Kordic and Cerkez - Judgement - Part one, Part two: I

IN THE TRIAL CHAMBER

Before:
Judge Richard May, Presiding
Judge Mohamed Bennouna
Judge Patrick Robinson

Registrar:
Mr. Hans Holthuis

Date: 26 February 2001

PROSECUTOR

DARIO KORDIC

MARIO CERKEZ

____________________________________________

JUDGEMENT

____________________________________________

The Office of the Prosecutor:

Mr. Geoffrey Nice, Q.C.
Mr. Patrick Lopez-Terres
Mr. Kenneth R. Scott
Ms. Susan Somers
Mr. Fabricio Guariglia

Counsel for the Accused:

Mr. Mitko Naumovski, Mr. Turner T. Smith, Jr., Mr. Stephen M. Sayers, Mr. Robert Stein and Mr. Christopher G. Browning, Jr., for Dario Kordic
Mr. Bozidar Kovacic and Mr. Goran Mikulicic, for Mario Cerkez

PART ONE: INTRODUCTION

This is the Judgement of the Trial Chamber in the case of Prosecutor v. Dario Kordic and Mario Cerkez. Both accused are Bosnian Croats who played prominent parts in the conflict in the Central Bosnian region of Bosnia and Herzegovina in the early 1990s. Dario Kordic was a politician at the time, described as the most important Bosnian Croat political figure in the area. On the other hand, Mario Cerkez was a military man and Commander of a Brigade of the Croatian Defence Council . The conflict between the Bosnian Muslims and the Bosnian Croats, with which this case is concerned, took place mainly in 1992 and 1993. The accused are charged with offences arising from that conflict.
The two accused were originally indicted with four others in an indictment confirmed on 10 November 1995. The accused surrendered to the custody of the International Tribunal on 6 October 1997 and made their initial appearance on 8 October 1997 when both pleaded “Not guilty”. On 30 September 1998 an amended indictment, against these two accused only, was confirmed. The trial took place on this amended indictment (“Indictment”), a copy of which is to be found as Annex V to this Judgement.
The trial opened on 12 April 1999 and the hearing of evidence and speeches of counsel concluded on 15 December 2000: 240 days sittings were held. In total 241 witnesses gave evidence: 122 for the Prosecution and 117 for the Defence and 2 Court witnesses. The Prosecution submitted 30 transcripts of witnesses who had given evidence in other cases before the International Tribunal. The Defence submitted 53 affidavits and 10 transcripts. 4,665 exhibits were produced: 2,721 by the Prosecution and 1,643 by the Defence (together with 1 court exhibit). The transcript of the proceedings runs to more than 28,000 pages. (Other relevant procedural matters are contained in Annex IV to this Judgement.)
The Indictment contains 44 counts and charges both accused with eight grave breaches of the Geneva Conventions, ten violations of the laws or customs of war and four crimes against humanity.
The Indictment may be summarised in this way:

(a) The background is the break-up of the former Yugoslavia. The declaration of independence by the Republic of Croatia occurred in June 1991 and its recognition by the European Community in January 1992. The declaration of independence by the Republic of Bosnia and Herzegovina followed in March 1992 and its recognition by the European Community in April 1992.

(b) The principal Bosnian Croat political party was the Croatian Democratic Union of Bosnia and Herzegovina (“HDZ-BiH”), an offshoot of its Croatian parent, the HDZ , a nationalist party. As the Indictment sets out, the goal of the HDZ-BiH party was to secure the right of the Croatian people to self-determination, including the right to secession.

(c) To this end, in November 1991 the HDZ-BiH set up a new community or entity for the Bosnian Croats, called the Croatian Community of Herceg-Bosna (“HZ H-B”) which was described as ‘a separate and distinct cultural, economic and territorial whole’ . (This community covered the area of Central Bosnia with which this case is concerned .) The HZ H-B then created another new body, the Croatian Defence Council (“HVO ”) in April 1992 which was to be the supreme executive and defence authority of the HZ H-B. Local municipal HVO units were subsequently established from June 1992 as the executive and military power in the municipalities.

(d) Dario Kordic rose rapidly in the HDZ-BiH, becoming its President in the Municipality of Busovaca, President of the Travnik Regional Community and a Vice-President of the HZ H-B. In August 1993 the HZ H-B turned itself into the Croatian Republic of Herceg Bosna (“HR H-B”) with Dario Kordic continuing as a Vice-President. He became President of the HDZ-BiH in July 1994.

(e) The Indictment alleges that from November 1991 to March 1994 persons and groups “directed, instigated, supported or aided or abetted by the HDZ, the HDZ-BiH, the HZ H-B/HR H-B and HVO … planned … and engaged in a campaign of persecutions and ethnic cleansing and committed serious violations of international humanitarian law against the Bosnian Muslim population residing in the HZ H-B/HR H-B …”. The charges in the Indictment arise from this campaign and relate, inter alia , to the persecution, killing, inhuman treatment and unlawful imprisonment of Bosnian Muslims.

(f) The Indictment also alleges that Dario Kordic exerted “power, influence and control over the political and military aims and operations of the HDZ-BiH, the HZ H-B, the HR H-B and HVO” and, from November 1991 to March 1994, was individually responsible, under Article 7(1) of the Statute of the International Tribunal, for committing, planning, instigating or ordering the preparation or execution of the crimes charged against him in the Indictment. Further, or alternatively, it is alleged that Dario Kordic was criminally responsible, under Article 7(3) of the Statute, as a superior, for the acts of his subordinates since he knew, or had reason to know, that persons subordinate to him were about to commit these crimes and failed to take the necessary and reasonable measures to prevent the crimes or punish the perpetrators.

(g) In March 1993 Mario Cerkez became the Commander of the HVO Brigade in the Municipality of Vitez in Central Bosnia (Viteska Brigade) and during the material time demonstrated his authority and control. The Indictment alleges that, from April 1992 to August 1993, he was individually responsible for the crimes charged against him in the Indictment and also, or alternatively, was criminally responsible under Article 7(3) of the Statute for the acts of his subordinates.
The Counts in the Indictment may conveniently be considered in five groups:
(a) Counts 1 and 2 charge the accused with a crime against humanity: persecution on political, racial or religious grounds. In Count 1, Dario Kordic is charged with such an offence committed between November 1991 and March 1994. Count 2 charges Mario Cerkez with a similar offence committed between April 1992 and September 1993 . The persecution in each case is alleged to have been “the widespread or systematic persecutions of Bosnian Muslim civilians”. These persecutions are said to have been carried out, inter alia, by attacking places where the civilians lived; killing and causing serious harm to numbers of them; detaining others; coercing them and transferring them from their homes; using them to dig trenches and as human shields ; promoting ethnic hatred; destroying and plundering their property and destroying and damaging their places of worship.
(b) Counts 3 – 6 charge the accused with violations of the laws or customs of war by means of attacks on civilians and civilian property and wanton destruction not justified by military necessity. Counts 3 and 4 charge Dario Kordic with such offences in 16 places between January and October 1993. Counts 5 and 6 charge Mario Cerkez with similar offences in seven places in April 1993.
(c) Counts 7 – 20 charge the accused with crimes against humanity, grave breaches and violations of the laws or customs of war in connection with the wilful killing, murder and inhuman treatment of Bosnian Muslims and inhumane acts against them. Counts 7 - 13 charge Dario Kordic with such offences committed in 13 places between January and October 1993. Counts 14 - 20 charge Mario Cerkez with similar offences committed in seven places in April 1993.
(d) Counts 21 – 36 charge the accused with crimes against humanity, grave breaches and violations of the laws or customs of war in connection with the imprisonment and inhuman treatment of Bosnian Muslims, the taking of hostages and the use of human shields. Counts 21 – 28 charge Dario Kordic with such offences between January 1993 and March 1994. Counts 29 – 36 charge Mario Cerkez with similar offences committed between April and August 1993.
(e) Counts 37 – 44 charge the accused with grave breaches and violations of the laws or customs of war in connection with the destruction and plunder of Bosnian Muslim property and the destruction of institutions dedicated to religion or education. Counts 37 – 39 and Count 43 charge Dario Kordic with such offences committed in numerous locations between October 1992 and December 1993. Counts 40 – 42 and Count 44 charge Mario Cerkez with similar offences between April and September 1993.
After the close of the prosecution case the Trial Chamber rejected defence motions for judgement of acquittal but ruled that there was no case to answer in relation to a limited number of locations referred to in four counts. (These matters are dealt with later in this Judgement.)
Central Bosnia is a loosely defined area in the middle of Bosnia, about 30 kilometres north-west of Sarajevo and to the east of Mostar and Herzegovina.¹ At the heart of Central Bosnia is the Lasva Valley, consisting of the municipalities of Vitez, Novi Travnik and Busovaca. The municipality of Zenica lies to the north and the municipalities of Kiseljak and Fojnica to the south. These municipalities , together with Travnik, made up the core of the area referred to as Central Bosnia . To these may be added the municipalities of Žepce to the north, Gornji Vakuf to the west, Kresevo to the south and Vares and Kakanj to the east. The population of the area in 1991 was nearly 470,000, of whom about 48 per cent were Muslim, 32 per cent Croat and 10 per cent Serb.² The significance of the area to the conflict lay in its position and the fact that it contained a number of armaments factories. It is a mountainous area with important roads running along the valleys, going from Herzegovina to Eastern Bosnia and from Sarajevo to the north. Thus, one witness described the conflict in Central Bosnia as a war for roads.³ On the other hand, the area itself is not large. At the centre of the events in this case is the area between Vitez and Kiseljak: two towns separated by a distance of only 30 kilometres.
The prosecution case is that the offences alleged in the Indictment represent the unfolding of a plan to secure Bosnian Croat control of Central Bosnia and its accession to the Republic of Croatia. The plan started with the HDZ in Croatia and its leader, Franjo Tudjman, and was based on the “Banovina Plan” of 1939, an agreement between Croatia and Serbia to divide Bosnia and Herzegovina between them . The Bosnian branch of the HDZ political party took over the Bosnian Croat organisations and established the Croatian community of HB in November 1991. A campaign of persecution and ethnic cleansing was then planned and implemented by the Bosnian Croat leadership in the area of the HZ H-B, through their organisations, in particular the HVO. First they took over the government, police and military facilities in as many municipalities as possible, and asserted control over all aspects of daily life. Meanwhile, overall control was maintained by the Republic of Croatia; and the Army of the Republic (“HV”) intervened in the conflict which was thus turned into an international armed conflict with Bosnia and Herzegovina.
According to the Prosecution the conflict began in earnest in Central Bosnia in January 1993 when the Vance-Owen Peace Plan provided the pretext for removing the Bosnian Muslim population from the HZ H-B. Before January 1993 the Bosnian army (the “ABiH”) and the HVO had joint military control over the Lasva Valley region in Central Bosnia. However, the ABiH forces were mainly deployed to confront the Bosnian Serb forces who, supported by the Yugoslav People’s Army (“JNA”), were conducting their own offensive in Bosnia and Herzegovina and had advanced to lines which were to the north-west of Travnik on one side of Central Bosnia and to the north east of Kiseljak on the other. Then, in January and April 1993, the HVO launched a series of attacks in order to secure the Lasva Valley. The series began in January 1993 with an attack on Busovaca and was followed on 16 April with a general attack in the Lasva Valley which culminated in the massacre in the village of Ahmici when over 100 Bosnian Muslims were killed, including many women and children. In the same month there were attacks on Bosnian Muslim villages to the south of the Las va Valley in Kiseljak municipality. It is the prosecution case that all these attacks were widespread or systematic, that they were conducted according to a preconceived plan and following a pattern, starting with shelling in the early morning and then involving groups of soldiers going from house to house, killing and wounding many of the inhabitants, detaining others and setting fire to the houses. There were also individual atrocities, such as the detonation of a truck-bomb in Vitez and the shelling of the city of Zenica. During their detention the detainees were used as hostages and human shields and were used to dig trenches (often under fire). The next wave of attacks against Bosnian Muslim villages took place in June 1993 in Kiseljak municipality with the object of securing that municipality for the HVO and removing the Bosnian Muslim population. Similar tactics were employed as before . Finally, in October 1993, the HVO attacked Stupni Do, a village in Vares municipality , and another massacre ensued. It is the prosecution case that part, at least, of this campaign was successful. Many Muslims were killed or expelled and their homes destroyed. A Croat-controlled canton was established which exists to this day.
The defence case for both accused amounts to a complete denial of the prosecution case, putting virtually everything in dispute. According to the Defence there was no plan for the Croats of Central Bosnia to secede, no persecution and no interference from the Republic of Croatia in Central Bosnia. The various Bosnian Croat organisations , the HDZ-BiH, HZ H-B (HR H-B) and HVO were all formed in the context of a disintegrating central authority with the purpose of defending Bosnian Croat interests against Bosnian Serb aggression. Thus, the background to the conflict with the Bosnian Muslims was the Bosnian Serb spring 1992 offensive in Herzegovina and Sarajevo. The resulting influx of refugees affected the ethnic balance in Central Bosnia which in turn led to clashes between Bosnian Croats and Muslims. Fighting broke out in the Lasva Valley in January 1993 and continued thereafter as a result of efforts by the ABiH to cut off and keep apart the Bosnian Croats in the Lasva Valley from those in Kiseljak. The Croats were outnumbered and were driven to defend themselves in the three pockets which they held in Central Bosnia, i.e., in the Lasva Valley , around Kiseljak and around Vares. There was fighting in villages in all these areas, atrocities were committed against Bosnian Croats and they were expelled from their homes. Fighting broke out afresh in April 1993 after ABiH extremists kidnapped the HVO brigade commander in Zenica and killed his bodyguard. Ahmici was a legitimate military target: insofar as there were excesses they were not committed by troops of the Viteska Brigade. In June 1993 the ABiH launched a further offensive and took Travnik and other municipalities. The Bosnian Croats were heavily outnumbered and were driven back into their pockets. Stupni Do was a legitimate military target and the civilian deaths were caused by the excesses of the troops involved. (The Prosecution, it should be noted, accepts that crimes were committed by all sides but says that this is not relevant to the charges against the accused.)
Accordingly, there is a dispute as to whether the crimes underlying the charges against these accused were committed or not. If, of course, the Prosecution does not prove that the crimes took place in relation to any count, then the accused must be acquitted on that count. Thus, the Trial Chamber must determine in relation to each count whether the offence charged is made out. Only if sure that the offence on a particular count has been proved can the Trial Chamber move to the next stage of the enquiry which is to determine whether the respective accused is guilty of the offence or not.
The prosecution case against Dario Kordic is that, as a political leader, he was both individually responsible for the crimes charged in the Indictment and also responsible as a superior. It is alleged, first, that he was instrumental in the campaign of persecution in his role as Vice-President of HZ H-B and President of the HDZ-BiH in Busovaca: he frequently reaffirmed the objective of taking over the Croatian territories, himself ordering the take-over of the Busovaca municipality and playing a part in the take-over of other municipalities. The Prosecution further alleges that, as the Bosnian Croat political leader in Central Bosnia, Dario Kordic was instrumental in launching the attacks on the Bosnian Muslim towns and villages in 1993, controlling checkpoints and free passage along the roads and delivery of humanitarian aid; he acted as an HVO Commander, gave orders to local commanders and was known as ‘Colonel’. The Prosecution relies primarily on circumstantial evidence to prove the case against this accused. It says that inferences can be drawn from the conduct of the accused in order to establish that Dario Kordic was part of the military chain of command and linked to the unlawful acts.
The defence of Dario Kordic is that he was a politician and not a military man and, as such, he gave no orders to military organisations and was not part, in any way, of the military chain of command. His role was to inspire the Bosnian Croat population in the defence of their homeland. Even as a politician his influence was purely local: he had no part in running the HZ H-B nor in the take-over of municipalities.
The prosecution case against Mario Cerkez is that from November 1992 he was a Commander of the HVO Brigade in Novi Travnik and from March 1993 he was sole Commander of the HVO Brigade in Vitez under the command of Colonel Blaskic, the Central Bosnian Operative Zone Commander: as the Commander of the HVO Viteska Brigade, he participated in the campaign of persecution within his area of responsibility, i.e., the municipalities of Vitez and Novi Travnik. The units under his command carried out the crimes in those municipalities. Accordingly, Mario Cerkez was the commander of the units which carried out the unlawful attacks in Vitez and Novi Travnik and, as such, responsible for those crimes.
The defence of Mario Cerkez is that he was not the commander of all the HVO units in the area of Vitez or Novi Travnik (of which there were many) and soldiers under his command did not commit any of the crimes alleged. On the contrary, he took measures to see that his soldiers were instructed in international humanitarian law. The accused had no connection with the internment of civilians or their use in digging trenches and as human shields. On 16 April 1993, the day of the Ahmici attack, the Viteska Brigade was not involved in the attack on the village but , rather, deployed near a place called Kruscica, outside Vitez.
It will be thus for the Trial Chamber to determine:

