Before:
Judge Almiro Rodrigues, Presiding
Judge Fouad Riad
Judge Patricia Wald

Registrar:
Mr. Hans Holthuis

Judgement of: 2 November 2001

PROSECUTOR

v.

________________________________________________

The Office of the Prosecutor:

Ms. Susan Somers
Mr. Kapila Waidyaratne

Mr. Daniel Saxon

Counsel for the Accused:

Mr. Krstan Simic for Mr. Kvocka

Mr. Zarko Nikolic for Mr. Kos

Mr. Toma Fila for Mr. Radic

Mr. Slobodan Stojanovic for Mr. Zigic

Mr. Jovan Simic for Mr. Prca

1. On 30 April 1992, “life changed overnight, within 24 hours”, in the Prijedor area, located in the north-eastern part of Bosnia Herzegovina.¹ On that day, Serb forces conducted a bloodless takeover of the town of Prijedor and declared their intention to rename the territory the “Serb municipality of Prijedor ”. After the takeover, non-Serbs were dismissed from their jobs, their children were no longer allowed to attend school and their movements were restricted. Propaganda against Muslims and Croats was broadcast on the radio and both mosques and Catholic churches were targeted for destruction.²

2. Less than a month after the takeover, Serb forces began hearing rumors of plans for an armed uprising by local Muslims and Croats against the new Serb authorities . In order to suppress the uprising, the Omarska, Keraterm, and Trnopolje camps were established towards the end of May 1992 as “collection centres” to identify individuals suspected of collaborating with the opposition.³ These camps were initially expected to be of a short duration, lasting approximately 15 days.⁴ However, after the Serbs succeeded in defeating the rebels, the camps remained in full operation until they were dismantled at the end of August due to pressure exerted by the international community.⁵

3. Survivors of these camps came to The Hague to testify. Dozens of witnesses testified before the Trial Chamber about the deplorable conditions of detention. The vast majority of the evidence focussed on the Omarska camp, where inhumane treatment and conditions were said to be the most horrendous. Omarska camp was the first to be shut down after reports reached the international community that thousands of non-Serbs detained there were being killed and otherwise gravely mistreated. ⁶ In total, the Trial Chamber heard 139 witnesses over 113 days of trial and viewed 489 exhibits.⁷

4. The accused in this case are Miroslav Kvocka, Draglojub Prcac, Milojica Kos (a.k.a. Krle), Mladjo Radic (a.k.a. Krkan), and Zoran Zigic (a.k.a. Ziga). At the time Omarska camp was established, Kvocka and Radic were professional policemen attached to the Omarska police station, Prcac was a retired policeman and crime technician mobilized to serve in the Omarska police station, and Kos and Zigic were both civilians, a waiter and taxi-driver respectively, mobilized to serve as reserve officers. Kvocka, Kos, Radic, and Prcac were subsequently assigned to serve in various security or administrative positions within Omarska camp. Zigic worked for a short period of time in the Keraterm camp delivering supplies; he was also allowed to enter Omarska, Keraterm, and Trnopolje camps regularly as a civilian. None of the accused was instrumental in establishing the camps or determining official policies practiced on detainees therein.

5. The Prosecution alleges that all accused incur individual responsibility under Article 7(1) of the Statute for their acts or omissions committed against detainees held in the camps. The Prosecution seeks further to attribute superior responsibility under Article 7(3) of the Statute to Kvocka, Prcac, Kos, and Radic for crimes committed by subordinates which they allegedly failed to prevent, halt, or punish.⁸

6. At the conclusion of the Prosecution’s presentation, the Trial Chamber entered acquittals for certain charges alleged against Kvocka, Kos, Radic, and Prcac insofar as they concerned the Keraterm and Trnopolje camps. The Trial Chamber found that the Prosecution failed to present sufficient evidence against these accused connecting them to, or demonstrating their responsibility for, abuses committed in Keraterm or Trnopolje camps.⁹

7. This Judgement is divided into seven Parts. Part I consists of this Introduction . The factual findings of the Trial Chamber are contained in Part II, beginning with a narrative overview of the events leading to the establishment of the camps and continuing with the functioning of each camp and evidence of crimes committed therein. Part III of the Judgement provides a legal framework for analyzing the facts set out in Part II. The Trial Chamber considers the requisite legal elements of violations of the laws or customs of war and crimes against humanity, then determines under what circumstances an accused can be convicted for more than one crime based upon the same set of facts and goes on to examine the general principles regulating the attribution of criminal responsibility. Based on the factual conclusions reached in Part II, combined with the legal framework of Part III, in Part IV the Trial Chamber provides its ultimate findings as to the criminal responsibility of each accused on the basis of the role he played in the functioning of the camp(s). Part V of the Judgement addresses matters relating to sentencing and Part VI sets forth the disposition. Finally, Part VII contains five Annexes.

    

   II. FACTUAL FINDINGS
   A. BACKGROUND, CONTEXT, AND FORMATION OF CAMPS

8. The acts ascribed to the accused occurred generally during the same time and at the same locations as the crimes attributed to Dusan Tadic, whose sentence was delivered by the Tribunal on 24 January 2000.¹⁰ The parties in this case agreed to a series of facts recounted in the Tadic Trial Chamber Judgement that relate to the historical, geographical, military, and political context of the conflict which raged following the disintegration of the Socialist Federal Republic of Yugoslavia (“SFRY”, or “the former Yugoslavia”), especially in the municipality of Prijedor, and which led to the establishment of the camps at Omarska, Trnopolje, and Keraterm. The facts agreed upon by the parties were adopted by the Trial Chamber in its “Decision on Judicial Notice”.¹¹ In addition, the Defense for the accused Radic submitted an expert report on the background to the conflict,¹² which was countered by a report filed by the Prosecution.¹³ The principal determinations of these reports are set out below.
   1. The Break-up of the SFRY

9. Under the 1946 Yugoslav Constitution, the SFRY was divided into six republics – Serbia, Croatia, Slovenia, Bosnia and Herzegovina, Macedonia, and Montenegro.¹⁴ The population of Bosnia and Herzegovina, more so than any other republic of the former Yugoslavia, had been multi-ethnic for centuries, with Serbs, Croats, and Muslims as the largest ethnic groups.¹⁵ Following the Second World War, Marshal Tito and his communist regime took extensive measures to suppress and control all nationalistic tendencies, but in spite of the government’s efforts, the Yugoslav population remained very conscious of its so- called ethnic identity.¹⁶ However, apart from the difference of religion (and to a degree of custom and culture), all three of the predominant groups in Bosnia and Herzegovina are of Slav descent, speak the same language (apart from minor regional differences), have often intermarried , and frequently bear common surnames.¹⁷

10. In 1990, the first multi-party elections were held in each of the republics , resulting in the election of strongly nationalist parties that, in turn, heralded the break-up of the federation.¹⁸ In Bosnia and Herzegovina, these parties were the Muslim Party of Democratic Action (SDA), the Serb Democratic Party (SDS), and the Croat Democratic Union (HDZ). On 25 June 1991, Slovenia and Croatia declared their independence from the SFRY.¹⁹ In Bosnia and Herzegovina, a referendum on independence held in February 1992 was opposed by the Bosnian Serbs; an overwhelming majority abstained from voting. Nonetheless , Bosnia and Herzegovina declared independence in March 1992. That independence was recognized by the European Community and the United States of America in April 1992. The Republic of Serbian People of Bosnia and Herzegovina (later to become the Republika Srpska) had been declared by the Serbs on 9 January 1992, and was slated to come into force upon formal international recognition of the Republic of Bosnia and Herzegovina.
    2. The Prijedor Region

11. In September 1991, several Serb Autonomous Regions in Bosnia and Herzegovina were proclaimed. One of these, the Serb Autonomous Region of Krajina (ARK), consisted of the Banja Luka region and surrounding municipalities; however the Prijedor municipality , in which the SDA held a small majority, did not join the Autonomous Region. Crisis Staffs were formed in the Autonomous Regions to assume government functions and carry out general municipal management; members included SDS leaders, the JNA Commander for the area, and Serb police officials. The ARK Crisis Staff was established in April or May 1992.

12. The SDS, assisted by police and military forces, conducted a takeover of the town of Prijedor on 30 April 1992. JNA soldiers occupied all of the prominent institutions in the town, and declared their intention to rename the municipality the “Serb municipality of Prijedor” (Srpska opstina Prijedor). A local Crisis Staff was established to run the area and to implement the decisions of the central ARK Crisis Staff based in Banja Luka. Non-Serbs were immediately targeted for abusive treatment. A witness testified:

    Quite suddenly checkpoints cropped up in town at all major crossroads, in front of all important institutions, all over town, so that citizens had to pass through those checkpoints. They were mistreated, those who were Muslims or Croats … so that life changed overnight.²⁰

13. The acts of discrimination and the resulting increase in tension between the Serb authorities and the other local ethnic groups, culminated in attacks on sections of the non-Serb population where the new regime was resisted. On 23 May 1992, Serb forces attacked and gained control of the largely Muslim village of Hambarine, eventually resulting in the displacement of approximately 20,000 non-Serbs. The following day , a successful attack was launched on the town of Kozarac, which was again situated in a predominantly Muslim area (approximately 27,000 non-Serbs lived in the wider Kozarac area and of the 4,000 inhabitants of the town itself, 90% were Muslim). A large number of Muslim citizens of these areas who did not succeed in fleeing in the face of the assaults were rounded up, taken into custody and detained in one of the three camps which are the subject of this case.

14. This scenario was repeated in Prijedor town on 30 May 1992, following an unsuccessful attempt by members of the non-Serb population there to regain control of the town . Muslims were ordered by radio to hang white sheets outside their homes to indicate loyalty to the Serb authorities,²¹ to tie white ribbons around their arms and to head towards the centre of town. Emir Beganovic was among those who obeyed the instructions and he testified to seeing several dead bodies on his way to the center of town. On arrival, he joined a group of an estimated 2000 people, mainly Muslim but also containing some Croats, gathered in front of some high rise buildings. This group was separated into two subgroups : men 15-65 years of age in one group, and women, children, and elderly men in the second group.²² Others were directed to the “Balkan Hotel”, also in the center of town, where they too were separated into two groups.²³ Men from both locations were loaded onto buses, which headed first towards the police station (the “SUP” or Secretariat of the Interior building) in the town. Some individuals were arrested later in the summer on the basis of a pre-designated list of intellectuals and prominent members of society. These community leaders were routinely taken to the Prijedor police station and beaten.²⁴
    3. The Creation of the Omarska, Keraterm, and Trnopolje Camps

15. All non-Serb men arrested and taken to the SUP were then bussed to either the Omarska camp or the Keraterm camp. Women, children, and the elderly tended to be taken to the Trnopolje camp.

16. The Omarska camp was located at the iron ore strip mine outside the Omarska village. The Keraterm camp was established in the premises of a ceramics factory and the Trnopolje camp was based in a variety of buildings in the village of Trnopolje , including a former school, a theatre, and the municipal centre.

17. Although efforts had already begun to set up the camp and staff and detainees began arriving around the 27th of May, the Prijedor Chief of Police, Simo Drljaca , issued the official order to establish the camps on 31 May 1992.²⁵ Simo Drljaca’s order referred to the establishment of “a provisional collection centre for persons captured in combat or detained on the grounds of the Security Services’ operational information” in the industrial compound of the Ljubija iron ore strip mine near the village of Omarska, to the southeast of Prijedor town. Drljaca concluded his order with the directive: “I most strictly prohibit giving any information whatsoever concerning the functioning of this collection centre”.²⁶

18. The Omarska camp was initially intended to be of short duration. According to the accused Kvocka, it was expected to conclude its work after approximately 15 days.²⁷ Nonetheless, it continued its operation until late August 1992. Investigators drew up lists of people to arrest and bring to the camp based upon information they obtained during the interrogations of detainees.²⁸

19. Everyone in the camp was interrogated at least once,²⁹ and interrogations were typically accompanied by brutal physical and mental suffering . As a result of the interrogations, detainees were divided into 3 categories: the first contained those determined to pose the greatest threat to the Serb regime, defined as “people who had directly organised and taken part in the armed rebellion ”; the second consisted of “persons suspected of organising, abetting, financing and illegally supplying arms” ³⁰ to the resistance group; and the third category was limited to those who were, in the words of Simo Drljaca, “of no security interest”.³¹ Those in the last category were originally slated to be transferred to Trnopolje or released. The others were to be sent to the “prisoner of war” camp in Manjaca .³² The Prosecution exhibited a list of 174 people in category one, which was drawn up at the Omarska camp on 28 July 1992.³³ The Trial Chamber notes that among the names appearing on this list are those of two women whose bodies were discovered many years later, as well as one woman who was never seen again after the Omarska camp was closed.³⁴ Those in category one received the very worst treatment at Omarska.

20. On 5 August 1992, Simo Drljaca informed his superiors in Banja Luka that

    the Prijedor Public Security Station, in co-operation with the competent security services of the Banja Luka CSB (security service centre( and the army of the Serbian Republic of Bosnia and Herzegovina, has completed the processing of the prisoners of war.

    The investigation has found elements of criminal liability in 1,466 cases, for which valid documentation exists, which we shall transfer under guard, along with the persons it pertains to, to the Manjaca military camp on 6 August 1992. The remaining persons are of no security interest, and will be transferred to the reception camp in Trnopolje on the same day …

    Further operation of the investigation centre in Omarska is therefore no longer required …³⁵

    The camp was finally shut down towards the end of August 1992, and therefore operated for just under 3 months.³⁶

21. According to the report on the camps in the Banja Luka area produced by the Bosnian Serb authorities (“the official report on the camps”),³⁷ 3,334 detainees passed through the Omarska camp during its period of operation. Former inmates estimated that up to 3,000 detainees were held at one time; employees agreed that it was over 2,000.³⁸ The vast majority of the detainees were men, but there was also a group of approximately thirty-six women, many prominent in local affairs, from the area.³⁹ Boys as young as 15 were seen in the early days of the camp, as well as some elderly people.⁴⁰ The inmates were overwhelmingly of Muslim and Croat ethnicity.⁴¹ The few Bosnian Serbs detained were reportedly there because they were suspected of having collaborated with the Muslims.⁴²

22. The Trial Chamber turns now to examine the functioning of the three camps. The bulk of evidence adduced at trial by the parties concerned Omarska camp, where the accused Kvocka, Kos, Radic, and Prcac held official positions.
    B. THE OMARSKA CAMP
    1. Administration of the Omarska Camp

23. According to the Prosecution, the Omarska camp was run by the staff of the Omarska Police Station. The commander, deputy commander, and shift leaders of the camp were members of the police force of this station.⁴³ By contrast, the Kvocka Defense asserts that there was no centralized authority conducting the operation of the camp on a daily basis. Instead, separate chains of command operated to ensure the performance of a number of functions, including the securing of the detainees in the camp (provided by the Omarska police) and the external security of the camp (provided by the army), the provision of food, water and cleaning services (provided by the management of the Omarska iron-ore mine), and interrogations (carried out by different branches of the security services in co-operation with military investigators). Kvocka maintained that the head of each of these respective service functions reported separately to Simo Drljaca, who governed the whole operation.⁴⁴

24. Within the internal security structure provided by the Omarska police, the Defense concede that Zeljko Meakic was the commander, but assert that there were no other positions of authority in the security service: Zeljko Meakic had no deputy and there were no shift leaders.

25. In order to situate the organs and individuals involved in the running of the Omarska camp, it is first necessary to examine the structure of the security services in Republika Srpska at the time of the camp’s constitution, in particular those of the village of Omarska. The Trial Chamber heard considerable testimony on this point.

    (a) Structure of the Security Services in Republika Srpska

26. The evidence established the chain of command in the security services to be as follows: the service was headed on a ministerial level by the Minister of the Interior. Next in the chain of command were the regional authorities, the most relevant in this case being the Banja Luka Security Services Centre (CSB). At the time of the events alleged in the Amended Indictment, the head of the CSB was Stojan Zupljanin . The CSB was divided into two principal departments, the State Security Department (SDB) and the Public Security Department (SJB).⁴⁵ The State Security Department was occupied with intelligence work. Within the Public Security Department there were several sub-sections dealing, for example, with crime , traffic, personnel, passports, and aliens. One of these subsections was the general security or militia section, and this section was known as the police department .⁴⁶ The accused Kvocka, Kos, and Radic were employees of this branch of the security services, as was Prcac, who worked as a crime technician.⁴⁷

27. The Public Security Station in Prijedor mirrored the structure of the Public Security Department of the CSB. The Public Security Station in Prijedor was one of three Public Security Stations devolving from the Banja Luka Centre. Simo Drljaca was the Head of the Public Security Station in Prijedor during the duration of Omarska camp’s existence. The uniformed police department of this station was headed by Dusan Jankovic, who was immediately subordinate to Simo Drljaca.⁴⁸ The head of the Prijedor Police Station, Milutin Cado, was immediately subordinate to Simo Drljaca in the chain of command overseeing the uniformed police or militia .⁴⁹ There were three sub-offices or “Police Station Departments” attached to the Prijedor Police Station.⁵⁰ Zeljko Meakic was the commander of the Police Station Department situated in Omarska , where Kvocka and Radic were also employed.⁵¹

    (b) Authority and Responsibilities in the Omarska Camp

28. As mentioned above, the Omarska camp was established by order of Simo Drljaca , chief of the Prijedor municipality Public Security Station, who was also a member of the Prijedor Crisis Staff.⁵² His order was pronounced “in accordance with the Decision of the Crisis Staff”,⁵³ and it established the responsibilities of various actors.⁵⁴ The order charged a “mixed group consisting of national, public and military security investigators” with the interrogation and resulting categorization of the detainees . This “mixed group” was comprised of the members of the crime branches of the public and state security services, as well as military investigators. The order assigned responsibility for the work of the investigators to three named coordinators: Ranko Mijic, Mirko Jesic, and Lieutenant Colonel Majstorovic.⁵⁵ Detainees reported that the investigators came to the camp from Banja Luka each day and wore a different uniform than the guards.⁵⁶

29. Paragraph 6 of the Drljaca order states that “Security services at the collection centre shall be provided by the Omarska Police Station”, and according to paragraph 2, “the persons taken into custody shall be handed over to the chief of security , who is duty-bound in collaboration with the national, public, and military security co-ordinators to put them up in any of the five premises allocated for the accommodation of detainees”. The Trial Chamber accepts that Zeljko Meakic was the “chief of security ” to which the order referred and that he was responsible for allocating detainees to the different detention sites in the camp.⁵⁷ The Trial Chamber further considers that there was a duty upon Zeljko Meakic to place the detainees in “appropriate” living quarters in collaboration with the security service or investigation coordinators. Such a collaboration suggests that Zeljko Meakic was not in a position of superior authority over the investigation coordinators . This interpretation of the relationship is supported by reporting instructions contained in the order. The order required the security services coordinators and the chief of security to submit reports to Simo Drljaca every 24 hours.⁵⁸ The order prescribed that the Chief of Security’s report was to be limited to evaluation of the operation of the security services (as provided by the Omarska police) and “possible security problems”.⁵⁹ The separate chains of command from the police officers and from the investigators to the head of the Public Security Station also mirror the structure of the Omarska station, as both the police and crime branches of the public security section, and the state security section reported independently to Simo Drljaca.⁶⁰

30. This accords with testimony of former detainees who reported that the investigators were separate from the guards and wore different uniforms.⁶¹

31. The order directed the management of the iron ore mine to organize food, drinking water, and the cleaning and maintenance of the facilities, as well as to provide for logistical support. Nothing in the order suggests that either Zeljko Meakic or the security service co-ordinators bore supervisory responsibility for these tasks. The full list of personnel employed by the mine management team under the terms of the order was to be sent directly to the Public Security Station in Prijedor .⁶²

32. Pero Rendic, leader of the quartermaster’s squad of the logistics unit of the Omarska territorial defense who was tasked with running the kitchens in the Omarska camp, testified that he received his assignment from Milan Andzic, the acting assistant commander for logistics. According to the witness, Milan Andzic “was the one who could issue me orders, and he probably received orders from the battalion commander , and they from the Crisis Staff, but I have no idea”.⁶³ When asked whether the security personnel from the Omarska police station could influence or improve the quality of the food, Pero Rendic maintained: “No. They had a person who was in charge of procuring the supplies necessary for preparation for the food, and that person was the assistant commander for logistics and the main base. That was the person who was in charge of that.”⁶⁴ He also testified that Simo Drljaca occasionally visited the kitchens to check on food provisions.⁶⁵

33. Pero Rendic further testified that he was assisted in his work by a butcher and a cook from the quartermaster’s squad, and otherwise by staff of the Omarska mine and other civilians who were mobilized under wartime obligation.⁶⁶ This staff was supervised by someone named “Duško”, while the manager of the whole complex was named Babic.⁶⁷ This was corroborated by Dragan Vuleta, a peacetime employee of the mine, who was mobilized during the war to maintain the water and electrical installations in the compound ,⁶⁸ as well as by Witness J.⁶⁹ According to Dragan Vuleta, the women who worked in the kitchen were supervised by someone called Duško, and Mirko Babic was the overall supervisor of all workers mobilized in the maintenance of the compound, including Dragan Vuleta himself, Duško and the catering staff, and the women who cleaned the premises.⁷⁰ When asked whether Zeljko Meakic, whom he identified as the boss of the reserve police deployed in Omarska, could issue orders to any of the maintenance workers , Dragan Vuleta replied that he could not, and that only Mirko Babic could issue orders to them. Dragan Vuleta did not know to whom Mirko Babic reported.⁷¹ Dragan Vuleta added that neither Zeljko Meakic nor any of the members of the Omarska police could influence the water supply or its quality.⁷²

34. The Trial Chamber finds that the Omarska police deployed in the camp under Zeljko Meakic’s control had no authority over the maintenance work assigned to the management of the Omarska mine.

