695. The Prosecution submits that, pursuant to Article 24 of the Tribunal’s Statute and Rule 101 of the Rules of Procedure and Evidence, Kvocka and Prcac should receive 35 years of imprisonment, Kos 25 years of imprisonment, and Radic and Zigic should receive sentences of life imprisonment.¹¹³⁷ The Prosecution requests that the Trial Chamber recommend a minimum term of imprisonment not subject to commutation or reduction of not less than 30 years for Kvocka and Prcac, twenty years for Kos, forty years for Radic and forty-five years for Zigic .¹¹³⁸
696. The Prosecution submits that the gravity of the offences and the harm caused is very high¹¹³⁹ and account should also be taken of the fact that the crimes were committed on a widespread and systematic basis.¹¹⁴⁰ The Prosecution further submits that the “considerable prominence of the accused Kvocka, Prcac, Kos and Radic” should be considered in aggravation.¹¹⁴¹ Furthermore, the “continued captivity” of the victims, the lengthy existence of the camps in which detainees were persecuted and held in confinement under inhumane conditions, the willingness of the accused to participate in the crimes, the discriminatory motives of the crimes, “the sadistic and perverse pleasure which several accused took from abuses”, and the repeated and premeditated nature of the abuses are all additional elements considered by the Prosecution to be aggravating factors.¹¹⁴² Moreover, the Prosecution asserted that no mitigating circumstances are present for any of the defendants.¹¹⁴³
697. Kvocka’s Defense submits that Kvocka demonstrated real courage in attempting to assist and protect detainees,¹¹⁴⁴ and that the Trial Chamber should take into consideration the sentencing guidelines of Article 41/1 of the SFRY criminal code.¹¹⁴⁵ For his part, Prcac submits that the Court should take into consideration the fact that he is an old, honest, generous and sick man, of good character, the father of two disabled sons and that he was co-operative throughout the proceedings. Prcac also submits that he worked in Omarska camp under coercion, that he was a pensioner who was mobilised as a reserve policeman and that he helped detainees in the camp despite his limited financial ability and the risks to which he was exposed.¹¹⁴⁶ Radic submits that he is of good character,¹¹⁴⁷ that he contributed to the clarification and expedition of the trial because he testified before the Tribunal,¹¹⁴⁸ and that he helped some detainees.¹¹⁴⁹ Kos submits for consideration some general sentencing guidelines as enunciated in Tribunal judgements.¹¹⁵⁰ Zigic suggests mitigating circumstances which should be applied to him. He offers the report of his expert Mr. Cejovic, which indicates that sentences in the former Yugoslavia for violent acts such as “murder and corporal injuries are rather lenient”,¹¹⁵¹ and that “criminal acts committed under influence of alcohol” are viewed as less heinous than those committed with full consciousness.¹¹⁵² According to Mr. Cejovic, Zigic’s “serious medical condition due to his wounds, causing pain and specific emotional condition can and should be used as SaC mitigating circumstance”.¹¹⁵³ Zigic also asserts that he has changed since 1992 and that he is a much better person now. He asserts that he surrendered to the Tribunal and he insists he never played a leading role in the camp operations.¹¹⁵⁴

     A. THE APPLICABLE PROVISIONS

698. The sentences must be determined by reference to the relevant provisions of Articles 23 and 24, Rules 87 (C) and 101. Those provisions lay out the objectives of sentencing in the Trial Chamber, the factors to be taken into consideration for the determination of a sentence, and the manner in which a sentence should be imposed . Those provisions, in pertinent part, state:

     Article 23
     Judgement

     1. The Trial Chambers shall pronounce judgements and impose sentences and penalties on persons convicted of serious violations of international humanitarian law.

     Article 24
     Penalties

     1. The penalty imposed by the Trial Chamber shall be limited to imprisonment. In determining the terms of imprisonment, the Trial Chambers shall have recourse to the general practice regarding prison sentences in the courts of the former Yugoslavia .

     2. In imposing the sentences, the Trial Chambers should take into account such factors as the gravity of the offence and the individual circumstances of the convicted person.

     3. In addition to imprisonment, the Trial Chambers may order the return of any property and proceeds acquired by criminal conduct, including by means of duress, to their rightful owners.

     Rule 87
     Deliberations

     (C) If the Trial Chamber finds the accused guilty on one or more of the charges contained in the indictment, it shall impose a sentence in respect of each finding of guilt and indicate whether such sentences shall be served consecutively or concurrently , unless it decides to exercise its power to impose a single sentence reflecting the totality of the criminal conduct of the accused.

     Rule 101
     Penalties

     (A) A convicted person may be sentenced to imprisonment for a term up to and including the remainder of the convicted person’s life.

     (B) In determining the sentence, the Trial Chamber shall take into account the factors mentioned in Article 24, paragraph 2, of the Statute, as well as such factors as :

     (i) any aggravating circumstances;
     (ii) any mitigating circumstances including the substantial cooperation with the Prosecutor by the convicted person before or after conviction;
     (iii) the general practice regarding prison sentences in the courts of the former Yugoslavia;
     (iv) the extent to which any penalty imposed by a court of any State on the convicted person for the same act has already been served, as referred to in Article 10, paragraph 3, of the Statute.

     (C) Credit shall be given to the convicted person for the period, if any, during which the convicted person was detained in custody pending surrender to the Tribunal or pending trial or appeal.

699. In imposing a sentence, the Trial Chamber takes into consideration the general practice regarding prison sentences in the courts of the former Yugoslavia (although these practices are not binding),¹¹⁵⁵ the gravity of the offences, and the individual circumstances of the accused, including any mitigating and/or aggravating circumstances. In addition, the jurisprudence of the Tribunals has specified two primary objectives for imposing a sentence: the need to punish an individual for the crimes committed and the need to deter other individuals from committing crimes.¹¹⁵⁶