(a) whether the underlying crimes have been proved, or not, and;

(b) if so, whether the accused are guilty of the crimes charged against them, or not .

In this connection it should be emphasised that it is the duty of the Trial Chamber to consider the case against each accused separately and to consider each count in the Indictment separately. It should also be stated at the outset that no accused may be found guilty on any count unless the Trial Chamber is satisfied, beyond reasonable doubt, of his guilt on that count.
The Judgement begins with a discussion of the law relating to the various counts in the Indictment. This discussion starts with the law applying to international armed conflict and contains the evidence relating to that topic. There follows discussion of the law applicable to the other counts.
The discussion of the evidence follows a general chronological order, beginning with the background to the conflict, the alleged campaign of persecution, the attacks on the towns and villages and the killings. There then follows a discussion of the other offences alleged in the Indictment: those relating to detention and inhuman treatment and destruction and plunder. The role of the accused is considered in relation to each of the relevant events. The Judgement ends with consideration of the individual responsibility of the accused for any crimes which have been proved .
In its discussion the Trial Chamber will only deal with such evidence as is necessary for the purposes of the Judgement. It will, thus, concentrate on the most salient parts and briefly summarise (or not mention at all) much of the peripheral evidence. A vast amount of detail has been presented in this case (too much, in the view of the Trial Chamber). The fact that a matter is not mentioned in the Judgement does not mean that it has been ignored. All the evidence has been considered by the Trial Chamber and the weight to be given it duly apportioned. However, only such matter as is necessary for the purposes of the Judgement is included in it. [A Glossary of Terms, Chronology of Events and List of Dramatis Personae are included in Annexes for ease of reference.]

PART TWO: THE LAW
As discussed above, Dario Kordic and Mario Cerkez are charged with crimes under Articles 2, 3 and 5 of the Statute. In this section, the Trial Chamber will consider the requirements for the application of these Articles which are common to all of them. It will then examine the requirements for the application of each of these Articles in turn. First, the Trial Chamber sets forth the elements of the crimes charged in the Indictment. Next, it addresses the law on individual responsibility and concludes with a consideration of the law relating to self-defence as a defence to war crimes.

I. GENERAL REQUIREMENTS FOR THE APPLICATION OF ARTICLES 2, 3 AND 5 OF THE STATUTE

A. Elements Common to Articles 2, 3 and 5 of the Statute

1. Requirement of an Armed Conflict
Articles 2 and 3 of the Statute set forth provisions which reflect the laws of war; plainly a pre-condition to the applicability of these Articles is the existence of an armed conflict in the territory where the crimes are alleged to have occurred .
Article 5 vests the International Tribunal with the competence to prosecute crimes against humanity “when committed in armed conflict, whether international or internal in character”. In the Tadic Jurisdiction Decision⁴ the Appeals Chamber found that under customary law there is no requirement that crimes against humanity have a connection to an international armed conflict. The Appeals Chamber further held that “customary international law may not require a connection between crimes against humanity and any conflict at all.”⁵ Article 5, however, requires nothing more than the existence of an armed conflict at the relevant time and place for the International Tribunal to have jurisdiction .⁶
The Appeals Chamber in Tadic held that an armed conflict exists:

whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State.⁷
The Kordic Defence argues that the relevant armed conflict for purposes of this Indictment is that between the Bosnian Croats and the Bosnian Muslims, rather than the conflict between the Bosnian Croats and the Bosnian Muslims on the one hand, and the Serbs on the other. It submits that, while there were incidents of violence in Central Bosnia in 1992 and early 1993, “protracted violence did not begin until mid-April 1993, after which it continued until the Washington Agreement in March 1994.”⁸ It is argued that since the International Tribunal’s jurisdiction in relation to crimes under Articles 2, 3 and 5 of the Statute is dependent upon the existence of an armed conflict, all counts relating to the time period prior to the outbreak of armed conflict in mid-April 1993 must be dismissed.
In relation to Article 5 of the Statute, the Prosecution contends that it is not required that the crimes must all be committed in the precise geographical region where the armed conflict occurs at a given moment.⁹ The Defence did not raise this issue in their briefs.
In this regard, the Trial Chamber observes that, in order for norms of international humanitarian law to apply in relation to a particular location, there need not be actual combat activities in that location. All that is required is a showing that a state of armed conflict existed in the larger territory of which a given location forms a part.¹⁰
The Indictment alleges that a state of international armed conflict existed on the territory of the Republic of Bosnia and Herzegovina at all times relevant to the Indictment. Count 1, which charges Dario Kordic with persecution as a crime against humanity, is the broadest count in the Indictment, covering the time-period from November 1991 to March 1994, and encompassing the whole territory of the HZ H-B and HR H-B, as well as the municipality of Zenica. Consequently, it is these temporal and geographic parameters which must form the basis of the Chamber’s inquiry on this issue.
Part Three, Sections I-III of this Judgement discusses the establishment of the territory of the HZ H-B by the HDZ BiH, on 18 November 1991, and the rise in the incidence of violent clashes between the Bosnian Croats and Bosnian Muslims within that territory and, in particular, in the territory of Central Bosnia, following its establishment.
Part Three, Section IV discusses the outbreak of armed conflict in Busovaca in January 1993 and the violence that erupted on a much wider scale in Vitez and throughout the Lasva Valley in April 1993 and continued through March 1994.
Based upon the foregoing, the Chamber finds that, while it was not until April 1993 that a generalised state of armed conflict in the form of protracted violence broke out in the territory of Central Bosnia between the HVO and the ABiH, prior to that period there were localised areas of conflict, within which a state of armed conflict could be said to exist.

2. Nexus Between the Crimes Alleged and the Armed Conflict
Having established the existence of an armed conflict, the Chamber observes that, in order for a particular crime to qualify as a violation of international humanitarian law under Articles 2 and 3 of the Statute, the Prosecution must also establish a sufficient link between that crime and the armed conflict. In this regard, the Appeals Chamber has held that:

Even if substantial clashes were not occurring in the [specific region] at the time and place the crimes were allegedly committed . . . international humanitarian law applies. It is sufficient that the alleged crimes were closely related to the hostilities occurring in other parts of the territories controlled by the parties to the conflict .¹¹
The Appeals Chamber further concluded in respect of Article 5 of the Statute that proof of a nexus between the conduct of the accused and the armed conflict is not required:

A nexus between the accused’s acts and the armed conflict is not required, as is instead suggested by the [Tadic Trial] Judgement. The armed conflict requirement is satisfied by proof that there was an armed conflict; that is all that the Statute requires, and in so doing, it requires more than does customary international law.¹²

Although the acts or omissions must be committed in the course of an armed conflict , the nexus which is required is between the accused’s acts and the attack on the civilian population.¹³
As previously discussed, all of the acts underlying the charges in the Indictment are alleged to have occurred in the territory of the HZ H-B, in which the HDZ BiH was the controlling political authority, with the HVO as its military arm. The Indictment charges Dario Kordic with crimes committed in his capacity as the Vice -President of the HZ H-B, in which capacity he is alleged to have played a central role in developing and executing the policies of the HZ H-B and the HVO. Mario Cerkez is charged in his capacity as commander of the Viteska Brigade of the HVO . The acts for which both accused persons have been indicted are alleged to have been committed either in their respective personal capacities or by other members of the HVO in the course of its armed conflict with the Bosnian Muslim forces, the ABiH.
Consequently, the Chamber is in no doubt that a clear nexus exists between the armed conflict between the Bosnian Croats and the Bosnian Muslims in Bosnia and Herzegovina and the acts alleged in the Indictment to have been committed by the two accused persons.

