749. In the course of this trial, the Trial Chamber has had to assess the
involvement , if any, of the six accused and their potential culpability within
a tragic episode of the armed conflict that raged in Bosnia and Herzegovina
between 1992 and 1994 . On 16 April 1993, in a matter of few hours, some 116
inhabitants, including women and children, of Ahmici, a small village in central
Bosnia, were killed and about 24 were wounded; 169 houses and two mosques were
destroyed. The victims were Muslim civilians. The Trial Chamber is satisfied,
on the evidence before it in this case , that this was not a combat operation.
Rather, it was a well-planned and well-organised killing of civilian members
of an ethnic group, the Muslims, by the military of another ethnic group, the
Croats. The primary purpose of the massacre was to expel the Muslims from the
village, by killing many of them, by burning their houses and their livestock,
and by illegally detaining and deporting the survivors to another area. The
ultimate goal of these acts was to spread terror among the population so as
to deter the members of that particular ethnic group from ever returning to
750. This tragedy carried out in a small village reflects in a microcosm the
much wider tensions, conflicts and hatreds which have, since 1991, plagued the
former Yugoslavia and caused so much suffering and bloodshed. In a matter of
a few months , persons belonging to different ethnic groups, who used to enjoy
good neighbourly relations, and who previously lived side by side in a peaceful
manner and who once respected one another’s different religious habits, customs
and traditions, were transformed into enemies. Nationalist propaganda gradually
fuelled a change in the perception and self-identification of members of the
various ethnic groups. Gradually the “others”, i.e. the members of other ethnic
groups, originally perceived merely as “diverse”, came instead to be perceived
as “alien” and then as “enemy”; as potential threats to the identity and prosperity
of one’s group. What was earlier friendly neighbourly coexistence turned into
persecution of those “others”.
751. Persecution is one of the most vicious of all crimes against humanity. It nourishes its roots in the negation of the principle of the equality of human beings . Persecution is grounded in discrimination. It is based upon the notion that people who share ethnic, racial, or religious bonds different to those of a dominant group are to be treated as inferior to the latter. In the crime of persecution, this discriminatory intent is aggressively achieved by grossly and systematically trampling upon the fundamental human rights of the victim group. Persecution is only one step away from genocide – the most abhorrent crime against humanity - for in genocide the persecutory intent is pushed to its uttermost limits through the pursuit of the physical annihilation of the group or of members of the group. In the crime of genocide the criminal intent is to destroy the group or its members ; in the crime of persecution the criminal intent is instead to forcibly discriminate against a group or members thereof by grossly and systematically violating their fundamental human rights. In the present case, according to the Prosecution - and this is a point on which the Trial Chamber agrees - the killing of Muslim civilians was primarily aimed at expelling the group from the village, not at destroying the Muslim group as such. This is therefore a case of persecution, not of genocide.
752. The fact that in this area of Bosnia and Herzegovina, the armed conflict frequently took the form of persecution is vividly depicted in the words of one Muslim woman mentioned by one of the witnesses in this trial. “I do not fear the shells and bombs that may fall on my house,” she said. “They do not ask for my name. I fear the foot soldiers who break into my house and kill and wound in a very personal way and commit atrocities in front of the children”. The main target of these attacks was the very identity – the very humanity – of the victim.
753. The “personal violence” most feared by this Muslim woman is that which is carried out against other human beings solely upon the basis of their ethnic, religious or political affiliation. It is persecutory violence.
754. The massacre carried out in the village of Ahmici on 16 April 1993 comprises an individual yet appalling episode of that widespread pattern of persecutory violence . The tragedy which unfolded that day carried all the hallmarks of an ancient tragedy . For one thing, it possessed unity of time, space and action. The killing, wounding and burning took place in the same area, within a few hours and was carried out by a relatively small groups of members of the Bosnian Croatian military forces: the HVO and the special units of the Croatian Military Police, the so-called Jokers . Over the course of the several months taken up by these trial proceedings, we have seen before us, through the narration of the victims and the survivors, the unfolding of a great tragedy. And just as in the ancient tragedies where the misdeeds are never shown but are only recounted by the actors, numerous witnesses have told the Trial Chamber of the human tragedies which befell so many of the ordinary inhabitants of that small village.