     B. THE SENTENCING PRINCIPLES

700. Sentencing by the courts of the former Yugoslavia was based on the provisions of Chapter XVI, “Criminal Acts Against Humanity and International Law”¹¹⁵⁷ and Article 41(1)¹¹⁵⁸ of the SFRY criminal code. The Prosecution submits that Article 142(1) of this code provided in particular that “it is a criminal offence, when committed during an armed conflict or occupation, to submit the civilian population to killing, inhuman treatment, great suffering or injury to body and health, forced prostitution or rape”. A violation of this Article was to be “punished by imprisonment of no less than five years or by death - with the exception that the death penalty may be replaced by twenty years of imprisonment”.¹¹⁵⁹ Indeed, Article 38(2) of the SFRY criminal code permitted courts generally to hand down a sentence of twenty years in prison in lieu of the death penalty.¹¹⁶⁰ For aggravated murders, a minimum prison sentence of ten years and a maximum of fifteen years were stipulated as the penalty.
701. The Tribunal has often reiterated in its Judgements that the primary factor to be taken into account in imposing a sentence is the gravity of the offence, including the impact of the crimes.¹¹⁶¹ The seriousness of the crimes must weigh heavily in the sentence imposed irrespective of the form of the criminal participation of the individual.¹¹⁶² In this regard, the Trial Chamber subscribes to the approach taken by the Appeals Chamber that the level of penalty in each particular case should “be fixed by reference to the circumstances of the case.”¹¹⁶³ In general, the Trial Chamber will assess the seriousness of the crimes by taking into account quantitatively the number of victims and the effect of the crimes on the broader targeted group and qualitatively the suffering inflicted on the victims and survivors.¹¹⁶⁴
702. The Trial Chamber notes the following should be taken into consideration: the victim detainees were totally vulnerable and at the mercy of their captors,¹¹⁶⁵ the repetitious and continuing nature of most of the crimes, the psychological suffering inflicted upon victims and witnesses of the crimes and the very real fears of witnesses that they would be next,¹¹⁶⁶ the "indiscriminate, disproportionate, terrifying” or “heinous” means and methods used to commit the crimes,¹¹⁶⁷ the sexual violence inflicted upon the women,¹¹⁶⁸ and the discriminatory nature of the crimes. All are relevant factors in assessing the gravity of the crimes.¹¹⁶⁹ Appropriate consideration of those circumstances gives “a voice” to the suffering of the victims .¹¹⁷⁰
703. In general, factors peculiar to the person who participated in the crimes are considered as aggravating or mitigating circumstances.¹¹⁷¹ Neither the Statute nor the Rules stipulate which factors are to be considered as aggravating or mitigating circumstances, except that Rule 101(B)(ii) requires the Chamber to take into account any “significant cooperation” with the Prosecutor as a mitigating factor.
704. The Trial Chamber may also take into account factors pertaining to the individual circumstances of the convicted person in order to determine any “reasons for the accused's criminal conduct". Such information enables the Chamber more accurately to assess the possibility of rehabilitating those convicted by the Tribunal.¹¹⁷² Relevant individual factors may include cooperation with the Court, voluntary surrender , demonstrations of remorse,¹¹⁷³ or no history of violent behavior.¹¹⁷⁴
705. The jurisprudence of the Tribunal has identified potentially aggravating factors to include the level of criminal participation, premeditation, and the motive of the convicted person.¹¹⁷⁵ Indirect or forced participation on the part of the perpetrators have also been identified as factors to be weighed.¹¹⁷⁶ Similarly , the level of participation, the physical perpetration of a crime, and the zealousness with which a crime is committed should also be taken into account in determining a sentence. The Defense of Kos argues that fairness requires that the Prosecution prove aggravating circumstances beyond a reasonable doubt..¹¹⁷⁷ The Trial Chamber agrees with the Celebici Appeals Chamber that only those matters which are proven beyond reasonable doubt against an accused may be taken into account in the aggravation of a sentence.¹¹⁷⁸
706. The Zigic Defense submits that committing a crime under the influence of drugs or alcohol serves as a mitigating factor because the defendant’s mental capacity is diminished. In this regard, the Trial Chamber acknowledges that mental impairment is considered relevant in mitigation of sentences in many countries.¹¹⁷⁹ However, when mental capacity is diminished due to use of alcohol or drugs, account must be taken of whether the person subjected himself voluntarily or consciously to such a diminished mental state. While a state of intoxication could constitute a mitigating circumstance if it is forced or coerced, the Trial Chamber cannot accept Zigic’s contention that an intentionally procured diminished mental state could result in a mitigated sentence.¹¹⁸⁰ Indeed, the Trial Chamber considers that, particularly in contexts where violence is the norm and weapons are carried, intentionally consuming drugs or alcohol constitutes an aggravating rather than a mitigating factor.
707. The Trial Chamber takes account of the fact that most of the crimes were committed within the context of participating in a joint criminal enterprise. Several aspects of this case were critical to our decision that the five defendants did participate significantly and unlawfully in a persecutory system against non-Serb detainees, and these aspects deserve recalling, even though they will not be considered as aggravating circumstances. The first aspect is the pervasive and intense nature of the cruelties and deprivations, recounted in detail in Parts II and IV. Omarska was not a place where occasional random acts of cruelty against inmates occurred or where living conditions were simply hard. This was a hellish environment in which men and women were deprived of the most basic needs for their survival and of their humanity: food of edible quality; the opportunity to freely perform basic bodily functions; a place to sleep; water to drink and use for washing; and access to friends or family. Omarska was a place where beatings occurred daily and with devilish instruments of torture. No one could mistake Omarska for merely a badly run prison; it was a criminal enterprise designed to operate in a way that destroyed the mind, body, and spirit of its prisoners.
708. The second aspect of this case that deserves recalling is that the defendants were not – contrary to their assertions – mere lowly cogs in the wheel of the camp’s operation. They were not janitors who swept the floors or even cooks who served the meals. Their function was the raison d’être of the camp: to ensure that these thousands of men and dozens of women remained captive in their deplorable surroundings, subject to the whims of errant guards, opportunistic visitors, or the official interrogators who came to abuse them. Without their guarding function , without the role they played in maintaining the efficient and continuous functioning of the camp, there could have been no camp at all. Moreover, whether active or reserve, four of the defendants were members of the police force, and thus were people charged with enforcing the laws and protecting the citizens.
709. Thirdly, none of the defendants here fall into the category of humanitarian workers whose principal function was to alleviate the prisoner’s miseries as might , for instance, a doctor who came periodically to tend their bodies. The few instances of assisting detainees, such as delivering food to them brought by relatives, although to be considered in sentencing, did not detract from their primary work, which was to ensure the prisoners stayed in their miserable environments and the camp system functioned without disruption or hassle. The defendants worked in the camp from between 17 days to 3 months. If during this time they had relentlessly sought to improve the conditions, prevent crimes, and alleviate the suffering, they would likely escape liability for participating in the persecutory scheme. None of the defendants in this case fits that bill. We have instead a spectrum that runs from actively participating in the physical and mental abuse of prisoners, to watching passively while detainees were abused, to those who pretended everything was normal in the face of emaciated inmates hobbling around with broken bones, black and blue marks, and other indicia of violence and abuse. All three attitudes deserve to be punished. In this case, those directly inflicting the pain and suffering deserve a harsher punishment than those remaining indifferent to the abusive treatment and conditions.
710. The Trial Chamber takes note of the sentencing practices of the Tribunal, in particular the sentences recommended to Trial Chamber III in the Keraterm camp case, in which the three accused pleaded guilty to one count of persecution as a crime against humanity. In that case, the Plea Agreements recommend 3-5 years imprisonment and 5-7 years imprisonment for the two accused who were guard shift leaders who did not physically perpetrate crimes.¹¹⁸¹ The Plea Agreement for Sikirica, Commander of Security in Keraterm for approximately 6 weeks, recommends a sentence of 10-17 years imprisonment. In the agreement, Sikirica admitted to murdering one detainee.¹¹⁸²
711. The Trial Chamber turns now to determine the appropriate sentence to be imposed upon the defendants in view of the factors examined above: the general sentencing practice of the former Yugoslavia for persons convicted of crimes against humanity and war crimes, the gravity of the crimes committed by the accused, and the existence and the weight of any aggravating and/or mitigating circumstances.

     C. DETERMINATION OF SENTENCES

     1. Miroslav Kvocka

712. Miroslav Kvocka, a Bosnian Serb, was 35 years old in 1992, at the time the crimes were committed. He was a professional policeman until his arrest by SFOR on 8 April 1998. Since that date, he has been detained in the UN detention unit in Scheveningen at The Hague in The Netherlands. The Trial Chamber found that Kvocka’s knowledge of crimes committed against vulnerable detainees within a joint criminal enterprise and his substantial participation in this system, which made these crimes possible, rendered him responsible for war crimes and crimes against humanity for persecution, murder and torture. The persecution involved the widespread and systematic murder, torture and beatings, sexual violence, harassment, humiliation and psychological abuse, and confinement in inhumane conditions of Bosnian Muslims, Bosnian Croats and others detained in the camp because of their ethnicity, religion, or political views.
713. The crimes for which Kvocka is culpable encompass a large number of victims , all of whom were held as helpless prisoners in Omarska camp, and many of whom did not survive the violence and intense suffering.
714. Kvocka holds the highest level of authority of any of the defendants in this case. He was the deputy commander of the camp, a duty officer, and an experienced active duty policeman. Although he was not the architect of the persecutions committed against the non-Serb population confined in Omarska camp, he participated in the persecutions.
715. His participation in the enterprise renders him a co-perpetrator of the joint criminal enterprise. He played a key role in facilitating and maintaining the functioning of the camp, which allowed the crimes to continue. On a few occasions he assisted detainees and attempted to prevent crimes, but the vast majority of these instances involved relatives or friends.
716. The Trial Chamber also notes that Kvocka gave a voluntary statement to the Prosecution and gave evidence in Court, which are mitigating factors. The Trial Chamber is also persuaded that Kvocka is normally of good character. He was described as a competent, professional policeman. His experience and integrity can be viewed as both mitigating and aggravating factors – his job was to maintain law and order and, although he apparently did a fine job of this prior to working in the camp, he failed seriously to perform his duty to uphold the law during his time spent in Omarska camp. Holding a position of respect and trust in the community, his failure to object to crimes and maintaining indifference to those committed in his presence was likely viewed as giving legitimacy to the criminal conduct.
717. The Trial Chamber takes note of the fact that Kvocka was not convicted of physically perpetrating crimes.
718. The Trial Chamber notes that Kvocka has been held in detention by the Tribunal for approximately 3½ years. The Trial Chamber sentences Miroslav Kvocka to 7 years imprisonment, bearing in mind that the time spent in the custody of the Tribunal is to be deducted from the time to be served.¹¹⁸³

     2. Dragoljub Prcac

719. Dragoljub Prcac, a Bosnian Serb, was 55 years old at the time the crimes were committed. He was a retired policeman and crime technician who was called upon to assist Zeljko Meakic in Omarska camp, after the departure of Kvocka. He was primarily an administrative aide, a pencil pusher, in Omarska camp. Prcac was detained by SFOR on 5 March 2000, whereupon he was transferred to the Tribunal detention facility in The Hague.
720. The Trial Chamber found that Prcac’s knowledge of crimes committed against vulnerable detainees within a joint criminal enterprise and his substantial participation in this system, which made these crimes possible, rendered him responsible for war crimes and crimes against humanity for persecution, murder, and torture. The persecution involved the widespread and systematic murder, torture and beatings, sexual violence , harassment, humiliation and psychological abuse, and confinement in inhumane conditions of Bosnian Muslims, Bosnian Croats and others detained in the camp because of their ethnicity, religion, or political views.
721. The crimes for which Prcac is culpable encompass a large number of victims, all of whom were held as helpless prisoners in Omarska camp and many of whom did not survive the violence and intense suffering. He called out names of victims and had to know that in doing so, he was sending them to be tortured or killed.
722. The Trial Chamber takes note of the fact that Prcac voluntarily gave a statement to the Prosecution and has not been convicted of physically perpetrating crimes.
723. Prcac’s participated as a co-perpetrator in the crimes ascribed to him as part of the joint criminal enterprise. He facilitated and maintained the functioning of the camp, which allowed the crimes to continue. On a few occasions he assisted detainees and attempted to prevent crimes, but the vast majority of these instances involved former colleagues or friends.
724. Prcac spent approximately 22 days in the camp at the end of its existence. The Trial Chamber takes note of the fact that Prcac is the oldest of the defendants , he is in ill health, and he has two disabled children.
725. The Trial Chamber notes that Prcac did not turn himself in. He has been in detention in the custody of the Tribunal for over 19 months.
726. The Trial Chamber sentences Prcac to 5 years imprisonment, bearing in mind that the time spent in the custody of the Tribunal is to be deducted from the time to be served.¹¹⁸⁴