35. Dusan Jankovic, commander of the Prijedor Police Station, supervised the implementation of Simo Drljaca’s order.⁷³ The fact that Dusan Jankovic was Zeljko Meakic’s immediate superior might suggest that Zeljko Meakic, as the next in that chain of command, bore some subsidiary responsibility for implementation of the order. However, the Trial Chamber notes that Dusan Jankovic’s duties in this regard were to be carried out “in collaboration with the Banja Luka Security Services Centre”, suggesting that his work required the approval of the regional superiors of each branch involved in the operation of the camp.⁷⁴

36. The Defense asserted that only Simo Drljaca had the authority to release a prisoner from the camp. Kvocka gave evidence that he asked Zeljko Meakic to release his brothers-in-law from detention when he learned the camp authorities could not establish their guilt. Zeljko Meakic replied “don’t ask me to go to Simo. You know what he’s like. You go and talk to him”⁷⁵, implying that the decision lay with Simo Drljaca. Mirko Jesic testified that he and the other security service co-ordinators released a few people in the first days of the camp, until they received an order from Simo Drljaca that no-one was to be released without his approval.⁷⁶ And in a report to the Crisis Staff dated 1 July 1992, Simo Drljaca confirmed that “Conclusion number 02-111-108/92, by which the release of detainees is prohibited , is being fully observed”.⁷⁷

37. There were other Bosnian Serbs involved with the camp who were not included in Simo Drljaca’s order. In early June 1992, shortly after the establishment of the camp, a special security unit or “intervention platoon” of around 30 men arrived from the Banja Luka CSB. This group was distinguishable from the other guards by their blue camouflage uniforms. They stayed in the camp for one week, and then after a few days a second unit arrived.⁷⁸ Members of these two units reportedly inflicted abuses on the detainees and came into conflict with the guards from the Omarska Police.⁷⁹ The Defense exhibited a letter dated 13 June 1992 from Simo Drljaca to the chief of the CSB reporting on the conduct of the second group and explaining that, as a result of this behavior, “all possible measures were taken to have them removed from the prison”⁸⁰ (the second unit did leave in mid-June).⁸¹ The commanders of the two groups, Maric and then Strazivuk, were apparently unable or unwilling to control the men under their command.⁸² It also appears to the Trial Chamber that these units were not under the authority of Zeljko Meakic and his security staff.⁸³

38. In addition, a second security ring was established 500-600 metres from the mine complex shortly after the camp was established, with a guard post every 200 metres. These posts were staffed by members of the Omarska territorial defense, who were tasked with preventing unauthorized persons from entering the camp (presumably to repel possible attacks by Muslim forces)⁸⁴ as well as with ensuring that no detainees escaped. Novac Pusak was a member of this security ring, under the command first of the head of his company, Drago/Zdravko Maric,⁸⁵ and then of the commander of the territorial defense, Ranko Radenovic.⁸⁶ Novac Pusak testified that Zeljko Meakic could not issue any orders to him or to the other members of the outer perimeter security ring.⁸⁷

    (c) Structure of the Guard Service in the Omarska Camp

39. The guards under Zeljko Meakic’s authority were organized into three shifts of approximately 30 men who worked for 12 hours at a stretch. The shift changed at 7a.m. and 7p.m.⁸⁸ Each shift lasted 12 hours, followed by a 24 hour break. Thus the guards alternated day and night shifts continually.⁸⁹

40. Conflicting evidence was presented with regard to whether there was a guard shift leader⁹⁰ to co-ordinate each shift. This matter will be considered in Part IV when examining the Prosecution assertion that Kos and Radic were guard shift leaders in the Omarska camp.

41. The guards had a duty office upstairs in the administration building.⁹¹ This office was equipped with a local telephone line as well as a radio transmitter . A member of the guard service, designated as the duty officer, was in continuous attendance to make and receive calls. Two typists also worked in this office, to type notes of interviews and other documents at the direction of the investigators .⁹² Witnesses testified that the task of the duty officer in the camp was similar to that of a duty officer in a police station department and that this duty involved receiving instructions or reports from the commander and passing them on to the guards without any independent authority devolving upon the duty officer.⁹³

42. The guards staffing the camp were drawn from the ranks of regular police, reserve police, reserve army, and active duty army units in the area;⁹⁴ consequently, they wore distinct uniforms⁹⁵ and carried different weapons.⁹⁶ According to the evidence, the guards’ duties were to ensure that detainees did not escape ;⁹⁷ Kvocka testified that he understood this duty also included preventing attacks on the detainees from outside the camp .⁹⁸

43. Within Omarska, an atmosphere of sweeping impunity and consuming terror prevailed . Few efforts were made to halt the beating of detainees.⁹⁹ To those imprisoned in Omarska, it seemed that the guards were unsupervised: Witness DC5 explained that the guards beat him “at random. When they were feeling bored, they would just lash out at you for no reason at all.”¹⁰⁰ Witness AK feared a guard could kill anybody he liked for any reason, at any time .¹⁰¹ Some guards were said to be intoxicated much of the time and they acted in a particularly aggressive manner when in this condition.¹⁰²

44. Witnesses identified several of the most oppressive guards by name. They also identified members of the staff who allowed them to receive food brought by relatives or who advised them on how to avoid the worst of the pervasive brutality in the camp.¹⁰³
    2. Conditions of Detention and Treatment in the Omarska Camp

45. Detainees were kept in inhuman conditions and an atmosphere of extreme mental and physical violence pervaded the camp. Intimidation, extortion, beatings, and torture were customary practices. The arrival of new detainees, interrogations, mealtimes, and use of the toilet facilities provided recurrent opportunities for abuse. Outsiders entered the camp and were permitted to attack the detainees at random and at will.¹⁰⁴ One witness testified that “during the night, terrible screams could be heard, moans, beatings , from practically all the rooms which served as the Omarska concentration camp”.¹⁰⁵ Murder was common. While every incident of violence and abuse reported by witnesses is not recounted here, the following summary demonstrates vividly that deliberate brutality and appalling conditions were part and parcel of daily life in the camp .

46. The majority of the detainees were housed in the “hangar”, which was the largest of four buildings on the site of the camp, running north-south. The main part of the hangar had been designed for the heavy trucks and machinery used in the iron -ore mine and ran along the eastern side of the building.¹⁰⁶ The western side consisted of two floors of over 40 separate rooms.¹⁰⁷

47. There were three other structures on the Omarska camp site: the administration building, and two smaller structures, known as the “white house” and the “red house ”. The administration building lay at the north of the grounds and was divided in two parts. The single-storied western portion contained a kitchen and eating area . The eastern section had two floors: the ground floor where detainees were held and the first floor, containing a series of rooms used for interrogation, administration of the camp, and female inmates’ sleeping quarters. There was also a small garage at the far north or outer edge of the building.

48. In between the hangar and the administration building was the L-shaped, 30- metre-long concrete strip known as the “pista”, and to the west of the hangar was a grassy area, on the far side of which stood the white house and the red house.

    (a) Arrival

49. The abuse of detainees began immediately upon their arrival at Omarska. As new detainees got off the buses the guards on duty would physically and verbally abuse them. Two of the female detainees were greeted by Zeljko Meakic, the head of security, with the statement “what are we going to do with these two whores? Why are they here? We ought to kill them”.¹⁰⁸ Sometimes the new arrivals would have to run a gauntlet of assembled guards. Witness AM recalled the treatment accorded to two busloads of detainees who arrived the night of his own transfer to Omarska:

    Those men were running from the buses, and they had to pass between two lines of Serb guards who hit them as they ran towards this garage.¹⁰⁹

50. The detainees were forced to stand with arms outstretched against the wall, using the three finger Serb greeting, while their bodies were searched for valuables that were then taken from them.¹¹⁰ Several witnesses testified that all the staff on duty attended the arrival of new detainees.¹¹¹

    (b) Food, Water, and Mealtimes

51. Some detainees did not receive food or water for several days after their arrival in the camp.¹¹² After that, one meal a day was provided. Detainees reported that this meal was composed of bean stew that often consisted of rotten cabbage and sometimes, a piece of stale bread.¹¹³ Pero Rendic, the food supervisor, testified that the ingredients in the stew varied and sometimes consisted of vegetables or beef,¹¹⁴ although the Trial Chamber notes that Dragan Velaula, who worked under Pero Rendic , corroborated the testimony of the detainees that the stew was mostly potato, cabbage , or beans.¹¹⁵ Pero Rendic also testified that the food left his kitchen in the early morning in good condition in thermos containers, but that these containers returned before mid-day. He conceded that if the food was left in other receptacles for four or five hours it was likely to spoil.¹¹⁶ Pero Rendic further explained that, although he was able to provide good quality food in appropriate quantities for the first 10 days of his assignment, both quality and quantity deteriorated thereafter due, in his view, to the wartime conditions. Electricity shortages meant that it was sometimes impossible to cook all the beans properly, for instance,¹¹⁷ and for a period of at least 10-15 days insufficient bread was received to meet the army regulation of 150 grams per person.¹¹⁸

52. The food was prepared by an army cook and women workers from the mine under Pero Rendic’s supervision in the “Separacija” building, which was part of the mine complex but lay 2 km from the camp.¹¹⁹ Pero Rendic testified that the same food was sent to the army and those on work obligation in the camp as to the detainees.¹²⁰ Dragan Velaula, however, explained that the investigators’ food was prepared separately .¹²¹ While the army and staff received three meals a day, the detainees received only one. This was corroborated by other workers at the camp, who added that detainees would attempt to supplement the meals with food brought to the camp from relatives, and that detainees also used personal relationships with the kitchen employees in efforts to obtain larger portions.¹²² Investigators worked an eight-hour shift and could therefore eat breakfast and dinner outside the camp. The guards, who were present for twelve hours at a time, usually refused to eat the camp food, preferring to bring supplies from home.¹²³

53. The food for the detainees was trucked in 50-100 litre containers into the administration building,¹²⁴ where the female detainees served it to the male detainees.¹²⁵ One witness testified that the same truck that brought the food into the camp was also used to transport dead bodies away from the camp.¹²⁶

54. The one meal a day was served between 8:30 or 9:00 in the morning until 14: 00 or 17:00 in the afternoon or early evening. The women serving the meals estimated that six hundred detainees were required to be fed per hour in order to serve each detainee by the end of the day. Each group of thirty detainees was led in to the cafeteria and allowed three minutes to eat, then one minute to return to their quarters .¹²⁷ Detainees were regularly beaten on their way to meals, and sometimes while eating, as camp leaders watched from the window area of the circular staircase above the canteen in the administration building. The detainees often had to pass through a gauntlet of guards who beat them on their way into and out of the eating area.¹²⁸ Witness B testified to one day when detainees were beaten particularly badly:

    The bread would fly out of their hands. They had very little time to come in, get their food, eat it, and go out, and all this would be accompanied by blows. Everyone tried to hold on to his eighth of a loaf of bread. If they were able to put the bread in their pockets, they managed to save the bread, but all the others carrying this bread, when the blows fell, they would open their hands and the bread would fall out of their hands.¹²⁹

55. The Trial Chamber finds that the detainees received poor quality food that was often rotten or inedible, caused by the high temperatures and sporadic electricity during the summer of 1992.¹³⁰ The food was sorely inadequate in quantity. Former detainees testified of the acute hunger they suffered in the camp: most lost 25 to 35 kilograms in body weight during their time at Omarska; some lost considerably more.¹³¹

56. Some detainees testified that the water provided to them was not of drinking quality, but industrial water.¹³² Zlata Cikota testified that she urinated blood while in the camp, which she attributed to the quality of the water she had to drink.¹³³ However, the Defense presented persuasive evidence that this was a misapprehension on the part of the detainees. Cedo Vuleta, whom the Trial Chamber found to be a credible witness, testified that one of his duties as technician at the camp was to ensure that drinking water was available at all times.¹³⁴ Drinking water was supplied from wells on the premises, as it had been for the mine employees before the war.¹³⁵ This water was piped to taps in the kitchen and in the bathrooms in the camp, as well as to taps outside in the hangar area.¹³⁶ There had been problems with the quality of this water before the war, but Dragan Vuleta believed that these had been rectified.¹³⁷ Water from the wells was on occasion supplemented by water brought in in tanks or cisterns, as when the well distribution system broke down.¹³⁸ Industrial water for use in the mining process flowed through different channels and came out via special taps in an area set aside for washing the mine equipment , which was not generally accessible to detainees.¹³⁹ Several camp employees and one detainee who had worked in the mine before the war testified that the same water was available for drinking at the camp as had been previously available to employees of the mine.¹⁴⁰

57. Based on the evidence before it, the Trial Chamber finds that the detainees were supplied with drinking rather than industrial water, although this may have been of varying quality and the detainees may well have believed that they were receiving water which was not fit to drink. The Trial Chamber notes, however, that this finding relates to the quality of the water only. The quantity of water supplied to the detainees was clearly inadequate.

    (c) Toilet Beatings and Facilities, Hygiene, and Medical Care

58. There were two toilet facilities in the hangar building for use by over a thousand detainees.¹⁴¹ However, detainees soon understood that they would be beaten by guards if they attempted to use the facilities¹⁴² and accordingly relieved themselves in their clothing.¹⁴³ In other locations, such as the garage in the administration building, there were no toilet facilities at all. At first, detainees asked the guards for permission to use the toilets in the canteen area of the administration building, but, as former detainee Sabit Murcehajic explained:

    The first ten people who went to the toilet came back covered in blood and beaten up, and when the next group of ten was allowed to go to the toilet, they didn’t dare go out because they were told that they would all be beaten up and killed. The conditions were impossible.¹⁴⁴

59. Detainees thus had to defecate and urinate in their clothes or, sometimes, outside on the grass.¹⁴⁵ Even when a detainee opted for a beating in order to use toilet facilities, the conditions were deplorable. Witness AJ described them as follows:

    There were three toilets. One of them was stopped up, and then the others would get stopped up too. And sometimes there was faeces 20 to 30 centimetres high. So sometimes bricks would be laid down for us to be able to go to the toilet. It was dreadful.¹⁴⁶

60. While female detainees reported that they had access to showers,¹⁴⁷ the male detainees reported that they had no washing facilities, even when they soiled themselves.¹⁴⁸ In contrast , Kvocka testified that he saw people washing at sinks in the administration building ¹⁴⁹ and Defense witness Vinka Andic testified that detainees had facilities to wash their clothes.¹⁵⁰ Occasionally, the detainees were hosed down on the pista, although this too turned into a means of assault. Witness Y recalls one such occasion when the guards used the water stream as a weapon, making comments like “increase the jet. Hit the Balija . Let the jet of water throw them on the ground”.¹⁵¹

61. The meagre washing facilities available were clearly insufficient. Dr. Slobodan Gajic, who visited the camp, testified that “there were no adequate conditions provided for sleeping, bathing, changing of clothes, personal hygiene in general.”¹⁵² The majority of the detainees had lice and skin rashes, diarrhea, and dysentery were widespread.¹⁵³ Ljuban Andic, a paramedic who assisted Dr. Gajic and the staff of the Omarska Health Centre with their duties in the camp, testified that his team managed to prevent a major outbreak of dysentery in the camp by treating those infected with streptomycin.¹⁵⁴ Both Dr. Gajic and Ljuban Andic further testified that detainees dipped their hands in chloride solution on their way to the cafeteria to prevent disease.¹⁵⁵ However, the Trial Chamber is struck by the lack of any testimony to this effect from the detainees and, in view of the rushed and brutal feeding routine in the camp, finds it unlikely that this hygiene measure was regularly implemented.

62. Dr. Slobodan Gajic testified that the detention rooms were disinfected.¹⁵⁶ Although this may have been the doctor’s recommendation, the Trial Chamber heard testimony from detainees that only the rooms in the administration building were cleaned and the use of a disinfectant was not mentioned.¹⁵⁷ The Trial Chamber did not receive evidence that any of the other detention sites were cleaned. On the contrary, testimony consistently confirmed that a terrible odor pervaded the other sites. For example, Branko Starkevic, a guard assigned to the hangar, testified that “there was a stench, a bad smell, and every day I had to wash myself and wash my clothes to wash the smell out”.¹⁵⁸

63. Detainees testified that virtually no medical care was provided.¹⁵⁹ The Trial Chamber accepts the testimony of Defense witnesses Dr. Gajic and Ljuban Andic that the Omarska camp was included within the sphere of responsibility of the local health centre under the supervision of Dr. Slavica Popovic.¹⁶⁰ Dr. Gajic, who was mobilized and assigned to the centre for most of July 1992, testified that he would visit the camp “practically every day”¹⁶¹ and that other doctors visited less frequently.¹⁶² According to Ljuban Andic, the duties of the team were to treat people who were injured, to distribute medicines to people suffering from chronic ailments, and to prevent the spread of infectious diseases.¹⁶³ However, the assistance this team offered to the thousands of detainees was grossly inadequate. Ljuban Andic confirmed that several detainees with chronic medical conditions died from lack of attention¹⁶⁴ despite the fact that, according to Dr. Gajic, there was no shortage of medical supplies during the month of July.¹⁶⁵

64. Some responsibility for this lack of medical attention must fall on the guards , who were tasked with selecting detainees in need of treatment when the medical team arrived. Dr. Gajic explained how, at first, he would visit detainees in their specific places of detention, but that, later, he set up a table outside and relied on the guards to bring those most in need of care to see him.¹⁶⁶ This new system was adopted in view of the massive medical crisis presented by the detainees. Dr. Gajic explained that he stopped entering the hangar and other locations because

    the places were crowded. There were lots of sick and wounded people. Everybody needed something. They kept asking me lots of questions. I could have remained in one room for hours. And later on, I was just trying to reduce that pressure on myself.¹⁶⁷

    He added that the “conditions were extremely bad. That’s all I can say.”¹⁶⁸

65. The wounded had clearly been badly beaten. Dr. Gajic’s diagnosis was that most of the injuries occurred from blows with blunt instruments, “including, for example , an army boot, then the butt of a rifle, hands, fists”.¹⁶⁹ Ljuban Andic testified to two specific occasions when the medical service treated detainees who had been attacked in the camp. On the first, a young man who had been beaten was sent to the hospital in Banja Luka for more extensive medical attention , but he died from his injuries enroute.¹⁷⁰ In the second instance, Ljuban Andic found a man shot through the shoulder lying on the grass at the camp and was permitted to take him to Prijedor for surgery.¹⁷¹ Dr. Gajic estimated that he sent approximately 20 people to the hospital in Prijedor during the month he attended the camp.¹⁷² He further testified that the medical service would be called to the camp for emergencies at least once a day.¹⁷³ The guards placed these calls to the emergency services.¹⁷⁴

66. The vast majority of detainees, however, received no care for their wounds or ailments. Women had no access to sanitary protection.¹⁷⁵ Dead bodies were left to fester outside for days at a time, and a terrible stench and fear pervaded the camp.¹⁷⁶

67. The Trial Chamber finds the hygienic conditions and the medical care available in Omarska camp were grossly inadequate.¹⁷⁷

    (d) Interrogations

68. Interrogations were carried out in the administration building by mixed teams of investigators from the army and the state and public security services in Banja Luka.¹⁷⁸ Initially detainees were interviewed according to their places of residence. On the basis of preliminary information obtained in the first interrogation, detainees might be called back for further interrogation.¹⁷⁹ The guards and others received directions from the investigators concerning whom to bring to the investigators’ offices.¹⁸⁰

69. Questioning focused on the political activities of the detainee, such as opposition to the takeover of Prijedor, possession of weapons, and links to the Muslim opposition forces in the area. The purpose of the interrogations was primarily to identify opponents of the Serb regime.¹⁸¹ Those against whom no evidence was found were placed in “category three” and should have, theoretically, been released. However, the Crisis Staff made a decision not to release these detainees (mainly female detainees and the sick or elderly) until August 1992, when they were transferred to the Trnopolje camp.¹⁸² Category 1 and 2 detainees, who were thought to have either played a role in the opposition or been in possession of arms used against the Serb authorities, should have had criminal proceedings instituted against them, according to Mirko Jesic, co-ordinator of the State Security investigators.¹⁸³ However, he could only remember this happening in about 20 cases.¹⁸⁴

70. Detainees were not told why they had been arrested, although they knew that it was on the basis of their non-Serb ethnicity, and they feared the worst.¹⁸⁵ Witness J explained:

    None of us knew why we were - what we were accused of, and I didn’t know either; but from my talk with the interrogators I was able to conclude what - why I was there.

