in particular

    15 murder of all kinds, mutilation, cruel treatment and

    16 torture".

    17 It is submitted by the Prosecution that

    18 "cruel treatment" encompasses situations where the

    19 accused intentionally and severely mistreats another

    20 person, as in this case, the beating at the Ovcara

    21 farm.

    22 Under this charge it is sufficient that the

    23 accused intentionally subjects the captives to cruelty.

    24 He need not have been -- he need not have had the

    25 underlying purpose of torture or the intent to cause

  36. 1 great suffering or serious injury to body or health. As

    2 such, the alleged acts contained in this indictment

    3 have little difficulty in meeting the required elements

    4 of this charge.

    5 Murder, under common Article 3. The elements

    6 are: that the victim is dead; the victim was

    7 a non-combatant or hors de combat; that the death

    8 resulted from an unlawful act or omission in which the

    9 accused (or a subordinate) participated; and at the

    10 time of the killing the accused (or a subordinate) had

    11 the intent to kill or inflict grievous bodily harm.

    12 Common Article 3(1)(a) prohibits "murder of

    13 all kinds" committed against persons taking no active

    14 part in hostilities. While some national systems

    15 distinguish between murder and other forms of wilful

    16 killing, no such distinction is appropriate in the

    17 context of the Geneva Conventions.

    18 Finally, the crimes against humanity. Under

    19 Article 5, the Statute confers jurisdiction in relation

    20 to crimes against humanity. The Article lists the

    21 enumerated offences. The statement of the offences

    22 establishes the basic elements of crimes against

    23 humanity as serious inhumane acts directed against any

    24 civilian population when committed in armed conflict,

    25 whether international or internal in character.

  37. 1 In the case at hand the accused is charged

    2 with crimes against humanity, counts 3 and 6. These are

    3 serious offences directed against person as part of

    4 a widespread or systematic attack against the civilian

    5 population.

    6 The victims of crimes against humanity

    7 constitute a wider class than those who are covered by

    8 Articles 2 and 3 in the Statute of the Tribunal, and

    9 may include fellow citizens of the person committing

    10 offences as well as stateless persons.

    11 Crimes against humanity can be distinguished

    12 from genocide in that they do not require an intent to

    13 destroy the group, only proof that the act was part of

    14 a widespread or systematic attack against the civilian

    15 population.

    16 The common element is that the act or

    17 omission was part of a widespread and systematic attack

    18 against a civilian population.

    19 This will be established by the Prosecution

    20 in several ways. First, by expert testimony which will

    21 provide the court with a perspective of the

    22 wide-ranging attack by the JNA on several fronts in

    23 Croatia.

    24 Secondly, you will hear the testimony of

    25 several persons who will describe the siege against the

  38. 1 city of Vukovar and the manner in which the Serb forces

    2 utilised artillery to destroy the city.

    3 Finally, you will hear testimony related to

    4 the Vukovar hospital incident alone which will show

    5 that 200 persons were murdered, some of them young

    6 boys, some of them elderly and incapacitated, and some

    7 women.

    8 The following elements are the common

    9 elements for violations of Article 5:

    10 (i) that the act or omission in question must

    11 be committed in the context of an armed conflict, which

    12 can be internal or international in character;

    13 (ii) that there must be a sufficient nexus

    14 between those acts or omissions and the armed conflict;

    15 (iii) that the acts or omissions must be part

    16 of an ongoing widespread or systematic occurrence of

    17 crimes directed against civilian population; and,

    18 (iv) that the accused committed one of the

    19 acts enumerated in Article 5.

    20 In relation to the requirement that the acts

    21 or omissions be committed in the context of an armed

    22 conflict, the test to be applied is that stated by the

    23 Appeals Chamber in the Tadic decision on jurisdiction,

    24 when it held that:

    25 "An armed conflict exists whenever there is

  39. 1 resort to armed force between States or protracted

    2 armed violence between governmental authorities and

    3 organised armed groups, or between groups within

    4 a State."

    5 Thus, Article 5 may be invoked as a basis of

    6 jurisdiction over crimes committed in either

    7 international or internal armed conflicts.