     3. Milojica Kos

727. Milojica Kos was 29 years old in 1992, at the time the crimes were committed . He was arrested by SFOR on 28 May 1998. In 1992, he worked as a waiter until he was mobilized as a reserve policeman to work as a guard shift leader in Omarska camp.
728. The Trial Chamber found that Kos’ knowledge of crimes committed against vulnerable detainees within a joint criminal enterprise and his substantial participation in this system, which made these crimes possible, rendered him responsible as a co- perpetrator of war crimes and crimes against humanity for persecution, murder, and torture. The persecution involved the widespread and systematic murder, torture and beatings, sexual violence, harassment, humiliation and psychological abuse, and confinement in inhumane conditions of Bosnian Muslims, Bosnian Croats and others detained in the camp because of their ethnicity, religion, or political views.
729. The crimes for which Kos is culpable encompass a large number of victims, all of whom were held as helpless prisoners in Omarska camp and many of whom did not survive the violence and intense suffering.
730. As a guard shift leader, Kos facilitated and maintained the functioning of the camp, which allowed the crimes to continue. On a few rare occasions he assisted detainees and attempted to prevent crimes.
731. The Trial Chamber notes that Kos has been convicted of perpetrating crimes of physical assault and harassing detainees by demanding money and stealing valuables from them. He exploited the vulnerability of detainees for his own personal gain .
732. The Trial Chamber notes that Kos is the youngest of the defendants, and he was an inexperienced and untrained police officer at the time he took up his duties in the camp, whereas three of the other defendants had extensive training in police matters. Because he did not hold a position of high esteem in the community prior to his position in Omarska, he likely would not have been a role model for the guards and thus his silence would not carry the same degree of complicity in encouraging or condoning crimes as would, for example, Kvocka and Prcac, who were treated with considerable respect in the community prior to their participation in the activities in Omarska.
733. Kos stayed in Omarska camp for nearly the entire time the camp was in existence and he made no attempt to leave.
734. Kos was detained by SFOR on 28 May 1998 and thus has been in detention for just under 3½ years.
735. The Trial Chamber sentences Kos to 6 years imprisonment, bearing in mind that the time spent in the custody of the Tribunal is to be deducted from the time to be served.¹¹⁸⁵

     4. Mladjo Radic

736. Radic was 40 years old in 1992, at the time the crimes were committed. He was a professional policeman, employed by the Omarska police station when he was requested by Meakic to serve in the Omarska camp as a guard shift leader.
737. The Trial Chamber found that Radic’s knowledge of crimes committed against vulnerable detainees within a joint criminal enterprise and his substantial participation in this system, which made these crimes possible, rendered him responsible for war crimes and crimes against humanity for persecution, murder and torture. The persecution involved the widespread and systematic murder, torture and beatings, sexual violence , harassment, humiliation and psychological abuse, and confinement in inhumane conditions of Bosnian Muslims, Bosnian Croats and others detained in the camp because of their ethnicity, religion, or political views.
738. The crimes for which Radic is culpable encompass a large number of victims, all of whom were held as helpless prisoners in Omarska camp, and many of whom did not survive the violence and intense suffering.
739. Radic’s participation in the crimes ascribed to him is one of a co-perpetrator of the criminal enterprise. He significantly participated in facilitating and maintaining the functioning of the camp, which allowed the crimes to continue. On a few occasions he assisted detainees and attempted to prevent crimes, but the vast majority of these instances involved detainees from the town were he had worked as a policeman for 20 years.
740. The Trial Chamber notes that Radic is convicted of committing rape and other forms of sexual violence against several women detained in the camp. He grossly abused his position of power in the camp by forcing or coercing the women into sexual activity for his own pathetic gain.
741. The Trial Chamber heard many witnesses recalling the excessive and deliberate cruelty of the guards on Radic’s shift. By contrast to his colleagues Kvocka and Prcac, professional policemen like him who were asked to serve in the camp and who ignored and tolerated the crimes, by all indications Radic relished and actively encouraged criminal activity in the camp. He appeared to regard the abuses as entertainment .
742. The Trial Chamber notes that Radic worked as a guard shift leader the entire duration of the camp’s existence.
743. Radic gave a voluntary statement to the Prosecution and gave evidence in Court which allowed clarifications of matters and thus expedition of the proceedings against him.¹¹⁸⁶
744. The Trial Chamber notes that Radic was detained by SFOR on 8 April 1998 and thus he has been in detention for approximately 3½ years.
745. The Trial Chamber sentences Radic to 20 years imprisonment, bearing in mind that the time spent in the custody of the Tribunal is to be deducted from the time to be served.

     5. Zoran Zigic

746. Zoran Zigic was 33 years old in 1992, at the time the crimes were committed . Prior to the establishment of Omarska, Keraterm, and Trnopolje camps, Zigic was a taxi driver and was known by the policemen of the Omarska police station as a petty criminal. In 1994, he was tried and convicted by a Bosnian Serb court in Prijedor for murder and sentenced to 15 years imprisonment. In 1998, while he was still serving his sentence, he surrendered to the Tribunal and was subsequently transferred to The Hague. Due to the fact that Zigic was imprisoned in Banja Luka at the time he surrendered to the Tribunal, the Trial Chamber does not consider his surrender to be a mitigating factor.
747. Except for a few week’s stint in Keraterm camp, in which his job was essentially that of a delivery man, Zigic is the only defendant who was not a regular employee of the camps. Nonetheless, he did participate in the criminal enterprise of Omarska camp by co-perpetrating persecution, murder, and torture committed in the camp. He also committed, instigated, and aided and abetted serious crimes in Keraterm and Trnopolje camps, including the crimes of murder, torture, cruel treatment, and outrages upon personal dignity. Indeed, the Trial Chamber found that Zigic regularly entered the Omarska and Keraterm camps for the sole purpose of abusing detainees in the camps.
748. The extreme gravity of the crimes committed by Zigic has already been noted by the Trial Chamber. The Defense asserts that many of the crimes were committed when Zigic was intoxicated. The Trial Chamber rejects Zigic’s claim that intoxication should be a mitigating factor and instead finds it an aggravating factor. However , because the issue was not raised by the Prosecution, it declines to treat it as an aggravating factor in this case.
749. Zigic was transferred to the Tribunal on 16 April 1998 and thus he has been in the custody of the Tribunal for just over 3½ years.
750. The Trial Chamber sentences Zigic to 25 years imprisonment, bearing in mind that the time spent in the custody of the Tribunal is to be deducted from the time to be served.¹¹⁸⁷

      

     VI. DISPOSITION

     A. SENTENCES

751. Based upon the facts and the legal findings as determined by the Trial Chamber and for the foregoing reasons, the Trial Chamber FINDS as follows:

     1. Miroslav Kvocka

752. Miroslav Kvocka is GUILTY on the following counts:

     - Count 1, Persecution for murder, torture and beating, sexual assault and rape, harassment , humiliation and psychological abuse and confinement in inhumane conditions as a Crime against Humanity;

     - Count 5, Murder as a Violation of the Laws or Customs of War;

     - Count 9, Torture as a Violation of the Laws or Customs of War.

753. The following counts are DISMISSED:

     - Count 2, Inhumane Acts as a Crime against Humanity;

     - Count 3, Outrages upon Personal Dignity as a Violation of the Laws or Customs of War;

     - Count 4, Murder as a Crime against Humanity;

     - Count 8, Torture as a Crime against Humanity;

     - Count 10, Cruel Treatment as a Violation of the Laws or Customs of War.

754. The Trial Chamber hereby sentences Miroslav Kvocka to a single sentence of seven (7) years imprisonment.

     2. Dragoljub Prcac

755. Dragoljub Prcac is GUILTY on the following counts:

     - Count 1, Persecution for murder, torture and beating, sexual assault and rape, harassment , humiliation and psychological abuse and confinement in inhumane conditions as a Crime against Humanity;

     - Count 5, Murder as a Violation of the Laws or Customs of War;

     - Count 9, Torture as a Violation of the Laws or Customs of War.

756. The following counts are DISMISSED:

     - Count 2, Inhumane Acts as a Crime against Humanity;

     - Count 3, Outrages upon Personal Dignity as a Violation of the Laws or Customs of War;

     - Count 4, Murder as a Crime against Humanity;

     - Count 8, Torture as a Crime against Humanity;

     - Count 10, Cruel Treatment as a Violation of the Laws or Customs of War.

757. The Trial Chamber hereby sentences Dragoljub Prcac to a single sentence of five (5) years imprisonment.

     3. Milojica Kos

758. Milojica Kos is GUILTY of the following counts:

     - Count 1, Persecution for murder, torture and beating, sexual assault and rape, harassment , humiliation and psychological abuse and confinement in inhumane conditions as a Crime against Humanity;

     - Count 5, Murder as a Violation of the Laws or Customs of War;

     - Count 9, Torture as a Violation of the Laws or Customs of War.

759. The following counts are DISMISSED:

     - Count 2, Inhumane Acts as a Crime against Humanity;

     - Count 3, Outrages upon Personal Dignity as a Violation of the Laws or Customs of War;

     - Count 4, Murder as a Crime against Humanity;

     - Count 8, Torture as a Crime against Humanity;

     - Count 10, Cruel Treatment as a Violation of the Laws or Customs of War.

760. The Trial Chamber hereby sentences Milojica Kos to a single sentence of six (6) years imprisonment.

     4. Mladjo Radic

761. Mladjo Radic is GUILTY on the following counts:

     - Count 1, Persecution for murder, torture and beating, sexual assault and rape, harassment , humiliation and psychological abuse and confinement in inhumane conditions as a Crime against Humanity;

     - Count 5, Murder as a Violation of the Laws or Customs of War;

     - Count 9, Torture as a Violation of the Laws or Customs of War;

     - Count 16, Torture as a Violation of the Laws or Customs of War.

762. The following counts are DISMISSED:

     - Count 2, Inhumane Acts as a Crime against Humanity ;

     - Count 3, Outrages upon Personal Dignity as a Violation of the Laws or Customs of War;

     - Count 4, Murder as a Crime against Humanity;

     - Count 8, Torture as a Crime against Humanity;

     - Count 10, Cruel Treatment as a Violation of the Laws or Customs of War;

     - Count 14, Torture as a Crime Against Humanity;

     - Count 15, Rape as a Crime Against Humanity;

     - Count 17, Outrages upon Personal Dignity as a Violation of the Laws or Customs of War.