    Q. And were you able to form an opinion as to what they were going to do with that information or what the purpose of these talks were, these interrogations?

    A. Well, for the possible liquidation of people. ¹⁸⁶

71. Both Prosecution and Defense witnesses reported hearing cries and screams emanating from the interrogation rooms and seeing detainees carried out injured or unconscious .¹⁸⁷ The women inmates that cleaned the interrogation rooms told horrific tales of the state of these rooms after the interrogators had finished their work for the day:

    On the table, on the wooden board, there were blots of blood. On the walls … there would be drops of blood. There was blood on the floor as well. And behind the door I found a broken pair of glasses with very thick lenses …

    There was a whip made from a plaited strand. Then there were metal bars. What they were used for I don’t know. And on one of those metal bars there were traces of blood.¹⁸⁸

72. A parade of witnesses described the terrible beatings they received during these interrogation sessions.¹⁸⁹ Witness DC7, for example, who was 65 at the time of his interrogation, was rendered unconscious by the violence inflicted against him.¹⁹⁰ Only on rare occasions were interrogations conducted without any form of physical violence.¹⁹¹

73. The Trial Chamber finds that interrogations were regularly conducted in Omarska in a cruel and inhumane manner and that these interrogations resulted in an atmosphere of terror and violence.

    (e) The Administration Building

74. Many prominent people were held in “Mujo’s room” on the ground floor of the administration building, so called because “Mujo”, a well-known local who was also a detainee, acted as a liaison between the guards and the other detainees in that room.¹⁹² Emir Beganovic was led there on arrival by a guard who took pity on him and told him to “SjCust go there and hide. Don’t answer when they call you. If you answer you will be killed.”¹⁹³ Indeed, detainees were called out from Mujo’s room to be interrogated and abused .¹⁹⁴ On at least one occasion savage beatings also occurred inside the room.¹⁹⁵

75. Next to Mujo’s room was a space of approximately five by six metres, known as “the garage,” where between 150-300 people were detained in intolerable proximity .¹⁹⁶ One detainee described the situation as follows:

    Conditions were such that you could hardly touch the floor with your two feet, people were so crowded. I was up against a wall so that I tried to place my palms on the wall and cool down a little in that way, get some coolness from the wall. So it was all overheated. People would urinate on the spot, relieve themselves on the spot. And two or three times in a very brief space of time, for as long I was in the garage, which was about 45 minutes, two or three times I lost consciousness.¹⁹⁷

    In an attempt to survive these conditions, detainees would cry out for water, but guards would make them sing Serb nationalist songs before throwing a jerrycan into the room.¹⁹⁸ Their pleas and singing could be heard outside on the pista.¹⁹⁹

76. The detainees in the administration building had far more than cramped conditions to fear. A group of detainees transferred from Keraterm received notice of what to expect during their time in Omarska when former police officer Ahil Dedic, a Muslim, was brought into the small room in which they were detained:

    Ahil had blood all over his body. He had a wound on his head. He was all black and blue. And we were rather scared and we all moved backwards …

    Ahil Dedic asked the armed guard, who accompanied him back to the room, “Do you really think you would solve the Yugoslav problem in this way?” In response, the guards beat him on the head until he fell unconscious. On regaining consciousness he began to batter the locked door of the room:

    After that, probably because of the noise … they came back to the room, and they started beating him like crazy until he fell down and lost consciousness again …

    … The two men in uniform who had beat him and thrown him to the ground took him under the arms and dragged him outside. They dragged him outside because he was unconscious.

    Q What, if anything did you hear after Ahil Dedic was removed from that room?

    A We just heard a shot when he had been dragged outside, and that was all.

    […]

    Q Mr. Avdagic, did you ever see Ahil Dedic again?

    A No, neither me nor anyone else ever saw him again.²⁰⁰

77. The Trial Chamber finds that mental and physical violence was repeatedly inflicted on detainees confined in the administration building.

    (f) The Hangar

78. The conditions confronting detainees in the hangar were vile: “It was terrible . There was such a terrible stench. People had lice. People were sick. Half of the men had been badly beaten up.”²⁰¹ One witness described a young boy named Avdic detained in the hangar who “had such wounds on his – on the right and left side of his chest that he had maggots crawling under his skin, and he had completely cut off parts of his undershirt because it hurt him so much to have any cloth on the wounds”.²⁰² There was motor oil on the concrete floor and, despite the heat of summer, a witness recalled that the atmosphere was cold and damp.²⁰³ When the first group of detainees were moved into the hangar, the guards forced them to clean the floor with their bodies.²⁰⁴ Here, too, the guards coerced the detainees into singing Serb nationalist songs by withholding water unless the detainees followed orders. When the singing met with the guard’s satisfaction, they threw the water through a window in the wall separating the guards from the detainees, often spilling it on the floor.²⁰⁵

79. Except for the beatings received for attempting to use the toilet facilities in the hangar, detainees were usually taken outside the building when the guards intended to inflict particularly serious physical violence upon them. Witness Y testified about four individuals who were twice called out from the hangar for beatings , returning with broken limbs, until, on their third call out, shots were heard and none of the four were seen again.²⁰⁶ Mirsad Alisic testified that one morning he saw the dead body of his friend, Gordan Kardumovic, outside the hangar amongst a pile of cadavers. Mirsad Alisic was forced by the guard to urinate next to the corpse.²⁰⁷ The beatings reported outside the hangar were confirmed by Defense witnesses, such as DC1 who spent one month detained in the hangar and observed detainees returning to the hangar with bruises from their beatings. He speculated that this could have occurred in the toilets.²⁰⁸

80. The Trial Chamber finds that physical and mental violence was regularly inflicted on those detained in the hangar.

    (g) The Pista

81. The pista was a large L-shaped outdoor area composed primarily of concrete. The vast majority of detainees held here were forced to endure whatever environmental conditions existed during those summer months, whether it was unrelenting exposure to the heat and sun or torrents of rain. According to one witness, when asked about knowledge of abuses committed on the pista:

    Yes, I saw that infamous pista where people were sitting with their heads bowed between their knees. It was a dreadful sight. They hardly looked like human beings .²⁰⁹

82. Hundreds of detainees were held on the pista for days or weeks on end with only intermittent shelter.²¹⁰ While some former detainees testified that they were allowed indoors to sleep,²¹¹ others spent both days and nights outside on the tarmac.²¹² Mirsad Alisic was often forced to lie on his stomach on the asphalt for hours at a time.²¹³ In his testimony before the Court, the accused Radic said:

    I hated seeing 500 men sitting in the heat on the concrete, and there's nothing I can do to assist them. Of course I was bothered by the whole situation. There was no way I could find shelter for them. You know, to watch those people in the blazing sun for hours, and it's not easy even if you have an animal tied in the sunshine all day it's awful, never mind a human being.²¹⁴

    To prevent escape and maintain control, a machine gun was trained on the detainees from the roof of the administration building.²¹⁵

83. Sometimes the unbearable conditions appear to have driven the detainees insane . For example, one day an elderly man named Nasic stood up in the eating hall and said “it was unbearable, that we couldn’t – he couldn’t take it any more, that those of us who had been persecuted couldn’t take it any more”. He was shot dead in a burst of gunfire that also wounded three others.²¹⁶ Asmir Crnalic also appeared to have been pushed past the point of rationality by the situation. He stood up without permission and began to dance, until he was taken off to the white house and executed with a gun.²¹⁷

84. The Trial Chamber finds that detainees were regularly subjected to mental and physical violence on the pista.

    (h) The White House and the Red House

85. Two smaller buildings on the outskirts of the camp, known as the white house and red house because of the color of the building, appear to have been reserved for particularly savage treatment of detainees. Azedin Oklopcic described how detainees returning from the white house “had injuries all over their head, all over their body. Their backs were injured. They had bruises. They had scabs on their ears and on their heads. Their hands would be bandaged in T-shirts or whatever clothing they had, makeshift bandages, and so forth.”²¹⁸

86. Indeed, the testimony of several witnesses confirmed that many detainees seen entering the red house or the white house did not come out alive.²¹⁹ Witness AI was held in the white house for one day, during which he saw “more than 5 or 6” bodies piled up behind the building. They were removed by truck the following day.²²⁰ Mirsad Alisic, another detainee , also saw guards loading bodies from the white house onto a truck.²²¹ Zuhra Hrnic testified that she saw dead bodies near the white house every other day, one day 5, another day 13 - most days there were several.²²² According to Witness DC7,

    the white house was renowned that anybody who found himself in the “white house”, it was a very difficult – the prospects for staying alive were very slight, and they could only stay alive if somebody saved them, like they saved me.²²³

87. Witness DC3 explained that the life of anybody detained in the white house was at constant risk,

    because many would come in, would storm that "white house." Even civilians came from outside and they beat the people. The military came, the military that held points round about, they beat people too.²²⁴

88. Witness Y described having to collect dead bodies from inside the white house and the red house and load them onto a truck. In the white house, the witness discovered “very big stains in that room. Almost all of the floor was covered in very dark stains, bloodstains. And on the radiator, I noticed some hair, parts of the head , brains, pieces of skull .… [A body in the room] was stiff. The joints around the elbows and in the area of the ankles were cut, and the throat was cut almost to the middle”.²²⁵ A pile of bodies lay outside the red house, and “the dead bodies were still warm; the skulls were fractured; their jaws were fractured; there were bodies with throats slit”.²²⁶

89. Routine killings appeared to intensify at the end of July 1992, as international exposure loomed and humanitarian organisations sought access to the camp. Former policeman Nusret Sivac testified that between 25 and 30 July:

    They kept taking people out all the time, and I think that during that time, massive killings were committed. It was during that period of time that most of the people were taken out, most of them intellectuals and other prominent citizens of Prijedor , and they never came back.²²⁷

90. Forensic reports on the exhumation of two gravesites, the Kevljani and the Donji Dubovik-Jama Lisac gravesites, both located in the Omarska area, provided evidence of the fate of some of the former detainees of Omarska camp.²²⁸

91. The Trial Chamber finds that detainees were frequently beaten and murdered in and around the red house and white house.

    (i) Petrovdan and the Massacre of Muslims from Hambarine

92. In addition to the regular stream of murders, tortures, and other forms of physical and mental violence committed, two incidents stand out in the notorious three month functioning of Omarska camp.

    (i) Petrovdan (12 July 1992)

93. Petrovdan, or St. Peter’s Day, is an orthodox religious festival that occurs on the 12th of July each year. It is customary to build bonfires on the eve of the holiday in celebration. In 1992, this tradition took on a terrifying aspect in Omarska . A huge fire was made in front of the white house from dump truck tyres. Former detainee Hase Icic described the events that followed:

    At the time, the Serbs, on the eve of Petrovdan, had a real, all-out sort of manifestation rally of civilians and guards. … As night began to fall, they started to take the people out of the first rooms …

    Q. What did you hear after some detainees were taken out?

    A. I remember that, and I’ll remember it for the rest of my life, the cries of women who were outside or in the first room. I’ll never forget their cries and screams . Then I smelt the stench of burning meat. You know when meat begins to burn, it has a specific smell, and this smell of burning flesh was mixed with the smell of the burning rubber from the tyres.²²⁹

94. This witness heard from other detainees that their fellow inmates had been thrown onto the fire. This terrible incident was corroborated by Witness AM, who watched the massacre from a window.²³⁰ Ermin Strikovic was able to see people walking round a big fire from the small window in his detention room. He heard screams of pain, although he was not able to see the cause.²³¹ Zuhra Hrnic testified that the following morning, on her way to the cafeteria, she saw a large “FAP” lorry fully loaded with dead bodies parked in the Omarska camp.²³²

    (ii) Massacre of Muslims from Hambarine

95. One afternoon during the second half of July, two bus loads of detainees from the Muslim village of Hambarine, which had been captured by the Serbs in late May ,²³³ arrived in Omarska from the Keraterm camp. The detainees were taken to the white house. That night, Witness AM was awakened by pistol shots and rose to see guards walking among a large number of bodies, firing into their heads, apparently to “finish them off.” The witness vividly recalled the event:

    I remember well when this bullet was fired, the brain would come out as if the bullet had hit milk, and it came out like white dust.²³⁴

96. The corpses were so numerous they covered “some 50 or 70 metres”. A truck arrived to dispose of the bodies and two detainees were ordered to load them onto the truck . The witness described how, after filling the truck with bodies, it would drive away, returning a quarter of an hour later. It took 5 or 6 round trips for all the bodies to be removed. Witness AM estimated that the truck had 7 or 8 cubic metres of loading space.²³⁵

97. The Trial Chamber finds that the Petrovdan and Hambarine incidents occurred as recounted, resulting in the death of an unknown number of detainees.

    (j) Sexual Violence

98. Approximately thirty-six of the detainees held at Omarska camp were women. The women detained at Omarska were of different ages; the oldest were in their sixties and there was one young girl. The Trial Chamber heard compelling evidence from several female detainees who testified that it was commonplace for women to be subjected to sexual intimidation or violence in Omarska.²³⁶ For example, Sifeta Susic felt threatened by Zeljko Meakic when he said to her that someone had “asked whether it was true that Sifeta Susic was raped by 20 soldiers …and I said ‘Yes, it is. I was the 20th in line.’”²³⁷ Several witnesses told of an occasion when a man approached a female detainee in the eating area, unbuttoned her shirt, drew a knife over one of her breasts, and threatened to cut it off.²³⁸ Many others testified that women were frequently called out from the administration building or the cafeteria at night and were subsequently raped or subjected to other forms of sexual violence.²³⁹

99. Witness J testified that on one occasion Nedeljko Grabovac, known as “Kapitan ”, called her out. She was afraid he might kill her and described how he started touching her on her genitals and grabbing her breasts. Despite her pleas, he took out his penis and attempted to rape her, finally ejaculating on her before she managed to escape.²⁴⁰ The witness incurred bruises on her thighs and breasts as she struggled to get away.²⁴¹

100. Witness F testified that she was often taken away by a guard named Gruban.²⁴² The witness described how this guard took her on several occasions, at any time of the day or night, to a room upstairs in the administration building where he forced her to have sex with him.²⁴³ Another guard, named Kole, called her out twice during the night where he took her to the same room where Gruban had raped her and then raped her himself.²⁴⁴ She further testified that she was taken to the “Separacija” building (a kitchen outside the Omarska camp) where she was forced to have sexual intercourse with Mirko Babic and Dule Tadic.²⁴⁵

101. Witness U testified that she was detained with another woman in one room of the white house. There they heard cries of pain and terror emanating from male detainees and heard interrogators or guards yelling and cursing at the detainees.²⁴⁶ On one occasion, a guard prevented other guards at the white house from assaulting the two female detainees.²⁴⁷

102. Witness U however also testified that, when she was detained in the administration building with the other women, a guard took her from her room several times at night to a room at the end of the corridor, where she was systematically raped by a string of perpetrators:

     …He would rape me…He would leave, and then all the time, one after the other, others would come in, I don’t know the exact number…they also raped me.

103. She was also taken twice during the day to that same room by another guard, where she was again subjected to repeated rapes by multiple assailants:

     …First he raped me, and then afterwards again others entered…three or four men who raped me.

     Q. Did you experience bleeding due to the multiple rapes that you endured at the Omarska camp?

     A. Yes, throughout [the time] I was there.²⁴⁸

104. Witness B was taken to one of the offices in the administration building by a young guard who attempted to rape her:

     He lay on top of me and started physically abusing me. I tried to defend myself, and I did for as long as my strength lasted, and at one point, he threatened to kill me if I wouldn’t let him have his way…I felt a very strong pain in the neck area of my spine…

     Witness B continued to struggle and the guard finally stopped when she said that she would report him to Radic.²⁴⁹

105. Nedzija Fazlic testified that on one occasion a guard called Lugar called her to a room at the end of the corridor and ordered her to take off her clothes. She told him that she could not have sexual intercourse with him as she was menstruating . He forced her to prove it to him and then told her that he would sleep with her later.²⁵⁰ Nedzija Fazlic continued to be threatened by Lugar until she complained to Zeljko Meakic.²⁵¹

106. The women testified that they spoke little amongst themselves about the sexual violence they were forced to endure. Defense witness Vinka Andic, who cleaned the administration building, testified that the female detainees never complained about mistreatment to her.²⁵² The Trial Chamber notes however that, as the female detainees were reluctant to talk about the abuses among themselves, it would be unlikely they would discuss it with a cleaning lady of Serb ethnicity employed by the camp authorities.

107. The testimony given by female detainees did suggest that they had their suspicions about what was happening to the other women.²⁵³ Witness J testified that during her stay in the administration building, women were very often called out at night. When they returned, they appeared absent-minded and did not speak to the others.²⁵⁴ Similarly, Witness F testified that during the time she spent at Omarska, almost every woman from her room was taken out at night. She said that when a woman came back to the room, she would usually be withdrawn or crying.²⁵⁵ Witness A described an occasion when guards took her and another woman to the “Separacija ” building. The other woman was forced to go off with a man called Mirko Babic and when she returned she was in tears.²⁵⁶ Witness B reported how one woman would often be taken out for interrogation and when she returned showed signs of “physical abuse.”²⁵⁷ Zuhra Hrnic was kept in a room above the cafeteria with seventeen other women and she testified that their “room leader” was separated from them during the night. The witness later noticed that the “room leader” had an enormous bruise on her right thigh and that she kept crying all the time.²⁵⁸

108. The Trial Chamber finds that female detainees were subjected to various forms of sexual violence in Omarska camp.

109. The Trial Chamber turns now to examine the conditions of detention in the Keraterm and Trnopolje camps where Zigic allegedly committed crimes, in addition to the ones he is charged with in Omarska.
     C. THE KERATERM AND TRNOPOLJE CAMPS

110. The Prosecution did not produce a great deal of evidence relating to the functioning of the Keraterm camp. It produced even less with regard to the Trnopolje camp. Nevertheless , the evidence presented indicates that the Keraterm and Trnopolje camps functioned according to the model established by the concurrently operating Omarska camp.

111. As in the Omarska camp, most of the detainees in the Keraterm camp were Muslims and a few were Croats.²⁵⁹ There were also only a small number of women detained in Keraterm camp.²⁶⁰

112. In Keraterm, detainees were held in four separate rooms known as rooms 1, 2 , 3, and 4. As in Omarska, overcrowding was severe. Witnesses estimated that between 220 and 500 people were detained in room 2, which was 12 meters long by 7 or 8 meters wide.²⁶¹ The conditions were equally terrible in room 4. Some detainees were allowed to bring in wooden palettes to sleep on the concrete floor. However, because these were piled one on top of the other , space was reduced and it was impossible for the rest to lie down.²⁶² The detainees were only allowed to leave the room to use the toilet.²⁶³

113. In Keraterm camp, the conditions of hygiene were also dreadful. There were few toilet facilities and the detainees were allowed to go to the toilet only once a day, with five men at time escorted by guards.²⁶⁴ They could never bathe although, occasionally, they could wash a little with cold water. The detainees received no soap or toothpaste and they were given inadequate food and water. Infestations of lice appeared.²⁶⁵ Witness Y reported he was fed for the first time 48 hours after his arrival at the camp and thereafter only once every 24 hours. The quality and quantity of food provided was totally inadequate, and detainees suffered from malnutrition and starvation.²⁶⁶ The detainees received two pieces of bread that they had to eat very quickly or they would be beaten.²⁶⁷ Furthermore , the food was not delivered regularly²⁶⁸ and, according to Witness DD/8, sometimes there was no food provided at all.²⁶⁹ To supplement the meager camp provisions, detainees were sometimes allowed to receive food brought from their families, although these occasional supplements were not enough to alleviate the hunger and malnutrition.²⁷⁰

114. As in the Omarska camp, most of the detainees in Keraterm were interrogated in an attempt to identify opponents of the new Serb regime.²⁷¹ According to the testimony, the interrogators asked the detainees for their personal data, whether they had weapons or knew anyone who had weapons, and for whom they voted in the last election.²⁷² Without any apparent reason, people were called out from their rooms and mercilessly beaten . According to Witness AE, every night people were taken out, beaten, and sometimes killed.²⁷³ Witnesses testified to seeing dead bodies in the camp on several occasions. Sounds of pain being inflicted were common.²⁷⁴ The Trial Chamber also heard credible evidence that women were raped in the Keraterm camp.²⁷⁵

115. Trnopolje was also a notoriously brutal camp, although a few witnesses testified that conditions in Trnopolje were more bearable than in Omarska and Keraterm.²⁷⁶ Food, water, and hygiene facilities were far less than adequate, and violence was pervasive throughout the camp.²⁷⁷
     D. CONCLUSION

116. The evidence is overwhelming that abusive treatment and inhumane conditions in the camps were standard operating procedure. Camp personnel and participants in the camp’s operation rarely attempted to alleviate the suffering of detainees . Indeed, most often those who participated in and contributed to the camp’s operation made extensive efforts to ensure that the detainees were tormented relentlessly. Many detainees perished as a result of the inhumane conditions, in addition to those who died as a result of the physical violence inflicted upon them.