    8 With respect to the scope of the nexus

    9 between the armed conflict and the act or

    10 omission requirement, it is sufficient for a violation

    11 of Article 5 to demonstrate that the crimes were

    12 committed at some point in the course or duration of an

    13 armed conflict, even if such crimes were not committed

    14 in direct relation to or as part of the conduct of

    15 hostilities, occupation, or other integral aspects of

    16 the armed conflict.

    17 The term, "population", in Article 5

    18 contemplates that by his actions the accused

    19 participated in a widespread or systematic attack

    20 against a relatively large victim group as distinct

    21 from isolated or random acts against individuals. This

    22 is certainly the situation in this case.

    23 The elements of murder under Article 5 are

    24 again: that the victim is dead; the death resulted from

    25 an unlawful act or omission of the accused (or

  40. 1 a subordinate); and that at the time of the killing the

    2 accused (or a subordinate) had the intent to kill or

    3 inflict grievous bodily harm on the victim.

    4 Inhumane acts under Article 5(1), the

    5 elements of that offence are: that the accused (or

    6 a subordinate) committed a specific act or omission

    7 against the victim; that the act or omission of the

    8 accused (or a subordinate) was unlawful.

    9 The Report of the Secretary-General on the

    10 Statute of the Tribunal indicates that Article 5

    11 contemplates, "inhumane acts of a very serious nature",

    12 and comments, by way of example, that in the former

    13 Yugoslavia, "such inhumane acts have taken the form of

    14 so-called 'ethnic cleansing', and widespread and

    15 systematic rape and other forms of sexual assault,

    16 including enforce prostitution."

    17 Turning now, your Honours, briefly, to

    18 individual responsibility, under Article 7(1) this

    19 Statute, the accused is individually responsible for

    20 the crimes alleged against him pursuant to Article 7(1)

    21 of the Statute.

    22 Individual criminal responsibility includes

    23 committing, planning, instigating, ordering, or

    24 otherwise aiding and abetting in the planning,

    25 preparation, or execution of any crimes referred to in

  41. 1 Articles 2-5 of the Statute.

    2 In support of the Prosecution's case, several

    3 identification witnesses will be presented, who will

    4 place the accused Dokmanovic at key positions and will

    5 identify him with key roles in the beatings at Ovcara

    6 and in the events leading up to the mass killing at

    7 Ovcara, demonstrating his participation in these

    8 crimes, both direct and indirect.

    9 Dealing now with the question of intent and

    10 direct contribution, in the Tadic decision of 7th May

    11 1997, the Trial Chamber found that various patterns

    12 emerged from a reading of the World War II cases which

    13 established that for a finding of criminal

    14 responsibility as an accessory, there must be intent on

    15 the part of the accused, and a direct contribution to

    16 the commission of the offence.

    17 More often than not in the relevant case law,

    18 the intent was established through a showing of

    19 knowledge of the criminal nature of the act on the part

    20 of the accused. But knowing that a certain course of

    21 action was criminal and by then wilfully associating

    22 oneself with the acts or its consequences, the accused

    23 indicated his intent and his, "conscious decision to

    24 participate by planning, instigating, ordering,

    25 committing, or otherwise aiding and abetting in the

  42. 1 commission of a crime".

    2 Superior responsibility under Article 7(3) is

    3 also charged in the indictment.

    4 The Prosecution will show that the accused

    5 has is also criminally liable for not preventing or

    6 stopping the beatings and killings at Ovcara while he

    7 was in a position to do so, because he was able to

    8 exercise control over the people who participated in

    9 committing those beatings and killings.

    10 Accordingly, the Prosecution also contends

    11 that the accused is criminally liable under Article 7(3)

    12 of the Statute. It is the Prosecution's position that

    13 a "superior" within the meaning of this provision

    14 includes civilian superior. What is essential is that

    15 someone who holds authority over others who are about

    16 to commit acts described in Articles 2-5 of the

    17 Statute, prevents them from doing so or punishes them if the

    18 acts have already been committed. The Prosecution will

    19 show that the accused failed in this obligation.