B. Article 2 of the Statute
Dario Kordic and Mario Cerkez are charged under Article 2 of the Statute with the following crimes as grave breaches of the Geneva Conventions of 1949;¹⁴ inhuman treatment,¹⁵ wilful killing ,¹⁶ wilfully causing great suffering or serious injury to body and health,¹⁷ unlawful confinement of civilians,¹⁸ taking civilians and hostages¹⁹ and extensive destruction of property.²⁰
Article 2 of the Statute, entitled “Grave breaches of the Geneva Conventions of 1949” states:

The International Tribunal shall have the power to prosecute persons committing or ordering to be committed grave breaches of the Geneva Conventions of 12 August 1949, namely the following acts against persons or property protected under the provisions of the relevant Geneva Convention:

(a) wilful killing;

(b) torture or inhuman treatment, including biological experiments;

(c) wilfully causing great suffering or serious injury to body or health;

(d) extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly;

(e) compelling a prisoner of war or a civilian to serve in the forces of a hostile power;

(f) wilfully depriving a prisoner of war or a civilian of the rights of fair and regular trial;

(g) unlawful deportation or transfer or unlawful confinement of a civilian;

(h) taking civilians as hostages.

1. Arguments of the Parties
(a) The Prosecution case
The Prosecution submits that Article 2 of the Statute only applies to violations committed in the context of an international armed conflict. In addition, in order to qualify as a crime under Article 2 of the Statute, the victim of the alleged crime must be “protected” under any one of the four Geneva Conventions of 1949.²¹
The Prosecution argues that an armed conflict is internationalised where a foreign State intervenes in the conflict through its troops, or where a foreign State exercises a degree of control over the military forces of a party to the conflict sufficient to internationalise the conflict. In the Prosecution’s submission, it has proved the existence of an international armed conflict under both tests.
The Appeals Chamber in Tadic, it is submitted, established the test for the degree of control which must be exercised by a foreign State over the military forces of a party to the conflict in order to render that conflict international ; namely “overall control”.²² The Prosecution argues that the test of “overall control” is applicable in the instant case for the reasons set out by the Appeals Chamber in the Aleksovski Appeal Judgement.²³ Under that test, the Prosecution submits that it must prove that Croatia had a role in organising, coordinating or planning the military actions of the HVO, in addition to financing, training, and equipping or providing operational support to the HVO.²⁴
The testimony and documents in this case, it is submitted, demonstrate that Croatia exercised overall control over the HVO during the time-period covered by the Indictment. In the Prosecution’s submission, there is evidence to show that Croatia provided extensive logistical support to the HVO. The Prosecution argues that the following evidence goes to satisfy the overall control test:

(i) President Tudjman’s territorial ambitions in Bosnia and Herzegovina;

(ii) The fact that Croatia and the HVO shared the same goals;

(iii) Croatia controlled the decisions of the HZ H-B either through Croatian army officers assigned to the HVO, or directly;

(iv) The HDZ in Croatia had overall control over the HDZ in Bosnia and Herzegovina ;

(v) Croatian army officers served with the HVO and then returned to the Croatian army;

(vi) President Tudjman dismissed Bosnian Croat leaders who did not share his opinions ;

(vii) The Bosnian Croat leaders followed directions from, or at least co-ordinated with, the Croatian government.
In sum, the Prosecution contends that an international armed conflict existed between the Bosnian Croats and the Bosnian Muslims at all relevant times for purposes of the Indictment by reason of: (i) direct intervention by Croatian armed forces in that conflict; (ii) Croatia’s exercise of overall control over the HVO forces in their conflict with the Bosnian Muslims.
It is argued that, when an armed conflict is internationalised, the Geneva Conventions apply throughout the respective territories of the parties engaged in the conflict.²⁵
The Prosecution submits that, as Croatia exercised overall control over the HVO, all persons or property in the hands of the HVO were simultaneously in the hands of Croatia. Consequently, Bosnian persons or property in the hands of the HVO were entitled to protected status under the relevant Geneva Conventions of 1949 .²⁶
The Prosecution concedes that, while Bosnia and Herzegovina and Croatia may be regarded as co-belligerents in the context of their joint struggle against the Serbian military forces, this characterisation is not applicable in the context of the armed conflict between Bosnia and Herzegovina and Croatia.²⁷
(b) The Defence case

(i) The Kordic Defence
The Kordic Defence submits that the following three criteria must be satisfied before Article 2 of the Statute may apply:

(i) the alleged violations occurred in the context of an international armed conflict ;

(ii) the victims of the alleged violations were persons regarded as “protected” by the Geneva Conventions;

(iii) the alleged violations are included in the acts enumerated in Article 2 of the Statute.
In respect of the first criterion for the application of Article 2 of the Statute , the Defence argues that the armed conflict relevant to a consideration of the applicability of Article 2 in this case is that between the Bosnian Croats on the one hand, and the Bosnian Muslims on the other. In its submission, that conflict should be characterised as internal, since both the Bosnian Croats and Muslims were citizens of the Republic of Bosnia and Herzegovina. In this regard, the Defence argues that the Celebici case, in which the Trial Chamber held that Bosnian Serbs need not be viewed as nationals of Bosnia and Herzegovina for purposes of applying Article 2 of the Statute, may be distinguished on the following grounds : the Bosnian Serbs had adopted a Constitution rendering them part of the Federal Republic of Yugoslavia, whereas the Bosnian Croats did not formally secede; “[r]ather, they had voluntarily joined with the Muslims in forming the BiH. . .”.²⁸ In any event, it is argued that this Chamber is not bound by the decision in Celebici.29
The Defence further contends that any intervention of Croatia in the armed conflict between the Bosnian Croats and Serbs was insufficient to render the conflict international for the following reasons. First, any Croatian intervention in Bosnia and Herzegovina was in support of the Bosnian Croats struggle against the Bosnian Serbs, rather than the Bosnian Muslims.³⁰ Second, even if Croatia intervened directly in the armed conflict between the Bosnian Croats and the Muslims, this did not render the conflict international. Third, Croatia did not exercise sufficient control over the military forces of the Bosnian Croats so as to render the conflict international under the applicable law. Fourth , the conflict must be deemed internal so as to avoid unequal application of Article 2 of the Statute as between the Bosnian Croats and the Bosnian Muslims.
In respect of the second criterion for the application of Article 2 of the Statute, whether or not the victims qualify as “protected persons” under any of the four Geneva Conventions of 1949, the Defence contends that the alleged perpetrators of the crimes were of the same nationality as the alleged victims of their crimes ; both were citizens of Bosnia and Herzegovina. Therefore, it is argued, unless it can be demonstrated that the Bosnia Croat forces were sufficiently controlled by Croatia so as to render them agents of the Croatian State, the Bosnian Muslim victims do not qualify for protected person status.
The Defence further submits that, according to Article 4 of Geneva Convention IV, “protected persons” are “those who, at a given moment and in any manner whatever , find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.”
In its final submissions, the Defence extracts the following principles from the two Appeals Chamber Judgements in the Tadic case,³¹ which, it is argued, must be considered in determining whether an armed conflict occurred in Central Bosnia during the time-period covered by the indictment:

(i) The Trial Chamber must focus upon the time and place of the specific conflict at issue, that is an area-by-area analysis must be applied in considering whether an international armed conflict occurred;

(ii) Financial and military assistance alone are not sufficient to establish control by a foreign State;

(iii) A high threshold of proof is required to show that a military or paramilitary group is being controlled by a foreign State;

(iv) Control by a foreign State may only be established where that State is shown to have organised, coordinated or planned the military actions of a military or paramilitary group with respect to the specific conflict at issue.³²
As to the evidence presented in this case, the Defence argues that it does not support a finding that Croatian troops were present in Central Bosnia. In particular , Major-General Filipovic, a retired HVO officer, who it is argued, was in a position to know, testified that there were no Croatian troops in Central Bosnia.³³ In the submission of the Defence, the various reports and documents prepared by the international military monitors, and relied upon by the Prosecution, are insufficient to prove the presence of Croatian troops in Central Bosnia.³⁴ In addition, it is argued, the testimony of Brigadier [ekerija raises serious questions as to the probative value of certain of the exhibits tendered to demonstrate that the Croatian army troops were active in Central Bosnia.³⁵
The Defence further submits that the evidence does not support a finding that Croatia exercised “overall control” over the HVO in Central Bosnia.³⁶ It is argued that there is clear and unambiguous evidence demonstrating that the CBOZ was not under the command of the Republic of Croatia.³⁷ The Defence contends that the HVO and the ABiH cooperated in the struggle against their common enemy, Serbia, and that it was in connection with this conflict that Croatia provided logistical and operational support to the HVO.³⁸ In addition, the fact that Croatian army officers left to serve in the HVO is, it is argued, not indicative of overall control, as several high-ranking officers in the ABiH had also previously served as officers in the Croatian army.³⁹
The Defence observes that the Prosecution only invited witnesses to comment on a small percentage of the numerous exhibits tendered in relation to the issue of international armed conflict, and argues that this was on account of the comments received from witnesses, which tended to diminish the probative value of those exhibits . The Defence sees Croatia’s recognition of Bosnia and Herzegovina as an independent State as significant. It submits that Croatia and Bosnia and Herzegovina cooperated against a common enemy, Serbia, in 1992 and that there is evidence demonstrating this cooperation, especially in the western parts of Herzegovina, on the border between Croatia and Bosnia and Herzegovina.
The Defence points to the testimony of Major-General Filip Filipovic, who stated that, while many of the military officials who were active in Bosnia and Herzegovina in 1992 and 1993 had previously served in the Croatian army, the majority of them were citizens of Bosnia and Herzegovina. It highlights the “countless other witnesses ” who testified that Bosnian Croats who volunteered to defend Croatia against the Serb aggression voluntarily returned to Bosnia and Herzegovina to defend their homeland .⁴⁰
The Defence submits that the Prosecution has failed to establish the existence of an international armed conflict, and accordingly, Dario Kordic cannot be convicted of crimes under Article 2 of the Statute.

(ii) The Cerkez Defence
The Cerkez Defence submits that two conditions must be met for Article 2 to apply. Firstly, there must be an international armed conflict, and secondly, the crime must be directed against persons or property protected under the provisions of the relevant Geneva Conventions.⁴¹ In its submission, the Prosecution has failed to prove that Croatia exercised a degree of control over the HVO sufficient to internationalise the conflict between the Bosnian Croats and the Bosnian Muslims. The Defence further submits that the mere presence of Croatian army troops anywhere in the territory of Bosnia and Herzegovina will not internationalise the conflict as between the Bosnian Croats and the Bosnian Muslims.⁴²
In relation to the second requirement under Article 2, the Defence argues that the Prosecution has failed to prove that the crime was directed against protected persons or property, that is, persons or property in the hands of a party to the conflict of which they are not nationals. Since, it is argued, the Prosecution has failed to show that Croatia exercised such a level of control over the HVO as to render the military forces of the Bosnian Croats effective agents of the Croatian State, the Bosnian Muslim civilians and property in the hands of the HVO do not qualify for protection under the relevant Geneva Conventions.⁴³
While the Defence does not dispute that there was an armed conflict between the Bosnian Croats and the Bosnian Muslims in Central Bosnia throughout the time -period covered by the Indictment, it argues that that conflict cannot be characterised as international for the following reasons:

1. Any Croatian intervention in Bosnia was directed against the Serbian forces in 1992 , not the Bosnian Muslims in 1993.

2. The control exercised by the Republic of Croatia over the HVO did not rise to the requisite level so as to internationalise the conflict between the HVO and the Bosnian Muslims.

3. Croatia did not intervene militarily in Central Bosnia, nor did it exercise a level of control over the HVO forces in that region sufficient to internationalise the conflict between the Bosnian Croats and the Bosnian Muslims in that region.