117. The Trial Chamber finds that the non-Serbs detained in these camps were subjected to a series of atrocities and that the inhumane conditions were imposed as a means of degrading and subjugating them. Extreme brutality was systematic in the camps and utilized as a tool to terrorize the Muslims, Croats, and other non-Serbs imprisoned therein.

118. The Trial Chamber will now consider the applicable law and explore whether the particular facts, as found by the Trial Chamber above in Part II, support a finding beyond a reasonable doubt that the crimes alleged in the Amended Indictment have been committed. By their nature, certain of the crimes alleged, particularly persecution as a crime against humanity, tend to involve many people with differing degrees of participation. The Trial Chamber will first ascertain whether the legal prerequisites for each crime have been proved. If so, it will then determine the degree of culpability, if any, attributable to each of the accused. The legal prerequisites will be determined in light of the state of codified and customary international law at the time of the events alleged in the Amended Indictment.

      

     III. APPLICABLE LAW AND LEGAL FINDINGS

119. The charges remaining in the Amended Indictment after the Trial Chamber’s Decision on Defense Motions for Acquittal²⁷⁸ are as follows: Kvocka, Prcac, Kos, Radic, and Zigic are each charged on the basis of the same facts, under Article 5 of the Statute (crimes against humanity), with persecution and inhumane acts (counts 1-2) and under Article 3 of the Statute (violations of the laws or customs of war) with outrages upon personal dignity (count 3). The charges of persecution on political, racial, or religious grounds includes the murder , torture and beating, sexual assault and rape, harassment, humiliation and psychological abuse, and confinement in inhumane conditions, of Bosnian Muslims, Bosnian Croats , and other non-Serbs. The charges remaining against Kvocka, Prcac, Kos, and Radic are limited to crimes committed against detainees in Omarska camp; the charges are brought against Zigic for crimes committed in Omarska, Keraterm, and Trnopolje camps .

120. Kvocka, Prcac, Kos, and Radic are charged on the basis of the same acts under Articles 3 (violations of the laws or customs of war) and 5 (crimes against humanity ) of the Statute for the murder (counts 4-5), torture, and cruel treatment (counts 8-10) of prisoners in the Omarska camp; Zigic is separately charged with murder (counts 6-7), torture, and cruel treatment (counts 11-13) under Articles 3 and 5 of the Statute for crimes alleged against certain named or identified persons detained in the Omarska, Keraterm, and Trnopolje camps.

121. In addition to the above charges, Radic is also separately charged with rape and torture as crimes against humanity (counts 14-15) under Article 5 and with torture and outrages upon personal dignity (counts 16-17) under Article 3 of the Statute for crimes of sexual violence committed against detainees in Omarska camp.

122. In its Decision on Judicial Notice, the Trial Chamber accepted certain facts agreed to by the parties, and decided that “at the times and places alleged in the Amended Indictment” there was “a widespread and systematic attack against notably the Muslim and Croat civilian population; and that there was a nexus between this armed conflict and the widespread and systematic attack on the civilian population and the existence of the Omarska, Keraterm, and Trnopolje camps and the mistreatment of the prisoners therein.”²⁷⁹ The Decision also recognized that such notice does not “indicate in itself that the accused are responsible for the commission of the alleged crimes”.²⁸⁰

      

     A. ARTICLES 3 AND 5 OF THE STATUTE

     1. Prerequisites for Article 3 Crimes

123. For a crime to be adjudicated under Article 3 of the Statute (violations of the laws or customs of war), the Trial Chamber must determine that a state of armed conflict existed at the time the crime was committed and that the crime was “closely related” to the armed conflict, whether internal or international in character.²⁸¹ According to the Appeals Chamber, “an armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organised armed groups or between such groups within a State.”²⁸² For a successful prosecution under Article 3:

     (i) the violation must constitute an infringement of a rule of international humanitarian law;

     (ii) the rule must be customary in nature, or, if it belongs to treaty law, the required conditions must be met;

     (iii) the violation must be serious, that is to say, it must constitute a breach of a rule protecting important values, and the breach must involve grave consequences for the victim;

     (iv) the violation of the rule must entail, under customary or conventional law, the individual criminal responsibility of the person breaching the rule.²⁸³

124. All charges alleged in the Amended Indictment under Article 3 (violations of the laws or customs of war) are based on Common Article 3 of the four 1949 Geneva Conventions (“Common Article 3”). It is firmly established in the Tribunal jurisprudence that Common Article 3 has acquired the status of customary law.²⁸⁴ An additional requirement for Common Article 3 crimes under Article 3 of the Statute is that the violations must be committed against persons “taking no active part in the hostilities.”²⁸⁵ In the present case, none of the victims was injured during combat operations and the vast majority was unarmed persons held in detention camps, so that requirement is satisfied.

125. The Trial Chamber has previously found that an armed conflict existed at the times relevant to the crimes alleged and that there was a nexus between the armed conflict and the existence of the Omarska, Keraterm, and Trnopolje camps, and the mistreatment of the detainees therein.²⁸⁶

126. The Trial Chamber thus finds that all the requirements necessary for prosecution of a crime under Article 3 of the Statute have been satisfied.
     2. Prerequisites for Article 5 Crimes

127. Article 5 of the Statute, crimes against humanity, requires the existence of an armed conflict, whether international or internal, and that the criminal acts alleged occurred during that armed conflict. In summarizing the jurisprudence of the Tribunal for crimes brought under Article 5 of the Statute, the Kunarac Trial Chamber stipulated:²⁸⁷

     (i) There must be an attack.²⁸⁸

     (ii) The acts of the perpetrator must be part of the attack.²⁸⁹

     (iii) The attack must be “directed against any civilian population”.

     (iv) The attack must be “widespread or systematic”.

     (v) The perpetrator must know of the wider context in which his acts occur and that his acts are part of the attack.²⁹⁰

128. The critical element of crimes charged under Article 5 is that the criminal acts form part of a widespread or systematic attack directed against any civilian population. Such acts may constitute persecution under 5(h) only if they were perpetrated with a discriminatory intent on political, racial, or religious grounds.

129. Based upon the facts found in Part II and agreed upon in the Trial Chamber’s prior Decision on Judicial Notice, the Trial Chamber notes that the required elements that there must be an attack, that the attack must be directed against any civilian population, and that the attack be widespread or systematic have been satisfied. The Trial Chamber also notes that crimes committed in Omarska camp formed part of an attack directed against the civilian population and this would have had to have been known to all who worked in or regularly visited the camp.

130. In sum, all of the statutory prerequisites for crimes charged under Articles 3 and 5 are met in this case.

131. The Trial Chamber will next examine whether the elements of each of the specific crimes charged under Articles 3 and 5 in the Amended Indictment have been satisfied . These include the elements of murder, torture, inhumane acts, cruel treatment, outrages upon personal dignity, rape, and persecution.
     3. The Constituent Elements of the Offences Charged Under Articles 3 and 5

     (a) Murder²⁹¹

132. The ICTY and the ICTR have consistently defined the crime of murder as requiring that the death of the victim result from an act or omission of the accused committed with the intent to kill, or with the intent to cause serious bodily harm which the perpetrator should reasonably have known might lead to death.²⁹²

133. Kvocka, Prcac, Kos, and Radic are charged under Article 5(a) and Article 3 with murder as a crime against humanity for their participation in or responsibility for the murder of Bosnian Muslim, Bosnian Croat, and other non-Serb detainees at the Omarska camp between 24 May 1992 and 30 August 1992, including the victims listed in Schedules A-E annexed to the Amended Indictment (counts 4 and 5).

134. Zigic is also charged with murder as a war crime and a crime against humanity for crimes committed in Omarska and Keraterm camps against named individuals or as part of specified incidents set out in the Amended Indictment or Schedule (counts 6 and 7).

135. As examined in Part II of this Judgement, it is clear that murder occurred within the camps. Many individual victims were identified by name and witnesses also testified about killings of unidentified men, seeing piles of dead bodies left near the white house and the red house, and about the murder of detainees on Petrovdan day or after the Hambarine incident.

136. The Trial Chamber is satisfied that murder falling within the meaning of Articles 3 and 5 (murder and persecution) of the Statute was committed in the camps. Whether responsibility for any murders can be imputed to the accused is a separate issue to be subsequently addressed.

     (b) Torture

     (i) No State Actor Requirement

137. Torture has been defined by the Tribunal jurisprudence as severe mental or physical suffering deliberately inflicted upon a person for a prohibited purpose , such as to obtain information or to discriminate against the victim. Differing views have been expressed in the jurisprudence of the Tribunal as to whether the suffering must be inflicted by a public agent or the representative of a public authority in order to meet the definition of torture.

138. The Kunarac Judgement departed from the previous definitions of torture set forth by the Trial Chambers of the ICTY²⁹³ and the ICTR,²⁹⁴ in ruling that, in contrast to international human rights law, international humanitarian law does not require the involvement of a state official or of any other authority-wielding person in order for the offence to be regarded as torture.²⁹⁵

139. The Trial Chamber is persuaded by the reasoning of the Kunarac Trial Chamber that the state actor requirement imposed by international human rights law is inconsistent with the application of individual criminal responsibility for international crimes found in international humanitarian law and international criminal law.²⁹⁶

140. The Trial Chamber also agrees with the Celebici Trial Chamber that the prohibited purposes listed in the Torture Convention as reflected by customary international law “do not constitute an exhaustive list, and should be regarded as merely representative ”,²⁹⁷ and notes that the Furundzija Trial Chamber concluded that humiliating the victim or a third person constitutes a prohibited purpose for torture under international humanitarian law.²⁹⁸

141. The Trial Chamber applies the following definition of torture to this case:

     (i) Torture consists of the infliction, by act or omission, of severe pain or suffering , whether physical or mental;

     (ii) the act or omission must be intentional; and

     (iii) the act or omission must be for a prohibited purpose, such as obtaining information or a confession, punishing, intimidating, humiliating, or coercing the victim or a third person, or discriminating, on any ground, against the victim or a third person.

     (ii) Severe Pain or Suffering

142. Consistent with human rights jurisprudence interpreting torture,²⁹⁹ the Celebici Trial Chamber has indicated that the severity of the pain or suffering is a distinguishing characteristic of torture that sets it apart from similar offences.³⁰⁰

143. A precise threshold for determining what degree of suffering is sufficient to meet the definition of torture has not been delineated.³⁰¹ In assessing the seriousness of any mistreatment, the Trial Chamber must first consider the objective severity of the harm inflicted. Subjective criteria, such as the physical or mental effect of the treatment upon the particular victim and, in some cases, factors such as the victim’s age, sex, or state of health will also be relevant in assessing the gravity of the harm.³⁰²

144. The UN Special Rapporteur on Torture, human rights bodies, and legal scholars have listed several acts that are considered severe enough per se to constitute torture and those that are likely to constitute torture depending on the circumstances .( footnote 303 ) Beating, sexual violence, prolonged denial of sleep, food, hygiene, and medical assistance, as well as threats to torture , rape, or kill relatives were among the acts most commonly mentioned as those likely to constitute torture. Mutilation of body parts would be an example of acts per se constituting torture.

145. The jurisprudence of the Tribunals, consistent with the jurisprudence of human rights bodies,³⁰⁴ has held that rape may constitute severe pain and suffering amounting to torture, provided that the other elements of torture, such as a prohibited purpose, are met.³⁰⁵

146. In several cases involving Zaire, the U.N. Human Rights Committee found that various combinations of the following acts constituted torture: beatings, electric shocks to the genitals, mock executions, deprivation of food and water, and the “thumb press.”³⁰⁶ In considering individual complaints brought against Uruguay and Bolivia, the Human Rights Committee found that systematic beatings, electroshocks, burns, extended hanging from hand and/or leg chains, repeated immersion in a mixture of blood, urine, vomit and excrement (‘submarino’), standing for great lengths of time, and simulated executions or amputations amounted to torture.³⁰⁷

147. In the post World War II trials held in Japan, the International Military Tribunal for the Far East (IMTFE) found that the most prevalent forms of torture systematically inflicted by Japanese soldiers upon Allied forces or occupied civilians included “water treatment, burning, electric shocks, the knee spread, suspension, kneeling on sharp instruments and flogging.”³⁰⁸ Clearly, an exhaustive list of torturous practices is impossible to devise.

148. Although such torture practices often cause permanent damage to the health of the victims, permanent injury is not a requirement for torture.

149. Damage to physical or mental health will be taken into account in assessing the gravity of the harm inflicted. The Trial Chamber notes that abuse amounting to torture need not necessarily involve physical injury, as mental harm is a prevalent form of inflicting torture. For instance, the mental suffering caused to an individual who is forced to watch severe mistreatment inflicted on a relative would rise to the level of gravity required under the crime of torture. Similarly, the Furundzija Trial Chamber found that being forced to watch serious sexual attacks inflicted on a female acquaintance was torture for the forced observer.³⁰⁹ The presence of onlookers, particularly family members, also inflicts severe mental harm amounting to torture on the person being raped.

150. As to intentional infliction, in the Aksoy v. Turkey case, the European Court of Human Rights found that when the victim was stripped naked, had his armed tied together behind his back, and was suspended by his arms, “this treatment could only have been deliberately inflicted: indeed, a certain amount of preparation and exertion would have been required to carry it out.”³¹⁰

151. The Trial Chamber, in evaluating the perpetrator’s actions, take into account the general atmosphere and conditions of detention prevailing in the camps, the absence of any medical care after abuse, and the repetitive, systematic character of the mistreatment of detainees. The Trial Chamber also notes the status of the victims and the perpetrators. The nature, purpose, consistency, and severity of the abuse are also indicia of torture.

     (iii) Prohibited Purposes

152. The jurisprudence of the Tribunals recognizes certain prohibited purposes that qualify as torture. The Akayesu Trial Chamber adopted the prohibited purposes contained in the Convention against Torture, namely to obtain information or a confession from the victim or a third person, to punish the victim or a third person, to intimidate or coerce the victim or the third person, or for any reason based on discrimination of any kind.³¹¹ The Furundzija Trial Chamber added intent to humiliate to the list of prohibited purposes.³¹²

153. The Celebici Trial Chamber rightly emphasized that the prohibited purpose need be neither the sole nor the main purpose of inflicting the severe pain or suffering .³¹³

154. In interpreting the prohibited purposes of torture, the Trial Chambers have regularly found torture existed when the perpetrator’s intent was to punish or to obtain information or a confession.³¹⁴ The Tribunals have also found instances when torture was inflicted as a means of discriminating on the basis of gender.³¹⁵ Moreover, the Celebici Trial Chamber emphasized that violence inflicted in a detention camp is often committed with the “purpose of seeking to intimidate not only the victim but also other inmates”.³¹⁶

155. Kvocka, Prcac, Kos, and Radic are charged with torture as a crime against humanity and war crime based on certain treatment inflicted upon Bosnian Muslim, Bosnian Croat, and other non-Serb detainees in the Omarska camp, including those detainees and incidents listed in Schedules A, B, C, and E (counts 8 and 9). Radic is also charged with torture as a crime against humanity and war crime based on sexual violence inflicted upon women held in the Omarska camp (counts 14 and 16).

156. Zigic is also charged with torture as a crime against humanity and war crime for specific instances of mistreatment and/or beating of Bosnian Muslim, Bosnian Croat and other non-Serb detainees in the Omarska, Keraterm, and Trnopolje camps (counts 11 and 12) in Schedule D.

157. The parties do not contest that detainees in the three camps were subjected to torture as defined in the Tribunal jurisprudence. The Trial Chamber finds that many of the acts of beating or interrogating detainees and acts of humiliation and psychological abuses, as described in Part II of this Judgement, were committed with a specific intent to punish detainees suspected of participating in armed rebellion against Bosnian Serb forces and other acts were committed to obtain information or a confession. Virtually all acts of intentionally inflicting physical and mental violence were committed with an intent to intimidate, humiliate, and discriminate against non-Serb detainees.

158. The Trial Chamber is satisfied that torture falling within the meaning of Articles 3 and 5 (torture and persecution) of the Statute was committed in the camp. Whether responsibility for torture can be imputed to each accused is a separate issue to be subsequently addressed.

     (c) Cruel Treatment

159. The Tribunal has consistently defined cruel treatment, which is prohibited by Common Article 3 to the Geneva Conventions, as an intentional act or omission that causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity.³¹⁷

160. In assessing the degree of harm required for an offence to qualify as cruel treatment, consideration should be given to the object and purpose of Common Article 3, which attempts to delineate a minimum standard of treatment to be afforded to persons taking no active part in the hostilities.

161. The Trial Chamber, following the lead of the Celebici Trial Chamber Judgement, considers that the degree of physical or mental suffering required to prove cruel treatment is lower than the one required for torture, though it must be at the same level as “wilfully causing great suffering or serious injury to body or health.”³¹⁸ The Celebici Trial Chamber found that the degree of suffering required to prove cruel or inhuman treatment was not as high as that required to sustain a charge of torture.³¹⁹ The Blaskic Trial Chamber, for example, held that the use of human shields constitutes cruel treatment under Article 3 of the Statute.³²⁰

162. Kvocka, Prcac, Kos, and Radic are charged with cruel treatment for the torture and beating of Bosnian Muslim, Bosnian Croat and other non-Serb detainees in the Omarska camp, including those detainees listed in Schedules A, B, C, and E (count 10). The accused are also charged with torture for those same acts.

163. Zigic is also charged with cruel treatment for specific instances of torture and/or beating of Bosnian Muslim, Bosnian Croat and other non-Serb detainees in the Omarska, Keraterm, and Trnopolje camps (count 13) and Schedule D.

164. Psychological abuses, humiliation, harassment, and inhumane conditions of detention caused severe pain and suffering to the detainees. The Trial Chamber finds that cruel treatment, in particular in the form of beatings and attempts at degradation , was committed in the camps.

165. The Trial Chamber is satisfied that cruel treatment within the meaning of Article 3 of the Statute was committed. Whether responsibility for cruel treatment can be imputed to the accused is a separate issue to be subsequently addressed.

     (d) Outrages Upon Personal Dignity

166. Common Article 3 to the Geneva Conventions prohibits “outrages upon personal dignity, in particular humiliating and degrading treatment.” As indicated in the Aleksovski and Kunarac Trial Chamber Judgements, “the prohibition of the offence of outrages upon personal dignity is a category of the broader proscription of inhuman treatment in common article 3”.³²¹

167. The Kunarac Trial Chamber stipulated that the offence requires “(i) that the accused intentionally committed or participated in an act or omission which would be generally considered to cause serious humiliation, degradation or otherwise be a serious attack on human dignity, and (ii) that he knew that the act or omission could have that effect.”³²² The Aleksovski Judgement emphasized that the offence is “an act which is animated by contempt for the human dignity of another person. The corollary is that the act must cause serious humiliation or degradation to the victim.”³²³ It also noted that subjective criteria must be taken into account, including a particular victim’s temperament or sensitivity, although the “reasonable person” standard must also be considered.³²⁴

168. This Trial Chamber agrees with the Kunarac Judgement that the act or omission need not cause lasting suffering; it is sufficient if the act or omission “would be generally considered to cause serious humiliation, degradation or otherwise be a serious attack on human dignity.”³²⁵ Kunarac further found that the mens rea element of the offence did not require any specific intent from the perpetrator to humiliate, ridicule, or degrade the victim,³²⁶ but that it was enough if the perpetrator knew that his or her act or omission “could cause serious humiliation, degradation or affront to human dignity.”³²⁷

169. The term “outrages upon personal dignity” has been compared with inhuman treatment in the jurisprudence of the Tribunal.³²⁸ International human rights bodies have found that inhuman and/or degrading treatment can be committed on the sole basis of inappropriate conditions of detention.³²⁹

170. The Aleksovski Trial Chamber found the following acts to constitute outrages upon personal dignity: the use of detainees as human shields or trench diggers,³³⁰ beatings, and the constant fear of being robbed or beaten endured by vulnerable persons like detainees.³³¹ The Furundzija and Kunarac Trial Chambers have found that rape and other forms of sexual violence, including forced public nudity, cause severe physical or mental pain and amount to outrages upon personal dignity.³³²

171. In the Amended Indictment, the five accused are charged with outrages upon personal dignity based upon the same set of facts underlying the persecution count : murder, torture and beating, rape and sexual assault, harassment, humiliation and psychological abuse, and confinement in inhumane conditions (count 3). In addition , Radic is separately charged with outrages upon personal dignity (count 17) for rape and sexual violence committed against named or identified female detainees.