763. The Trial Chamber hereby sentences Mladjo Radic to a single sentence of twenty (20) years imprisonment.

     5. Zoran Zigic

764. Zoran Zigic is GUILTY on the following counts:

     - Count 1, Persecution for murder, torture and beating, sexual assault and rape, harassment , humiliation and psychological abuse and confinement in inhumane conditions as a Crime against Humanity;

     - Count 7, Murder as a Violation of the Laws or Customs of War;

     - Count 12, Torture as a Violation of the Laws or Customs of War;

     - Count 13, Cruel Treatment as a Violation of the Laws or Customs of War.

765. The following counts are DISMISSED:

     - Count 2, Inhumane Acts as a Crime against Humanity ;

     - Count 3, Outrages upon Personal Dignity as a Violation of the Laws or Customs of War;

     - Count 6, Murder as a Crime against Humanity;

     - Count 11, Torture as a Crime against Humanity.

766. The Trial Chamber hereby sentences Zoran Zigic to a single sentence of twenty five (25) years imprisonment.

     B. CREDIT FOR TIME SERVED

767. Pursuant to Rules 101 (C) and 102, the sentences of Miroslav Kvocka, Dragoljub Prcac, Milojica Kos, Mladjo Radic and Zoran Zigic shall begin to run from today and the full amount of time spent in the custody of the Tribunal shall be deducted from the time to be served.

Done on 02 November 2001 in English and in French, the English text being authoritative .
At The Hague, The Netherlands

___________________
Judge Almiro Rodrigues
Presiding

______________
Judge Fouad Riad

______________
Judge Patricia Wald

[Seal of the Tribunal]

VII. ANNEXES

A. PROCEDURAL HISTORY

1. Introduction

768. This annex provides information on the procedural stages in the trial of Miroslav Kvocka, Dragoljub Prcac, Milojica Kos, Mladjo Radic and Zoran Zigic. The trial of Kvocka, Radic, Kos and Zigic opened on Monday, 28 February 2000 in Trial Chamber I of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991. The Tribunal was established by the Security Council pursuant to Chapter VII of the Charter of the United Nations. The trial was adjourned on 6 March 2000 following the arrest of a co-indictee, Dragoljub Prcac. It resumed for all five accused on Monday, 2 May 2000 and closed on 19 July 2001. The trial lasted 113 days and was conducted by the Trial Chamber during the same time as the Krstic case was also being heard before Trial Chamber I.¹¹⁸⁸

     2. The Accused

     (a) Arrest of the accused

769. Kvocka and Radic were arrested together on 9 April 1998. Zigic was transferred on 16 April 1998 from Banja Luka where he was serving a three year prison sentence . Kos was arrested on 29 May 1998 and Prcac on 5 March 2000. The accused were arrested by SFOR in compliance with a warrant of arrest issued by Judge Vohrah, and subsequently transferred to the Tribunal detention unit in The Netherlands.

     (b) Assignment of counsel to the accused

770. Following their transfer to the detention unit in The Hague, the accused were informed in detail of the charges against them and that they were able to engage Defense Counsel of their choosing. Due to the financial situation of the accused , the Tribunal assigned Defense Counsel to each of them in accordance with the provisions of the Directive on Assignment of Defense Counsel.¹¹⁸⁹ Each of the accused then appeared before the Trial Chamber and pleaded not guilty to the counts charged against them.

     (c) Allegations in the Amended Indictment

771. The Amended Indictment charges the accused with crimes against humanity under Article 5 of the Statute and with violations of the laws or customs of war under Article 3 of the Statute for crimes committed between 1 April and 30 August 1992 in the municipality of Prijedor in the Omarska, Keraterm and Trnopolje detention camps. The Amended Indictment, attached as Annex IV, contains seventeen counts.
772. Counts 1 to 3 charge Kvocka, Kos, Radic, Zigic and Prcac with individual responsibility for the crimes of persecution under Article 5(h), inhumane acts under Article 5( i) and outrages upon personal dignity under Article 3 of the Statute for having participated in the persecution of Bosnian Muslims, Bosnian Croats and other non -Serbs from the Prijedor area, on political, racial or religious grounds. The persecution took the form of murder, torture and beating, sexual assault and rape, harassment , humiliation and psychological abuse and confinement in inhumane conditions. Kvocka , Kos, Radic and Prcac are also charged with superior responsibility for these crimes .
773. Counts 4 to 5 charge Kvocka, Kos, Radic and Prcac with individual and superior responsibility for murder under Articles 3 and 5(a) of the Statute for having participated in the murder of prisoners at Omarska camp. The counts state inter alia that camp guards and other Serbs authorized to enter Omarska camp killed prisoners, subjected prisoners to torture and beatings that often resulted in death and confined prisoners in inhumane conditions which brought about their physical debilitation or death. Several hundred prisoners lost their life in this way.
774. Counts 6 and 7 charge Zigic with individual responsibility for murder under Articles 3 and 5 of the Statute for having participated in the murder of Bosnian Muslims, Bosnian Croats and other non-Serbs, and their confinement in inhumane conditions inside and outside Omarska, Keraterm and Trnopolje camps. The Amended Indictment states inter alia that between about 26 May and 30 August 1992, Zigic, alone or with others, entered Omarska and Keraterm camps and participated in the murder of prisoners there.
775. Counts 8 to 10 charge Kvocka, Kos, Radic and Prcac with individual and superior responsibility for torture under Articles 3 and 5(f) and cruel treatment under Article 3 of the Statute for having participated in the torture and beatings inflicted on prisoners at Omarska camp including those listed in Schedules A-E of the Amended Indictment. According to the Amended Indictment, the prisoners at Omarska camp were subjected to torture and severe beatings on a daily basis. For many of them, the beatings began on their first day in detention and continued throughout their internment . It is stated that the camp guards and other persons who entered the camp used all manner of weapons and implements to inflict the torture and beatings.
776. Counts 11 to 13 charge Zigic with individual responsibility for torture under Articles 3 and 5 and cruel treatment under Article 3 of the Statute for having participated in the torture and beating of prisoners in Omarska, Keraterm and Trnopolje camps .
777. Counts 14 to 17 charge Radic with personal responsibility for the crimes of torture under Article 5(f), rape under Article 5(g), torture under Article 3 and outrages upon personal dignity under Article 3 of the Statute for having raped and sexually assaulted female prisoners in Omarska camp between about 27 May and 30 August 1992.

     (d) Line of defense of the accused

778. Whereas the accused Kos, Radic and Prcac did not raise any special defenses , Kvocka and Zigic offered the defense of alibi for certain crimes pursuant to Rule 67(A) of the Rules. Kvocka argued in his Pre-Trial Brief that contrary to the Prosecution’s allegations he was only at Omarska camp for about twenty days before then being posted to Tukovi. Although Rule 67(A) of the Rules provides that, under all circumstances , the defense of alibi is to be offered prior to the trial, Zigic filed a motion raising a defense of alibi in respect of allegations of crimes committed on 24 July 1992 in Keraterm camp four months after the trial opened, that is, on 30 June 2000 . The Trial Chamber found that Zigic’s lateness in notifying the Court of his intention to offer the Defense of alibi did not mean that this defense was barred, given that Rule 127(A) of the ICTY Rules of Procedure and Evidence authorizes the Trial Chamber to enlarge any time-limit prescribed by the Rules on good cause. The Trial Chamber also held that granting the motion would not occasion any substantial delay in the proceedings. The Trial Chamber therefore authorized Zigic to present his defense of alibi.¹¹⁹⁰

     (e) Testimony of the accused

779. Kvocka and Radic chose to testify at the start of the trial in accordance with Rule 85 but were not cross-examined by the Prosecution until after they had finished presenting their respective cases. Zigic chose to give a statement in accordance with Rule 84 bis at the beginning of his case while Kos and Prcac stated their intention to remain silent. In addition, shortly after their respective arrests , Kvocka, Radic and Prcac gave interviews to the Office of the Prosecution, which were admitted as Exhibits.

     (f) Medical evaluations requested by the accused

780. The five accused requested medical evaluations pursuant to Rule 74 bis of the Rules. The Trial Chamber decided that medical or psychiatric evaluations of each accused would provide valuable information regarding their past and present physical and mental capacity. It also held that such evaluations would provide information on their current psychological state and on their potential ability to be reintegrated into society so as to allow for suitable recommendations to be made on sentencing . The Trial Chamber further considered that the evaluations would allow appropriate observations to be presented for evaluating their state of mind during the commission of the alleged crimes.¹¹⁹¹

     (g) Detention of the accused

781. Kvocka, Kos and Radic filed motions for provisional release pursuant to Rule  65 of the Rules which Trial Chamber III dismissed on the ground that the accused were not providing the necessary guarantees for the protection of the victims and witnesses and their return for trial.¹¹⁹² Zigic submitted a similar motion on the ground that the date for starting the trial had not been set. The accused’s Defense withdrew the motion at the status conference of 25 February 2000 following the Trial Chamber ’s decision to open the trial on 28 February 2000.

     3. The main stages of the proceedings

     (a) Composition of the Trial Chambers Hearing the Case

782. The case was brought before Trial Chamber I composed of Judges Rodrigues, Riad and Wald pursuant to Vice-President Mumba’s order of 3 February 2000 which transferred the case from Trial Chamber III, composed of Judges May, Bennouna, and Robinson, to Trial Chamber I.
783. The Trial Chamber bore in mind inter alia the over-riding need for the proceedings to be fair and expeditious. For this reason, Rules 15 bis and 71 of the Rules were activated on several occasions so that the temporary unavailability of one of the Trial Chamber’s judges would not delay the case being heard even for a few days. The Trial Chamber also informed the parties that, in principle, they had to submit their simple motions orally and that a status conference would be held in the afternoon to discuss the motion(s) presented to the Trial Chamber. It went on to explain that, except for urgent matters, no written motion could be filed which the parties had not previously discussed. The parties therefore strove to find a point of agreement or to restrict their points of disagreement¹¹⁹³ and only complex matters would be the subject of written decisions.