4. Characterising the conflict between the Bosnian Croats and the Bosnian Muslims as international would lead to an unequal application of Article 2 of the Statute.
In relation to the level of control required to internationalise an internal armed conflict, the Defence refers to the legal standard for determining state responsibility set forth by the ICJ in the Nicaragua case,⁴⁴ stating that “if anything, this International Tribunal should require a more stringent showing in order to find liability in a criminal case.”⁴⁵ It further submits that any inquiry into the international character of the conflict must be narrowly focused on the question whether the Croatian army was present on the territory at the time and in the place where the crimes are alleged to have occurred. Similarly, it is argued, the Prosecution must prove that the accused, Mario Cerkez, acted on the direct orders of Croatian officials in order for the conflict to be internationalised.⁴⁶
The Defence submits that Croatia intervened militarily in south-west Bosnia and Herzegovina in 1992 in order to defend itself against Serbian attack.⁴⁷ It argues that there is no evidence that Croatia exerted military control over HVO operations in the Lasva Valley during the period covered by the Indictment, and that the Croatian army generals who were sent to organise the military operations of the HVO were in fact citizens of Bosnia and Herzegovina, returning to defend their homeland.⁴⁸ In its submission , there is no evidence whatsoever of the presence of Croatian army troops in the Lasva Valley in the time-period covered by the indictment.⁴⁹
In relation to the second criterion for the application of Article 2 of the Statute, namely that the victims must have protected status under any of the four Geneva Conventions of 1949, the Defence argues that the Bosnian Muslim victims cannot be protected as they were of the same nationality as their Bosnian Croat captors .⁵⁰ It further submits that, under the terms of Article 4(2) of Geneva Convention IV, “nationals of a co-belligerent State shall not be regarded as protected persons while the State of which they are nationals has normal diplomatic representation in the State in whose hands they are.” Therefore, it is argued, since Bosnia and Herzegovina and Croatia maintained normal diplomatic relations throughout the armed conflict between the Bosnian Croats and the Bosnian Muslims, the latter are not “protected” by Geneva Convention IV when they find themselves in the hands of Bosnian Croat captors.⁵¹
The Defence submits that there is ample evidence to demonstrate that Bosnia and Herzegovina and Croatia were in fact co-belligerents in the conflict against the Serbian forces, rather than warring parties.⁵² Neither State declared war against the other, while, according to Article 2(1) of Geneva Convention IV, at least one of the parties must recognise a state of war.⁵³
The Defence submits that conferring protected status on the Bosnian Muslim victims in this case would lead to an unequal application of Article 2 of the Statute for the reason that while Bosnian Muslim victims would be protected in the hands of their Bosnian Croat captors the contrary would not hold.⁵⁴

2. Discussion
The International Tribunal’s jurisprudence confirms that, arising out of the four Geneva Conventions of 1949, there are two requirements for the application of Article 2 of the Statute; first, it must be established that the crimes occurred in the context of an international armed conflict and, secondly, that the victims of the crimes qualify as “protected persons” under the applicable provision of the Geneva Conventions.⁵⁵
(a) The international character of the armed conflict
In the Tadic case, the Appeals Chamber conducted an extensive review of the applicable law as to how an internal armed conflict becomes internationalised for the purposes of Article 2 of the Statute. The Appeals Chamber held:

… in case of an internal armed conflict breaking out on the territory of a State , it may become international (or, depending upon the circumstances, be international in character alongside an internal armed conflict) if (i) another State intervenes in that conflict through its troops, or alternatively if (ii) some of the participants in the internal armed conflict act on behalf of that other State.⁵⁶
Before carrying out an examination as to whether any or both of the two criteria set out in the Tadic case are satisfied by the evidence in this case, it is necessary to deal with two preliminary issues which are raised by the arguments advanced by the Defence.

(i) Preliminary issues

a. Croatian troop activity outside the Lasva Valley
While Counts 1 and 2 of the Indictment charge Dario Kordic and Mario Cerkez , respectively, with persecution as a crime against humanity, a charge that relates to the entire area covered by the HZ H-B, which would take in the southernmost part of Bosnia and Herzegovina, bordering Croatia, the other counts, including those charging crimes under Article 2 of the Statute, relate to a more limited number of municipalities, and the evidence that has been adduced in respect of these counts is almost exclusively related to acts committed in Central Bosnia. The municipalities in relation to which evidence has been adduced in support of substantive crimes charged under Article 2 of the Statute range from Žepce in the north to Kiseljak in the south, and from Vares in the east to Travnik in the west. These are all municipalities in Central Bosnia, and the two accused have argued that Croatian troops involvement must be substantiated by evidence of the presence of Croatian troops in Central Bosnia.
The Kordic Defence interprets the Appeals Chamber decision in the Tadic case to require an area-by-area analysis in considering whether an international armed conflict occurred.⁵⁷ The particular passages upon which it relies state:

On the basis of the foregoing, we conclude that the conflicts in the former Yugoslavia have both internal and international aspects . . .

. . . the conflicts at issue in the former Yugoslavia could have been classified , at varying times and places, as internal, international, or both.⁵⁸

The Cerkez Defence submits that Article 2 will only apply where the Prosecution has proved “the presence of the Croatian army on the spot and at the moment of the alleged crimes”.⁵⁹
The Chamber understands the passages relied upon from the Appeals Chamber’s Judgement in the Tadic case to mean that the determination as to whether the conflict is international or internal has to be made on a case-by-case basis , that is, each case has to be determined on its own merits, and accordingly, it would not be permissible to deduce from a decision that an internal conflict in a particular area in Bosnia was internationalised that another internal conflict in another area was also internationalised. However, it would be wrong to construe the Appeals Chamber’s decision as meaning that evidence as to whether a conflict in a particular locality has been internationalised must necessarily come from activities confined to the specific geographical area where the crimes were committed, and that evidence of activities outside that area is necessarily precluded in determining that question.
What is at issue is whether Croatian troops intervened in the conflict between the Bosnian Croats and Bosnian Muslims, and while that intervention would normally be substantiated by evidence of the presence of Croatian troops in Central Bosnia , it may also be proved by evidence of the presence of Croatian troops in areas outside Central Bosnia, if the location of those areas is of strategic significance to the conflict. Thus, areas bordering Central Bosnia, in which there is evidence of the presence of Croatian troops, cannot be excluded from the inquiry. To confine the inquiry narrowly to Central Bosnia, as though it was an isolated entity, would be artificial. The inquiry is not so much as to the presence of Croatian troops in the conflict area, which is predominantly Central Bosnia, but as to the intervention of Croatia, through its troops, in the conflict itself, which was not confined to Central Bosnia.
The Chamber also notes the argument advanced by the Prosecution that “when an international armed conflict exists, the Geneva Conventions, including the grave breach provisions, apply to all of the territories of the parties engaged in the conflict, that is to all of Croatia and Bosnia Herzegovina”.⁶⁰ In this regard, the Prosecution relies upon the Tadic Jurisdiction Decision which states that the “provisions of the Conventions apply to the entire territory of the Parties to the conflict, not just the vicinity of actual hostilities”,⁶¹ as well as the Celebici Trial Judgement, which held that “should the conflict in BiH be international, the relevant norms of international humanitarian law apply throughout its territory until the general cessation of hostilities”.⁶²

b. The significance of the overlapping conflicts
Both accused also argue that while Croatia sent troops into Bosnia and Herzegovina , these troops were sent, not in relation to the conflict between the Bosnian Croats and the Bosnian Muslims, but rather, in support of the Bosnian Croats in their conflict with the Serbs.⁶³ In that event, argue the accused, the question of Croatian involvement internationalising the conflict between the Bosnian Croats and the Bosnian Muslims does not arise.
The evidence clearly shows that initially the Bosnian Croats and the Bosnian Muslims were united in a struggle against a common enemy, the Serbs. However, as relations between the two broke down in late 1992 and early 1993, fighting erupted between the Bosnian Muslims and the Bosnian Croats. The ensuing conflict between the HVO and the ABiH overlapped with the conflict between the Bosnian Croats and the Bosnian Muslims on the one hand, and the Serbs on the other.
Croatia’s support of the Bosnian Croats was strategically significant in their struggle against the Bosnian Muslims, in that the relief given to the Bosnian Croats allowed them to deploy more forces against the Bosnian Muslims. An ECMM⁶⁴ report dated 3 June 1993 notes this strategic linkage:

. . . the trickle of confirmed proof and particular circumstances continue to add weight to the knowledge that HV military have been and are increasingly involved in the conflict between the HVO and the BiH, or in holding the line against the Serbs while the relieved HVO forces move against Moslem targets.⁶⁵
Similarly, a report from the Spanish Battalion of the Rapid Action Forces, dated January 1994, states, in relation to the Mostar area:

. . . the number of HV elements (vehicles and personnel) in the area continues to increase, especially in Buna and Stolac, which could mean that the HV is assuming charge over the front with the Serbs from Stolac to Blagaj (they already control it from Stolac to the border with Montenegro) and thus relieving HVO for operations elsewhere.⁶⁶
In relation to the armed conflict between the Bosnian Croats and the Bosnian Muslims, the strategic significance of Croatian support for the Bosnian Croats in their struggle against the Serbs makes it artificial to draw a distinction between the two overlapping conflicts.
The Chamber is aware that, for the purpose of showing Croatian involvement in the conflict between the Bosnian Muslims and the Bosnian Croats, there must be evidence of an intervention by Croatia, through its troops, in that conflict. However , evidence of Croatian support of the Bosnian Croats in their conflict with the Serbs becomes relevant in determining whether Croatian intervention was such as to internationalise the conflict between the Bosnian Croats and the Bosnian Muslims when it has a strategic impact on that conflict.

(ii) The two criteria for determining the international character of an armed conflict
In light of the conclusions of the Appeals Chamber in the Tadic case as to how an internal armed conflict becomes internationalised, the Trial Chamber will examine, firstly the question whether Croatia intervened in the armed conflict between the Bosnian Muslims and the Bosnian Croats in Bosnia and Herzegovina through its troops and, secondly whether the HVO acted on behalf of Croatia.⁶⁷ The Trial Chamber notes that these criteria are alternative.

a. Whether Croatia intervened in the conflict

i. The Prosecution Evidence
There is a great deal of evidence before the Chamber on this question. There is the oral evidence of a large number of witnesses, and also a wealth of documentary evidence comprising over a hundred exhibits submitted by the Prosecution. This evidence may be divided into four broad categories:

a. Reports of military monitoring bodies;

b. Reports to and from the United Nations;

c. HVO documents;

d. Other reports, including death notices.

The reports of military monitoring bodies
The armed conflict between the Bosnian Croats and the Bosnian Muslims in Bosnia and Herzegovina was monitored by several military bodies. One of their main tasks was the gathering of information about the conflict. The Chamber attaches particular importance to the reports produced by these military monitoring bodies because they were prepared on the basis of information gathered by disinterested personnel who were trained for that purpose.
Major Alistair Rule, a major in the British army who, in October 1992, was stationed in Bosnia as an officer in the 1st Cheshire regiment, testified that the military information summaries (“Milinfosums”) generated by the soldiers under his command would be used to keep operational troops informed as to the general situation in the area;⁶⁸ for that reason, it was important that the information contained in the Milinfosums be accurate.⁶⁹
Lieutenant Colonel Remi Landry of the Canadian army, who worked for the ECMM , testified that that body’s information was based upon multiple sources which enabled them to gather a more accurate picture of what was going on.⁷⁰ William Stutt, an officer in the Canadian army who worked as an ECMM monitor in Bosnia and Herzegovina testified that one of the reasons the ECMM were deployed in Central Bosnia was to assess the presence of HV troops on the ground.⁷¹
Several members of military monitoring bodies, such as the ECMM, gave evidence of the presence of Croatian army troops in Bosnia and Herzegovina.⁷² While none of these reports relate to sightings of Croatian army troops in Central Bosnia, the Chamber is satisfied that they all relate to areas that were sufficiently close to Central Bosnia and that, therefore, they constitute evidence of Croatian intervention in the conflict through its troops. In this regard, the Chamber recalls its analysis above as to the evidential value of the presence of Croatian troops in areas bordering Central Bosnia which are of strategic significance to the conflict .
Brigadier Alistair Duncan, commanding officer of the Prince of Wales Regiment of the British army, stationed in Central Bosnia from May to November 1993, whose area of responsibility covered the Prozor region (Gornji Vakuf, Zenica, Vitez and up to Tuzla), gave evidence of reports from his soldiers of Croatian soldiers moving along the “Route Triangle”.⁷³ This was the name given to the section of road between Tomislavgrad and Prozor. That route was the connecting link between Croatia and Central Bosnia and, on the testimony of one witness, was probably the only route that stayed open and where access could be had to Central Bosnia from Split in Croatia.⁷⁴ Andrew Williams, who served as an intelligence officer in the 1st Cheshire Regiment of the British army, stationed in Gornji Vakuf from November 1992 to May 1993, confirmed that the Route Triangle “was one of the few access routes from the border up into Central Bosnia.”⁷⁵
Brigadier Duncan testified that he actually saw Croatian soldiers along the Route Triangle on one occasion. Although in cross-examination he confirmed that the Prozor area is south of the Lasva Valley area, and geographically separate from that area, he maintained that the location of the Croatian troops in the Route Triangle would have placed the ABiH troops deployed in the Gornji Vakuf region within range . Michael Buffini, who was deployed as a U.K. liaison officer in the former Yugoslavia in the first half of 1993, testified that, in February 1993, he personally witnessed a convoy of between six and eight coaches carrying troops with HV insignia travelling along the Route Triangle into Prozor.⁷⁶
Major Rule, who served in Bosnia in late 1992 and early 1993, gave evidence that his subordinates had reported seeing regular troops wearing a Tigers (an HV unit) badge at the checkpoint on Makljen, a high pass to the south of Gornji Vakuf which was the only route from Prozor into Gornji Vakuf.⁷⁷ Based upon their insignia, and in particular the Tigers badge, the witness concluded that these were troops from the Croatian army.⁷⁸
Andrew Williams testified that, in March 1993, he personally met a group of Croatian soldiers in Prozor.⁷⁹ This encounter is reflected in a Milinfosum of the Cheshire regiment dated 22 March 1993 , which states that “40 soldiers wearing ‘4 Brigade HV’ badges were sighted in the town [Prozor] all carrying new 5.56mm Austrian SIG Assault rifles.”⁸⁰
Witness AD, a member of the British army who served as an ECMM monitor in Bosnia and Herzegovina between 1993 and 1995, testified that on one occasion in January 1994, he was delayed on the Route Triangle by a convoy of the Croatian army, numbering at least 50 vehicles. The witness estimated that the vehicles were transporting a battalion of between 800 to 1,000 soldiers. The witness observed that the vehicles and soldiers bore the insignia of the Croatian army⁸¹ and that they were travelling in the direction of Prozor.⁸² The witness also testified that, during a meeting with General Praljak, a commander in the HVO, he had asked the latter to comment on the allegations and persistent reports of HV involvement in Bosnia and Herzegovina. Witness AD testified that, in his response, “General Praljak denied that there were any HV forces operating in Bosnia-Herzegovina, but did state that individuals like himself, who were from Bosnia-Herzegovina, had returned, seeing it was their duty to fight for the Croat cause”.⁸³
The reports prepared by the various military monitoring organisations vary as to the number of Croatian soldiers seen; some reports are of a few Croatian soldiers , while others are of large numbers of Croatian soldiers.⁸⁴ A small number of the reports explicitly state that their information came from Bosnian Serb Army (“BSA”) or ABiH sources.⁸⁵ To these latter reports the Chamber attaches less weight, because of their potential self-serving character. A significant feature of these reports from the military monitoring organisations is that they were obviously prepared on the basis that Croatian army forces were participating in the conflict.⁸⁶