172. In the view of the Trial Chamber, murder in and of itself cannot be characterized as an outrage upon personal dignity. Murder causes death, which is different from concepts of serious humiliation, degradation or attacks on human dignity. The focus of violations of dignity is primarily on acts, omission, or words that do not necessarily involve long-term physical harm, but which nevertheless are serious offences deserving of punishment.

173. Evidence discloses that the detainees were subjected to serious humiliating and degrading treatment through such means as inappropriate conditions of confinement in the Omarska camp. The detainees were forced to perform subservient acts demonstrating Serb superiority, forced to relieve bodily functions in their clothing, and they endured the constant fear of being subjected to physical, mental, or sexual violence in the camp, as described in Part II of this Judgement.

174. The Trial Chamber finds that outrages upon personal dignity within the meaning of Article 3 of the Statute were regularly committed upon detainees in Omarska camp . Whether responsibility for outrages upon personal dignity can be imputed to the accused is a separate issue to be subsequently addressed.

     (e) Rape

175. Rape was succinctly defined in the Akayesu Trial Chamber Judgement as “a physical invasion of a sexual nature, committed on a person under circumstances which are coercive.”³³³ The Furundzija Trial Chamber articulated the objective elements of rape as follows:

     (i) the sexual penetration, however slight:

     (a) of the vagina or anus of the victim by the penis of the perpetrator or any other object used by the perpetrator; or
     (b) of the mouth of the victim by the penis of the perpetrator;

     (ii) by coercion or force or threat of force against the victim or a third person .³³⁴

176. The Kunarac Trial Chamber, however, found element (ii) of the Furundzija element more restrictive than required by international law, and concluded that it should be interpreted to mean “where such sexual penetration occurs without the consent of the victim.”³³⁵ The Kunarac Judgement emphasizes that the consent must be “given voluntarily, as a result of the victim’s free will, assessed in the context of the surrounding circumstances ”³³⁶ and the principal focus should be whether there were serious violations of sexual autonomy.³³⁷

177. The Trial Chamber agrees with the factors set out by the Trial Chamber in Kunarac, defining rape as a violation of sexual autonomy. In order for sexual activity to be classified as rape:

     (i) the sexual activity must be accompanied by force or threat of force to the victim or a third party;

     (ii) the sexual activity must be accompanied by force or a variety of other specified circumstances which made the victim particularly vulnerable or negated her ability to make an informed refusal; or

     (iii) the sexual activity must occur without the consent of the victim.³³⁸

178. In considering allegations of rape, the Celebici Trial Chamber stressed that coercive conditions are inherent in situations of armed conflict.³³⁹ Further, the Furundzija Trial Chamber emphasized that “any form of captivity vitiates consent.”³⁴⁰ This Trial Chamber endorses these holdings.

179. The mens rea of the crime of rape is the intent to effect a sexual penetration and the knowledge that it occurs without the consent of the victim.³⁴¹

180. The Akayesu Trial Chamber defined sexual violence as “any act of a sexual nature which is committed on a person under circumstances which are coercive.”³⁴² Thus, sexual violence is broader than rape and includes such crimes as sexual slavery or molestation.³⁴³ Moreover, the Akayesu Trial Chamber emphasized that sexual violence need not necessarily involve physical contact and cited forced public nudity as an example.³⁴⁴

181. The Amended Indictment charges sexual violence as one of the acts that may constitute persecution if the requisite intent is shown (count 1). In addition, rape as a crime against humanity is charged against Mladjo Radic for his assaults on specified victims (count 15).

182. The evidence establishes, as demonstrated in Part II of this Judgement, that female detainees in Omarska camp were subjected to forced or coerced acts of sexual penetration, as well as other acts of a sexual nature committed under coercive or abusive circumstances.

183. The Trial Chamber is satisfied that rape and other forms of sexual violence falling within the meaning of Articles 3 and 5 (rape and persecution) of the Statute were committed. Whether responsibility for these crimes can be imputed to the accused is a separate issue to be subsequently addressed.

     (f) Persecution on Political, Racial, and Religious Grounds

184. The Tadic Trial Chamber articulated three basic requirements for the crime of persecution: (1) the occurrence of a discriminatory act or omission; (2 ) a basis for that act or omission founded on race, religion, or politics; and ( 3) the intent to infringe an individual’s enjoyment of a basic or fundamental right .³⁴⁵ The Kupreskic Trial Chamber defined persecution 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.”³⁴⁶

185. The Tribunal’s caselaw has specified that persecutory acts include those crimes enumerated in other sub-clauses of Article 5,³⁴⁷ crimes found elsewhere in the Statute,³⁴⁸ and acts not enumerated in the Statute but which may entail the denial of other fundamental human rights provided that, separately or combined, the acts are of the same gravity or severity as the other enumerated crimes in Article 5.³⁴⁹ Further, “discriminatory acts charged as persecution must not be considered in isolation , but in context, by looking at their cumulative effect. Although individual acts may not be inhumane, their overall consequences must offend humanity in such a way that they may be termed ‘inhumane’”.³⁵⁰

186. Thus far, the Trial Chambers of the ICTY have found that the following acts may constitute persecution when committed with the requisite discriminatory intent : imprisonment,³⁵¹ unlawful detention of civilians³⁵² or infringement upon individual freedom,³⁵³ murder,³⁵⁴ deportation or forcible transfer,³⁵⁵ “seizure, collection, segregation and forced transfer of civilians to camps”,³⁵⁶ comprehensive destruction of homes and property,³⁵⁷ the destruction of towns, villages and other public or private property and the plunder of property,³⁵⁸ attacks upon cities, towns and villages,³⁵⁹ trench -digging and the use of hostages and human shields,³⁶⁰ the destruction and damage of religious or educational institutions,³⁶¹ and sexual violence.³⁶² The Trial Chamber also notes jurisprudence from World War II trials found acts or omissions such as denying bank accounts, educational or employment opportunities, or choice of spouse to Jews on the basis of their religion, constitute persecution.³⁶³ Thus, acts that are not inherently criminal may nonetheless become criminal and persecutorial if committed with discriminatory intent. The Kordic Trial Chamber Judgement stated that “in order for the principle of legality not to be violated, acts in respect of which the accused are indicted under the heading of persecution must be found to constitute crimes under international law at the time of their commission.”³⁶⁴ The Trial Chamber reads this statement as meaning that jointly or severally, the acts alleged in the Amended Indictment must amount to persecution, not that each discriminatory act alleged must individually be regarded as a violation of international law.

187. If based on the same acts against the same victims, the Trial Chamber considers that the crime of persecution subsumes other alleged acts separately constituting crimes against humanity, as long as the additional element of discrimination on specified grounds is present.

188. The five accused are charged with persecution under Article 5(h) for the following acts committed against Bosnian Muslims, Bosnian Croats and other non-Serbs: murder , torture and beating, rape and sexual assault, harassment, humiliation, and psychological abuse, and confinement in inhumane conditions (count 1).

189. Murder, torture, and rape are explicitly listed under sub-clauses (a), (f), and (g) of Article 5 of the Statute and constitute persecutory acts if committed on discriminatory grounds. Confinement in camps under inhumane conditions can be included under sub-clauses (e) and (i) prohibiting “imprisonment” and “other inhumane acts” and also meets the definition of a persecutory act.

190. The Trial Chamber now turns to examining harassment, humiliation, and psychological abuse. These acts are not explicitly listed under Article 5 nor do they appear as specific offences under other Articles of the Statute. In order to constitute persecution , harassment, humiliation, and psychological abuse must occupy the same level of seriousness as other listed or recognized crimes against humanity, or together with other crimes cognizable under Article 5, they must form part of a course of conduct which satisfies the criteria for persecution. The conditions of detention prevailing in the camp – gross overcrowding in small rooms without ventilation, requiring the detainees to beg for water, and forcing them to relieve bodily functions in their clothes – were themselves a form of abuse, and were intended to harass, humiliate , and inflict mental harm on the detainees. The constant berating, demoralizing , and threatening of detainees, including the guards’ coercive demands for money from detainees, and the housing of detainees in lice-infected and cramped facilities were calculated by participants in the operation of the camp to inflict psychological harm upon detainees. Just as rape and forced nudity are recognized as crimes against humanity or genocide if they form part of an attack directed against a civilian population or if used as an instrument of the genocide,³⁶⁵ humiliating treatment that forms part of a discriminatory attack against a civilian population may, in combination with other crimes or, in extreme cases alone, similarly constitute persecution.

191. The Trial Chamber is also satisfied that the horrendous conditions of detention and the demoralizing treatment of detainees in Omarska camp were sufficiently degrading and traumatizing to constitute per se an outrage upon personal dignity, which qualifies as persecution since it was clearly committed on discriminatory grounds .

192. In addition to the harassment, humiliation, and psychological trauma endured by the detainees as part of their daily life in the camp, psychological abuse was also inflicted upon them through having to see and hear torturous interrogations and random brutality perpetrated on fellow inmates. The Trial Chamber is satisfied that the harassment, humiliation, and psychological abuses fall under the actus reus of persecution.

193. The Trial Chamber will now consider the requisite mens rea involved in establishing persecution as a crime against humanity under the terms of the Statute .

     (i) Mens rea for persecution

194. Discrimination is the main feature that distinguishes the crime of persecution from other crimes against humanity. Any crime against humanity under the other sub -clauses of Article 5 that also meets the additional requirement of discrimination would qualify as persecution. Discrimination in the context of persecution under Article 5(h) must be on political, racial, or religious grounds. In other words , the discriminatory intent necessary for the crime must be characterizable in terms of politics, race, and religion.

195. The Tadic Trial Chamber Judgement indicated that the discriminatory act could result from the application of positive or negative criteria. It found that an attack “conducted against only the non-Serb portion of the population because they were non-Serbs” was indicative of the necessary discriminatory intent.³⁶⁶ In this case, the detainees in Omarska camp were selected on the basis of political , ethnic, or religious criteria; their specific attributes differing from those, and being defined in distinction to those, of their Bosnian Serb captors and abusers . When all the detainees are non-Serbs or those suspected of sympathizing with non-Serbs, and all abusers are Serbs or Serb sympathizers, it is disingenuous to contend that religion, politics, and ethnicity did not define the group targeted for attack. Indeed, the Trial Chamber notes that persons suspected of being members of these groups are also covered as possible victims of discrimination. For example , if a Bosnian Serb was targeted on suspicion of sympathizing with Bosnian Muslims , that attack could be classified as persecutory.³⁶⁷ Additionally, if a person was targeted for abuse because she was suspected of belonging to the Muslim group, the discrimination element is met even if the suspicion proves inaccurate.

196. The Amended Indictment in the present case defines the group targeted for persecution as “the Bosnian Muslims, Bosnian Croats and other non-Serbs in the Prijedor area .”³⁶⁸ The Amended Indictment also asserts generally that the attack was directed against “Bosnian Muslims, Bosnian Croats and some other non-Serbs”³⁶⁹ or “the Bosnian Muslim and the Bosnian Croat populations of the Prijedor municipality .”³⁷⁰ Following the finding of the Tadic Trial Chamber Judgement on this point,³⁷¹ a finding cited in both the Blaskic³⁷² and Jelisic³⁷³ Trial Chamber Judgements and in accordance with the language adopted the in Todorovic Sentencing Judgement,³⁷⁴ this Trial Chamber is satisfied that intentionally directing attacks exclusively against non-Serbs detained in Omarksa camp (or their sympathizers), on the basis of their being (or supporting) non-Serbs, constitutes discrimination within the meaning of persecution .

197. In relation to the facts at hand, the Trial Chamber first notes that virtually all the offences alleged were committed against non-Serb detainees of the camps. The victims were targeted for attack on discriminatory grounds. While discriminatory grounds form the requisite criteria, not membership in a particular group, the discriminatory grounds in this case are founded upon exclusion from membership in a particular group, the Serb group. Based on the totality of the evidence, it is clear that murder, torture, rape, beatings and other forms of physical and mental violence were strategically and systematically committed against non-Serbs in Omarska. Most of these atrocities appear to have been committed with a premeditated intent to create an atmosphere of violence and terror and to persecute those imprisoned. In addition, the facilities and the conditions prevailing in Omarska were such that the prisoners who survived their interrogations were forced to endure grossly inadequate living conditions, sustenance, and medical treatment. The ethnic slurs, forcing Muslim and Croat detainees to sing Serbian songs or slap each other, causing the detainees to relieve bodily functions in their clothes because of inadequate toilet facilities, selectively targeting only non-Serbs for physical, mental, or sexual violence – these are all examples of discriminatory and demoralizing treatment designed to persecute. In the oppressive heat, whether outside on the scalding pavement of the pista or crammed into unventilated rooms in the buildings, the non-Serb victims imprisoned in Omarska camp were denied their fundamental rights to life, liberty , property, and bodily and mental integrity, rights synonymous with or reaching the same level of gravity as the specific acts prohibited under Article 5 of the Statute. This denial of fundamental rights has been proved beyond a reasonable doubt. In addition, it was undisputed that participants in the camp operations targeted only non-Serbs and a small group of Serbs suspected of sympathizing with the opposing groups, for the abusive attacks and conditions, leading inevitably to the conclusion that the acts or omissions were committed on discriminatory grounds. The Trial Chamber finds that the elements of persecution as a crime against humanity have been satisfied.

198. There is no doubt that the attacks specifically targeted the non-Serb population of Prijedor and purported to drive this population out of the territory or to subjugate those remaining. The Trnopolje and Keraterm camps appear to have been each established as part of a common plan to effectuate this goal, and the Omarska camp was clearly established to effectuate this goal.

     (ii) Inferring Discriminatory Intent from a “Knowing Participation” in a Criminal Enterprise

199. A secondary issue arises over whether the discriminatory intent of the perpetrator or co-perpetrator of an underlying offence or of a joint criminal enterprise can be inferred from a knowing participation in the discriminatory attack or the criminal enterprise.

200. In the case of persecution, in addition to the intent to commit the underlying act, an additional intent is required,³⁷⁵ namely the specific intent to discriminate on political, racial, or religious grounds . This specific intent to discriminate is thus additional to the intent to commit the underlying act (murder, rape, torture, etc.) and to the mens rea required for crimes against humanity (knowledge of act committed within the context of a widespread or systematic attack directed against a civilian population).³⁷⁶ The Kupreškic Trial Chamber emphasized that the mens rea required for persecution “is higher than for ordinary crimes against humanity, although lower than genocide.”³⁷⁷ Kupreškic summarized the elements required to sustain a charge of persecution: “(a) those elements required for all crimes against humanity under the Statute; (b) a gross or blatant denial of a fundamental right reaching the same level of gravity as the other acts prohibited under Article 5; and (c) discriminatory grounds.”³⁷⁸

201. The Kordic Trial Chamber found that to possess the heightened mens rea for the crime of persecution, “the accused must have shared the aim of the discriminatory policy.”³⁷⁹ The Trial Chambers have repeatedly inferred discriminatory intent from the perpetrator’s wilful or knowing participation in a campaign of systematic abuse against a specific ethnic , religious, or political group. The Jelisic Trial Chamber Judgement considered that discriminatory intent of the accused could be inferred from the fact that the accused “knowingly act(ed( against the backdrop of the widespread and systematic violence being committed against only one specific group”.³⁸⁰ In the Kupreskic Trial Chamber Judgement, four accused were found to have shared the discriminatory intent on the basis of their collaborative participation in certain events that took place in central Bosnia from October 1992 until 16 April 1993.³⁸¹ The Kordic Judgement inferred the discriminatory intent of the accused from their active participation in the common criminal design.³⁸² The Trial Chamber in Kordic thus concludes that discriminatory intent of a perpetrator can be inferred from knowingly participating in a system or enterprise that discriminates on political, racial or religious grounds.

202. The Trial Chamber finds that all of the acts enumerated under count 1 of the Amended Indictment were committed in Omarska camp; the acts or omissions were committed both systematically and randomly by those acting according to their given roles within the camp structure and those responding spontaneously and opportunistically to the condonation of violence this structure afforded, with an intent to discriminate against and ultimately subjugate the non-Serbs detained in the camp.

203. The Trial Chamber notes that there may be particular incidents alleged against an accused where a persecutory nature of the acts remains to be determined. For example, while the Trial Chamber is fully confident that beatings were committed in Omarska camp with an intent to discriminate against non-Serbs, there may be beatings of certain victims which were not committed on discriminatory grounds, but for purely personal reasons.³⁸³ In instances in which an accused has raised a question as to whether an act was committed on discriminatory grounds or without the knowing or wilful participation of the accused , the Trial Chamber will consider whether the Prosecution has established that the grounds were discriminatory.³⁸⁴

204. The Trial Chamber is satisfied that participants in the operation of Omarska camp committed persecution within the meaning of Article 5(h) of the Statute. Whether the accused incur criminal liability for the persecution is a separate issue to be subsequently addressed.

205. The Trial Chamber also takes note of the Plea Agreements reached in the Keraterm camp case, in which the accused and the Prosecution agreed upon the basis of convictions of three former employees of the camp (Sikirica, Došen, and Kolundžija), for persecution as a crime against humanity.³⁸⁵ The agreements explicitly state that two of the accused did not physically perpetrate or condone crimes committed in Keraterm (Došen and Kolundžija), and that they even attempted to halt or prevent certain crimes and improve conditions in the camp. Trial Chamber III accepted the Plea Agreements, finding that a factual basis existed for holding the accused guilty of persecution as a crime against humanity.³⁸⁶ This decision supports a finding that those who do not physically perpetrate crimes and who are relatively low level participants can be found guilty of persecution as a crime against humanity under Article 5 of the Statute. The defendant’s guilty pleas were apparently based on the fact that they knew crimes were rampant in the Keraterm camp and they nonetheless remained in their assigned positions and continued participating in the functioning of the camp.³⁸⁷

     (g) Inhumane Acts

206. Article 5(i) of the Statute is a residual clause. It applies to acts that do not fall within any other sub-clause of Article 5 and which present the same degree of gravity as the other enumerated crimes.³⁸⁸ Relying on the definition given in the Blaskic Judgement,³⁸⁹ the Kordic Judgement considered that “inhumane acts” are characterized by intentionally inflicted serious bodily or mental harm upon the victim, with the degree of severity accessed on a case-by-case basis.³⁹⁰

207. The Kupreskic Judgement referred to international standards of human rights in order to identify prohibited inhumane acts. It particularly mentioned the prohibition of inhuman or degrading treatment under the International Covenant on Civil and Political Rights (Article 7), the European Convention on Human Rights (Article 3), and the Inter-American Convention on Human Rights (Article 5).³⁹¹ The Trial Chamber notes that the African Charter on Human and Peoples’ Rights (Article 5)³⁹² similarly prohibits inhuman treatment.

208. Mutilation and other types of severe bodily harm, beatings and other acts of violence,³⁹³ serious physical and mental injury,³⁹⁴ forcible transfer ,³⁹⁵ inhumane and degrading treatment ,³⁹⁶ forced prostitution,³⁹⁷ and forced disappearance³⁹⁸ are listed in the jurisprudence of the Tribunal as falling under this category.

209. The Trial Chamber finds that inhumane acts falling within the meaning of Article 5 (inhumane acts and persecution) of the Statute were committed in Omarska camp. Evidence discloses that detainees were subjected to serious bodily or mental harm through such means as beatings, torture, sexual violence, humiliation, harassment , psychological abuses, and confinement in inhumane conditions.

210. Whether responsibility for inhumane acts can be attributed to the accused is a separate issue to be subsequently addressed.