755. Indisputably, what happened on 16 April 1993 in Ahmici has gone down in history as comprising one of the most vicious illustrations of man’s inhumanity to man. Today, the name of that small village must be added to the long list of previously unknown hamlets and towns that recall abhorrent misdeeds and make us all shudder with horror and shame: Dachau, Oradour sur Glâne, Katijn, Marzabotto, Soweto, My Lai, Sabra and Shatila, and so many others.
756. To be sure, the primary task of this Trial Chamber was not to construct a historical record of modern human horrors in Bosnia and Herzegovina. The principal duty of the Trial Chamber was simply to decide whether the six defendants standing trial were guilty of partaking in this persecutory violence or whether they were instead extraneous to it and hence, not guilty.
757. At the end of the trial, we have come to the conclusion that, with the possible exception of one of the accused, this Trial Chamber has not tried the major culprits , those most responsible for the massacre of 16 April 1993, those who ordered and planned, and those who carried out the very worst of the atrocities against innocent civilians.
758. We thus had to confine ourselves to the six persons accused by the Prosecutor before our Trial Chamber, to determine whether and to what extent they participated in the crimes perpetrated in Ahmici. Our task has not been easy. More than six years after those events – events that occurred far away from The Hague – we have had to shoulder the heavy burden of establishing incredible facts by means of credible evidence.
759. We have now accomplished our arduous task and our findings, on the evidence before us, are as follows.
B. Existence of an Armed Conflict
760. The attack on Ahmici was undertaken as part of the beginning of the Croat-Muslim war and is thus sufficiently closely related to an armed conflict. The attack was not a single or unauthorised event brought about by rogue factions of the HVO or the Military Police. It was part of an overall campaign in the Lasva River Valley , intended to bring about “ethnic cleansing” through a systematic and widespread attack as a pre-condition of unrestricted Croat dominance over the area, promoted or at least condoned by the HVO and Military Police, and more generally, by the leadership of Croatia.
The reason for this forced expulsion was the achievement of territorial homogeneity by the Croats. The Muslims were identified as the group that was to be expelled.
C. The Persecutory Nature of the Croatian Attack on Ahmici on 16 April 1993 -Ahmici as an undefended village
761. The entirety of the evidence brought before the Trial Chamber shows that the attack by the Croats was a planned and highly organised operation. The use of different classes of heavy weaponry such as rocket launchers and anti-aircraft guns proves that it was not only an operation by a special purpose unit like the Jokers, who did not dispose of such an arsenal, but that the HVO as a professional army was itself actively involved in the attack. The Trial Chamber is satisfied that there were no significant military units or installations of the BiH present in the area of the village at the time of the attack, but that the HVO and Military Police actually exploited the absence of the BiH for a surprise attack on the village.
762. The Trial Chamber also finds beyond reasonable doubt that the attack was not a military combat operation such as a pre-emptive defensive strike against a threat of Muslim armed aggression. On the contrary, the aim of the attack was the forced expulsion of the Muslim population from the area, as from the entire Lasva River Valley. The attack was carried out in an indescribably cruel manner, sparing not even the lives of women and small children. The many bodies of civilians found in the village after the attack, especially those of very young children, the wholesale destruction of Muslim - and only of Muslim – houses and even the destruction of the livestock of the Muslim families, do not match the picture the Defence tried to paint, which was that of a military battle between two armies. In such a case it would have been highly improbable that it was almost exclusively Muslim persons who were killed and Muslim houses destroyed. In a pitched battle between two armies the so-called collateral damage on both sides would have been divided more evenly . Nor does the concept of a military combat engagement accord with the fact that the houses of Muslim civilians were broken into and the male members of military age pulled out and executed. Above all the intentional killing of children, at least one of which was only three months old, cannot be reconciled with the view that this was an action demanded and guided by strategic or tactical necessities . In sum, the damage and harm inflicted by the Croats on the Muslim civilian population was not collateral; it was the primary purpose of the attack.
763. The herding together of the Muslims, who had survived the killing and shooting , during and after the attack, and their ensuing detention at places such as the Dubravica school, underlines the Croatian objective of making sure that no Muslim was left free to live in the village. The systematic burning of the Muslim houses is proof of a “scorched-earth” policy on the part of the Croatians, done in order to further the aim that, as one witness put it, “no Muslim foot shall tread this soil”.