    20 In order to establish criminal

    21 liability under Article 7(3) of the Statute, the

    22 Prosecution must show three requirements: first it must

    23 show that the accused held a position which was

    24 superior; secondly, the Prosecution must show that the

    25 accused had actual knowledge of the crimes that were to

  43. 1 take place or had taken place, or that he should have

    2 been aware of the crimes, and third and last, that the

    3 Prosecution must show that the accused did not take the

    4 necessary measures to prevent the crimes, or punish the

    5 perpetrators thereof. The Prosecution will show that

    6 all of these requirements have been satisfied.

    7 Until July 1991, the accused was the

    8 president of the Vukovar municipal assembly and as such

    9 the highest civilian authority in the municipality.

    10 Upon his arrival in Vukovar after the fighting ended on

    11 19th November 1991, when the city was in the control of

    12 the Serbs, he assumed his former position as if nothing

    13 had changed. It should be noted that even in the period

    14 leading up to and during the siege of the city, between

    15 June and November 1991, the accused Dokmanovic

    16 continued to act as the president of Serb Vukovar.

    17 In relation to an operation on the scale of

    18 the execution of 200-odd people, it is obvious that

    19 a vast amount of preparation and planning was

    20 necessary. Various stages have to be included in the

    21 planning, and the logistical support necessary for the

    22 operation which had -- and resources had to

    23 be marshalled.

    24 The meeting called by Major Sljivancanin at

    25 the hospital which ensured that the hospital staff

  44. 1 could not obstruct the removal of the detainees; the

    2 brief detention at the JNA barracks; the more extended

    3 detention at the Ovcara farm; the selection and

    4 preparation of the execution site; the transfer of the

    5 detainees to the site in manageable groups; the

    6 selection of the soldiers who were to carry out the

    7 executions; the excavation of a mass grave; the

    8 executions themselves, and the burial; the transport

    9 between each of these points also had to be arranged in

    10 advance. Finally, all these steps had to be carried out

    11 in utmost secrecy so that no interruptions or

    12 resistance would be encountered.

    13 The accused was present at Ovcara farm at the

    14 time of the beatings which took place over a period of

    15 several hours. Furthermore, he actively participated in

    16 these beatings.

    17 This direct participation in these acts by

    18 the accused is, in the Prosecution's submission,

    19 sufficient to convict him on counts, 1, 2 and 3 on the

    20 indictment.

    21 In relation to the killings caused by the

    22 beatings at the farm, it is also clear from the World

    23 War II cases and from the decision in Tadic that the

    24 accused's actions were sufficient to ensure conviction

    25 on counts 4, 5 and 6. In the trial of Franz Schonfeld

  45. 1 and Nine Others, the Judge Advocate, in setting out the

    2 law applicable to accessories, states at one point:

    3 "The accessory is, however, liable, for all

    4 that ensues upon the execution of an unlawful act

    5 commanded; that is to say, if A commands B to beat C,

    6 and B beats C so that he dies, A is an accessory to the

    7 murder of C. There must be some active proceeding on

    8 the part of the accessory, that is, he must procure,

    9 incite or in some other way encourage the act done by

    10 the principal."

    11 The accused Dokmanovic's active participation

    12 in the beating of detainees, even if they were not the

    13 ones to be killed by the beatings, themselves

    14 constitute encouragement of the unlawful actions of the

    15 principals to the murder of the two detainees.

    16 His mere presence in relation to the beatings

    17 of the two detainees who were thus killed could be

    18 construed as encouragement. In terms of the execution

    19 itself, the role of the accused in the preparation of

    20 the killings has been set out above. Because of his

    21 connection to the crime through a variety of means, his

    22 presence at the execution site at the time of the

    23 executions is not necessary for convictions for the

    24 killings that took place there. It is important to

    25 emphasise that the events described above and the

  46. 1 separation of the detainees from the hospital staff to

    2 the burial of the victims all took place on one day;

    3 20th November 1991.

    4 The distance from the hospital to the

    5 execution site was no more than five or six kilometres.