211. Due to of the cumulative nature of some of the charges based on the same underlying facts, the Trial Chamber next considers the issue of cumulative convictions.
     B. CUMULATIVE CONVICTIONS

212. In the present case, the question of cumulative convictions arises with regard to many of the same crimes charged under different Articles of the Statute (for example, murder as a violation of Article 3 of the Statute and murder as a violation of Article 5 of the Statute), as well as for the same or similar crimes charged for the same acts under different subsections of the same Article of the Statute (for example, murder charged under Article 5 of the Statute as constituting murder , persecution, and inhumane acts). The jurisprudence of the Tribunals on this issue will be discussed below. The Trial Chamber must decide in each case under which charge(s) it is permissible to enter a conviction(s) punishing the same criminal act.
     1.The Applicable Law

213. The Appeals Chamber in the Celebici case pronounced on the issue of cumulative convictions of war crimes charged under Article 2 (grave breaches of the Geneva Conventions) and Article 3 (violations of the laws or customs of war) of the Statute. It articulated a two-prong test, which has been subsequently applied by Trial Chambers considering cumulative convictions under Articles 3 and 5 of the Statute.³⁹⁹ In addition, the Appeals Chamber in the Jelisic case adopted the same approach as in the Celebici Appeals Chamber in relation to charges brought under Articles 3 and 5 of the Statute.⁴⁰⁰

214. Under the test set out by the Celebici Appeals Chamber (“Test”), it is permissible to enter cumulative convictions under different statutory provisions to punish the same criminal act if “each statutory provision involved has a materially distinct element not contained in the other. An element is materially distinct from another if it requires proof of a fact not required by the other”.⁴⁰¹ If the criminal acts satisfy the criteria for more than one crime but the offenses do not each contain materially distinct elements, and thus cumulative convictions are impermissible, then the Trial Chamber must decide for which offence it will enter a conviction. This selection should be made based on the principle that “ the conviction under the more specific provision should be upheld. Thus, if a set of facts is regulated by two provisions, one of which contains an additional materially distinct element, then a conviction should be entered only under that provision”.⁴⁰²

215. In accordance with this Test, the Trial Chamber will determine the materially distinct elements of each crime charged. If the application of this first prong of the Test requires that the Trial Chamber render only one conviction, the Trial Chamber will, in accordance with the second prong of the Test, select the most specific applicable criminal provision.
     2. The Application of the Test to the Concurrent Offences Specified in the Amended Indictment

     (a) The Concurrent Offences Characterizing the Murders

216. The Trial Chamber has found that murders were committed in the Omarska and Keraterm camps during the time period covered by the Amended Indictment. These murders are cumulatively characterized in the Amended Indictment as persecutions committed through murders under Article 5(h) (count 1), inhumane acts committed through murder under Article 5(i) (count 2), outrages upon personal dignity committed through murder under Article 3(1)(c) (count 3), murder under Article 3(1)(a) (counts 5 and 7), and murder under Article 5(a) (counts 4 and 6).

217. The Trial Chamber has found that it is not appropriate to charge murder as an outrage upon personal dignity under Article 3(1)(c) of the 1949 Geneva Conventions . Thus, the issue of improper cumulative conviction does not arise with respect to the relationship between this offence and the other offences characterizing the murders. The Trial Chamber also recalls the subsidiary nature of the charge of other inhumane acts as a crime against humanity and concludes that if the persecution charge is sustained, the inhumane acts more appropriately fall under the persecution count.

218. The Trial Chamber will first consider cumulative convictions under Articles 3 and 5 of the Statute when the crimes are based on the same set of facts. It will then consider the appropriateness of cumulative convictions for two or more crimes under the same Article of the Statute based on the same set of facts.

219. According to the Jelisic Appeals Chamber Judgement, Article 3 crimes and Article 5 crimes each contain “a special ingredient not possessed by the other ”.⁴⁰³ Crimes charged under Article 3 require proof of “a close link between the acts of the accused and the armed conflict ", whereas Article 5 crimes require proof “that the act occurred as part of a widespread or systematic attack against a civilian population”.⁴⁰⁴ Murder and other crimes charged under both Articles 3 and 5 are thus allowed, as each offence requires a materially distinct element not demanded by the other.⁴⁰⁵

220. As to the relationship between murders charged cumulatively under Article 5 (a)(murder) and Article 5(h)(persecution), this Trial Chamber has previously determined in the Krstic Judgement that the offence of persecution committed through murder under Article 5(h) contains a materially distinct element in the discriminatory intent, which is not required by the offence of murder under Article 5(a). Murder under Article 5(a) does not contain a unique element not subsumed within murder captured by Article 5(h). In the event of convictions under both Articles for this crime, the offence of persecution, as the more specific offense, must be selected over the offence of murder under Article 5(a) in accordance with the second prong of the Test.

221. Consequently, to convict an accused of murder for which he is found to be criminally liable, the Trial Chamber may enter convictions under both Article 3, murder as a violation of the laws or customs of war (counts 5 and 7), and either Article 5 (h), persecution committed through murder (count 1) or Article 5 (a) (counts 4 and 6). However, if the murder is found to form part of a persecution conviction, the murder charges brought as a crime against humanity must be dismissed.

     (b) The Concurrent Offences Characterizing the Acts of Torture

222. The Trial Chamber has found that acts of torture alleged in the Amended Indictment were committed in the Omarska camp. These acts are cumulatively charged as persecutions committed through torture under Article 5(h) (count 1) of the Statute, other inhumane acts under Article 5(i) (count 2) of the Statute, outrages upon personal dignity under Article 3(1)(c) of the Geneva Conventions (count 3), torture under Article 5(f) of the Statute (counts 8 and 11), torture under Article 3(1)(a) (counts 9 and 12) and cruel treatment under Article 3(1)(a) of the Geneva Conventions (counts 10 and 13).

223. The Test is applied first with a view to determining whether cumulative convictions under Articles 3 and 5 of the Statute are permissible. The Trial Chamber will then consider whether cumulative convictions under different underlying offences contained in the same Article can be entered to punish the same criminal act.

     (i) Relationship Between Offences Under Different Articles (Articles 3 and 5)

224. With respect to the relationship between Article 3 and 5 offences, and as discussed above, it is now settled in the Tribunal that it is permissible to enter cumulative convictions under both Articles 3 and 5 of the Statute, as they each contain materially distinct elements.

     (ii) Relationship Between Offences Under the Same Article (Article 3)

225. With respect to the relationship between torture under Article 3(1)(a), cruel treatment under Article 3(1)(a) and outrages upon personal dignity under Article 3(1)(c) of the Geneva Conventions, the Trial Chamber must first determine which of these offences contains a unique materially distinct element not required by the other offences. Offenses charged under Article 3 of the Statute in violation of Common Article 3 of the Geneva Conventions require that the crimes be committed against a person taking no active part in the hostilities and must be closely connected to the armed conflict. Torture has been defined as any intentional act or omission that causes severe physical or mental pain or suffering and which is motivated, in whole or in part, by a prohibited purpose. Cruel treatment is defined as any intentional act or omission, which causes serious physical or mental pain or suffering or constitutes a serious attack on human dignity.⁴⁰⁶ Outrages upon personal dignity are defined as any intentional act or omission that would generally be considered to cause serious humiliation, degradation, or otherwise be a serious attack on human dignity.⁴⁰⁷

226. The requirement of a prohibited purpose which is characteristic of the offence of torture, is a materially distinct element that is not required in the offences of cruel treatment or outrages upon personal dignity. All of these offences involve physical or mental abuse. The Trial Chamber previously indicated that the threshold of pain or suffering required for torture is higher than for cruel treatment. The gravity of the pain inflicted in case of torture thus constitutes a further unique materially distinct element and makes the offence of torture more specific. Consequently , the Trial Chamber cannot enter cumulative convictions under torture, cruel treatment , and outrages upon personal dignity to punish the same act. The Trial Chamber must select the most specific offence in accordance with the second prong of the Test . The offence of torture is more specifically defined than the offences of cruel treatment and outrages upon personal dignity. Thus, the offence of torture under Article 3(1)(a) must be preferred and the offences of cruel treatment under Article 3(1)(a) and outrages upon personal dignity under Article 3(1)(c) must be dismissed .

     (iii) Relationship Between Offences Under the Same Article (Article 5)

227. With respect to the relationship between torture under Article 5(f) and persecution committed through torture under Article 5(h), persecution contains a materially distinct element not required by torture, in that persecution requires discrimination on political, racial or religious grounds. In accordance with the first prong of the Test, it is not permissible to enter cumulative convictions under both Article 5(f) and Article 5(h) for the same act and the most specific offence, i.e., persecutions , must be selected in accordance with the second prong of the Test. If the Trial Chamber finds that torture was committed as part of a persecution, the offence of torture under Article 5(f) must be dismissed.

228. Regarding the relationship between other inhumane acts under Article 5(i) and persecution under Article 5(h), the Trial Chamber previously noted that inhumane acts have a subsidiary nature, and thus if any inhumane acts fall within a persecution conviction, the inhumane acts charged under Article 5(i) must be dismissed. Again , according to the Test, if criminal acts satisfy the criteria for more than one crime but the offenses do not each contain materially distinct elements, and thus cumulative convictions are impermissible, then the Trial Chamber must decide for which offence it will enter a conviction. This selection should be made based on the principle that the provision governing facts requiring a materially distinct element is the appropriate offense upon which to base the conviction.

     (c) The Concurrent Offences Characterizing the Acts of Rape/Sexual Assaults

229. The Trial Chamber has found that rape and other forms of sexual violence were committed in the Omarska camp. The rapes and sexual assaults are cumulatively charged in the Amended Indictment as persecution committed through rape and sexual assaults under Article 5(h) (count 1), torture under Article 5(f) (count 14), rape under Article 5(g) (count 15), other inhumane acts under Article 5(i) (count 2), outrages upon personal dignity under Article 3(1)(c) (counts 3 and 17), and torture under Article 3(1)(a) (count 16).

     (i) Relationship Between Offences Under Different Articles (Articles 3 and 5)

230. The Trial Chamber has already found that offences charged under both Articles 3 and 5 may both be upheld, as the Tribunal is allowed to enter cumulative convictions under both Articles for the same criminal act.

     (ii) Relationship Between Offences Under the Same Article (Article 3)

231. As discussed above, it is not permissible to enter cumulative convictions under both charges of outrages upon personal dignity under Article 3(1)(c) and torture under Article 3(1)(a); if torture is established it must be preferred over the offence of outrages upon personal dignity.

     (iii) Relationship Between Offences Under the Same Article (Article 5)

232. The Trial Chamber previously found that if a persecution charge is upheld, the charge of other inhumane acts on the basis of the same acts must be dismissed .

233. The Trial Chamber now turns to the relationship between persecution under Article 5(h), torture under Article 5(f), and rape under Article 5(g). The offence of rape requires sexual penetration, while the offence of torture requires the infliction of severe pain or suffering for a prohibited purpose. Thus, consistent with the analysis in the Kunarac case, convictions for both are allowed if the requirements of each are met.⁴⁰⁸ Nonetheless, the Trial Chamber previously indicated that the crime of persecution requires a materially distinct element, namely the discriminatory intent, vis-ŕ-vis the crime of torture; this same intent also distinguishes persecution from elements of rape . Therefore, in instances where the same act qualifies as rape, torture, and persecution under Article 5 of the Statute, the Trial Chamber may convict the accused for persecution only.

234. To summarize, if the same act qualifies as rape, torture, and persecution, the Trial Chamber may only enter convictions of torture and rape as violations of the laws or customs of war (Article 3(1)(a) and (c) of the Geneva Conventions)⁴⁰⁹ and persecution as a crime against humanity (Article 5(h) of the Statute). The other charges covering the same act must be dismissed.

     (d) The Concurrent Offences Characterizing the Acts of Harassment, Humiliation, and Psychological Abuse and Confinement Under Inhumane Conditions

235. The Trial Chamber has found that detainees in the Omarska camp were harassed , humiliated, and otherwise psychologically abused and confined under inhumane conditions . These acts are cumulatively charged in the Amended Indictment as persecution under Article 5(h) (count 1) and other inhumane acts under Article 5(i) (count 2) of the Statute, as well as outrages upon personal dignity under Article 3(1)(c) (count 3) of the Geneva Conventions.

236. The Trial Chamber has already found that offences charged under both Articles 3 and 5 may both stand, so that the Trial Chamber is allowed to enter cumulative convictions under both Articles to punish the same criminal act.

237. As previously indicated, the charges based on Article 5(i) (other inhumane acts) are to be dismissed if they are based upon the same crimes subsumed within a persecution conviction.

238. Based on the foregoing discussion, if the Trial Chamber finds the accused responsible for multiple crimes based on the same acts of harassment, humiliation, and psychological abuse and confinement under inhumane treatment, it may only enter convictions of outrages upon personal dignity as a war crime (Article 3) and persecution as a crime against humanity (Article 5(h)).

239. The Trial Chamber notes that it is axiomatic that when the same underlying act is not involved the issue of cumulative convictions does not arise.
     C. THEORIES OF RESPONSIBILITY
     1. Introduction

240. Article 7 of the Statute of the Tribunal authorizes the Tribunal to impose individual and superior responsibility on persons on the following basis:

     (1) A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 5 of the present Statute, shall be individually responsible for the crime.

     (2) . . .

     (3) The fact that any of the acts referred to in articles 2 to 5 of the present Statute was committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.

241. The Amended Indictment charges all accused with having “participated” in the crimes alleged under Article 7(1) of the Statute. It alternatively or additionally charges Kvocka, Prcac, Kos, and Radic with superior responsibility under Article 7(3) of the Statute for the crimes alleged in counts 1-5 and 8-10. In addition, Žigic is alleged to have directly participated in the beatings cited in counts 6 -7 and 11-13 of the Amended Indictment under Article 7(1) of the Statute, and Radic is similarly charged with having physically committed the rapes and sexual assaults charged in counts 14-17 of the Amended Indictment pursuant to Article 7(1) of the Statute.
     2. Individual Responsibility Under Article 7(1)

242. The accused are each charged under Article 7(1) of the Statute with having “participated” in the crimes alleged in the Amended Indictment. The Amended Indictment states that the term “participated” as used in each count is intended to incorporate “planning, instigating, ordering, committing or otherwise aiding and abetting in the planning, preparation or execution of any acts or omission.”⁴¹⁰ Despite this caveat, most paragraphs of the Amended Indictment allege that the accused “instigated, committed or otherwise aided and abetted” the crimes enumerated. Hence, “participation” is generally used in a broad sense.⁴¹¹

243. In the jurisprudence of the Tribunals, “instigating” has been defined to mean “prompting another to commit an offence”.⁴¹² “Committing” a crime “covers physically perpetrating a crime or engendering a culpable omission in violation of criminal law”.⁴¹³ “Aiding and abetting” means “rendering a substantial contribution to the commission of a crime”.⁴¹⁴

244. In addition, “joint criminal enterprise” liability is a form of criminal responsibility that the Appeals Chamber found to be implicitly included within Article 7(1) of the Statute. It entails individual responsibility for participating, in a broad sense, in a joint criminal enterprise to commit a crime within the jurisdiction of the Tribunal.⁴¹⁵

245. The Prosecution argues for the application of the joint criminal enterprise theory as set out by the Appeals Chamber in the Tadic case⁴¹⁶ under Article 7(1) of the Statute, and asserts that the accused acted in pursuance of a common criminal enterprise.⁴¹⁷

246. The Defense of Kvocka objects to the introduction of the joint criminal enterprise theory of liability by the Prosecution in its Pre-trial brief, which it views as an attempt to expand the responsibility of the accused as alleged in the Amended Indictment, and maintains that “the Prosecution should and had to be limited to prove the counts from the indictment during its case”.⁴¹⁸ The Trial Chamber agrees that the Amended Indictment must frame the Prosecution case in a recognizable fashion and be sufficiently clear in its charges to enable the accused to mount an effective defense, and that the Prosecution is certainly limited in its case to the charges set out in the Amended Indictment.⁴¹⁹ However, the Trial Chamber agrees that participation in a crime under a theory of joint criminal enterprise liability is included within the scope of Article 7(1) of the Statute, as elaborated by the Appeals Chamber in the Tadic case, and as articulated by the Prosecution in its Amended Indictment. By reference both to the nature of international crimes and to the object and purpose of the Statute of the Tribunal, the Appeals Chamber found that:

     it is fair to conclude that the Statute does not confine itself to providing for jurisdiction over those persons who plan, instigate, order, physically perpetrate a crime or otherwise aid and abet in its planning, preparation or execution. The Statute does not stop there. It does not exclude those modes of participating in the commission of crimes which occur where several persons having a common criminal purpose embark on criminal activity that is then carried out either jointly or by some members of this plurality of persons.⁴²⁰

247. In the Krstic case, this Trial Chamber rejected the Defense contention that because “joint criminal enterprise” had not been explicitly pleaded in the Amended Indictment, the Trial Chamber was not open to apply this doctrine.⁴²¹ Here again, the Trial Chamber emphasizes that the charges in the Amended Indictment that the accused “instigated, committed or otherwise aided and abetted” crimes may include responsibility for participating in a joint criminal enterprise designed to accomplish such crimes. In this regard, the Trial Chamber notes with agreement the finding of the Appeals Chamber in the Celebici case:

     Although greater specificity in drafting indictments is desirable, failure to identify expressly the exact mode of participation is not necessarily fatal to an indictment if it nevertheless makes clear to the accused the ‘nature and cause of the charge against him’.⁴²²

248. The Trial Chamber notes that all of the evidence against four of the accused relates to crimes committed within the confines of the Omarska camp. Crimes alleged against Zigic involve not only Omarska, but also Keraterm and Trnopolje camps. The Trial Chamber considers it within its discretion to characterize the form of participation of the accused, if any, according to the theory of responsibility it deems most appropriate, within the limits of the Amended Indictment and insofar as the evidence permits.⁴²³

249. The Trial Chamber will now outline the legal characteristics of a) instigating and committing crimes; b) aiding or abetting crimes; and c) joint criminal enterprise liability, each of which is alleged in this case and justiciable under Article 7 (1) of the Statute. The Trial Chamber also considers that it is possible to co-perpetrate and aid or abet a joint criminal enterprise, depending primarily on whether the level of participation rises to that of sharing the intent of the criminal enterprise . An aider or abettor of a joint criminal enterprise, whose acts originally assist or otherwise facilitate the criminal endeavor, may become so involved in its operations that he may graduate to the status of a co-perpetrator of that enterprise.

     (a) Instigating or Committing Crimes

250. There is no controversy as to the legal elements required for “committing” a crime within the jurisdiction of the Tribunal. The Appeals Chamber in the Tadic case found that Article 7(1) “covers first and foremost the physical perpetration of a crime by the offender himself, or the culpable omission of an act that was mandated by a rule of criminal law.”⁴²⁴

251. The actus reus required for committing a crime is that the accused participated , physically or otherwise directly, in the material elements of a crime under the Tribunal’s Statute, through positive acts or omissions,⁴²⁵ whether individually or jointly with others. The requisite mens rea is that , as in other forms of criminal participation under Article 7(1), the accused acted in the awareness of the substantial likelihood that a criminal act or omission would occur as a consequence of his conduct.⁴²⁶

252. The actus reus required for “instigating” a crime is any conduct by the accused prompting another person to act in a particular way.⁴²⁷ This element is satisfied if it is shown that the conduct of the accused was a clear contributing factor to the conduct of the other person(s).⁴²⁸ It is not necessary to demonstrate that the crime would not have occurred without the accused’s involvement.⁴²⁹ The required mens rea is that the accused intended to provoke or induce the commission of the crime, or was aware of the substantial likelihood that the commission of a crime would be a probable consequence of his acts.⁴³⁰

     (b) Aiding or Abetting

253. Aiding and abetting are forms of accessory or accomplice liability.⁴³¹ The actus reus of aiding and abetting consists of providing practical assistance , encouragement, or moral support that has a substantial effect on the perpetration of the crime.⁴³² The mens rea required is the knowledge that these acts assist or facilitate the commission of the offence.⁴³³

254. The Akayesu Trial Chamber Judgement emphasized that aiding and abetting , “which may appear to be synonymous, are indeed different. Aiding means giving assistance to someone. Abetting, on the other hand, would involve facilitating the commission of an act by being sympathetic thereto.”⁴³⁴

255. There is no requirement that the aider or abettor have a causal effect on the act of the principal.⁴³⁵ But the aider or abettor must have intended to assist or facilitate, or at least have accepted that such a commission of a crime would be a possible and foreseeable consequence of his conduct.⁴³⁶ Further, it is not necessary that the aider or abettor know the precise crime that was intended or which was actually committed. If he is aware that one of a number of crimes will probably be committed, and one of those crimes is in fact committed, he has intended to assist or facilitate the commission of that crime and is guilty as an aider or abettor.⁴³⁷ In the Aleksovski case, the Appeals Chamber stated that, in order to have the necessary mens rea, the aider and abettor must be aware of the essential elements of the crime ultimately committed by the principal.⁴³⁸

256. Aiding or abetting may consist of an act or an omission and may take place before, during, or after the commission of a crime perpetrated by another and be geographically separated therefrom.⁴³⁹ To aid or abet by omission, the failure to act must have had a significant effect on the commission of the crime.⁴⁴⁰

257. Presence alone at the scene of the crime is not conclusive of aiding or abetting , unless it is shown to have a significant legitimizing or encouraging effect on the principal.⁴⁴¹ Presence, particularly when coupled with a position of authority, is therefore a probative, but not determinative , indication that an accused encouraged or supported the perpetrators of the crime . ⁴⁴²

258. For example, in the Aleksovski case, the Trial Chamber found that, in the absence of any objection by the accused, his presence during the systematic mistreatment of detainees created a necessary inference that the accused was aware that such tacit approval would be construed as a sign of his support and encouragement . Under the circumstances, the Trial Chamber found that Aleksovski contributed substantially to the mistreatment of detainees.⁴⁴³ Furthermore, the Trial Chamber concluded that he aided and abetted the repetitious brutality suffered by two detainees even when he was absent. The Trial Chamber found that abuse of this kind was committed near the accused’s office so often that he must have been aware of it. Yet he did not oppose or stop the crimes, as his superior position demanded, and his silence could only be interpreted as a sign of approval . This silence was held to evince a culpable intent of aiding and abetting such acts as contemplated under Article 7(1) of the Statute.⁴⁴⁴

259. The Tadic Trial Chamber considered that the presence of the accused when crimes were committed by a group was sufficient to entail his responsibility if he had previously played an active role in similar acts committed by the same group and had not expressly spoken against the conduct of the group.⁴⁴⁵ This holding is particularly notable because the defendant was a low level actor , a person without any official authority who entered camps, including Omarska, to beat and otherwise abuse detainees.