     (b) Form of the Amended Indictment

784. The Prosecution’s indictment against Kvocka, Radic and Kos under case number IT-94-4-PT was confirmed on 13 February 1995 and originally contained nineteen co -accused, including Dusan Tadic whose final legal proceedings at the Tribunal concluded on 11 February 2000. An indictment against Zigic under case number IT-95-8-PT was confirmed on 21 July 1995.
785. A second indictment was submitted by the Prosecution on 12 November 1998 with a new case number, IT-98-30-PT. In accordance with Rule 62 of the Rules, the accused appeared on 16 December 1998 and pleaded not guilty to the charges against them in the indictment. However, on 1 February 1999, Kos and Zigic submitted a preliminary motion alleging defects in the form of the amended indictment. In a decision of 12 April 1999, the Trial Chamber granted the motion of the accused and ordered the Prosecution to amend the indictment. Beyond the objection to defects in the form of the indictment, Radic and Kos challenged the Tribunal’s authority to try offences under Article 3 of the Statute. The Trial Chamber dismissed that motion on 1 April 1999.
786. A third amended indictment was filed on 31 May 1999. The Defense then filed another motion based on defects in the form of the third indictment. At the same time, on 8 June 1999, one of the accused specified in the original IT-95-8-PT indictment , Dragan Kolundzija, was arrested by SFOR. The Prosecution presented a motion for joinder of cases to which the Defense objected. The confirming judge, Judge Vohrah , rejected the motion for joinder of cases on 9 July 1999. Thus, on 8 November 1999 , the Trial Chamber was in a position to rule on the defect in the form of the third indictment alleged by the Defense. It dismissed the challenge.
787. Following the arrest of Prcac, one of the accused in indictment IT-95-4, the Prosecution submitted a motion for joinder of cases on 6 March 2000 which the Defense did not challenge. The Prosecution next requested to amend indictment IT-95-4 so that it mentioned only Prcac. The confirming judge, Judge Nieto-Navia, confirmed the indictment on 9 March 2000 and the accused made his initial appearance on 10 March of that same year. Prcac pleaded not guilty to the counts against him.
788. On 13 October 2000, the Trial Chamber authorised the Prosecution to file a consolidated Amended Indictment incorporating charges against all five accused. It also granted the Prosecution permission to correct the spelling of Prcac’s first name and a typographical error in the date given in the confidential Schedules appended to the indictment. The Prosecution replaced the dates 24 May 1992 and 24 July 1992 with the dates 26 May 1992 and 30 August 1992 respectively.¹¹⁹⁴
789. On 22 February 2001, the Trial Chamber rendered a decision lifting the confidentiality of the Schedules appended to the Amended Indictment. Zigic challenged the confidential status of the annexes listing the Omarska, Keraterm and Trnopolje camp victims on the ground that there was no reason for them to be confidential. The decision to append confidential Schedules had been taken earlier by Trial Chamber III in order to clarify the nature of the charges against the accused. Responding to Zigic’s current motion, the Prosecution acknowledged that there was no reason for the identity of many of the victims listed to be confidential. The Trial Chamber therefore decided to lift the confidential status of the victims on the lists except for some who had testified under a pseudonym and whose anonymity had to be safeguarded.¹¹⁹⁵

     (c) Evidence of the Parties

     (i) Judicial Notice

790. The historical, geographical, military and administrative backdrop to the crimes allegedly committed by the accused was similar to that involved in the prosecution of Dusan Tadic. For this reason, on 11 January 1999, the Prosecution filed a motion for judicial notice to be taken of related facts adjudicated in the Tadic case and, to a lesser extent, the Celebici case. An annex appended to the motion cited 583 paragraphs from the Tadic and Celebici Judgements , which were relevant to the Kvocka case. The Defense agreed that the Trial Chamber could take judicial notice of the facts contained in 94 of the paragraphs in annex 1 of the Prosecution’s 11 January 1999 motion and Trial Chamber III accepted these facts on 19 March 1999. After the appeal judgement of 26 January 2000 in the Tadic case, the Defense agreed that judicial notice could be taken of the facts contained in 444 of the paragraphs in annex 1, including those already adjudicated by Trial Chamber III. In light of these facts accepted by the Defense, the Prosecution filed a subsequent motion for adjudication of the following legal findings concerning the elements common to Articles 3 and 5 of the Statute: that there was an armed conflict and a nexus between that conflict and the crimes ascribed to the accused ; that the victims of the acts and omissions relating to the crimes alleged in the Amended Indictment were not taking an active part in the hostilities within the meaning of Article 3 common to the Geneva Conventions of 1949; that a systematic or widespread attack was directed against the Muslims and Croats at the time and places specified in the Amended Indictment; and, that the acts or omissions alleged in the Amended Indictment formed part of the widespread or systematic attack during an armed conflict, be it international or internal. On 8 June 2000, the Trial Chamber decided that, at the time and places specified in the Amended Indictment, there was a widespread and systematic attack directed against the Muslim and Croatian civilian population living in the municipality of Prijedor which formed part of an armed conflict. It also held that there was a nexus between this conflict and the facts described in the Amended Indictment committed against the said population and, in particular, the detention in the Omarska, Keraterm and Trnopolje camps.
791. As a result of this decision, the Prosecution was able to limit the evidence it tendered in support of its case. It concentrated its proof on the facts concerning the Omarska, Keraterm and Trnopolje camp detention conditions contained in the remaining 139 paragraphs of the Prosecution’s annex not accepted by the Defense, and the extent to which the facts were ascribable to individual accused.

     (ii) Witnesses

792. The parties filed pre-trial briefs to notify opposing parties of the nature of their case. The Prosecution informed the Trial Chamber in its pre-trial brief that it was intending to call 71 witnesses to prove the allegations against the accused. All of the accused set out their intention to call a substantial number of witnesses.
793. In addition to filing the witness list pursuant to Rule 65 of the Rules, the Trial Chamber requested the parties presenting witnesses to announce a week in advance which witnesses they would call the following week. It further requested the parties to set out in brief the points of fact and law about which each witness would testify and to state precisely the relevant paragraphs of the Amended Indictment on which the testimony would focus.¹¹⁹⁶ On 21 August 2000, the Prosecution presented to the Trial Chamber a confidential motion to amend its list of witnesses. The accused challenged the appearance of seven witnesses whose names did not appear on any of the previous prosecution lists , on the ground that granting the Prosecution motion would contravene the principle of equality of arms and violate Article 21(4)(b) of the Statute which establishes the right of the accused to have adequate time and facilities for the preparation of his Defense. On 30 August 2000, the Trial Chamber granted the Prosecution’s motion but ruled that the seven new witnesses on the amended list could be called only during the last part of the Prosecution’s case. Similarly, it ruled that, after the seven new witnesses had been examined and cross-examined, the Defense for each accused could submit to the Trial Chamber any specific and warranted motion for additional relief. Motions could be submitted setting out any prejudice the accused in question suffered from the late notification of the appearance of any of the new witnesses.¹¹⁹⁷
794. An issue as to the cross-examination of Defense witnesses was also raised. Kvocka requested that the Trial Chamber limit the Prosecution’s cross-examination of an accused’s witness to issues concerning that particular accused. The Trial Chamber however decided that Rule 90(H) meant that the Prosecution was authorised to cross-examine a Defense witness on all matters relevant to the Prosecution case within a reasonable time-limit set by the Trial Chamber.¹¹⁹⁸ The parties also raised the issue of whether they were entitled to ask the witness additional questions raised by the Judges questions. The Trial Chamber decided that , in principle, the parties may not retake the floor after the Judges except where there has been an obvious material error with respect to the characterization of the testimony given by a witness, or where the witness has provided new information detrimental to the accused. Otherwise, the parties must put forward any opposing arguments through witnesses, closing arguments, or written submissions.¹¹⁹⁹
795. The Trial Chamber reminded the parties that to the extent possible, they should respect the principle that the proceedings before the Trial Chamber be public. In particular, they should not request extreme protective measures such as closed session if the witnesses would be satisfied with lesser measures such as voice and image distortion. Closed sessions were to be called only in exceptional circumstances after the parties provided the Trial Chamber with the full information required to assess why such a measure was vital.¹²⁰⁰ The Trial Chamber heard four witnesses in closed session and accorded pseudonyms and face and/or voice distortions to many others heard in public session.
796. In all, the Trial Chamber heard fifty Prosecution witnesses in fifty-four days . The Defense then had the same number of days to present its witnesses, that is , approximately two weeks for each member of the Defense. Each Counsel arranged for the days it had not used in presenting its witnesses to be allotted to another member of the Defense. All told, the Trial Chamber heard eighty-nine Defense witnesses in fifty-nine days.

     (iii) Witness affidavits and formal statements

797. At the time the trial commenced, Rule 94 ter authorised exceptions to the rule that testimony must ordinarily be given in person. The parties were allowed to request the Trial Chamber to admit affidavits or formal statements as evidence to corroborate some witnesses’ testimony. Strict conditions applied to the admission of such affidavits and statements: they were to be disclosed to the other party no later than seven days before the appearance of the witness whose testimony was to be corroborated so that the opposing party would have time to prepare to cross -examine the witness; they were to be taken in accordance with the law of the State in which they were signed; and they were required to corroborate a disputed fact . While the Trial Chamber admitted the statements tendered by the Defense, it dismissed the Prosecution’s request to admit such statements on the ground that they did not satisfy the conditions set by Rule 94 ter of the Rules.¹²⁰¹ It should be observed that the Tribunal amended Rule 94 ter of the Rules, which was difficult to apply, following the plenary session of the Judges on 12 January 2001 Rule 92 bis of the Rules replaced Rule 94 ter.