    6 These events were neither telescoped out in time nor in

    7 space, and cannot and should not be seen as discrete

    8 and disconnected, but rather as one continuous

    9 transaction, the culmination of which was the wooded

    10 ravine and the mass grave. It is inconceivable that

    11 someone in the position of the accused could not have

    12 fully grasped the import of what was happening that

    13 day, with the frenzy of activity that had to have been

    14 taking place. His direct participation in the beating

    15 of the prisoners alone, no more than one or two hours

    16 from their terrible deaths, inextricably connects him

    17 with a criminal enterprise, the purpose of which was

    18 known to him and agreed to by him. That the purpose of

    19 the enterprise was known to all of those present at the

    20 farm is clear from the fact that a group of seven

    21 prisoners was removed from the rest of the group and

    22 they were told that they were to be saved. The evidence

    23 was thus established that the impending execution of

    24 the detainees was common knowledge. The evidence will

    25 also show that the accused conducted himself in the

  47. 1 hangar at Ovcara in such a way as to convey the

    2 impression that he was a person in authority.

    3 According to the requirements just

    4 enumerated, it must have first of all be established

    5 that the accused was in the position of a civilian

    6 superior in respect of those who carried out the

    7 beatings and killings at Ovcara. In this respect, it is

    8 decisive whether the superior had control over those

    9 who committed the crimes. This control may be direct or

    10 indirect de facto or de jure.

    11 The Prosecution will show that the accused

    12 was indeed in the position of a civilian superior.

    13 First of all, the accused was president of the

    14 assembly, prior to the start of the hostilities. The

    15 authority of the municipal assembly of Vukovar was not

    16 limited to Vukovar itself, but comprised considerable

    17 surrounding area of some 600-odd square kilometres.

    18 This included a number of towns and villages, such as

    19 Ilok, Trpinja -- where the accused lived, Negoslavci

    20 -- where the JNA had its headquarters, and Ovcara

    21 itself. All events alleged in the indictment took place

    22 within this area. As president of the municipal

    23 assembly, the accused wielded considerable authority,

    24 also over the executive council of the municipal

    25 assembly, which body was charged with implementing the

  48. 1 decisions of the municipal assembly.

    2 Throughout the siege of Vukovar, which began

    3 in August 1991, the accused continued to act as mayor

    4 remember of Serb Vukovar. He also, by his own account,

    5 took a position as Minister of Agriculture in the

    6 "Government of the Serb Autonomous Region of Slavonia,

    7 Baranja, and Western Sirmium", an office which would

    8 have given him purview over the Ovcara farm facilities

    9 where these crimes were committed. From his office in

    10 Erdut, north of Vukovar, he would have wielded

    11 considerable influence as a central figure in regional

    12 government.

    13 In the period leading up to and in the

    14 immediate aftermath of the fall of Vukovar, the

    15 accused's leadership role became clearly apparent. He

    16 participated in a number of high-level meetings with

    17 other officials in Erdut on 19th November and in the

    18 Backa Palanka on 20th. Also on 20th November, the

    19 accused by his own account, travelled to Vukovar in an

    20 official delegation which had no problem entering the

    21 area which the JNA still described as a war zone. In

    22 the following days, the accused gave television

    23 interviews in which he was referred to as, the

    24 president of the municipality. Significantly, one of

    25 these interviews was conducted by a reporter from

  49. 1 Serbian television who addressed the accused Dokmanovic

    2 as, "the president of the assembly".

    3 MR. WILLIAMSON: Mayor.

    4 MR. NIEMANN: Mayor, sorry. A title which is

    5 not protested or corrected by the accused. It is clear

    6 from all of this that the accused, despite any

    7 concurrent roles that he might have had in the regional

    8 government, still was viewed by others as president

    9 [sic] of Vukovar assembly, an idea which he made no

    10 attempt to dispel.

    11 Additionally the evidence will show that

    12 while present at Ovcara, Dokmanovic's authority was

    13 even more enhanced. Several witnesses have noted that

    14 the accused wore a in military uniform. According to

    15 many of the witnesses, there were both JNA and

    16 paramilitary soldiers present at Ovcara.

    17 In order to establish liability under

    18 paragraph 3 of Article 7, it is also necessary to show

    19 that the accused knew or had reason to know that the

    20 acts took place at Ovcara were being committed, were

    21 about to be committed, or had been committed.