764. The Defence’s claim that Ahmici was not an undefended village must thus be rejected as completely unfounded.
D. Irrelevance of Similar Conduct by Muslims against Croats in Other Villages
765. As pointed out above in the section on the applicable law, in international law there is no justification for attacks on civilians carried out either by virtue of the tu quoque principle (i.e. the argument whereby the fact that the adversary is committing similar crimes offers a valid defence to a belligerent’s crimes) or on the strength of the principle of reprisals. Hence the accused cannot rely on the fact that allegedly there were also atrocities committed by Muslims against Croatian civilians.
E. The Accused
1. Dragan Papic
766. Dragan Papic was charged under count 1 with persecution as a crime against humanity under Article 5(h) of the Statute.
767. The accused Dragan Papic was mobilised in the HVO during some of the time relevant to this indictment although his precise role is not clear. He wore a uniform and carried a rifle in the village. In relation to the armed conflict on 20 October 1992, the Prosecution relies on one crucial witness, Mehmed Ahmic, who identified the accused as shooting from his house early in the morning and firing an anti-aircraft machine gun in the afternoon. This witness’s evidence is not accepted by the Trial Chamber. That the accused participated in the armed conflict that day has not been proved
768. In relation to the armed conflict on 16 April 1993, the Trial Chamber does not find that it can rely on the evidence of Witness G. Witness G was an honest witness who had been through a dreadful ordeal on 16 April. However, he was under the most stressful conditions imaginable and there must be some doubt about the accuracy of his identification of Dragan Papic. None of the remaining Prosecution evidence is sufficient to establish that Dragan Papic was an active participant in the conflict.
769. Therefore, the Trial Chamber finds that there is reasonable doubt as to whether Dragan Papic participated in the conflict that day, and accordingly finds the accused not guilty under count 1.
2. Zoran Kupreskic
(a) Count 1
770. The accused, together with his brother Mirjan Kupreskic, was charged with persecution as a crime against humanity pursuant to Article 5(h) of the Statute under count 1 of the indictment.
771. The Trial Chamber has defined the actus reus of persecution under Article 5(h) of the Statute as the gross or blatant denial, on discriminatory grounds, of a fundamental right, laid down in international customary or treaty law, reaching the same level of gravity as the other acts prohibited in Article 5 of the Statute . As a crime against humanity the common prerequisites of a link with an armed conflict, a widespread or systematic attack on a civilian population in furtherance of a systematic policy, and the grave nature of the offences also apply. The requisite mens rea is the intent to discriminate, to attack persons on account of their racial or religious characteristics or political affiliation as well as knowledge of the widespread or systematic nature of the attack on civilians.
772. The mode of participation in the wider sense under Article 7(1) of the Statute and as charged in the indictment is either direct commission by the accused, i.e . as the sole perpetrator or as a co-perpetrator, or as an aider and abettor. The definition for both categories was recently given by the Appeals Chamber in its Judgement in Tadic of 15 July 1999. 981 Co-perpetration requires a plurality of persons, the existence of a common plan, design or purpose which amounts to or involves the commission of a crime provided for in the Statute and participation of the accused in the common design. As far as mens rea is concerned, what is required is the intent to perpetrate a certain crime as the shared intent on the part of all co-perpetrators. An aider and abettor as opposed to a principal perpetrator carries out acts specifically directed to assist, encourage or lend moral support to the perpetration of a certain crime; this support must have a substantial effect upon the perpetration of the crime. The requisite mental element is knowledge that the acts performed by the aider and abettor assist the commission of a specific crime by the principal.
773. The Trial Chamber is satisfied that the accused was an active member of the HVO. Zoran Kupreškic was a local HVO Commander and his activities were not limited to assigning village guard duties. Zoran Kupreškic took part in the oath-taking ceremony and was present on duty on the front line as stated by Witness JJ in her testimony. The Trial Chamber accepts the evidence of Witness B and Abdulah Ahmic in relation to the negotiations for the return of the Muslims after the conflict of 20 October and finds that Zoran Kupreškic’s role in these negotiations was more active than he himself admitted. Finally, the Trial Chamber notes that Zoran Kupreškic, as a reserve officer and in charge of a maintenance unit at work, was used to the exercise of authority. The accused did know of the planned attack on the village the next morning, for which preparations were already under way, and was ready to play a part in it.