Reports to and from the United Nations
Several reports made to the United Nations and by the United Nations itself in relation to the conflict deal with the question of the presence of Croatian troops in the territory of Bosnia and Herzegovina.
The report of the Secretary-General of the United Nations, dated 18 January 1993, notes that “UNPROFOR had also confirmed that elements of the Croatian army are deployed in certain parts of BiH”.⁸⁷ However, the report also referred to statements made by the Croatian army representatives that those elements were “present only in those areas from which attacks have been made on Croatian territory and that they would be removed as soon as they ceased ...”.⁸⁸
In a letter dated 28 January 1994, to the President of the Security Council , the Permanent Representative of Bosnia and Herzegovina to the United Nations attached a letter from the Prime Minister of Bosnia and Herzegovina which concluded that in the area of Mostar, Prozor and Gornji Vakuf “12 brigades of the regular Croatian army, with manpower estimated at 15,000 to 18,000 is directly involved in military operations”.⁸⁹
To that letter the Permanent Representative of Croatia to the United Nations replied that Croatia did not deny the presence of regular Croatian army troops in the border area in accordance with an agreement between Bosnia and Herzegovina and the Republic of Croatia, and that these troops were necessary in order to preserve the territorial integrity and security of Croatia.⁹⁰
In a letter of 17 February 1994 to the President of the Security Council, the Secretary-General of the United Nations reported on the withdrawal of some Croatian troops, but stated that an estimated 5,000 troops remained in Bosnia and Herzegovina , although no Croatian command post or any full Croatian army brigades had been identified as operating in Bosnia and Herzegovina. The letter also noted that Croatian troops were removing their insignia and replacing them with HVO insignia.⁹¹ Croatia responded stating that it had complied and that troops had been withdrawn .⁹²
The Chamber considers that significant weight has to be attached to reports from the Secretary-General, by virtue of his position as head of the United Nations . While the reports to and from the United Nations do not, by themselves, establish the presence of Croatian army troops, they nonetheless point to such a presence in Bosnia and Herzegovina and in the areas of Mostar, Prozor and Gornji Vakuf in particular; this evidence, when taken together with other items of evidence, is relevant in the determination of this issue.

HVO documents
The following HVO documents relate to the involvement of Croatian army troops in the conflict:
1. An order from the CBOZ to the commanders of the brigades and individual units of the HVO, dated 12 April 1993, requiring them to submit a list of all officers of the Croatian army operating in their units.⁹³
2. An order from the headquarters of the Zenica HVO to all HVO units, dated 26 November 1992, requiring HV members in BiH to remove HV insignia “as this creates trouble for the Republic of Croatia”.⁹⁴
3. An order from the 3rd HVO battalion to various HVO battalions, dated 9 December 1992, stating that HV members must wear HVO insignia during their “deployment in our area”.⁹⁵
4. An order of 31 March 1993 from Mario Cerkez, commander of the Viteska Brigade , to all battalions, issued pursuant to the order of Colonel Blaskic, requiring all members to wear only HVO insignia on their uniforms.⁹⁶
The Chamber considers that these items of evidence reflect, not only the presence of Croatian army soldiers participating in the conflict in Bosnia and Herzegovina between the Bosnian Croats and the Bosnian Muslims, but also an attempt to conceal that presence.

Other reports, including death notices
There is a letter dated 22 February 1993 from the HVO Brigade in Gornji Vakuf to the 4th Split Brigade, indicating that Stanko Posavac, a combatant in that brigade , was killed in the fighting between the ABiH and the HVO in Gornji Vakuf.⁹⁷
In the publication “Oslobodjenje”, there is a report, dated 6 February 1994, about a Croatian soldier, Ivica Jeger, who had been captured by the ABiH in Bosnia and Herzegovina. Mr. Jeger, who was a member of the Fifth Home Guard regiment in Osijek, described how he and other Croatian soldiers were taken, against their will, to fight in Prozor in Bosnia and Herzegovina. He stated that the salary for the Croatian soldiers was about 200 DEM per month.⁹⁸ This evidence is corroborated by the testimony of D`emal Merdan, a commander in the ABiH, who stated that on one occasion between January and April 1993, he set free a group of captured HVO soldiers in Gornji Vakuf, one of whom “said that he came from Osijek and that he was a member of the Croatian army”.⁹⁹
The Zagreb field office of the United Nations Centre for Human Rights received several reports of Croatian citizens, born in Bosnia and Herzegovina, being mobilised by the Croatian government to fight there.¹⁰⁰ The Croatian Ministry of Defence, in a letter dated 31 December 1993, stated in response:

In the end I want to say that official stand towards the Republic of Bosnia and Herzegovina is the same both politically and militarily. The Minister of Defence , Gojko [usak, and the Minister of Foreign Affairs, Mate Granic, clearly said that Croatia is going to re-examine its attitude towards B&H if the offensive of Muslim forces to Croat territories in Central Bosnia will continue, if this would represent a threat to strategic and security interests of the Croatian state.¹⁰¹
While the evidence in this section would not, by itself, prove the presence of Croatian army troops in Bosnia and Herzegovina, it is evidence which, when taken together with the other evidence, is relevant in the determination of this issue .

ii. Defence evidence
The Kordic Defence submits that there were no Croatian army troops in Central Bosnia. It contends that, while individual soldiers who had previously served with the Croatian army in the Croatian defence against the Serbian attack in 1991 and early 1992 did go on to serve in the HVO, their assistance in the conflict between the Croats and the Muslims was provided on a voluntary basis.
Major-General Filip Filipovic, who testified on behalf of the accused, Dario Kordic, held several high-ranking positions in the HVO throughout the course of the conflict between the HVO and the ABiH in Bosnia and Herzegovina. For a short period in mid-1992, he acted as commander of the HVO forces being organised in Central Bosnia.¹⁰² Thereafter, he served as special headquarters commander of the CBOZ under the command of Colonel Blaskic.¹⁰³ From June 1993 until March 1994, he acted as deputy commander of the CBOZ.¹⁰⁴ He testified that there were no individuals or units from the Croatian army fighting in Central Bosnia.¹⁰⁵ He further stated that, although some individuals in Central Bosnia did wear Croatian army insignia, none of them were actually born and bred in Croatia.¹⁰⁶
Brigadier Luka [ekerija worked as chief of staff in the CBOZ between May 1992 and January 1993. Subsequently, he became chief of staff for the Dr. Ante Starc evic Brigade in Uskoplje.¹⁰⁷ The witness, in cross-examination, denied having received instructions from Croatia and stated that he had, rather, “worked in the interests of Bosnia-Herzegovina alone ”.¹⁰⁸ He further testified that, between January and August 1993, there were no organised units of the Croatian army deployed in the territory of the CBOZ, although some individuals did fight there on behalf of the HVO.¹⁰⁹
Franjo Nakic served as Chief of Staff of the CBOZ from December 1992 until 1996. At the time of his appointment on 1 December, his position was subordinate to that of Colonel Blaskic and his deputy commander at that time, Filip Filipovic.¹¹⁰ He too testified that the Croatian army was never in Central Bosnia; rather the witness testified that he was aware of seven or eight individuals of Bosnian Croat origin, who had fought with the Croatian army against the Serbs and had returned, with their Croatian army uniforms, to fight in Bosnia and Herzegovina.¹¹¹ The witness testified that he was charged with ensuring the removal of the Croatian army insignia, but stated that some of the officers refused to remove their patches and indicia of rank.¹¹²
Rudy Gerritsen, a member of the Dutch army who served with the ECMM in Bosnia and Herzegovina from June 1993 until January 1994, and whose area of responsibility covered Bugojno, Gornji Vakuf and Prozor,¹¹³ testified that during his tour of duty, neither he, nor his colleagues saw Croatian army soldiers in Bosnia and Herzegovina, although he stated that “it appeared to be for us fairly logical that there would be HV involvement in Bosnia-Herzegovina ”.¹¹⁴

iii. Findings
Based upon the foregoing, the Trial Chamber makes the following findings:

1. Although no Croatian army troops were sighted in Central Bosnia,¹¹⁵ neighbouring areas outside Central Bosnia played a strategic role in the conflict between the Bosnian Croats and the Bosnian Muslims (for example, Gornji Vakuf and Prozor fall within the Route Triangle, which, on the evidence of Michael Buffini , was the only operational route between Croatia and Central Bosnia). What is required in relation to the first criterion for determining the international character of an armed conflict, is proof of Croatian intervention in the conflict. This proof may come, not only from evidence of Croatian troops in Central Bosnia, but also from evidence of those troops in neighbouring areas of strategic importance to the conflict in Central Bosnia. There were several sightings of Croatian troops in those areas, and the Chamber infers that some of these troops were being deployed in relation to the conflict in Central Bosnia between the Bosnian Croats and the Bosnian Muslims.

2. Moreover, in cases where the Croatian troops in the areas mentioned above were not deployed in the struggle against the Bosnian Muslims, but to fight the Serbs, that support had a strategic impact on the conflict between the Bosnian Croats and the Bosnian Muslims, by enabling the Bosnian Croats to deploy additional forces in their struggle against the Bosnian Muslims. For that reason, the Chamber concludes that Croatia’s support of the Bosnian Croats constitutes Croatian intervention in the struggle between the Bosnian Croats and the Bosnian Muslims.