    22 Witnesses for the Prosecution saw the accused

    23 at Ovcara farm, standing at the entrance of the hangar,

    24 pacing up and down inside the hangar, and participating

    25 in the beatings. Accordingly, it must be said that

  50. 1 during the beatings at Ovcara, the accused was aware

    2 that they took place. He was not only participating in

    3 the crimes himself, but also, being someone holding

    4 considerable authority, giving an example for the

    5 others to follow.

    6 At that point he was fully aware of the

    7 massive scale of the beatings and of the number of

    8 people who were participating in them.

    9 Turning now to the duty to prevent or stop

    10 the crimes, as provided for under Article 7(3) it is

    11 necessary to show that the accused did not prevent the

    12 crimes from happening, while he was aware that they

    13 would take place, or that he did not punish the

    14 perpetrators after the acts had been committed.

    15 The evidence will show that the accused did

    16 nothing to prevent the beatings from continuing when he

    17 was at Ovcara. Quite the contrary. While wielding

    18 authority, as he did, he was actively participating in

    19 these events. As a high civilian official it would

    20 certainly have been possible for him to mitigate the

    21 violence that was taking place, or to spare at least

    22 some of the victims from their fate. His presence

    23 there, his leadership appearance, his singling-out of

    24 certain victims, clearly demonstrates that he did not

    25 have the least intention to prevent the crimes from

  51. 1 being committed and going on.

    2 Also, while fully aware that the victims

    3 would be killed afterwards, the accused did nothing to

    4 alter the course of things that were to happen.

    5 In the course of the Prosecution's case, the

    6 Prosecution will call witnesses who will establish the

    7 accused's role as a civilian official, a number of

    8 witnesses who will relate to the court the events of

    9 the 20th November 1991 at the hospital, at the JNA

    10 barracks, and then the very few men lucky enough to

    11 escape and survive the hangar at Ovcara.

    12 Additional witnesses will detail the

    13 investigation into these events, the discovery of the

    14 mass grave which the Serb authorities tried so hard to

    15 conceal, and finally the exhumation of the grave

    16 itself -- an exhumation which laid bare the enormity

    17 of this crime in which at least 200 unarmed persons,

    18 many of them wounded, were brutally beaten and killed

    19 in cold blood.

    20 Numerous photographs, videotapes, slides, and

    21 ballistic evidence will also be adduced, all of which

    22 will carefully sketch the events which occurred at

    23 Ovcara; events which, owing to their very nature, left

    24 us very few survivors able to give direct eyewitness

    25 accounts. Instead, you must permit these victims to

  52. 1 speak posthumously; and for the truth to emerge through

    2 the work of our forensic experts and through the

    3 testimonies of those left behind.

    4 The counts on the indictment that are

    5 cumulative, are cumulative and not in the alternative.

    6 The notion of cumulative charging is especially

    7 relevant in this jurisdiction, having regard to the

    8 classification of the various offences. The cumulative

    9 counts on the indictment are not duplicitous,

    10 provided they are charged on separate counts on the

    11 indictment. It may be that the facts of a particular

    12 case arising out of a single incident, could give rise

    13 to a prosecution for a number of events which may even

    14 be contained in the same provision, but providing the

    15 offences are not charged in the one count, a court may

    16 return a verdict of guilty on all counts. The primary

    17 issue for the Chamber in such a situation is to

    18 determine how the matter is to be resolved on sentence.

    19 Counts 1, 2 and 3 of the indictment relate to

    20 a variety of offences, namely, wilfully causing great

    21 suffering, cruel treatment, and inhumane acts. These

    22 offences are not strictly cumulative because the

    23 continuing course of conduct from the moment the

    24 victims are removed from their hospital beds, to when

    25 they are beaten at Ovcara farm and while they are

  53. 1 transported and waiting to be murdered, may at

    2 different moments of time constitute different

    3 offences.

    4 In other words, the removal of sick people

    5 from their hospital beds is an inhumane act, but may

    6 not constitute wilfully causing great suffering. On the

    7 other hand, to beat someone to the point where they are

    8 almost dead, would certainly amount to great suffering.