     (iv) Exhibits

798. The Prosecution tendered a large number of exhibits of which the Trial Chamber admitted 305. It also admitted 184 Defense exhibits. The Trial Chamber set out as a principle that, subject to the provisions of Rule 89 of the Rules, all exhibits offered by a party at a hearing were to be treated as having been admitted into evidence except for witnesses’ prior statements. Generally, objections to exhibits were discussed in the afternoon session unless it was absolutely vital to the testimony of the witness or expert being examined.¹²⁰²

     (v) Access to the case’s confidential evidence

799. The Trial Chamber permitted the transcripts, exhibits and other confidential documents presented in the Kvocka case to be disclosed to Trial Chamber II hearing the Talic and Brdjanin case for any purpose it deemed fit. Authorisation was granted in accordance with Tribunal practice and subject to measures being taken, in consultation with the Victims and Witnesses Section, affording the witnesses and, as necessary, the documentary and other evidence mutatis mutandis the same level of protection.¹²⁰³

     (vi) Admissibility of the evidence

800. The Defense sought to have the Prosecution witnesses’ prior statements admitted as exhibits to show that Prosecution witnesses’ testimony in Court often contradicted the witnesses’ prior statements. The Prosecution contended that the witnesses were credible irrespective of the possible contradictions in their prior statements that had sometimes been made several years prior to their giving testimony before the Trial Chamber. The Trial Chamber ruled that the prior statements could be used in the proceedings by the parties to challenge the credibility of the witness but could not be admitted as evidence.¹²⁰⁴ A witness’ prior statements could be used during the hearing, the witness’ cross -examination or the rebuttal of the party calling the witness but could not be admitted as exhibits.¹²⁰⁵
801. Zigic alleged that during the Prosecution’s examination-in-chief, a protected witness provided information on three facts involving Zigic which did not feature in either the Amended Indictment or the witness prior statements disclosed to the Defense up until that point. Zigic considered that the information included “new prosecution evidence” of which he had not been aware before the witness in question’s testimony. On 6 September 2000, the Trial Chamber orally rejected Zigic’s motion to redact the new evidence from the record.¹²⁰⁶ A few weeks later, Zigic questioned the authenticity of a piece of evidence. On 26 September 2000, Husein Ganic was heard by the Trial Chamber as a Prosecution witness and cross-examined on a prior statement the Prosecution alleged he had made to a State commission formally responsible for gathering war crimes information. However, the witness stated that he did not remember making such a statement and denied writing and signing the thirty-eight page hand-written document.¹²⁰⁷ On 27 September 2000, the Trial Chamber ruled that Zigic could attempt to authenticate the hand-written document during presentation of his case,¹²⁰⁸ on the ground that the issue of verifying a prior statement’s authenticity after the witness had testified affected the Trial Chamber’s ability to establish the facts. At the request of Zigic, the Trial Chamber subsequently authorized a graphology expert to be appointed.¹²⁰⁹

     (d) Dismissal of Some Counts after the Prosecution Case

802. Pursuant to the provisions of Rule 98 bis of the Rules, Radic, Kos, Zigic, and Prcac filed a motion for acquittal on all the counts against them on the ground that the Prosecution evidence tendered in support of the allegations was not sufficient for the accused to be found guilty beyond a reasonable doubt. The Trial Chamber rendered a decision on the Defense motion for acquittal acquitting Kvocka, Radic, Kos, and Prcac of the crimes allegedly committed in Keraterm and Trnopolje camps and of those said to have been committed against some of the victims listed in Annex 1 of the decision on the Defense motion for acquittal.¹²¹⁰ The Trial Chamber also acquitted Zigic of the charges relating to some victims whose name are listed in Annex 3 of the Decision on the Defense motion for acquittal.¹²¹¹

     (e) Concurrent Proceedings at the Tribunal and the ICJ

803. On 24 October 2000, Zigic filed a motion regarding concurrent proceedings before the International Criminal Tribunal and the International Court of Justice (hereinafter “the ICJ”) dealing with the same procedural questions. The accused requested that the Trial Chamber interrupt the trial until the jurisdictional issue had been ruled on by the ICJ. The Trial Chamber rejected the motion on 5 December 2000 and the Appeals Chamber upheld this dismissal on 26 May 2001 on the ground that the Tribunal and the ICJ are independent of one another and that neither has primacy over the other.¹²¹²

B. SHORT CHRONOLOGY

9 January 1992
The Republic of the Serbian People of Bosnia and Herzegovina declares to come into force upon any international recognition of the Republic of Bosnia and Herzegovina , later known as the Republika Srpska.

6 and 7 April 1992
The European Community and the United States of America recognize the Republic of Bosnia and Herzegovina.

30 April 1992
The town of Prijedor is attacked and taken over by Serbian forces.

22 May 1992
The Republic of Bosnia and Herzegovina becomes a member of the United Nations.

22 May 1992
Shooting incident at the Muslim Hambarine checkpoint, which led to the attack of Hambarine by Serbian forces.

24 May 1992
Kozarac is attacked and taken over by Serbian forces.

27 May 1992
The Omarska, Keraterm and Trnopolje camps begin to be set up.

30 May 1992
Unsuccessful attempt by non-Serbs to regain control of Prijedor.

End of August 1992
The Omarska camp is closed.

C. GLOSSARY - LEGAL CITATIONS AND MAIN ABBREVIATIONS

Additional Protocol I
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), of 8 June 1977

Additional Protocol II
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), of 8 June 1977

Akayesu Trial Chamber Judgement
Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement, 2 September 1998

Akayesu Sentencing Decision
Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Decision on Sentence , 2 October 1998

Aleksovski Trial Chamber Judgement
Prosecutor v. Zlatko Aleksovski, Case No. IT 95-14/1-T, Judgement, 25 June 1999

Aleksovski Appeals Chamber Judgement
Prosecutor v. Zlatko Aleksovski, Case No. IT 95-14/1-A, Judgement, 24 March 2000

Amended Indictment
Prosecutor v. Miroslav Kvocka et al., Case No. IT-98-30-PT, Further Amended Indictment, 26 October 2000

Bagilishema Trial Chamber Judgement
Prosecutor v. Ignace Bagilishema, Case No. ICTR-95-1A-T, Judgement, 7 June 2001

Blaskic Trial Chamber Judgement
Prosecutor v. Tihomir Blaskic, Case No. IT-95-14-T, Judgement, 3 March 2000

Celebici Trial Chamber Judgement
Prosecutor v. Zejnil Delalic et al., Case no. IT-96-21-T, Judgement, 16 November 1998

Celebici Appeals Chamber Judgement
Prosecutor v. Zejnil Delalic et al., Case No. IT-96-21-A, Judgement, 20 February 2001

Commission of Experts Report
Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 780 (1992) (S/1994/674)

Common Article 3
Article 3 of Geneva Conventions I through IV of 12 August 1949

Decision on Defense Motions for Acquittal
Prosecutor v. Miroslav Kvocka et al., Case No. IT-98-30/1-T, Decision on Defense Motions for Acquittal, 15 December 2000

Decision On Judicial Notice
Prosecutor v. Miroslav Kvocka et al., Case No. IT-98-30/1-T, Decision on Judicial Notice, 8 June 2000

Kvocka Final Trial Brief
Kos Final Trial Brief
Radic Final Trial Brief
Zigic Final Trial Brief
Prcac Final Trial Brief
Prosecutor v. Miroslav Kvocka et al., Case No. IT-98-30/1-T, Closing Statement of the accused Mr. Kvocka, 27 June 2001, filed on 29 June 2001; Final Trial Brief Submission by the Defence of the Accused Mlado Radic “Krkan”, 28 June 2000, filed on 29 June 2000; Final Written Submissions of Milojica Kos, 29 June 2001; Final Trial Brief- Defense for the Accused Zoran Zigic, 29 June 2001; Final Trial Brief Submissions by the Defense of the accused Dragoljub Prcac, 28 June 2001, filed on 2 July 2001

Kvocka Pre-trial Brief
Kos Pre-trial Brief
Radic Pre-trial Brief
Zigic Pre-trial Brief
Prcac Pre-trial Brief
Prosecutor v. Miroslav Kvocka et al., Case No. IT-98-30/1-PT, Pre-trial Brief , (Kvocka) 13 January 2000; Defense Pre-trial Brief (Radic), 21 February 2000; Pre -trial Brief from the Defense of the Accused Milojica Kos, 20 February 2001; Defense Pre-trial Brief, (Zigic), 19 September 1999; Pre-trial Brief of the Defense Pursuant to Rule 65 ter (E) (i), (Prcac) 5 April 2001

Erdemovic Appeals Chamber Judgement
Prosecutor v. Drazen Erdemovic, Case No. IT-96-22-A, Judgement, 7 October 1997

Erdemovic Sentencing Judgement

Prosecutor v. Drazen Erdemovic, Case No. IT-96-22-T, Sentencing Judgement , 29 November 1996

Erdemovic Sentencing Judgement II
Prosecutor v. Drazen Erdemovic, Case No. IT-96-22-T bis, Sentencing Judgement, 5 March 1998

et seq.
Et sequitur (“and what follows”)

Furundzija Trial Chamber Judgement
Prosecutor v. Anto Furundzija, Case No. IT-95-17/1-T, Judgement, 10 December 1998

Furundzija Appeals Chamber Judgement
Prosecutor v. Anto Furundzija, Case No. IT-95-17/1-A, Judgement, 21 July 2000

Geneva Convention I
Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of August 12, 1949

Geneva Convention II
Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of August 12, 1949

Geneva Convention III
Geneva Convention Relative to the Treatment of Prisoners of War of August 12, 1949

Geneva Convention IV
Geneva Convention Relative to the Protection of Civilian Persons in Time of War of August 12, 1949

Geneva Conventions
Geneva Conventions I through IV of August 12, 1949

Hague Convention IV
The 1907 Hague Convention (IV) Respecting the Laws and Customs of War on Land