3.While volunteer defenders may have accounted for some of the Croatian army troops seen by the monitors and other bodies, they cannot account for the vast majority of Croatian army troops seen in the neighbouring areas of strategic significance to the conflict. The Chamber observes that, even if these persons were not formally part of the Croatian army, they were Croatian citizens, militarily involved in the struggle between the Bosnian Croats and the Bosnian Muslims, in which struggle Croatia was also involved. Moreover, even if it is acknowledged that some of the Croatians involved in the conflict were volunteers and their presence is discounted, this would not affect the general finding by the Trial Chamber that there were Croatian troops involved in the conflict.
For the above reasons, the Chamber finds that the conflict between the Bosnian Croats and the Bosnian Muslims in Bosnia and Herzegovina was internationalised by the intervention of Croatia in that conflict through its troops.
Although this finding would, by itself, be sufficient to dispose of the question of the international status of the conflict, the Chamber will, in the interest of completeness, also consider whether the second criterion for internationalising an internal conflict has been met.

b. Whether the HVO acted on behalf of Croatia
The second test of the international character of an armed conflict was dealt with extensively in the Tadic Appeal Judgement. The Appeals Chamber established that an armed conflict, which is otherwise internal, is internationalised if a foreign state exercises “overall control” over the military forces of one of the parties to that conflict.¹¹⁶ It is the Prosecution’s contention that Croatia exercised such control over the military forces of the Bosnian Croats, the HVO.
The examination of this issue, carried out by the Appeals Chamber in the Tadic case, was done against the background of the test of effective control , which was used by the Trial Chamber in the Tadic case following the decision of the ICJ in the Nicaragua case.¹¹⁷ The Appeals Chamber, in effect, rejected effective control as the appropriate test and found that in the particular situation of the internal conflict it was considering , “overall control” was a sufficient test. Although the Appeals Chamber did not say so in explicit terms, it is clear that the test of overall control is a lower standard than that of effective control, and, accordingly, a lower threshold of proof is required for its establishment. This was confirmed in the Aleksovski case, where the Appeals Chamber stated:

Bearing in mind that the Appeals Chamber in the Tadic Judgement arrived at this test against the background of the “effective control” test set out by the decision of the ICJ in Nicaragua, and the “specific instructions” test used by the Trial Chamber in Tadic, the Appeals Chamber considers it appropriate to say that the standard established by the “overall control” test is not as rigorous as those tests.¹¹⁸
The Chamber observes that the Cerkez Defence appears to proceed on the basis that effective control is still the applicable test for determining when an internal conflict has been internationalised.¹¹⁹
The Appeals Chamber in the Tadic case found that the control required by international law over armed forces or militias or paramilitary units for the purposes of internationalising an internal conflict may be deemed to exist when a State

has a role in organising, coordinating or planning the military actions of the military group, in addition to financing, training and equipping or providing operational support to that group. Acts performed by the group or members thereof may be regarded as acts of de facto State organs regardless of any specific instruction by the controlling State concerning the commission of each of those acts.¹²⁰
The Chamber will examine the evidence to see whether the criteria set by the Tadic Appeal Judgment are satisfied. Essentially, there are two parts to the test:

a) The provision of financial and training assistance, military equipment and operational support;

b) Participation in the organisation, coordination or planning of military operations .

i. Croatia’s provision of assistance to the HVO
Several witnesses gave evidence of Croatia’s logistical support to the HVO. Lieutenant Colonel Remi Landry, testified that he himself identified Croatian logistical units in the area of Prozor,¹²¹ and that it was the ECMM’s assessment that Croatia was providing substantial logistical support to the HVO.¹²² Ismet [ahinovic and Witness AS also gave evidence of the provision by Croatia to the HVO of training ¹²³ and uniforms, vehicles and other supplies.¹²⁴
In addition, the Prosecution adduced 40 exhibits as evidence of what it termed “logistical support given by Croatia to the HVO”. From that number, the Chamber will examine those it considers to be most significant.
Several exhibits referred to Croatia’s provision of military equipment to the HVO. In particular, one exhibit purports to be a chart detailing shipments of military equipment from Croatia to the HVO and the ABiH.¹²⁵ There is a recommendation from the Vitez Military District Office for an individual , who had worked for the HVO in Vitez from March 1992 until 16 April 1993, to receive rank in the Croatian army; this individual’s duties, while a member of the HVO, included procuring “vast quantities of military material for the defence of Central Bosnia through representatives of the Republic of Croatia authorities…”.¹²⁶ Another exhibit notes that the individual being recommended for rank in the Croatian army “participated in the implementation of logistics communications of the Ministry of Defence of the Republic of Croatia for purposes of HV logistical support to Kiseljak HVO units” from April 1992 until early 1993.¹²⁷
Of those exhibits which provide evidence of Croatia’s logistical support to the HVO, the Chamber finds the following particularly persuasive: a receipt for military hardware provided by the Croatian Army Logistics Corps to the municipal headquarters in Vares, dated 30 July 1992;¹²⁸ a certificate from a military post in Split, dated 11 September 1992, confirming that the unit has delivered artillery to the HVO in Bugojno;¹²⁹ an order from Colonel Blaskic to all commanders of municipal headquarters of the HZ H-B, dated 19 September 1992, setting forth instructions for the passage of military equipment from Croatia to Central Bosnia.¹³⁰
A series of orders issued by the Ministry of Defence of the Republic of Croatia , between 21 October and 16 December 1992, call for the provision of military supplies to the HVO for the defence of Bugojno.¹³¹
Several of the exhibits provide evidence of training assistance from Croatia to the HVO. These include¹³² an order from Colonel Blaskic, as commander of the CBOZ to the HVO Vitez unit, dated 24 July 1992, for the training of HVO reconnaissance units in the Republic of Croatia ;¹³³ an order from the HDZ in Mostar to several HVO brigades, dated 25 June 1993, that certain soldiers be sent to Zagreb to attend a course for company commanders.¹³⁴
A number of the exhibits demonstrate cooperation between Croatia and the HVO in relation to the care of the wounded and sick.¹³⁵
In the Kordic Defence’s submission, Croatia provided logistical support to both the HVO and the ABiH in their struggle against a common enemy, the Serbs.¹³⁶ Witness CW1 testified that the Republic of Croatia assisted the HVO and the ABiH equally and that the ABiH maintained logistic bases in Rijeka, Zagreb, Split and Slavonski Brod.¹³⁷

ii. Croatia’s participation in the organisation etc. of military operations
The Prosecution submitted approximately 143 exhibits under the heading “Croatia Direct and Indirect Control of HVO”, the majority of which, in the Chamber’s opinion , are of little probative value in the determination of the question of Croatia’s “overall control” of the HVO.¹³⁸ There are, however, a number of exhibits which indicate Croatia’s territorial ambitions in Bosnia and Herzegovina and which also point to their leadership role in the conflict between the HVO and the ABiH in Bosnia and Herzegovina.
General Bobetko was placed in command of all units of the Croatian army on the southern front of Croatia, which borders Bosnia and Herzegovina, by order of President Tudjman on 10 April 1992.¹³⁹ While in that post, he appointed officers to the defence command of Tomislavgrad “in order to achieve effective, operational and secure command in the units of the HVO of the Croatian Community of Herceg-Bosna”.¹⁴⁰ He also established forward command posts, first in Grude in Bosnia and Herzegovina , located on the border with Croatia, with General Petkovic as commander,¹⁴¹ and thereafter in Gornji Vakuf, a neighbouring municipality to the south, in Central Bosnia.¹⁴² He appointed @arko Tole as commander in Gornji Vakuf with “all the authorities of co-ordinating and commanding forces in the Central Bosnia region (Busovaca, Vitez, Novi Travnik, Travnik, Bugojno , Gornji Vakuf, Prozor, Tomislavgrad, Posusje)”.¹⁴³
The Chamber is satisfied that General Bobetko’s activities are an illustration of the supervisory role exercised by Croatia over the HVO during the conflict between the Bosnian Muslims and the Bosnian Croats. Although the evidence relating to General Bobetko covers a period prior to the outbreak of the armed conflict between the Bosnian Croats and the Bosnian Muslims in Bosnia and Herzegovina, the Chamber is satisfied that General Bobetko’s influence and leadership continued throughout that conflict. It would be artificial to draw a line of demarcation on temporal grounds for the purpose of determining the issues raised by this question. The Chamber observes that the Trial Chamber in the Blaskic case, which covers roughly the same geographical area and time-period as this case, attached significant weight to General Bobetko’s role in its consideration of this question.¹⁴⁴
Witness CW1, a high-ranking officer in the HVO from April 1992 to April 1994 , testified that, while in his former position, part of his salary was paid by the Croatian government, and the remainder (approximately 40–50 per cent) was paid by the authorities of the Bosnian Croats.¹⁴⁵
The Kordic Defence contends that the relevant inquiry, in relation to the “ overall control” criterion, is whether the Prosecution has proved that Croatia exercised overall control over the HVO in Central Bosnia, in particular. Therefore, evidence of overall control relating to areas in Bosnia and Herzegovina other than Central Bosnia, it is argued, is not relevant.¹⁴⁶
The Chamber has previously addressed the Defence argument that any inquiry into the character of an internal armed conflict must be narrowly confined in geographical terms to the area of the hostilities. The Chamber observes that the geographical element is less critical for the purposes of establishing “overall control” than it is in relation to the criterion for internationalising an armed conflict through a foreign State’s intervention through its troops. What the Prosecution must establish is that Croatia exercised control over the HVO in relation to the conflict between the Bosnian Croats and the Bosnian Muslims.
The Cerkez Defence also contends that the Prosecution must prove “that the Defendant, as a commanding officer, acted on orders of the Army or of superior Croatian officials.”¹⁴⁷ The short answer to this argument is that one of the features of the “overall control” test, as enumerated by the Appeals Chamber in Tadic, is that the act of a member of a military group may be regarded as the act of a controlling State, regardless of any specific instructions by that State regarding the commission of such act.¹⁴⁸
Witness CW1 acknowledged a close link between the Croatian army and the HVO in their common struggle against Serbian aggression. He testified that “it was quite logical for us to be linked together and it was also logical for the commander of the southern front, General Bobetko, to send his people there to monitor the situation and to act as coordinators, because if the front line at Livno collapsed , the whole of southern Croatia would have been lost.”¹⁴⁹
In response to a question from the Prosecution, Witness CW1 testified that the individuals appointed by General Bobetko to “achieve effective operation and secure command in the HVO units of the Croatian Community of Herceg-Bosna”,¹⁵⁰ were all citizens of Bosnia and Herzegovina who had joined the Croatian army in 1991 and were returning to defend their homeland.¹⁵¹
President Tudjman, who had been elected as President of Croatia in 1991 on a nationalist platform, had long harboured hopes to expand the borders of the modern State of Croatia into the Republic of Bosnia and Herzegovina to encompass those areas with a majority Bosnian Croat population. By declaring Croatia as a State for the Croatian people, he encouraged loyalty from Croats living outside the territorial boundaries of the Croatian State, including the 800,000 Croats living in neighbouring Bosnia and Herzegovina; to this end, ethnic Croats residing abroad were given the right to vote in national elections.¹⁵²
President Tudjman’s formal recognition of the sovereign independence of Bosnia and Herzegovina, an act upon which the Defence places much emphasis,¹⁵³ is offset by the many expressions of his territorial ambitions in Bosnia. Dr. Allcock , an expert witness called by the Prosecution, observes that in the publication Nationalism in Contemporary Europe¹⁵⁴ Tudjman “insists that Bosnia and Herzegovina ‘should have been made a part of the Croatian federal unit’, since together they ‘comprise an indivisible geographic and economic entity’.” Consequently, Dr. Allcock argues, Tudjman is convinced of the artificiality of Bosnian statehood.¹⁵⁵ Dr. Allcock states that while these views of Tudjman’s were published in 1981 “there is no indication that he has modified his ideas subsequently”.¹⁵⁶
Multiple references to the “natural borders” of Croatia can be found in Tudj man’s speeches and, indeed, the HDZ’s Program insists on the “territorial entirety of the Croatian nation in its historical and natural borders”.¹⁵⁷ The significance of this phrase in Tudjman’s parlance was revealed by a witness who testified in the Blaskic case that in Nationalism in Contemporary Europe , Tudjman develops the notion that the boundaries of the Croatian banovina , defined by agreement in 1939, most accurately reflected these “natural borders ”. The banovina incorporated the whole of western Herzegovina and Mostar , as well as Bosnian districts where Croats had a clear majority¹⁵⁸ in Croatia.
The view that President Tudjman harboured territorial ambitions in respect of Bosnia and Herzegovina, despite his official position to the contrary, is strengthened by reports of discussions held between Tudjman and Milosevic, against the backdrop of the break-up of the Yugoslav federation in 1991. The two leaders are reported to have met and considered a partition of Bosnia in which Milosevic would have gained control over eastern Herzegovina, while the western part of the country, home to the majority of the Bosnian Croat population, would have become part of Croatia.
President Tudjman himself acknowledged to Mr. Ashdown, a U.K. politician, in 1991 that he and Milosevic shared an understanding as to how the territory of Bosnia and Herzegovina would be divided between them, although he denied the existence of a formal agreement at that time. In the Blaskic case, Mr. Ashdown testified that, at his request, President Tudjman had drawn a map of Bosnia and Herzegovina on a dinner menu showing the proposed line of partition. A copy of this sketch, as annotated by Mr. Ashdown, has been admitted in this case. ¹⁵⁹
Dr. Allcock argues that President Tudjman’s interest in western Herzegovina and Central Bosnia most likely extended beyond a sense of common national identity and shared history, to reflect strategic economic interests.¹⁶⁰ He observes that Croatia’s topography and lack of natural resources means that it is dependent on Bosnia and Herzegovina, both for its energy supply and as a territorial link between north and south Croatia. Tudjman himself had clearly reflected upon this, as evidenced by the following statements from his publication, Nationalism in Contemporary Europe:

… Bosnia and Hercegovina were historically linked with Croatia and together comprise an indivisible geographic and economic entity. Bosnia and Hercegovina occupy the central part of this whole, separating southern (Dalmatian) from northern (Pannonian ) Croatia. The creation of a separate Bosnia and Hercegovina makes the territorial and geographic position of Croatia extremely unnatural in the economic sense . . .¹⁶¹
Ties between President Tudjman, as head of the HDZ in Croatia, and the leadership of the HZ H-B and the HDZ H-B, were strong throughout the conflict. Stjepan Kljuic, the first leader of the HDZ BiH, testified that he was forcibly removed from that position and replaced by Mate Boban in October 1992 who benefited from Tudjman’s support.¹⁶² Mr. Kljuic testified that Mate Boban’s policies, in contradistinction to his own, were “what many people in Zagreb wanted to hear”.¹⁶³
The Chamber also notes in this context, the gradual “Croatianisation” of the HZ H-B, as evidenced by the flying of the Croatian flag over buildings of public authorities,¹⁶⁴ widespread use of the Croatian currency,¹⁶⁵ and Tudj man’s representation of the Bosnian Croats in many international forums. Tudjman’s close links to the Bosnian Croat leadership were even recognised by the Security Council, which, in its resolution dated 10 May 1993 called upon the Republic of Croatia “to exert all its influence on the Bosnian Croat leadership and paramilitary units with a view to ceasing immediately their attacks particularly in the area of Mostar, Jablanica and Dreznica”.¹⁶⁶
General Sir Martin Garrod, former British Marine, served in Bosnia during the time-period of the Indictment, initially as head of the co-ordinating centre in Mostar, from June through September 1993, then he took over as head of the Regional Centre of the ECMM in Zenica until April 1994, when he was appointed chief of staff of the European Community administration in Mostar.¹⁶⁷ He testified that “[t]he Croats carried Croatian passports, they voted in Croatian elections, and they sang the Croatian national anthem. So, in other words, as far as they were concerned, President Tudjman was their President”.¹⁶⁸ He also observed that a number of Herzegovinian Croats held positions in the Croatian government, most notably the Defence minister, Gojko [usak.¹⁶⁹
The Trial Chamber finds that President Tudjman harboured territorial ambitions in respect of Bosnia and Herzegovina, and that was part of his dream of a Greater Croatia, including Western Herzegovina and Central Bosnia.
Against that background, the prosecution case, that Croatia intervened in the conflict to support the Bosnian Croats and provided logistical support and provided leadership in the planning, coordination and organisation of the HVO, becomes more credible. The significance of the evidence of Croatia’s territorial ambitions in Bosnia and Herzegovina has been explained by the Appeals Chamber in this way:

Where the controlling State in question is an adjacent State with territorial ambitions on the State where the conflict is taking place, and the controlling State is attempting to achieve its territorial enlargement through the armed forces which it controls , it may be easier to establish the threshold.¹⁷⁰
The “threshold” to which the Appeals Chamber is referring in the above-mentioned quotation, is the level of control that a foreign State must exercise over armed forces engaged in an internal conflict in another State in order to internationalise that conflict.
Based upon the foregoing, the Chamber is satisfied that Croatia exercised overall control over the HVO through its provision to the HVO of financial and training assistance, military equipment and operational support, and by its participation in the organisation, coordination and planning of military operations of the HVO . The Chamber therefore finds that, on that basis, the conflict between the HVO and the ABiH was rendered international.
The Chamber concludes that the evidence in this case satisfies each of the alternative criteria set forth in the Tadic Appeal Judgement for internationalising an internal conflict, and is fortified in this conclusion by a similar finding made by the Trial Chamber in the Blaskic case, which covered essentially the same time-period and geographical area as this case.¹⁷¹
(b) Whether the Bosnian Muslims were “protected” persons
Article 4 of Geneva Convention IV defines protected persons as:

those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the Conflict or Occupying Power of which they are not nationals.
The question of protected persons was extensively considered by the Appeals Chamber in the Tadic Appeal Judgement, which was followed by the Appeals Chamber in the Aleksovski and Celebici cases. Those decisions are binding on this Chamber.
As to the contention, raised by both the accused persons, that, since the Bosnian Muslims victims were of the same nationality as their Bosnian Croat captors, the requirement under Article 4 of Geneva Convention IV is not met, the Appeals Chamber’s judgements in Tadic, Aleksovski and Celebici provide two responses .¹⁷²
In the first place, the Aleksovski Appeal Judgement, following the reasoning in Tadic, concludes that the finding that the conflict was international by reason of Croatia’s participation necessarily means that the Bosnian Muslim victims were in the hands of a party to the conflict, namely Croatia, of which they were not nationals. Therefore, Article 4 of Geneva Convention IV is applicable.
By parity of reasoning, the Trial Chamber’s finding that the conflict in this case was internationalised means that the Bosnian Muslim victims were in the hands of a party to the conflict, namely Croatia, of which they were not nationals. The Bosnian Muslim victims are, therefore, protected persons under Article 4 of Geneva Convention IV.
Secondly, on the basis of a teleological interpretation of Article 4 of Geneva Convention IV, the Appeals Chamber in Tadic concluded that “allegiance to a Party to the conflict and, correspondingly, control by this Party over persons in a given territory, may be regarded as the crucial test.”¹⁷³ In such a case, nationality is not as crucial as allegiance to a party. In accordance with this interpretation, which the Appeals Chamber in Aleksovski found to be “particularly apposite in the context of present day inter-ethnic conflicts”,¹⁷⁴ the Bosnian Muslim victims are protected persons since they owe no allegiance to the Bosnian Croats under whose effective control they were. This interpretation accords with the general purpose of Geneva Convention IV, which is to provide protection for civilians in an armed conflict.
If Tadic might have been equivocal as to the application of the allegiance test in determining the status of protected persons under Article 4 of Geneva Convention IV, the Appeals Chamber in Celebici put this matter beyond doubt. In the first place, the Chamber stressed that the meaning to be given to nationality under Article 4 must be determined on the basis of international, not national, law. Then, emphasising the need for a purposive construction of Article 4, the Appeals Chamber held, first, that:

[d]epriving victims, who arguably are of the same nationality under domestic law as their captors, of the protection of the Geneva Conventions solely based on that national law would not be consistent with the object and purpose of the Conventions . Their very object could indeed be defeated if undue emphasis were placed on formal legal bonds, which could also be altered by governments to shield their nationals from prosecution based on the grave breaches provisions of the Geneva Conventions .¹⁷⁵

and

The nationality of the victims for the purpose of the application of Geneva Convention IV should not be determined on the basis of formal national characterisations, but rather upon an analysis of the substantial relations, taking into consideration the different ethnicity of the victims and the perpetrators, and their bonds with the foreign intervening State.¹⁷⁶
Applying the decisions of the Appeals Chamber in the Tadic, Aleksovski and Celebici cases to the present case, the Chamber finds that the Bosnian Muslim victims were in the hands of a party to the conflict, namely the Bosnian Croats, to whom they owed no allegiance.
The Chamber will now deal with two specific arguments raised by the Defence .
The Defence for both accused have argued that, by reason of Article 4(2) of Geneva Convention IV, the Bosnian Muslims are not protected persons for the reason that Croatia and Bosnia and Herzegovina were co-belligerents in a conflict with the Serbs. Article 4(2) provides:

. . . nationals of a co-belligerent State, shall not be regarded as protected persons while the State of which they are nationals has normal diplomatic representation in the State in whose hands they are.
The Chamber dismisses this argument for the reason that the Indictment in this case is concerned, not with a conflict between Bosnia and Herzegovina and Croatia on the one hand, and the Serbs on the other, but with a conflict between the Bosnian Croats and the Bosnian Muslims in Bosnia and Herzegovina; in respect of that conflict , Bosnia and Herzegovina and Croatia were plainly not co-belligerents.
The Defence for both accused persons have argued that the finding that the Bosnian Muslims were protected persons because they were in the hands of a party to the conflict, namely Croatia, of which they were not nationals, gives rise to unequal treatment, in that Bosnian Croat victims would not, on the basis of that finding, qualify as protected persons, since there would be no corresponding foreign State as a captor. The Trial Chamber observes that under the “allegiance test” no question of unequal treatment would arise, since, in the same way that the Bosnian Muslims owe no allegiance to the Bosnian Croats, the Bosnian Croats would owe no allegiance to the Bosnian Muslims.
The Trial Chamber, therefore, concludes that the requirement in Article 4 of Geneva Convention IV, that the victims be protected persons, has been met.
Based upon its findings that the armed conflict between the Bosnian Croats and the Bosnian Muslims was internationalised for the reasons given, and that the Bosnian Muslims qualify as protected persons under Geneva Convention IV, the Trial Chamber holds that Article 2 is applicable in the circumstances of this case.

C. Article 3 of the Statute
Both Dario Kordic and Mario Cerkez are charged with offences under Article 3 of the Statute. Article 3 of the Statute, entitled “Violations of the laws or customs of war”, provides:

The International Tribunal shall have the power to prosecute persons violating the laws or customs of war. Such violations shall include, but not be limited to:

(a) employment of poisonous weapons or other weapons calculated to cause unnecessary suffering;

(b) wanton destruction of cities, towns or villages, or devastation not justified by military necessity;

(c) attack, or bombardment, by whatever means, of undefended towns, villages, dwellings , or buildings;

(d) seizure of, destruction or wilful damage done to institutions dedicated to religion , charity and education, the arts and sciences, historic monuments and works of art and science;

(e) plunder of public or private property.

1. Whether Article 3 Covers Internal Armed Conflicts
The Kordic Defence submits that Article 3 does not apply to acts committed in internal conflicts. According to its contention, unlike Article 5, which expressly states that it covers armed conflicts “whether international or internal in character ,” Article 3 is silent as to whether it applies to internal armed conflicts. The Defence interprets this silence as limiting Article 3 to internal armed conflicts .¹⁷⁷ In particular, the Defence would exclude the prohibition of “devastation not justified by military necessity ” from internal armed conflicts. According to the Defence, this prohibition codifies the 1907 Hague Convention (IV),¹⁷⁸ which does not apply to internal armed conflicts.¹⁷⁹
The International Tribunal case-law is well-settled in this area, following the Appeals Chamber’s finding that

under Article 3, the International Tribunal has jurisdiction over the acts alleged in the indictment, regardless of whether they occurred within an internal or an international armed conflict.¹⁸⁰

It is not for this Trial Chamber to dissent from that finding, according to the established doctrine of precedent in the practice of the International Tribunal.¹⁸¹
Furthermore, as this Chamber has found, above, in the relevant period of time and region covered by the Indictment, there existed an international armed conflict involving the HV, the HVO - being agents of the Republic of Croatia - and the ABiH . The legal issue of an internal conflict does not therefore arise in this context .