260. In the Akayesu case, an ICTR Trial Chamber held that the defendant had previously provided verbal encouragement for the commission of crimes, and that his status as “bourgemeister” conferred upon him a position of authority. His subsequent silence was a signal in the face of crimes of violence committed nearby of official tolerance for the crimes.⁴⁴⁶

261. In the Furundzija case, the defendant was convicted of rape because he participated in an interrogation while the person being verbally interrogated by the defendant was raped and otherwise abused by another participant in the interrogation . The Trial Chamber found that the presence of the accused and his role in the interrogation facilitated and otherwise aided and abetted the crimes committed by the physical perpetrator.⁴⁴⁷

262. The aider or abettor of persecution, as a “special intent” crime, must not only have knowledge of the crime he is assisting or facilitating. He must also be aware that the crimes being assisted or supported are committed with a discriminatory intent. The aider or abettor of persecution does not need to share the discriminatory intent, but must be aware of the broader discriminatory context and know that his acts of assistance or encouragement have a significant effect on the commission of the crimes. Each and every act of discrimination need not be known or intended by the aider or abettor. The aider or abettor of persecution will thus be held responsible for discriminatory acts committed by others that were a reasonably foreseeable consequence of their assistance or encouragement.

263. In the Kordic case, the Trial Chamber Judgement treated “aiding and abetting and participation in a common purpose or design” together because the Tadic Appeals Chamber, “in setting out the elements of the latter, compared it to aiding and abetting.”⁴⁴⁸ The Trial Chamber subsequently found that “the unlawful confinement and detention of the Bosnian Muslims was part of the common design to subjugate them. . . . This happened with such regularity that it could have been the result of nothing except a common plan.”⁴⁴⁹

264. The “common purpose doctrine”, also referred to as “joint criminal enterprise ” theory, will be examined next.

     (c) The Joint Criminal Enterprise Theory

265. The Appeals Chamber, in the Tadic case, set out three versions of joint criminal enterprise liability discernible in customary international law, and which it considered to be implied within the terms of Article 7(1) of the Statute.

266. According to the Appeals Chamber, for joint criminal enterprise liability to arise, there must be proof of:

     (i) A plurality of persons;

     (ii) The existence of a common plan, which amounts to or involves the commission of a crime provided for in the Statute; the Appeals Chamber specified that

     There is no necessity for this plan, design or purpose to have been previously arranged or formulated. The common plan or purpose may materialise extemporaneously and be inferred from the fact that a plurality of persons acts in unison to put into effect a joint criminal enterprise.⁴⁵⁰

     (iii) Participation of the accused in the execution of the common plan.⁴⁵¹

267. After reviewing post-World War II caselaw, the Tadic Appeals Chamber found that cases comprising the notion of joint criminal enterprise could generally be separated into three groups and that the mens rea differs according to which category is applicable: 1) those where all participants act pursuant to a common design and possess the same criminal intent; 2) those where the accused have personal knowledge of a system of ill-treatment and an intent to further the common system of ill-treatment; and 3) those where there is a common design to pursue a course of conduct but an act is committed outside the common design which is nonetheless a natural and foreseeable consequence of the common purpose.⁴⁵²

268. Although the first two categories enunciated by Tadic are quite similar , and all three are applicable to this case to some degree, the second category, which embraces the post war “concentration camp” cases,⁴⁵³ best resonates with the facts of this case and is the one upon which the Trial Chamber will focus most of its attention. The Trial Chamber will examine and elaborate upon the standards to be applied in assessing criminal liability of participants in a detention facility which operates as a joint criminal enterprise.

269. In the Dachau and Belsen concentration camp cases, “the accused held some position of authority within the hierarchy of the concentration camps. Generally speaking, the charges against them were that they had acted in pursuance of a common design to kill or mistreat prisoners and hence to commit war crimes”.⁴⁵⁴ The position of authority was often, especially in Belsen, one of de facto influence, with individuals having influence even when not formally or officially prescribed. For example, even concentration camp inmates who were given some position of authority over other inmates, such as moderator or spy, were convicted, along with camp cooks, guards, maintenance workers, doctors and others performing particular functions within the camp. Most of those convicted in Belsen, particularly those at the lowest levels of the prison hierarchy, physically beat, killed, or otherwise abused the prisoners in the camps.

270. Drawing on the Judge Advocate’s summary in the Belsen case, the Appeals Chamber in Tadic described the three requirements identified by the Military Prosecutor as necessary to establish guilt in the concentration camp cases: “(i) the existence of an organised system to ill-treat the detainees and commit the various crimes alleged; (ii) the accused’s awareness of the nature of the system; and (iii ) the fact that the accused in some way actively participated in enforcing the system , i.e. encouraged, aided and abetted or in any case participated in the realisation of the common criminal design.”⁴⁵⁵ The Appeals Chamber noted that the convictions of several of the defendants in the concentration camp cases appeared to have been expressly based upon these criteria .⁴⁵⁶

271. With respect to the threshold for assessing liability pursuant to the joint criminal enterprise theory, we turn first to the required mens rea. World War II jurisprudence, as well as the summary in the Tadic Appeal, reveals that liability on the basis of a joint criminal enterprise requires a knowing assistance or encouragement for an aider or abettor and an intent to advance the goal of the enterprise in the case of a co-perpetrator. The shared intent may, and often will , be inferred from knowledge of the plan and participation in its advancement. Acting with such intent – express or inferred – is usually referred to as acting in pursuance of the common criminal design. Indeed, the commentary to the Dachau Concentration Camp case notes that in the camp, there was

     a general system of cruelties and murders of the inmates (most of whom were allied nationals) and that this system was practised with the knowledge of the accused, who were members of the staff, and with their active participation. Such a course of conduct, then, was held by the court in this case to constitute ‘acting in pursuance of a common design to violate the laws and usages of war’.⁴⁵⁷

272. The Tadic Judgement stressed that, in the concentration camp cases, the mens rea element comprised: “(i) knowledge of the nature of the system and (ii) the intent to further the common concerted design to ill-treat the inmates ”.⁴⁵⁸ It further noted that this intent can be inferred from the circumstances. Indeed, Tadic stated that “intent may be proved either directly or as a matter of inference from the nature of the accused’s authority within the camp or organisational hierarchy.”⁴⁵⁹

273. It must be conceded that the Tadic formula for joint criminal enterprise responsibility appears to contain an inherent contradiction. On the one hand, it expressly allows for contribution to the commission of the crime through aiding or abetting which, as we have discussed, require only knowledge, not shared intent . At other times, Tadic defines participation in terms of shared intent and it is not clear that this is limited to co-perpetrators. The Trial Chamber believes that the Nuremberg jurisprudence and its progeny allow for “aiding and abetting” in its traditional form to exist in relation to a joint criminal enterprise and in the case of such an aider or abettor, knowledge plus substantial contribution to the enterprise is sufficient to maintain liability. Once the evidence indicates that the participant shares the intent of the criminal enterprise, he graduates to the level of a co-perpetrator of the enterprise. It is on this premise that we will evaluate the roles of the accused.

274. The level of participation of either a co-perpetrator or an aider and abettor will logically differ with each accused, and “(t(he participation need not involve commission of a specific crime … but may take the form of assistance in, or contribution to, the execution of the common plan or purpose.”⁴⁶⁰ According to the Appeals Chamber, “it is sufficient for the participant to perform acts that in some way are directed to the furthering of the common plan or purpose .”⁴⁶¹

275. In the Tribunal jurisprudence, the contribution of persons convicted of participation in a joint criminal enterprise has to date been direct and significant: those convicted have committed crimes or have been actively involved in assisting or facilitating crimes. Duško Tadic was convicted on appeal for his responsibility in the killing of five men from the village of Jaskici, even though he did not physically kill the men, because their death was a foreseeable consequence of his participation in the broader attack.⁴⁶² The Appeals Chamber found that Tadic “actively took part in the common criminal purpose to rid the Prijedor region of the non-Serb population by committing inhumane acts” and, more particularly, that he “was an armed member of an armed group that, in the context of the conflict in the Prijedor region, attacked Jaskici … The Appellant actively took part in this attack, rounding up and severely beating some of the men from Jaskici”.⁴⁶³ Tadic was considered to be a co-perpetrator of the joint criminal enterprise. In the Kupreškic case, some of the defendants were originally convicted as co-perpetrators of persecution on the basis of a joint criminal enterprise theory. The joint criminal enterprise involved a “common plan for the execution of the cleansing campaign in the village ” of Ahmici.⁴⁶⁴ Four of the defendants were found to have been directly involved in attacks upon one or more Bosnian Muslim homes resulting in killings and expulsions, a participation explicitly amounting to co-perpetration of the criminal enterprise for two defendants. A fifth was found guilty of aiding and abetting the enterprise because he stood by, ready to lend assistance, but did not participate directly in the attack.⁴⁶⁵

276. In the Dachau Concentration Camp case, which was expressly based on a theory of joint criminal enterprise (referred to as “common design” by the US Prosecutor), the Law Reports summarise the required participation of the accused in the criminal enterprise as follows:

     (a) if his duties were such as to constitute in themselves an execution or administration of the system that would suffice to make him guilty of participation in the common design, or,

     (b) if his duties were not in themselves illegal or interwoven with illegality he would be guilty if he performed these duties in an illegal manner.⁴⁶⁶

277. The Prosecution in Dachau had argued that any person engaged in any administrative or supervisory capacity in the camp, in which group it included anyone who was appointed by and took orders from the SS, was guilty of “participation” in the common design. The Prosecution and the Defense differed over whether guards and prisoner functionaries, who were the lowest in the hierarchy of those on trial , could fall into this group. By convicting the three guards and the three prisoner functionaries concerned, the Court appeared to accept the proposition that they were indeed engaged in an administrative or protective capacity. The Prosecution explained the criminal participation of the guards as “the men who stood in readiness to prevent any prisoner from extricating himself from this camp. They were thus aiding and abetting in the execution of the common design.”⁴⁶⁷

278. The concentration camp cases seemingly establish a rebuttable presumption that holding an executive, administrative, or protective role in a camp constitutes general participation in the crimes committed therein. An intent to further the efforts of the joint criminal enterprise so as to rise to the level of co-perpetration may also be inferred from knowledge of the crimes being perpetrated in the camp and continued participation which enables the camp’s functioning.⁴⁶⁸

279. A similar approach can be discerned in the judgement of the US Military Tribunal in the Einsatzgruppen case, involving the notorious special extermination units of the Third Reich, and in which the U.S. Military Tribunal considered liability for participating in a joint criminal enterprise. The Prosecution argued that only a low threshold of participation was required. With respect to four of the lower level defendants, the Prosecution maintained that

     [e]ven though these men were not in command, they cannot escape the fact that they were members of Einsatz units whose express mission, well known to all the members, was to carry out a large scale programme of murder. Any member who assisted in enabling these units to function, knowing what was afoot, is guilty of the crimes committed by the unit. The cook in the galley of a pirate ship does not escape the yardarm merely because he himself does not brandish a cutlass.⁴⁶⁹

280. However, the Military Tribunal apparently did not accept the Prosecution submission that any participation was sufficient, regardless of how low the accused was in the hierarchy of the enterprise. Thus, two of the four lowest level members of the unit who also did not physically commit crimes were acquitted of the most serious charges against them for atrocities committed by the Einsatz unit; they were not acquitted, however, of being members of a criminal organization.⁴⁷⁰

281. The Einsatzgruppen Judgement stands for the proposition that mere membership in a criminal organisation would not amount to co-perpetrating or aiding and abetting in the criminal endeavor implemented by that organization, despite knowledge of its criminal purpose. For liability to attach, it must be shown that either (1 ) the accused participated in some significant way, or (2) the accused held such a position of responsibility – for example commander of a sub-unit – that participation could be presumed.⁴⁷¹ In Einsatzgruppen , significant participation included acts such as obtaining ammunition for the forces and arranging vehicles in preparation for a “liquidation”, with knowledge of their intended use.

282. It is possible, then, to trace in the jurisprudence of the concentration camp cases a theory in which criminal liability will attach to staff members of the camps who have knowledge of the crimes being committed there, unless their role is not “administrative” or “supervisory” or “interwoven with illegality” or, unless despite having a significant status, their actual contribution to the enterprise was insignificant . The Einsatzgruppen case also distinguished between significant and insignificant contributions to the joint criminal enterprise and took into account the nature of the duties performed and whether the accused was in a position to protest or influence the criminal activities. Once participation was deemed significant enough to incur criminal liability, the level of participation and degree of moral culpability was reflected in sentencing. The case did not formally or expressly assign liability between co-perpetrating and aiding or abetting in the functioning of the camp.

283. The Tadic Appeals Chamber delineated the distinction between aiding and abetting a crime and acting in pursuance of a joint criminal enterprise.⁴⁷² But, despite acknowledging the possibility that one could aid and abet a criminal enterprise, it did not explain how.

284. In the Trial Chamber’s view, a co-perpetrator of a joint criminal enterprise shares the intent to carry out the joint criminal enterprise and performs an act or omission in furtherance of the enterprise; an aider or abettor of the joint criminal enterprise need only be aware that his or her contribution is assisting or facilitating a crime committed by the joint criminal enterprise. An aider or abettor need not necessarily share the intent of the co-perpetrators. In the case of a continuing crime such as those alleged in this case, the shared intent of an accused participating in a criminal enterprise may be inferred from knowledge of the criminal enterprise and continued participation, if the participation is significant in position or effect. Eventually, an aider or abettor, one who assists or facilitates the criminal enterprise as an accomplice, may become a co-perpetrator, even without physically committing crimes, if their participation lasts for an extensive period or becomes more directly involved in maintaining the functioning of the enterprise. By sharing the intent of the joint criminal enterprise, the aider or abettor becomes a co-perpetrator . The Trial Chamber acknowledges that it may sometimes be difficult to draw distinctions between an aider or abettor and a co-perpetrator, particularly when mid-level accused are involved who do not physically perpetrate crimes. When, however, an accused participates in a crime that advances the goals of the criminal enterprise, it is often reasonable to hold that her form of involvement in the enterprise has graduated to that of a co-perpetrator.

285. For example, an accused may play no role in establishing a joint criminal enterprise and arrive at the enterprise and participate in its functioning for a short period without knowledge of its criminal nature. Eventually, however, the criminal nature of the enterprise is learned, and thereafter participation in the enterprise is engaged in knowingly. Depending on the level and nature of participation, the accused is either an aider and abettor or a co-perpetrator of the criminal enterprise. Once the evidence indicates that a person who substantially assists the enterprise shares the goals of the enterprise, he becomes a co-perpetrator. For instance, an accountant hired to work for a film company that produces child pornography may initially manage accounts without awareness of the criminal nature of the company. Eventually, however , he comes to know that the company produces child pornography, which he knows to be illegal. If the accountant continues to work for the company despite this knowledge , he could be said to aid or abet the criminal enterprise. Even if it was also shown that the accountant detested child pornography, criminal liability would still attach.

286. At some point, moreover, if the accountant continues to work at the company long enough and performs his job in a competent and efficient manner with only an occasional protest regarding the despicable goals of the company, it would be reasonable to infer that he shares the criminal intent of the enterprise and thus becomes a co-perpetrator. The man who merely cleans the office afterhours, however, and who sees the child photos and knows that the company is participating in criminal activity and who continues to clean the office, would not be considered a participant in the enterprise because his role is not deemed to be sufficiently significant in the enterprise.

287. The level of participation necessary to render someone a participant in a joint criminal enterprise is less than the level of participation necessary to graduate an aider or abettor to a co-perpetrator of that enterprise. Accordingly, the Trial Chamber must first determine the level of participation necessary for criminal liability to attach, and then whether the mode of participation by the accused constitutes aiding or abetting or co-perpetration.

288. Where the crime requires special intent, such as the crime of persecution charged in count 1 of the Amended Indictment, the accused must also satisfy the additional requirements imposed by the crime, such as the intent to discriminate on political , racial, or religious grounds if he is a co-perpetrator. However, if he is an aider or abettor, he need only have knowledge of the perpetrator’s shared intent. This shared knowledge too can be inferred from the circumstances. If the criminal enterprise entails random killing for financial profit, for instance, that would not necessarily demonstrate an intent to discriminate on “political, racial or religious grounds ”. If the criminal enterprise entails killing members of a particular ethnic group , and members of that ethnic group were of a differing religion, race, or political group than the co-perpetrators, that would demonstrate an intent to discriminate on political, racial, or religious grounds. Thus a knowing and continued participation in this enterprise could evince an intent to persecute members of the targeted ethnic group.

289. The assistance or facilitation provided by the aider or abettor must of course have a substantial effect on the crime committed by a co-perpetrator. The precise threshold of participation in joint criminal enterprise has not been settled, but the participation must be “in some way … directed to the furthering of the common plan or purpose”.⁴⁷³ Below, the Trial Chamber examines the requisite level of participation necessary to establish criminal liability for participating in a joint criminal enterprise. The Trial Chamber emphasizes , however, that it has tailored the discussion to the facts in the case at hand and is thus not intended to be exhaustive. Due to the fact that none of the accused before the Trial Chamber is alleged to have ordered or organized the camps or orchestrated the campaign of violence inflicted therein, the discussion focuses on the participation of lower level actors in a criminal enterprise.

     (i) Participating in a joint criminal enterprise

290. A number of cases assist the Trial Chamber in its assessment of the level of participation required to incur criminal responsibility as either a co-perpetrator or an aider and abettor in a criminal endeavor in which several participants are involved.

291. In the Brdjanin and Talic case, the Trial Chamber noted that, in the concentration camp cases, “the role of the accused . . . is enforcing the plan by aiding and abetting the perpetrator.”⁴⁷⁴ In the post World War II Dachau Concentration Camp case, the guards of the camp were defined as “the men who stood in readiness to prevent any prisoner from extricating himself from this camp. They were thus aiding and abetting in the execution of the common design.”⁴⁷⁵ This analysis gives support to the proposition that persons who assist or facilitate a criminal endeavor, particularly when lower down on the hierarchical ladder of the enterprise , act as aiders or abettors of the joint criminal enterprise.

292. In the Krstic case, this Trial Chamber found Krstic guilty as a co-perpetrator of a joint criminal enterprise because his “participation is of an extremely significant nature and at the leadership level.”⁴⁷⁶ The Judgement emphasized that “General Krstic did not conceive the plan to kill the men, nor did he kill them personally. However, he fulfilled a key coordinating role in the implementation of the killing campaign.”⁴⁷⁷ The Trial Chamber considered whether a “participant in the criminal enterprise may be more accurately characterised as a direct or principal perpetrator or as a secondary figure in the traditional role of an accomplice”⁴⁷⁸ and determined that, because of the high position of authority he held, his knowledge of the genocidal campaign and his participation in the criminal enterprise, he must be considered “a principal perpetrator of these crimes.”⁴⁷⁹

293. In addition to the cases examined in the previous section and those contained in the Tadic Appeals Chamber discussion of the common purpose doctrine, there are other post World War II cases that shed light on whether persons holding mid -level positions who do not individually commit crimes should be held accountable for crimes committed collectively, particularly when the roles they play or functions they perform are simply part of their assigned jobs. In the cases discussed below , the language “common purpose” or “criminal enterprise” is often used. Each of the cases involve a plurality of persons, a criminal plan or order imposed upon the accused and participation of the accused (usually by providing assistance) in furtherance of the plan.