774. With regard to the alleged participation of the accused in murder and arson at the house of Witness KL on 16 April 1993, the Trial Chamber has already analysed that witness’s evidence and found it wanting in credibility. Thus, there is no reliable evidence that the accused, together with his brother Mirjan, participated in the crimes at the house of Witness KL. The Trial Chamber, having heard the evidence of Jozo Alilovic, is not satisfied as to the accuracy of Witness C’s identification of the accused, given the stressful conditions under which it was made and the appalling ordeal to which the young Witness C had been subjected.
775. As to the murders and arson at the house of Suhret Ahmic, the Trial Chamber has already analysed the evidence of Witness H, and is in no doubt that she was a truthful and accurate witness of events on 16 April. The Trial Chamber places no reliance on the statements of Witness SA.
776. Zoran Kupreskic, together with his brother Mirjan Kupreškic, was in the house of Suhret Ahmic immediately after he and Meho Hrstanovic were shot and immediately before the house was set on fire, as part of the group of soldiers who carried out the attack.
777. The Trial Chamber accepts that Zoran Kupreškic admitted to Witness JJ that the Jokers had been firing on fleeing civilians and that under threat, he himself had fired into the air.
778. The Trial Chamber rejects the evidence of the accused and his witnesses to the effect that he took no part in the crimes alleged and was elsewhere when they took place.
779. In summary, the Trial Chamber concludes that Zoran Kupreskic, together with his brother Mirjan, participated in the attack on Ahmici on 16 April 1993 as a soldier in the HVO. Zoran Kupreskic, together with his brother Mirjan Kupreskic, was present as an attacker on that day and actively involved in the events. It can be safely inferred that he also provided local knowledge to the HVO and Military Police not familiar with the situation of the village, and entered the house and expelled the family of Suhret Ahmic. Zoran Kupreškic, as the local HVO Commander, played the more leading role.
780. On the basis of his participation in the events from October 1992 until 16 April 1993, as outlined above, the Trial Chamber finds that the accused attacked his Muslim neighbours solely due to their ethnicity and with the aim of cleansing the village of any Muslim inhabitants.
781. The accused, together with his brother Mirjan, in a gross and blatant manner denied his Muslim fellow citizens their fundamental rights to life, freedom of movement and free enjoyment of their family life and property, all against the background of numerous killings, woundings etc. committed by the HVO and the Military Police . His actions and their consequences are of such a heinous nature that there can be no dispute that they match in gravity the other offences commonly included under Article 5 of the Statute. The civilian character of the victims cannot seriously be called into question.
782. The accused acted as a co-perpetrator, together with his brother Mirjan Kupre skic, within the meaning of Article 7(1) of the Statute, because he adhered to a common plan for the execution of the cleansing campaign in the village, which by necessity was a highly coordinated effort and required full prior knowledge of the intended activities and subordination to a common plan of action.
783. There can be no doubt on the basis of the circumstances proven that the accused was aware of the wider background to the attack mentioned above, especially with respect to the connection with the beginning of a large-scale armed conflict against the BiH, and that the main if not sole motivation for his participation was the forced expulsion of Muslims from the Lasva River Valley region, thus displaying a clear discriminatory intent. From this it follows that the accused was aware that he would not engage in a battle between military units, but would be attacking helpless and unprepared civilians.
784. Accordingly the Trial Chamber finds Zoran Kupreskic guilty of persecution as a crime against humanity under Article 5(h) of the Statute under count 1 of the indictment.
(b) Counts 2 - 11
785. The accused, together with his brother Mirjan Kupreskic, was charged with murder , inhumane acts as crimes against humanity under Article 5(a), (i) and cruel treatment under Article 3 of the Statute in connection with Common Article 3(1)(a) of the Geneva Conventions under counts 2 – 11 of the indictment.
786. As to these counts, pertaining to the attack on the family of Witness KL, the Trial Chamber finds on the basis of the evidence before it, as set out above, that it is not satisfied beyond reasonable doubt that the accused was present at the scene of the crime and thus cannot draw any inference as to his possible participation in these events.
787. The Trial Chamber thus finds the accused Zoran Kupreskic not guilty with regard to counts 2 – 11.
3. Mirjan Kupreskic
(a) Count 1
788. The accused, together with his brother Zoran Kupreskic, was charged with persecution as a crime against humanity pursuant to Article 5(h) of the Statute under count 1 of the indictment.