    9 The psychological trauma of being stood up with fellow

    10 victims at the edge of a mass grave site waiting to be

    11 shot would amount to cruel treatment.

    12 The wilful killing and murders in counts 4,

    13 5 and 6 do arise out of the same circumstances, namely

    14 where the victims were shot or otherwise killed. The

    15 elements of the murders and wilful killings may be

    16 similar, but beyond that, there are other required

    17 elements which make them very different crimes. One act

    18 of murder may violate the grave breach provisions of

    19 the Geneva Conventions, the laws and customs of war,

    20 and crimes against humanity.

    21 The object and purpose of the grave breach

    22 provisions is to govern specific aspects of the conduct

    23 of armed conflict and to protect certain groups of

    24 persons. For example, the main object of the Fourth

    25 Geneva Convention is to protect a strictly defined

  54. 1 category of civilians from arbitrary action on the part

    2 of the enemy.

    3 The fundamental principles of the law and

    4 customs of war enumerated in the language of common

    5 Article 3 of the Geneva Conventions and embraced by

    6 Article 3 of our Statute, provide the minimum rules of

    7 conduct applicable to all armed conflict regardless of

    8 classification. These minimum rules cover a wider class

    9 of actor and provide a wider category of persons than

    10 the grave breach provisions. They are essential rules

    11 of humanity recognised by all civilised nations, and

    12 their purpose is to ensure the humane and

    13 non-discriminatory treatment of all non-combatants or

    14 persons not involved in the armed conflict.

    15 The principal purpose of crimes against

    16 humanity has no relation in its core to the conduct of

    17 armed conflicts. Rather, it is to ensure the right of

    18 diverse parts of civilian populations to exist.

    19 An essential element of the crime against

    20 humanity is the protection of the members of a civilian

    21 population from a widespread and systematic attack.

    22 Because each of these articles has a distinct

    23 purpose and object and as a consequence, contain

    24 different elements. It is permissible that they be

    25 charged together in an instance where a particular act

  55. 1 is violative of each, and if the accused is guilty, he

    2 or she should be subject to a conviction for each. It

    3 may well be that for the purposes of sentencing, the

    4 various offences are merged for a unified sentence.

    5 The essential point inherent in allowing for

    6 multiple convictions is that each crime exists to

    7 protect certain society norms and each must be valued

    8 and preserved. Each of the items charged in the

    9 indictment represent these most serious offences.

    10 There is a significant interest for the

    11 community of nations to ensure that the purpose and

    12 prohibitions of each article is respected and

    13 prosecuted in the instance where the evidence so

    14 warrants. There should be no instance where an accused

    15 should be free from responsibility for violating one of

    16 these offences simply because his or her conduct is

    17 also violative of the other articles as well.

    18 There should be no issue of expediency or

    19 economy where one of these offences is concerned. If

    20 there is a consolidation for sentencing purposes, then

    21 there is no significant prejudice to the accused, yet

    22 the interests of the community of nations in preserving

    23 the purposes of these articles is respected.

    24 When this matter was considered in the Tadic

    25 case, the Trial Chamber decided that the issue of

  56. 1 cumulative charges was only relevant to penalty should

    2 the accused be convicted.

    3 This reasoning was subsequently applied in

    4 rejecting motions on the form of the indictment in the

    5 Celebici case. It is also significant to note the value

    6 of cumulative charging in circumstances where lesser

    7 included offences are not part of the jurisprudence of

    8 the Tribunal, as was held to be so by the Trial Chamber

    9 in the Tadic case.

    10 In conclusion, it is the submission of the

    11 Prosecution that the evidence you are about to

    12 hear will prove to you beyond a reasonable doubt that

    13 the accused is guilty of the offences charged, both as

    14 a principal in the case of counts 1, 2 and 3, and as an

    15 accomplice to the killings in counts 4, 5 and 6. The

    16 accused knew what the purpose of the entire scheme was

    17 and by his actions and presence expressed his

    18 willingness to be associated with and to contribute to

    19 this overall aim.