Hague Regulations
Regulations Respecting the Laws and Customs of War on Land annexed to Hague Convention IV

ICCPR
International Covenant on Civil And Political Rights, adopted by the United Nations General Assembly on 16 December 1966

ICRC Commentary (GC IV)
Pictet (ed.)-Commentary: IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War (1958)

ICRC Commentary (Additional Protocol I)
Sandoz et al. (eds.)-Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949

ICC Statute
Rome Statute of the International Criminal Court, Adopted at Rome on 17 July 1998 (PCNICC/1999/INF/3)

1991 ILC Report
Report of the International Law Commission on the work of its 43rd session, 29 April -19 July 1991, supplement no. 10 (A/46/10)

1996 ILC Report
Report of the International Law Commission on the work of its 48th session, 6 May -26 July 1996, supplement no. 10 (A/51/10)

Jelisic Trial Chamber Judgement
Prosecutor v. Goran Jelisic, Case No. IT-95-10-T, Judgement, 14 December 1999

Jelisic Appeals Chamber Judgement
Prosecutor v. Goran Jelisic, Case No. IT-95-10-A, Appeals Judgement, 5 July 2001

Kambanda Trial Chamber Judgement
Prosecutor v. Jean Kambanda, Case No. ICTR 97-23-S, Sentencing Judgement, 4 September 1998

Kayishema Trial Chamber Judgement
Prosecutor v. Clément Kayishema and Obed Ruzindana, Judgement and Sentence , Case No. ICTR-95-1-T, 21 May 1999

Kayishema Sentencing Judgement
Prosecutor v. Clément Kayishema and Obed Ruzindana, Judgement and Sentence , Case No. ICTR-95-1-T, 21 May 1999 (Sentence appended to the Judgement)

Kordic Trial Chamber Judgement
Prosecutor v. Dario Kordic and Mario Cerkez, Case No. IT-95-14/2-T, Judgement , 26 February 2001

Kunarac Trial Chamber Judgement
Prosecutor v. Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic, Case No . IT-96-23-T, Judgement, 22 February 2001

Kupreskic Trial Chamber Judgement
Prosecutor v. Zoran Kupreskic et al., Case No. IT-95-16-T, Judgement, 14 January 2000

Law Reports
Law Reports of Trials of War Criminals (the United Nations War Crimes Commission )

Musema Trial Chamber Judgement
Prosecutor v. Alfred Musema, Case No. ICTR-96-13-T, Judgement and Sentence , 27 January 2000

Prosecution Final Trial Brief
Prosecutor v. Miroslav Kvocka et al., Case No. IT-98-30-T, Prosecutor’s Final Trial Brief, 29 June 2001

Prosecution Pre-Trial Brief
Prosecutor v. Miroslav Kvocka et al., Case No. IT-98-30-PT, Prosecutor’s Filing Pursuant to Rule 65 ter (E) / Prosecutor’s Pre-Trial Brief Pursuant to Rule 65 ter (E) (i), 14 February 2000

Report of the Secretary-General
Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), (S/25704)

Report of the Preparatory Commission for the ICC
Report of the Preparatory Commission for the International Criminal Court, 6 July 2000, (PCNICC/2000/INF/3/Add.2)

Rules
Rules of Procedure and Evidence of the International Tribunal

Serushago Sentence
Prosecutor v. Serushago, Case No. ICTR-98-39-S, Sentencing Judgement, 5 February 1999

Statute
Statute of the International Tribunal, annexed to the Report of the Secretary-General pursuant to paragraph 2 of Security Council resolution 808 (1993), (S/25704)

Tadic Trial Chamber Judgement
Prosecutor v. Dusko Tadic, Case No. IT-94-1-T, Opinion and Judgement, 7 May 1997

Tadic Appeals Chamber Judgement
Prosecutor v. Dusko Tadic, Case No. IT-94-1-A, Judgement, 15 July 1999

Tadic Jurisdiction Decision
Prosecutor v. Dusko Tadic, Case No. IT-94-1/AR72, Decision on Defense Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995

Tadic Sentencing Judgement of 14 July 1997
Prosecutor v. Dusko Tadic, Case No. IT-94-1-T, Judgement in Sentencing, 14 July 1997

Tadic Sentencing Judgement of 11 November 1999
Prosecutor v. Dusko Tadic, Case No. IT-94-1-A and IT-94-1-Abis-R117 , Sentencing Judgement, 11 November 1999

Tadic Sentencing Judgement of 26 January 2000
Prosecutor v. Dusko Tadic, Case No. IT-94-1-A and IT-94-1-Abis, Judgement in Sentencing Appeals, 26 January 2000

Talic Decision on Amended Indictment
Prosecutor v. Momir Talic and Radoslav Brdjanin, Case No. IT-99-36-PT, Decision on the Form of Further Amended Indictment and Prosecution Application to Amend, 26 June 2001

Todorovic Sentencing Judgement
Prosecutor v. Stevan Todorovic, Case No. IT-95-9/1-S, 31 July 2001

TWC
Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No. 10

GLOSSARY – MAIN ABBREVIATIONS

AbiH
Armed Forces of the Republic of Bosnia and Herzegovina

BiH
Bosnia and Herzegovina

D
Defense Exhibit admitted by the Trial Chamber in the case Prosecutor v. Miroslav Kvocka et al., Case No. IT-98-30/1-T

ECHR
European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1959

FRY
Federal Republic of Yugoslavia (Serbia and Montenegro)

ICC
International Criminal Court

ICRC
International Committee of the Red Cross

ICTR
International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens responsible for genocide and other such violations committed in the territory of neighbouring States, between 1 January 1994 and 31 December 1994

ICTY
International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991

ILC
International Law Committee

IMT
International Military Tribunal sitting at Nuremberg, Germany

IMTFE
International Military Tribunal for the Far-East sitting at Tokyo, Japan

JNA
Yugoslav Peoples’ Army (Army of the Socialist Federal Republic of Yugoslavia)

P
Prosecution Exhibit admitted by the Trial Chamber in the case Prosecutor v. Miroslav Kvocka et al., Case No. IT-98-30/1-T

p
pp
Page
Pages

Para.
Paras
Paragraph
Paragraphs

Parties
The Prosecutor and the Defense in Prosecutor v. Miroslav Kvocka et al., Case No. IT-98-30/1-T

SFRY
Socialist Federal Republic of Yugoslavia

T.
Transcript of hearing in Prosecutor v. Miroslav Kvocka et al., Case No. IT -98-30/1-T

D. AMENDED INDICTMENT

THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA

THE PROSECUTOR

v.

MIROSLAV KVOCKA
DRAGOLJUB PRCAC
MILOJICA KOS
MLADO RADIC
ZORAN ZIGIC

AMENDED INDICTMENT

The Prosecutor of the International Criminal Tribunal for the Former Yugoslavia , pursuant to her authority under Article 18 of the Statute of the International Criminal Tribunal for the Former Yugoslavia (“the Statute of the Tribunal”), charges :

Miroslav KVOCKA, Dragoljub PRCAC, Milojica KOS, Mladjo RADIC and Zoran ZIGIC

with Crimes Against Humanity and Violations of the Laws or Customs of War, as set forth below:

Background:

1. Prijedor Municipality (opstina) is located in northwestern Bosnia and Herzegovina. According to the 1991 census, it had a total population of 112,543 : 49,351 (43.9%) identified themselves as Muslims; 47,581 (42.3%) identified themselves as Serbs; 6,316 (5.6%) identified themselves as Croats; 6,459 (5.7%) identified themselves as Yugoslavs; and 2,836 (2.5%) were identified as other nationalities . The Municipality is situated along one of the main east-west travel corridors in the former Yugoslavia. It was considered a strategic location by Serbian leaders because that corridor linked the Serbian-dominated area of the Croatian Krajina in the west with the Republic of Serbia in the east.

2. In 1991, after Slovenia and Croatia declared independence from Yugoslavia and war broke out, it appeared increasingly likely that Bosnia and Herzegovina would also declare its independence. Bosnian Serb leaders, however, wanted Bosnia and Herzegovina to remain a part of Yugoslavia. As time went by, and it became clear they would not be able to hold Bosnia and Herzegovina in the Yugoslav federation , the Bosnian Serb authorities, led by the Serbian Democratic Party (SDS), began in earnest the creation of a separate Serbian territory in Bosnia and Herzegovina .

3. As viewed by the SDS leaders, a major problem in the creation and control of the Serbian territory was the significant Bosnian Muslim and Bosnian Croat population that also lived in the areas being claimed. Thus, a significant aspect of the plan to create a new Serbian territory was the permanent removal or “ethnic cleansing ” of nearly all of the Bosnian Muslim and Bosnian Croat population, allowing for the presence of only a small number of non-Serbs who would agree to the conditions for living in a Serb-dominated State.

4. During the early morning hours of 30 April 1992, Serbian forces seized physical control of the town of Prijedor. The takeover initiated a series of events that , by year’s end, would result in the death or forced departure of most of the Bosnian Muslim and Bosnian Croat population of the Municipality.

5. Immediately after the takeover of Prijedor town, severe restrictions were imposed on all aspects of life for Bosnian Muslims, Bosnian Croats and some other non-Serbs , including freedom of movement and the right to employment. The effect of those restrictions was the containment of Bosnian Muslims and Bosnian Croats in the villages and areas in the Municipality where they lived. Beginning in late May, those areas were then subjected to extremely violent, large-scale attacks by the Serb military , paramilitary, and police forces. The Bosnian Muslims and Bosnian Croats who survived the initial artillery and infantry attacks were seized by the Serb forces and transferred to camps and detention facilities established and operated under the direction of the Bosnian Serb authorities.