789. Mirjan Kupreškic was an active member of the HVO. This finding is based on the HVO Register and is to be inferred from his activities on 16 April 1993 described above under the heading of his brother Zoran.
790. With regard to his involvement in the activities from October 1992 until 16 April 1993, the Trial Chamber refers to the facts set out above with regard to his brother, Zoran Kupreskic. They were all committed together with the accused Mirjan Kupreskic and thus apply mutatis mutandis to him. The same is true for the requisite mens rea of the accused.
791. Accordingly the Trial Chamber finds Mirjan Kupreskic guilty of persecution as a crime against humanity under Article 5(h) of the Statute under count 1 of the indictment.
(b) Counts 2 - 11
792. The accused, together with his brother Zoran, was charged with murder, inhumane acts as crimes against humanity under Article 5(a), (i) and cruel treatment under Article 3 of the Statute in connection with Common Article 3(1)(a) of the Geneva Conventions under counts 2 – 11 of the indictment.
793. As to these counts, pertaining to the attack on the family of Witness KL, the Trial Chamber finds on the basis of the evidence before it, as set out above, that it is not satisfied beyond reasonable doubt that the accused was present at the scene of the crime and thus cannot draw any inference as to his possible participation in the events.
794. The Trial Chamber finds the accused Mirjan Kupreskic not guilty with regard to counts 2 – 11.
4. Vlatko Kupreskic
(a) Count 1
795. Under count 1 the accused was charged with persecution as a crime against humanity pursuant to Article 5(h) of the Statute.
796. Prior to the conflict this accused was on good terms with Muslims and displayed no nationalist or ethnic prejudice. In 1992-1993, Vlatko Kupreškic was a member of the police, namely an “Operations Officer for the Prevention of Crimes of Particular State Interest”, with the rank of Inspector 1st Class. The accused was not merely concerned to make inventories of supplies for the police, as he instead claims. He was unloading weapons from a car in front of his house in October 1992 and April 1993 and was again seen there on the afternoon of 15 April 1993.
797. With regard to the evidence of the accused that he did not return to Ahmici on 15 April until the evening when he got back from the trip to Split, the Trial Chamber accepts the prosecution evidence that he was seen in Ahmici during the morning of 15 April, at the Hotel Vitez and during the afternoon and in the early evening in the vicinity of soldiers who were at his house.
798. The Trial Chamber also accepts the testimony given by the prosecution witnesses in relation to the troop activity in and around the accused’s house on the evening of 15 April, which is also confirmed by the entry in Witness V’s diary recording that he learned that evening that the Croats were concentrating around the Kupreškic houses.
799. Vlatko Kupreskic was involved in the preparations for the attack on Ahmici in his role as police operations officer and as a resident of the village. He allowed his house to be used for the purposes of the attack and as a place for the troops to gather the night before.
800. With regard to the shooting of the Pezer family, those responsible for these crimes were a group of soldiers standing in front of Vlatko Kupreškic’s house. However, the Trial Chamber is not satisfied that Vlatko Kupreškic was among them . Only one witness identified the accused, Witness Q, at a distance of over 50 metres: a distance at which a witness is as likely to be mistaken as not. In the absence of confirmation of the correctness of this identification the Trial Chamber is not able to be sure that it is correct. That Vlatko Kupreškic was present when these crimes were committed is thus not proven.
801. The other evidence relating to the presence of the accused during the armed conflict was that given by Witness H, of the accused being in the vicinity of Suhret Ahmic’s house at about 5.45 a.m., and shortly after the latter was murdered. The Trial Chamber finds that this identification was correct and that Vlatko Kupreškic was in the vicinity shortly after the attack on Suhret Ahmic’s house. There is no further evidence as to what the accused was doing there, but he was present, ready to lend assistance in whatever way he could to the attacking forces, for instance by providing local knowledge.
802. The evidence of the accused and his witnesses as to his non-participation in the conflict is not credible.
803. Vlatko Kupreskic helped prepare and supported the attack carried out by the other accused, the HVO and Military Police, by unloading weapons in his store and by agreeing to the use of his house as a strategic point and staging area for the attacking troops. His role is thus not quite as prominent as that of the other accused, which is why the Trial Chamber finds that he merely supported the actions of the others, conduct which must be subsumed under aiding and abetting and not under co-perpetration. The accused had the requisite mens rea, as he was aware that his actions would substantially and effectively assist the attackers in their activities, that he would help them in carrying out their mission of cleansing Ahmici of its Muslim inhabitants. He also knew that the attack would not be a battle between soldiers, but that the Muslim civilians of his own village would be targeted .