    20 With respect to this crime, of which there is

    21 absolutely no doubt, this monstrous atrocity which

    22 invokes memories of the worst outrages of World War II

    23 borders on the inexplicable. Nothing will ever justify

    24 this contemptible abomination. The Harrowing detail of

    25 this hideous massacre brought to life through the

  57. 1 evidence of the survivors will long echo in the halls

    2 and corridors of this institution, but by this course

    3 will never be hidden from view.

    4 If the accused be found guilty for his part

    5 in this crime, then it should only be after he has been

    6 afford all of the rights and protections of a fair

    7 trial which rights and protections the

    8 Prosecution unequivocally supports and upholds, because

    9 it is only through justice that a lasting peace in this

    10 troubled part of the world can be assured.

    11 If your Honours please.

    12 JUDGE CASSESE: Thank you. We still have

    13 five minutes so if you do not mind I would like to ask

    14 you very quickly two questions but I will not ask you

    15 to answer these questions, not today, in any case, not

    16 even tomorrow.

    17 I wonder whether you could be so kind as to

    18 file maybe in two weeks' time, a specific legal brief,

    19 as you suggested, actually two specific legal briefs on

    20 the -- addressing those points as you suggested in your

    21 pre-trial brief.

    22 Now, my two points are as follows, and I will

    23 try to speak as fast as possible; one point relates to

    24 what you just said a few minutes ago about the

    25 accumulation of criminal charges.

  58. 1 There, again, I am puzzled. I wonder whether,

    2 in international criminal law this accumulation of

    3 criminal charges is permissible.

    4 In other words, can one be charged and

    5 convicted for the same action characterised as both,

    6 say grave breach and a war crime, or both as a war

    7 crime and crime against humanity, or both as a crime

    8 against humanity and genocide, for instance?

    9 In particular, I would like to know whether

    10 this is not contrary -- whether or not it is contrary

    11 to the substantive principle, in idem.

    12 I wonder whether the Prosecutor could be so

    13 kind as to file a brief on this point with the relevant

    14 case law, national or international and possibly

    15 references to authorities, to legal authorities, in

    16 particular in the legal literature.

    17 My second question relates to another tricky

    18 legal issue, namely internal versus international armed

    19 conflict; civil war, international armed conflict.

    20 Now, it is alleged that in 1991 there was in

    21 Eastern Slavonia an armed conflict which might be

    22 regarded as having a mixed nature.

    23 A local rebellion against the central

    24 authorities, and the armed invasion of JNA. In this

    25 second respect, of course, this would be an

  59. 1 international armed conflict.

    2 Now, the accused is alleged to have been part

    3 of a group of local rebels as a civilian authority.

    4 Now, my question is as follows; on what legal grounds

    5 could be accused of committing criminal offences in the

    6 context of an international armed conflict? Let me be

    7 more specific.

    8 I will ask you the following questions: is

    9 the fact of being integrated into the military

    10 structure of the occupying army the decisive legal

    11 factor in this respect?

    12 Or, can one be responsible for grave breaches

    13 if he acts as an agent of a foreign army or, one could

    14 say, as a defacto organ of a foreign army, so either

    15 agent or organ.

    16 Or must one be under the control, defacto

    17 control of the following army or part and parcel of the

    18 chain of command? I wonder whether you could be so kind

    19 as to address this specific legal issues.

    20 Thank you. Now, we must adjourn now.

    21 Tomorrow we will sit at 8.30 sharp. I will

    22 make sure that tomorrow the Dutch police will not make

    23 the mistakes they made today, so we will start at 8.30,

    24 but with a hearing in closed session.

    25 I suggest that tomorrow in this hearing,

  60. 1 closed session, we should go through the various

    2 motions, preliminary motions which have been filed, and

    3 some of them are confidential so therefore we must have

    4 a private -- a closed session.

    5 Our guess is that we need two hours, then

    6 there will be probably a coffee break if possible we

    7 will make a ruling from the bench, and then we will

    8 start at 11 o'clock in open session with the first

    9 witnesses called by the Prosecutor.

    10 The hearing is adjourned.

    11 (1.15 pm)

    12 (Hearing adjourned)