294. The post World War II trials conducted by the Allies in Europe and Asia convicted people ranging from those acting at the highest levels of authority to those at the bottom merely following orders, including top political and military leaders as well as ordinary civilians or common soldiers, even concentration camp inmates who acquired positions of authority in the camps by spying on or mistreating other inmates on behalf of the captors. In many cases, mid and lower level accused were simply performing their jobs and often did not physically perpetrate crimes on their own, but their acts or omissions assisted or facilitated in the commission of crimes . In several instances, civilians performing tasks within the course of their employment were charged with and convicted of war crimes or crimes against humanity. Judges who passed unjustified sentences or rendered unlawful convictions upon members of Allied forces,⁴⁸⁰ medical personnel deemed responsible for the death of Russian and Polish patients sent to their sanatorium ⁴⁸¹ and industrialists who supplied poison gas to concentration camps⁴⁸² were found to have the requisite criminal intent to unlawfully imprison, to murder , or to exterminate, even when they were simply following orders of their superiors or trying to make a profit. As the cases below suggest, the criminal intent of persons who establish or design a criminal enterprise does not necessarily have to be shared by all who knowingly participate in its execution, although it can often be inferred from continued participation.

295. In the Stalag Luft III case,⁴⁸³ after eighty Allied prisoners of war escaped a prisoner of war camp, axis forces ordered that half those recaptured be shot in order to discourage future escapes , although the official explanation for the shootings was that the prisoners were shot trying to escape or resisting arrest. In bringing charges against 18 persons accused before a British Military Court of carrying out the executions, the Prosecution alleged that regardless of whether a participant was a driver or an executioner, each accused was “concerned in the killing of prisoners of war who had escaped” and all accused were “acting for a common purpose.”⁴⁸⁴ According to the Prosecution, the commanding officer of the area where the prisoners of war escaped knew of the illegal orders and “knew that the handing over of any one of the prisoners to the Gestapo was tantamount to handing them to their executioner .” Nevertheless, 27 out of 36 were handed over.⁴⁸⁵

296. The Defense vehemently denied that the accused participated in a common criminal plan.⁴⁸⁶ The Defense position was that the accused were primarily low level actors merely following orders and that they would be seriously punished if the orders were not carried out. Nonetheless , they were held to be “concerned in the killing” and thus criminally responsible if the function they performed satisfied the following criteria: “STChe persons concerned must have been part of the machine doing some duty, carrying out some performance which went on directly to achieve the killing, that it had some real bearing on the killing, would not have been so effective or been done so expeditiously if that person had not contributed his willing aid.”⁴⁸⁷ Thus, the standard was not that the crimes would not have taken place – it was essentially whether the accused’s participation made the crimes easier, more efficient to commit .⁴⁸⁸

297. The Almelo case, a trial held before a British Military Court following World War II, dealt with the killing of a British prisoner of war. Collective responsibility was imposed on all who followed the orders to kill him, with the accused ranging from the executioner to the two guards who stood watch to prevent strangers from disturbing the executioners. The Court held: “If people were all present together at the same time, taking part in a common enterprise which was unlawful, each one in their own way assisting the common purpose of all, they were all equally guilty in law.”⁴⁸⁹ Each accused in the case knew the prisoner of war would be killed and performed the role required of him in order for the execution to take place.

298. A similar conclusion was reached in the Kiel Gestapo case, in which two drivers who had participated in an execution committed by members of the Gestapo asserted in defense that “they were conscripted into the Gestapo and were not members of it, and that they had nothing to do with the whole affair and were merely driving their cars.”⁴⁹⁰ The drivers thus asserted they were not participants in the criminal endeavor. However, the Judge Advocate insisted: “If people are all present, aiding and abetting one another to carry out a crime they knew was going to be committed, they are taking their respective parts in carrying it out, whether it be to shoot or whether it is to keep off other people or act as an escort whilst these people were shot, they are all in law equally guilty of committing that offence, though their individual responsibility with regard to punishment may vary”.⁴⁹¹ Again , knowledge that a crime was being committed and participation, despite this knowledge , was sufficient to attribute liability. Other defendants have also been held responsible for deaths and mistreatment committed as part of a joint endeavor while carrying out orders or performing the tasks entrusted to them during the course of war.⁴⁹²

299. In the Jaluit Atoll case, three US airmen taken as prisoners of war were executed by Japanese soldiers acting on orders.⁴⁹³ The custodian of the prisoners of war was among the ones on trial for the part he played in the death of the airmen. He arranged for the airmen to be handed over to the soldiers, despite knowing they were to be executed.⁴⁹⁴ The Defense claimed that the custodian had no criminal intent – he had no choice but to hand them over and was merely performing his job. Nevertheless, the custodian was convicted and sentenced to 10 years imprisonment, which was a lighter sentence than that of the executioners because of his “brief, passive and mechanical participation ” in the crime.⁴⁹⁵

300. In the Velpke Children’s Home trial held by a British Military Court ,⁴⁹⁶ low and mid level civilians were charged with war crimes as a result of the way they performed assigned jobs . The accused were charged with wilfully neglecting children in a home established for infant children “compulsorily separated” from their Polish mothers in order to enable their mothers to work on food farms instead of tending their babies. Gerike was ordered by his superiors to establish the home to take care of the babies . Bilien was a former teacher conscripted against her will to run the home. Demmerick , a doctor, without being ordered to do so, began visiting the home and tending to sick infants. Subsequently, he and Bilien decided it was best if he only tended the children she brought to him. Bilien claimed that because he had such a large practice, he had no time to complain to the proper authorities or to visit the babies . Hessling, who was appointed administrator of the home, claimed his only duty was to manage the finances, but he apparently had some authority to improve conditions at the home and the treatment of the babies, and he “knew of the death-rate” of the dying babies but took only one measure to alleviate the conditions which was to raise the entry age for children from 8-10 days to 4-6 weeks.⁴⁹⁷ One witness testified that Bilien had sent some of the children back to their mothers to nurse because they were dying and in need of their mothers’ milk. Hessling, on discovering this, forbade it.

301. Many infants died as a result of neglect. The conditions in the facility – “a corrugated iron hut, without running water, light, telephone or facilities for dealing with sickness” – were terrible. None of the accused was charged with physically abusing the children, nor was there any indication that any of them had control over whether the home was established or that they wanted or intended the infants to die. Even so, none made sufficient efforts to ensure that the helpless infants received adequate food or medical attention, and as a result in a 6 month period over 80 infants died of “general weakness, dysentery, and . . . catarrh of the intestines .”⁴⁹⁸ For their “omissions,” Bilien was sentenced to 15 years imprisonment, Demmerick to 10 years, and Hessling and Gerike to death.⁴⁹⁹

302. The Hadamar case, tried by a US Military Commission, has many parallels to the present case, and the accused were convicted of aiding and abetting a common criminal enterprise.⁵⁰⁰The evidence established that a decision had been made by government authorities to send over 400 Polish and Russian nationals to a small sanatorium in Hadamar, Germany, a facility for the care of mentally ill persons. These victims were killed in the sanatorium after the individuals working there were told to use injections or medication to bring about their deaths. There was considerable evidence that all accused were told that the victims had tuberculosis and were incurably ill (although autopsies indicated that not all victims suffered from the disease.) Additionally, there was evidence that the accused “had been told and believed that the Poles and Russians came under the provisions of the German law or decree which required such disposition of German insane”⁵⁰¹, thus they may have believed they were not only legally entitled but actually required to put the patients to death.

303. An accused Klein, the chief administrative officer of the institution, knew of the deaths because he had received the orders to put the patients to death and had transmitted these orders to personnel.⁵⁰² He said that he had protested upon hearing that “incurable tubercular labourers” were to be sent to Hadamar and that they were to be killed, but that he had no authority to change these orders and, if he had disobeyed them, he would be sent to a concentration camp.⁵⁰³ Klein admitted that he knew that the killings were “wrong”. However, he stated that because the patients were suffering and in danger of infecting others, it would have been more cruel to let them live.⁵⁰⁴ Wahlmann was the psychiatrist at the institution. He determined the appropriate dosage, requisitioned the drugs , and signed the death certificates. Huber was the chief female nurse who oversaw the duties of 7 subordinates who may have given some injections and she was “present on at least one occasion when fatal injections or dosages” were administered. Merkle was the institution’s bookkeeper who “knowingly made false entries as to the dates and causes of death.” Although a nurse testified that Merkle was familiar with “what went on” at the institution, Merkle “steadfastly denied that he knew the true state of affairs” or saw any dead bodies. He said he believed the persons died of tuberculosis or pneumonia.⁵⁰⁵ Blum was chief caretaker of the cemetery for about a month during the time when the fatal injections were administered. He said that “only the first batch of Poles and Russians arrived during his presence at Hadamar.” Still, he admitted that he had full knowledge that the Polish and Russian patients were to be killed and it was clear that he would be expected to bury them, which he did.⁵⁰⁶ Ruoff and Willig were male nurses who administered the fatal injections.⁵⁰⁷ Ruoff began working at the institution about two months after the executions began . He testified that he “made several efforts to leave Hadamar, but his requests were always refused.” Both Ruoff and Willig were reportedly told that if they complained about their tasks, they would be sent to concentration camps.⁵⁰⁸ Willig stated that he believed that the patients were “incurably tubercular, had been told that there was a law which provided for their deaths and had attempted unsuccessfully to leave Hadamar.”⁵⁰⁹ Most of the staff apparently did believe that the victims were ill because of “diagnoses of the doctors” and “because of their appearances”.

304. All of the accused were found guilty of “violations of international law” for participating in the common plan. Klein, who gave the orders despite disagreeing with them, and Ruoff and Willig, who administered the injections even under duress , were sentenced to death. Wahlmann, the psychiatrist, received life imprisonment . Merkle, Blum and Huber were sentenced to 35, 30 and 25 years respectively. All accused were civilians employed in a mental health facility simply going about their jobs during the war when their institution received Polish and Soviet patients who had probably been deported for labour into Germany. There is no indication that the accused shared a criminal intent to murder the Polish and Soviet nationals. Nonetheless they all performed tasks, from bookkeeper to nurse to undertaker, that maintained the functioning of the institution and by showing up for work daily and performing the tasks assigned to them, they substantially assisted and facilitated the killings.

305. The International Military Tribunal for the Far East (“IMTFE”) convicted Foreign Minister Shigemitsu for failing to take effective measures to investigate crimes he suspected were being committed. The Judgement insisted that because he bore primary responsibility for the welfare of prisoners, whom he suspected were being mistreated , he “should have pressed the matter, if necessary to the point of resigning, in order to quit himself of a responsibility which he suspected was not being discharged .”⁵¹⁰ While the conviction was technically of superior and not individual responsibility, individuals also incurred criminal responsibility for their own acts or omissions and if the evidence supported a finding that Shigemitsu’s derelictions implicitly condoned or permitted the crimes to occur or continue, the International Military Tribunal he would incur individual responsibility .⁵¹¹ The IMTFE also found Akira Muto incurred individual and superior responsibility for atrocities committed by Japanese troops once he was in a “position to influence policy,” because he failed to take any measures to improve the conditions or treatment of civilians and prisoners of war.⁵¹²

306. These cases make clear that when a detention facility is operated in a manner which makes the discriminatory and persecutory intent of the operation patently clear, anyone who knowingly participates in any significant way in the operation of the facility or assists or facilitates its activity, incurs individual criminal responsibility for participation in the criminal enterprise, either as a co-perpetrator or an aider and abettor, depending upon his position in the organizational hierarchy and the degree of his participation.

     (ii) Joint Criminal Enterprise

307. A joint criminal enterprise can exist whenever two or more people participate in a common criminal endeavor. This criminal endeavor can range anywhere along a continuum from two persons conspiring to rob a bank to the systematic slaughter of millions during a vast criminal regime comprising thousands of participants. Within a joint criminal enterprise there may be other subsidiary criminal enterprises . For example, were the entire Nazi regime to be considered a joint criminal enterprise , that would not preclude a finding that Dachau Concentration Camp functioned as a subsidiary of the larger joint criminal enterprise, despite the fact that it was established with the intent to further the larger criminal enterprise. Within some subsidiaries of the larger criminal enterprise, the criminal purpose may be more particularized: one subset may be established for purposes of forced labor, another for purposes of systematic rape for forced impregnation, another for purposes of extermination, etc.

308. The Trial Chamber considers that persons who work in a job or participate in a system in which crimes are committed on such a large scale and systematic basis incur individual criminal responsibility if they knowingly participate in the criminal endeavor, and their acts or omissions significantly assist or facilitate the commission of the crimes.

309. The Trial Chamber wishes to stress that this does not mean that anyone who works in a detention camp where conditions are abusive automatically becomes liable as a participant in a joint criminal enterprise. The participation in the enterprise must be significant. By significant, the Trial Chamber means an act or omission that makes an enterprise efficient or effective; e.g., a participation that enables the system to run more smoothly or without disruption. Physical or direct perpetration of a serious crime that advances the goal of the criminal enterprise would constitute a significant contribution. In general, participation would need to be assessed on a case by case basis, especially for low or mid level actors who do not physically perpetrate crimes. It may be that a person with significant authority or influence who knowingly fails to complain or protest automatically provides substantial assistance or support to criminal activity by their approving silence, particularly if present at the scene of criminal activity. In most situations, the aider or abettor or co-perpetrator would not be someone readily replaceable, such that any “body” could fill his place. He would typically hold a higher position in the hierarchy or have special training, skills, or talents. The Trial Chamber notes, however, that much of the post World War II caselaw discussed above did attribute criminal liability to mere drivers or ordinary soldiers made to stand guard while others performed an execution. In addition, many of the post war cases did not entail repeated participation in a system of criminality, as the accused typically participated on an isolated occasion only. Domestic laws too hold individuals accountable for directly or indirectly participating in a single joint criminal endeavor.⁵¹³

310. In situations of armed conflict or mass violence, it is all too easy for individuals to get caught up in the violence or hatred. During such violent periods, law abiding citizens commit crimes they would ordinarily never have committed. Nonetheless, the presence of mass violence or conflict cannot be used to shield or excuse persons who commit, assist or facilitate or otherwise participate in crimes from incurring liability. Whether the joint criminal enterprise is broadly defined, such as the Nazi persecution of millions of Jews, or it is limited to a specific time and location , such as the three month operation of Omarska camp, a participant in the criminal enterprise must make a substantial contribution to the enterprise’s functioning or endeavors before he or she may be held criminally liable.

311. The Trial Chamber finds that during periods of war or mass violence, the threshold required to impute criminal responsibility to a mid or low level participant in a joint criminal enterprise as an aider and abettor or co-perpetrator of such an enterprise normally requires a more substantial level of participation than simply following orders to perform some low level function in the criminal endeavor on a single occasion. The level of participation attributed to the accused and whether that participation is deemed significant will depend on a variety of factors, including the size of the criminal enterprise, the functions performed, the position of the accused, the amount of time spent participating after acquiring knowledge of the criminality of the system, efforts made to prevent criminal activity or to impede the efficient functioning of the system, the seriousness and scope of the crimes committed and the efficiency, zealousness or gratuitous cruelty exhibited in performing the actor’s function. It would also be important to examine any direct evidence of a shared intent or agreement with the criminal endeavor, such as repeated, continuous , or extensive participation in the system, verbal expressions, or physical perpetration of a crime. Perhaps the most important factor to examine is the role the accused played vis-ŕ-vis the seriousness and scope of the crimes committed: even a lowly guard who pulls the switch to release poisonous gas into the gas chamber holding hundreds of victims would be more culpable than a supervising guard stationed at the perimeter of the camp who shoots a prisoner attempting to escape.

312. In sum, an accused must have carried out acts that substantially assisted or significantly effected the furtherance of the goals of the enterprise, with the knowledge that his acts or omissions facilitated the crimes committed through the enterprise in order to be criminally liable as a participant in a joint criminal enterprise. The culpable participant would not need to know of each crime committed . Merely knowing that crimes are being committed within a system and knowingly participating in that system in a way that substantially assists or facilitates the commission of a crime or which allows the criminal enterprise to function effectively or efficiently would be enough to establish criminal liability. The aider or abettor or co-perpetrator of a joint criminal enterprise contributes to the commission of the crimes by playing a role that allows the system or enterprise to continue its functioning.
     3. Superior Responsibility Under Article 7(3)

313. Article 7(3) of the Statute imposes liability upon a superior for the criminal acts of his subordinates if the superior had reason to know that the subordinate was about to commit a crime and failed to prevent it or, knowing that a crime had been committed, failed to take steps to punish the subordinate for the crime.⁵¹⁴ Fulfilling the first obligation does not preclude incurring liability for failing to fulfil the second. The superior is also responsible if he or she fails to halt or suppress crimes that are being committed if the superior knew or had reason to know of their commission.

314. The caselaw of the Tribunal establishes that three elements must be proved before a person may be held responsible as a superior for the crimes committed by subordinates: (1) the existence of a superior-subordinate relationship between the accused and perpetrator(s) of the underlying offence; (2) knowledge of the superior that his or her subordinate had committed, was committing, or was about to commit, a crime; and (3) failure of the superior to prevent or halt the commission of the crime and to punish the perpetrators.⁵¹⁵

315. The Appeals Chamber elaborated upon this standard most recently in the Celebici Judgement.⁵¹⁶ This Judgement accepted that a civilian leader may incur responsibility in the same way as a military commander, provided that the civilian has effective control over subordinates.⁵¹⁷ Effective control necessarily involves “the power or authority in either a de jure or a de facto form to prevent a subordinate’s crime or to punish the perpetrators of the crime after the crime is committed.”⁵¹⁸ Effective control means “the material ability to prevent or punish criminal conduct , however that control is exercised.”⁵¹⁹ The requirement that control must be effective makes clear that de jure authority alone is insufficient. The Prosecution must show that the superior had the ability to prevent, halt, or punish the crime.⁵²⁰

316. The superior does not have to be the person who dispenses the punishment, but he must take an important step in the disciplinary process. In the Blaskic case, for example, a Trial Chamber held that the material ability to punish, which is key to incurring liability as a commander for crimes committed by subordinates , may simply entail such things as “submitting reports to the competent authorities in order for proper measures to be taken”.⁵²¹

317. Action is required on the part of the superior from the point at which he “ knew or had reason to know” of the crimes committed or about to be committed by subordinates. The Appeals Chamber in the Celebici case found that Article 7(3) does not impose a duty upon a superior to go out of his way to obtain information about crimes committed by subordinates, unless he is in some way put on notice that criminal activity is afoot.⁵²²

318. The Celebici Appeals Chamber upheld the Trial Chamber’s interpretation of “had reason to know”, concluding that the superior is responsible if information was available which would have put the superior on notice of crimes committed by subordinates.⁵²³ The information available to the superior may be written or oral. It need not be explicit or specific , but it must be information – or the absence of information -- that would suggest the need to inquire further.⁵²⁴ Information that would make a superior suspicious that crimes might be committed includes past behavior of subordinates or a history of mistreatment: “For instance, a military commander who has received information that some of the soldiers under his command have a violent or unstable character, or have been drinking prior to being sent on a mission, may be considered as having the required knowledge.”⁵²⁵ Similarly, if a superior has prior knowledge that women detained by male guards in detention facilities are likely to be subjected to sexual violence, that would put him on sufficient notice that extra measures are demanded in order to prevent such crimes.
     4. Conclusion – Omarska Camp – A Joint Criminal Enterprise

319. The Prosecution alleges that the Omarska, Keraterm, and Trnopolje camps, as well as the municipal government of Prijedor, functioned as a joint criminal enterprise .⁵²⁶ However, the Trial Chamber does not have sufficient evidence on which to determine whether Keraterm and Trnopolje camps, or the municipality of Prijedor, functioned individually or collectively as a joint criminal enterprise. It does, however, have an enormous amount of evidence on which to conclude beyond a reasonable doubt that Omarska camp functioned as a joint criminal enterprise. The crimes committed in Omarska were not atrocities committed in the heat of battle; they consisted of a broad mixture of serious crimes committed intentionally, maliciously, selectively, and in some instances sadistically against the non-Serbs detained in the camp.

320. Crimes in the Omarska camp were committed by a plurality of persons. Indeed , they could only have been committed by a plurality of persons, as the establishment , organization, and functioning of the camp required the participation of many individuals playing a variety of roles and performing different functions of greater or lesser degrees of importance. The joint criminal enterprise pervading the camp was the intent to persecute and subjugate non-Serb detainees. The persecution was committed through crimes such as murder, torture, and rape and by various means, such as mental and physical violence and inhumane conditions of detention.

321. The Trial Chamber will next determine whether the accused have incurred criminal responsibility for the crimes committed in Omarska camp, a joint criminal enterprise . The Trial Chamber will also evaluate the role of Zigic in alleged crimes committed in the Keraterm and Trnopolje camps.