804. Accordingly the Trial Chamber finds the accused guilty under count 1 of aiding and abetting persecution as a crime against humanity pursuant to Article 5 (h) of the Statute.
(b) Counts 12 – 15
805. Under counts 12 – 15, the accused was charged with murder and inhumane acts as crimes against humanity pursuant to Article 5(a) and (i) of the Statute, and with murder and cruel treatment as a violation of the laws or customs of war pursuant to Article 3 of the Statute in connection with Common Article 3(1)(a) of the Geneva Conventions.
806. With respect to these counts, the Trial Chamber finds that it cannot be satisfied beyond reasonable doubt that the accused was present at the scene of the crime, and cannot draw any inference as to his involvement in the events.
807. The Trial Chamber therefore finds the accused not guilty with regard to counts 12 to 15.
5. Drago Josipovic
(a) Count 1
808. The accused, together with Vladimir Santic, was charged under count 1 with persecution as a crime against humanity pursuant to Article 5(h) of the Statute.
809. Drago Josipovic was a member of the HVO prior to 16 April 1993; he was a member of the village guard and was seen in the village in uniform and with a rifle.
810. As to the direct participation of the accused in the conflict on 16 April 1993 , the Trial Chamber accepts the evidence of Witness EE, who identified him, together with the accused Vladimir Santic, as a participant in the attack on her house when her husband was murdered. The Trial Chamber finds that Drago Josipovic participated in the attack on the Puscul house: he was part of the group of soldiers who attacked and burned the house and murdered Musafer Puscul.
811. Drago Josipovic also participated in the attack on the house of Nazif Ahmic in which Nazif and his 14 year old son were killed. This was not charged as a separate count in the indictment, nor did the Prosecutor request after the commencement of the trial to be granted leave to amend the indictment so as to afford the Defence the opportunity to contest the charge. Consequently, in light of the principle set out above in the part on the applicable law, these facts cannot be taken into account by the Trial Chamber as forming the basis for a separate and specific charge . They constitute, however, relevant evidence for the charge of persecution. The Trial Chamber is satisfied that Witness DD accurately identified the accused, and that the witness accurately described the role played by the accused in the attack and that he was, in fact, in a position of command with regard to the troops involved .
812. Having heard the evidence of Witness CB, the Trial Chamber is, however, not satisfied that Drago Josipovic participated in the attack on the house of Fahran Ahmic. The Trial Chamber accepts the evidence of Witness Z concerning the presence of the accused leading soldiers near the Ogrjev plant on the afternoon of 16 April .
813. The Trial Chamber rejects the evidence put forward by Drago Josipovic of him spending the day moving around the locality to very little apparent purpose. The truth is that he was armed and active, playing his full part in the attacks on his neighbours, sometimes having command over a group of soldiers.
814. The Trial Chamber concludes therefore that Drago Josipovic participated in the murder of Musafer Puscul, participated in the attack on the house of Nazif Ahmic and was actively involved in the burning of private property. On this basis, the Trial Chamber finds that the accused, together with Vladimir Santic, was present at the scene of the crime as part of a group that went to the house with the common intent to kill and/or expel its inhabitants and to set it on fire. He did this solely because the victims were Muslims, for the same reasons set out above with respect to Mirjan and Zoran Kupreskic. The accused was aware that he would be attacking unarmed and helpless civilians, and that this attack was part of the beginning of a large-scale campaign of “ethnic cleansing” of Muslims from the Lasva River Valley .
815. These actions fulfil the requirements of persecution as a crime against humanity pursuant to Article 5(h) of the Statute.
816. The Trial Chamber therefore finds the accused guilty of persecution as a crime against humanity pursuant to Article 5(h) of the Statute under count 1.
(b) Counts 16 - 19
817. The accused was charged under counts 16 to 19 with murder and other inhumane acts as crimes against humanity pursuant to Article 5(a) and (i) of the Statute, as well as murder and cruel treatment as violations of the laws or customs of war pursuant to Article 3 of the Statute in connection with Common Article 3(1)(a) of the Geneva Conventions.