2. Whether Common Article 3 of the Geneva Conventions, Additional Protocols I and II, were Customary Law
The Kordic Defence argues that Common Article 3 of the Geneva Conventions, as well as Additional Protocols I and II were not unquestionably part of customary international law at the time when the crimes charged in the Indictment were allegedly committed. It points to the example of Articles 51(2) and 52(1) of Additional Protocol I. Although the Trial Chamber has found these provisions to be part of customary international law,¹⁸² the Defence argues that the failure of the 1994 Draft Statute for the International Criminal Court to include them illustrates that the Protocol was not part of customary international law in 1994.¹⁸³
The Defence further maintains that whether or not Common Article 3 and Additional Protocols I and II were customary international law in 1992 and 1993, they did not provide for individual criminal responsibility at that time, and do not do so now . According to the Defence, breaches other than grave breaches do not entail individual criminal responsibility. Rather, the contracting parties of the Geneva Conventions agreed to “suppress” violations under national law only.¹⁸⁴
The Trial Chamber notes that the issue of whether Common Article 3 of the Geneva Conventions, as well as Additional Protocols I and II, reflected customary law at the time when the offences charged in the Indictment were allegedly committed, is of limited scope in this case, given that the Indictment is concerned with activities which unfolded in the course of an international armed conflict. The question is whether Additional Protocol I reflected international law at the relevant time. However, even that question does not pose any obstacle for the application of Article 3 of the Statute in this case. For Article 3, in the view of the Appeals Chamber ,

confers on the International Tribunal jurisdiction over any serious offence against international humanitarian law not covered by Article 2, 4 or 5. Article 3 is a fundamental provision laying down that any “serious violation of international humanitarian law” must be prosecuted by the International Tribunal.¹⁸⁵

Article 3 covers violations which are not only custom-based, but also treaty-based . It is settled that the International Tribunal also has jurisdiction over violations which are prohibited by international treaties.¹⁸⁶ The former Socialist Federal Republic of Yugoslavia ratified Additional Protocol I in 1979. The RBiH deposited its Declaration of Succession on 31 December 1992 to succeed to the Geneva Conventions and the Additional Protocols. Croatia did likewise on 11 May 1992. According to international practice, these two States became parties to the Conventions and the Additional Protocols from their respective dates of independence: 8 October 1991 for Croatia and 6 March 1992 for RBiH.¹⁸⁷ As Additional Protocol I has since 1979 been applicable to the territory of the two States, whether it reflected customary law at the relevant time in this case is beside the point.¹⁸⁸
As to the argument that Additional Protocol I does not entail individual criminal responsibility, the Trial Chamber recalls a statement in the Tadic Jurisdiction Decision:

Faced with similar claims with respect to the various agreements and conventions that formed the basis of its jurisdiction, the International Military Tribunal at Nuremberg concluded that a finding of individual criminal responsibility is not barred by the absence of treaty provisions on punishment of breaches. … because, as the Nuremberg Tribunal concluded “[c]rimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.”¹⁸⁹

The Appeals Chamber in that case had no difficulty in finding that customary law “imposes criminal liability for serious violations of Common Article 3” of the Geneva Conventions,¹⁹⁰ an article that contains no reference to individual responsibility. This finding was reaffirmed by the Appeals Chamber in Celebici.¹⁹¹
By analogy, violations of Additional Protocol I incur individual criminal liability in the same way that violations of Common Article 3 give rise to individual criminal liability.

D. Article 5 of the Statute
Article 5 of the Statute proscribes specified crimes such as murder, deportation , torture, rape and persecution on political, racial and religious grounds “directed against any civilian population” when committed in an armed conflict. Of relevance to the present Judgement are the offences of persecutions, murder, imprisonment, and inhumane acts with which the accused are charged as crimes against humanity.¹⁹² Article 5 of the Statute, entitled “Crimes against humanity”, reads:

The International Tribunal shall have the power to prosecute persons responsible for the following crimes when committed in armed conflict, whether international or internal in character, and directed against any civilian population:
(a) murder;
(b) extermination;
(c) enslavement;
(d) deportation;
(e) imprisonment;
(f) torture;
(g) rape;
(h) persecutions on political, racial and religious grounds;
(i) other inhumane acts.
The Trial Chamber will first consider the common elements required for the application of Article 5 of the Statute before turning to an analysis of the elements of the relevant offences. The majority of the elements that need to be established in order for a crime against humanity to be proved have been the subject of the jurisprudence of this International Tribunal, and also that of the International Criminal Tribunal for Rwanda (“ICTR”), to which the Trial Chamber will refer. Certain elements have also been elucidated by the Appeals Chamber, which findings bind Trial Chambers.

1. Widespread or systematic attack against any civilian population
(a) Arguments of the parties
The Prosecution submits that the civilian population does not lose its civilian character as a result of the presence of armed forces, and includes all persons no longer taking part in hostilities.¹⁹³
The Defence contends that an attack is “directed against any civilian population ” only if the objective of the attacker is to attack civilians.¹⁹⁴ According to the Defence, the presence of military units inside an area may change the “civilian” character of a population.¹⁹⁵ It is therefore the presence of a legitimate military objective, not the “civilian /non-civilian mix”, that should determine the character of the population. The accused cannot be expected to determine this ratio accurately prior to attacking the target.¹⁹⁶
The Prosecution takes the position that crimes against humanity must involve attacks that are widespread or systematic, citing the Tadic Trial Chamber’s finding that “widespread” refers to the number of victims, whereas “systematic ” signifies the existence of a pattern or methodical plan.¹⁹⁷
The Defence disagrees with the holding in the Tadic Trial Judgment that crimes against humanity must involve attacks that are widespread or systematic .¹⁹⁸ The Defence submits that the criminal acts must have taken place in the context of attacks that are widespread and systematic.¹⁹⁹
The Prosecution relies on the Blaskic approach, which, in its view, refrained from imposing the burden of proving a policy or plan as a general requirement of crimes against humanity or a specific requirement of the element of “systematic ,”²⁰⁰ for its assertion that proof of a plan or policy is not an element of crimes against humanity. While evidence of such a policy could support the determination of a systematic attack, the Prosecution submits that other relevant evidence or a combination of evidence could also establish that element beyond a reasonable doubt, relying upon the proposition in the Kupreskic Trial Judgement that a policy does not have to be “explicitly formulated nor need it be the policy of a State” in order to fulfil the “systematic” aspect of an attack. Reference is made to the Kupreskic Trial Chamber’s finding that a crime need not be part of a policy or practice officially endorsed or tolerated by one of the parties to the conflict, or that the act be in actual furtherance of a policy associated with the conduct of the war or in the actual interest of a party to the conflict in order to be “systematic”.²⁰¹
The Defence argues that the alleged criminal acts must have been committed in furtherance of a “formal state policy.” The accused must have intended to advance that policy and shared the aims behind that policy. According to the Defence, crimes against humanity are different from war crimes because they include the element of “proof of systematic governmental planning.”²⁰²
(b) Discussion
The requirement that an attack, to qualify as a crime against humanity, imports the requirement that the accused’s acts must be related to a widespread or systematic attack on a civilian population is now settled in the International Tribunal’s jurisprudence .²⁰³ It is also generally accepted that the requirement that the occurrence of crimes be widespread or systematic is a disjunctive one.²⁰⁴ This requirement is intended to ensure that it is crimes of a collective nature that are penalised whereby, in the words of the Tadic Trial Chamber, an individual is “victimised not because of his individual attributes but rather because of his membership of a targeted civilian population.”²⁰⁵ Although generally, because of their very nature, offences which are characterised as crimes against humanity are part of a course of conduct, Trial Chambers have also accepted that a single isolated act by a perpetrator, if linked to a widespread or systematic attack, could constitute a crime against humanity.²⁰⁶
The Blaskic Trial Chamber clarified the meaning of the “systematic” requirement. It held that this requirement refers to the following four elements : (1) the existence of a political objective, a plan pursuant to which the attack is perpetrated or an ideology, in the broad sense of the word, that is, to destroy , persecute or weaken a community; (2) the perpetration of a criminal act on a very large scale against a group of civilians or the repeated and continuous commission of inhumane acts linked to one another; (3) the preparation and use of significant public or private resources, whether military or other; (4) the implication of high-level political and/or military authorities in the definition and establishment of the methodical plan.²⁰⁷ Moreover , a crime may be widespread or committed on a large scale by the “cumulative effect of a series of inhumane acts or the singular effect of an inhumane act of extraordinary magnitude”.²⁰⁸
The meaning to be attached to “civilian population” has also been clarified by Trial Chambers. A population may be considered as “civilian” even if certain non-civilians are present – it must simply be “predominantly civilian in nature.”²⁰⁹ Moreover, a wide definition of what constitutes a civilian population was adopted . It was decided that individuals who at one time performed acts of resistance may in certain circumstances be victims of a crime against humanity:²¹⁰

Crimes against humanity therefore do not mean only acts committed against civilians in the strict sense of the term but include also crimes against two categories of people: those who were members of a resistance movement and former combatants – regardless of whether they wore uniforms or not – but who were no longer taking part in hostilities when the crimes were perpetrated because they had either left the army or were no longer bearing arms or, ultimately, had been placed hors de combat, in particular due to their wounds or their being detained. It also follows that the specific situation of the victim at the moment the crimes were committed, rather than his status, must be taken into account in determining his standing as a civilian. Finally, it can be concluded that the presence of soldiers within an intentionally targeted civilian population does not alter the civilian nature of that population.²¹¹

The Trial Chamber finds this holding persuasive.
Whether there is a requirement that some form of policy to commit acts against a civilian population be demonstrated is not uncontroversial in the International Tribunal’s jurisprudence. The Tadic Trial Chamber found that the existence of “forces which, although not those of the legitimate government, have de facto control over, or are able to move freely within, defined territory”²¹² has been taken into account by the law in relation to crimes against humanity. It also found that the policy could be that of any organisation or group and need not be the policy of a State.²¹³ The Blaskic Trial Chamber, after holding that the plan “need not necessarily be declared expressly or even stated clearly and precisely”, went on to refer to events from which the existence of a plan may be inferred.²¹⁴ It thus agreed with Kupreskic that “a policy need not be explicitly formulated , nor need it be the policy of a State.”²¹⁵ The Appeals Chamber did not refer to this requirement specifically as it was not the subject of a ground of appeal.
The Trial Chamber agrees that it is not appropriate to adopt a strict view in relation to the plan or policy requirement. In particular, it endorses the Kupreskic finding that “although the concept of crimes against humanity necessarily implies a policy element, there is some doubt as to whether it is strictly a requirement, as such, for crimes against humanity.” In the Chamber’s view, the existence of a plan or policy should better be regarded as indicative of the systematic character of offences charged as crimes against humanity.

2. Mental Element
The Prosecution agrees with the holding in Blaskic that for purposes of Article 5, the mens rea is satisfied if an accused knowingly “took the risk of participating in the implementation of that context.”²¹⁶ The Prosecution further submits that an accused need not seek out all the elements of the context of an attack in order for him to knowingly participate in that context . Rather, according to the Prosecution, the accused’s knowledge of the attack may be actual or constructive.²¹⁷ It may be inferred from a concurrence of concrete facts, such as the historical and political circumstances in which the acts occurred, the scope and gravity of the acts perpetrated, or the nature of the crimes committed and the degree to which they were common knowledge.²¹⁸
The Defence submits that an individual who commits an act enumerated under Article 5, but without any desire to advance the improper government policy, may possess the mens rea necessary to commit a crime, but not a crime against humanity. Similarly, an individual who sees his State pursuing an improper policy and endeavours to assist out of a sense of loyalty (for example), but without the “ideologically malevolent intent” that underlies the state policy, does not possess the mens rea required to commit a crime against humanity.²¹⁹
That the perpetrator must have knowledge of the wider context in which his acts occur, i.e., that he must know that his acts are performed in the context of a widespread or systematic attack, does not appear to be controversial any more in the jurisprudence of the International Tribunal.²²⁰ Further, the Appeals Chamber has held that the accused must have known that his acts were related to the attack on a civilian population.²²¹ There is no apparent requirement in the jurisprudence of either the Trial Chambers or the Appeals Chamber, that the perpetrator must approve of the context in which his acts occur, as well as have knowledge of it. The Trial Chamber finds the following statement, as referred to in Kupreskic and Blaskic, which is taken from the ICTR Kayishema Judgement, persuasive:

[t]he perpetrator must knowingly commit crimes against humanity in the sense that he must understand the overall context of his act. [...] Part of what transforms an individual’s act(s) into a crime against humanity is the inclusion of the act within a greater dimension of criminal conduct; therefore an accused should be aware of this greater dimension in order to be culpable thereof. Accordingly, actual or constructive knowledge of the broader context of the attack, meaning that the accused must know that his act(s) is part of a widespread or systematic attack on a civilian population and pursuant to some sort of policy or plan, is necessary to satisfy the requisite mens rea element of the accused.²²²
The Appeals Chamber in Tadic clarified another issue in relation to the requisite mens rea for crimes against humanity. It rejected the view that to constitute a crime against humanity all relevant acts or omissions must be undertaken by the perpetrator on discriminatory grounds.²²³ The Appeals Chamber determined that discriminatory intent “is an indispensable legal ingredient of the offence only with regard to those crimes for which this is expressly required, that is, for Article 5(h), concerning various types of persecution.”²²⁴
It is also settled that the motives of the accused are not relevant in this context.²²⁵ The Appeals Chamber further rejected the Tadic Trial Chamber’s interpretation to the effect that the accused’s acts may not be committed for purely personal motives.²²⁶ It is thus now settled in the jurisprudence of the International Tribunal that

crimes against humanity can be committed for purely personal reasons, provided it is understood that the two aforementioned conditions - that the crimes must be committed in the context of widespread or systematic crimes against a civilian population and that the accused must have known that his acts, in the words of the Trial Chamber, ‘fitted into such a pattern’ - are met.²²⁷