818. Murder under Article 5(a) of the Statute comprises the death of the victim as a result of the acts or omissions of the accused. Moreover, the conduct of the accused must be a substantial cause of the death of the victim. The offence requires the intent to kill or the intent to inflict serious injury in reckless disregard of human life. Inhumane acts under Article 5(i) of the Statute are intentional acts or omissions which infringe fundamental human rights causing serious mental or physical suffering or injury of a gravity comparable to that of other crimes covered by Article 5.
819. The accused, even though he may not himself have killed Musafer Puscul, by his active presence in the group, together with Vladimir Santic, has fulfilled the actus reus of murder as a co-perpetrator. The same applies for the suffering caused to the family by being forced to witness the murder of Musafer Puscul, being expelled from their family home and having their home destroyed. These acts clearly constitute the actus reus of other inhumane acts.
820. Drago Josipovic, as may be safely inferred from his actions, had the requisite intent both for murder and inhumane acts. He knew that the inhabitants of that house were going to be killed, and if not killed then at least expelled and their house burned down. That witnessing the death of a loved one and the loss of the family home would cause serious mental suffering was equally obvious to the accused when he embarked upon his crimes. He also acted in pursuance of a common design together with the accused Vladimir Santic. This is borne out by his actions described under count 1. The accused also had the requisite mens rea.
821. As stated above with regard to multiple charges in the part on the applicable law, Article 5(a) and (i), as crimes against humanity, protect different values and interests and may be charged cumulatively. This also applies to charging these acts under Article 5(h) as persecution.
822. The Trial Chamber accordingly finds the accused guilty of murder and other inhumane acts as crimes against humanity pursuant to Article 5(a) and (i) of the Statute under counts 16 and 18.
823. By contrast, the Trial Chamber finds that counts 17 and 19 were improperly charged cumulatively with the more serious offences under Article 5 of the Statute . As pointed out above in the part on the applicable law, Article 3 of the Statute , as far as murder and cruel treatment are concerned, protects the same interests as Article 5(a) and (i). However, while murder as a crime against humanity requires proof of elements that murder as a war crime does not require (the offence must be part of a systematic or widespread attack on the civilian population), this is not reciprocated. As a result, the two offences are not in a relationship of reciprocal speciality. The prohibition of murder as a crime against humanity is lex specialis in relation to the prohibition of murder as a war crime and must therefore prevail .
824. For reasons of law, the Trial Chamber therefore finds the accused not guilty with regard to counts 17 and 19.
6. Vladimir Santic
825. The accused, together with Drago Josipovic, was charged under count 1 with persecution as a crime against humanity pursuant to Article 5(h) of the Statute
826. Vladimir Santic in April 1993 was the commander of the 1st Company of the 4th Battalion of the Military Police. He was also Commander of the Jokers.
827. As was described with respect to the accused Drago Josipovic, Vladimir Santic, together with the latter, participated in the murder of Musafer Puscul and the burning of his house. In addition, from his position as a company commander of the Military Police and commander of the Jokers, it can be safely inferred that he passed on the orders of his superiors to his men, and his presence on the scene of the attack also served as an added encouragement for his subordinates to abide by the orders they had received.
828. The Trial Chamber refers to the facts and the law explained above with respect to the accused Drago Josipovic. They apply mutatis mutandis to the accused Vladimir Santic.
829. The Trial Chamber accordingly finds the accused guilty of persecution as a crime against humanity pursuant to Article 5(h) of the Statute under count 1.
(a) Counts 16 – 19
830. Under counts 16 to 19, the accused, together with Drago Josipovic, was charged with murder and other inhumane acts as crimes against humanity pursuant to Article 5(a) and (i) of the Statute, as well as murder and cruel treatment as violations of the laws or customs of war pursuant to Article 3 of the Statute in connection with Common Article 3(1)(a) of the Geneva Conventions.
831. The Trial Chamber refers to the facts and the law set out above with respect to the accused Drago Josipovic. They apply mutatis mutandis to the accused Vladimir Santic.
832. The Trial Chamber accordingly finds the accused guilty of murder and other inhumane acts as crimes against humanity pursuant to Article 5(a) and (i) of the Statute under counts 16 and 18.
833. For reasons of law, the Trial Chamber therefore finds the accused not guilty with regard to counts 17 and 19.