6. Between 24 May 1992 and 30 August 1992, Bosnian Serb authorities in the Prijedor municipality unlawfully segregated, detained and confined more than 6,000 Bosnian Muslims, Bosnian Croats and other non-Serbs from the Prijedor area in the Omarska , Keraterm, and Trnopolje camps. In Omarska camp the prisoners included military -aged males and political, economic, social and intellectual leaders of the Bosnian Muslim and Bosnian Croat population. There were about 37 women detained in the camp. At the Keraterm camp, the majority of the prisoners were military-aged males . At the Trnopolje camp the majority of prisoners were Bosnian Muslim and Bosnian Croat women, children, and the elderly, although men were also interned there either with their families or alone.

7. The Omarska camp was located in a former mining complex in the village of Omarska , approximately 20-25 kilometres from the town of Prijedor. The prisoners were generally confined in four locations: the administration building where interrogations took place and most of the women were confined; the garage or hangar building; a building known as the 'white-house', where virtually every prisoner was tortured or severely beaten; and a cement courtyard area between the buildings known as the 'Pista'. There was another small building known as the 'red-house' where prisoners were taken, but rarely emerged alive. The Keraterm camp was located on the site of a ceramics factory located on the Prijedor-Banja Luka road , just outside the centre of the town of Prijedor. Prisoners were confined in four storage rooms which faced the road.

8. Living conditions at Omarska and Keraterm were brutal and inhumane. The two camps were operated in a manner that resulted in the physical debilitation or death of the non-Serb prisoners. The general living conditions were abject. Prisoners were crowded together so badly in the various rooms of both camps, that often they could not sit or lie down. There were little or no toilets or facilities for personal hygiene. The inadequate supply of water the prisoners received at both camps was usually foul. They had no change of clothing, no bedding, and virtually no medical care. The prisoners were fed starvation rations once a day. In addition, in Omarska, they were given approximately three minutes to get into the canteen area , eat, and get out. The trip to the canteen was often accompanied by beatings and other abuse.

9. Severe beatings, torture, killings, sexual assault, and other forms of physical and psychological abuse were commonplace at Omarska and Keraterm. The camp guards and others who came to the camps used all types of weapons and instruments to beat and otherwise physically abuse the prisoners. At a minimum, hundreds of prisoners , whose identities are known and unknown, did not survive the camps.

10. Interrogations were conducted on a daily basis at the Omarska and Keraterm camps . The interrogations were regularly accompanied by beatings and torture. Non-Serbs who were considered as extremists or to have resisted the Bosnian Serbs were often killed. In addition, Bosnian Muslim and Bosnian Croat political and civic leaders , intellectuals, and the wealthy, were especially subjected to malicious beatings , torture, and/or killed.

11. The Trnopolje camp was located in the village of Trnopolje, approximately ten kilometres from the town of Prijedor. Prisoners were detained in a cluster of buildings , including a school, cultural hall and cinema, and on the surrounding grounds. The conditions in the Trnopolje camp were also abject and brutal. The general living and hygiene facilities were grossly inadequate. Minimal rations were only provided on a sporadic basis. At various points, prisoners were allowed to leave the camp to forage for food in the surrounding area. Both male and female prisoners were killed, beaten and otherwise physically and psychologically maltreated by the camp personnel and others who were allowed into the camp for the purpose of inflicting serious bodily and mental harm on the prisoners.

12. In addition, many of the women detained at the Trnopolje camp were raped, sexually assaulted, or otherwise tortured by camp personnel, who were both police and military personnel, and by others, including military units from the area who came to the camp for that specific purpose. In many instances, the women and girls were taken from the camp and raped, tortured, or sexually abused at other locations. Some of the Bosnian Muslims and Bosnian Croats who were detained at Trnopolje had fled to the camp because they believed they were even less likely to survive if they stayed in their own homes and villages. Trnopolje camp served as the staging point for most of the convoys that were used to forcibly transfer or deport the Bosnian Muslims, Bosnian Croats and other non-Serbs from Prijedor municipality.

GENERAL ALLEGATIONS

13. Unless otherwise set forth below, all acts and omissions set forth in the counts of this Indictment took place between 1 April 1992 and 30 August 1992.

14. In each paragraph charging torture, the acts were committed by, or at the instigation of, or with the consent or acquiescence of, an official or person acting in an official capacity, and for one or more of the following purposes: to obtain information or a confession from the victim or a third person; to punish the victim for an act the victim or a third person committed or was suspected of having committed; to intimidate or coerce the victim; and/or for any reason based upon discrimination of any kind.

15. In each paragraph charging Crimes Against Humanity, the alleged acts or omissions were part of a widespread or systematic attack directed against a civilian population , specifically the Bosnian Muslim and Bosnian Croat populations of the Prijedor municipality.

16. Miroslav KVOCKA, Dragoljub PRCAC, Milojica KOS, Mladjo RADIC and Zoran ZIGIC are individually responsible for the crimes charged against them in this indictment, pursuant to Article 7(1) of the Statute of the Tribunal. As defined by Article 7(1), individual criminal responsibility includes planning, instigating , ordering, committing or otherwise aiding and abetting in the planning, preparation or execution of any acts or omissions set forth below. The term “participation”, as used in the Counts hereunder is intended to incorporate any and all forms of individual criminal responsibility as set forth in Article 7(1).

17. Miroslav KVOCKA, Dragoljub PRCAC, Milojica KOS and Mladjo RADIC are also, or alternatively, criminally responsible for acts of their subordinates with respect to the crimes charged in the indictment by virtue of their positions of superior authority in the camp, pursuant to Article 7(3) of the Statute of the Tribunal. As defined by Article 7(3), a person in a position of superior authority is responsible for the criminal acts of his subordinates if the superior knew or had reason to know that his subordinates were about to commit such acts or had done so and the superior failed to take necessary and reasonable measures to prevent such acts or to punish the subordinates.

18. Paragraphs 1 through 17 are re-alleged and incorporated into each of the charges described below:

ACCUSED:

19. Miroslav KVOCKA: Born on 1 January 1957 in the village of Maricka, Prijedor municipality, Bosnia and Herzegovina. He was a police officer in Prijedor municipality prior to the conflict and was the first commander of the Omarska camp. During June 1992, he was replaced by Zeljko Mejakic as the commander and thereafter held responsibility as a deputy commander of the camp. As a commander, he was in a position of authority superior to everyone in the camp. As a deputy commander, he was in a position of authority superior to everyone in the camp other than the camp commander.

20. Dragoljub PRCAC: Born on 18 July 1937 in the village of Omarska, Prijedor municipality, Bosnia and Herzegovina. He served as a policeman in Croatia and then was a Criminal Technician for the Public Security Service in Prijedor municipality for several years prior to the conflict. He was the second Deputy Commander of the Omarska camp. During June 1992, he replaced Miroslav KVOCKA as the deputy commander of the camp. As a deputy commander, he was in a position of authority superior to everyone in the camp other than the camp commander.

21. Milojica KOS, a.k.a. Krle: Born on 1 April 1963 in the village of Lamovita , Prijedor municipality, Bosnia and Herzegovina. He was a reserve policeman who had been called to full-time duty at the time of his involvement in the Omarska camp. He was appointed as one of three shift commanders of guards at the Omarska camp. As a shift commander, and when present in the camp, he was in a position of superior authority to all camp personnel, other than the commander or deputy commander, and most visitors.

22. Mladjo RADIC, a.k.a. Krkan: Born on 15 May 1952 in the village of Lamovita , Prijedor municipality, Bosnia and Herzegovina. He was a police officer in Prijedor municipality prior to the conflict and served as one of three shift commanders of guards at the Omarska camp. As a shift commander, and when present in the camp, he was in a position of superior authority to all camp personnel, other than the commander or deputy commander, and most visitors.

23. Zoran ZIGIC, a.k.a Ziga: Born on 20 September 1958 in the village of Balte, Prijedor municipality, Bosnia and Herzegovina. Prior to the conflict he was a taxi driver in the Prijedor area. During the period of 26 May to 30 August 1992, he entered all three camps for the purpose of abusing, beating, torturing and/or killing prisoners.

COUNTS 1 to 3
(PERSECUTIONS; INHUMANE ACTS; and OUTRAGES UPON PERSONAL DIGNITY)

24. Between 24 May 1992 and 30 August 1992, Miroslav KVOCKA, Dragoljub PRCAC, Milojica KOS, Mladjo RADIC and Zoran ZIGIC participated in persecutions of Bosnian Muslims, Bosnian Croats and other non-Serbs in the Prijedor area, on political, racial or religious grounds.

25. The persecution included the following means:

a. the murder of Bosnian Muslims, Bosnian Croats and other non-Serbs in Prijedor municipality, including many of those detained in the Omarska, Keraterm and Trnopolje camps, amongst whom were the persons listed in the attached confidential schedules of additional particulars (hereinafter Schedules A-E) ;

b. the torture and beating of Bosnian Muslims, Bosnian Croats and other non-Serbs in Prijedor municipality, including many of the people detained in the Omarska, Keraterm and Trnopolje camps in addition to those listed in Schedules A-E;

c. the sexual assault and rape of Bosnian Muslims, Bosnian Croats and other non -Serbs in Prijedor municipality, including prisoners detained in the Omarska, Keraterm and Trnopolje camps, amongst whom were those persons listed in Schedules A-E;

d. the harassment, humiliation and psychological abuse of Bosnian Muslims, Bosnian Croats and other non-Serbs in Prijedor municipality, including all the people detained in the Omarska, Keraterm and Trnopolje camps, as represented by those persons set forth in Schedules A-E; and

e. the confinement of Bosnian Muslims, Bosnian Croats and other non-Serbs, including those persons set forth in Schedules A-E, in inhumane conditions in the Omarska, Keraterm and Trnopolje camps.

26. Miroslav KVOCKA instigated, committed or otherwise aided and abetted the persecutions of Bosnian Muslims, Bosnian Croats and other non-Serbs in the Prijedor area, on political, racial or religious grounds, as well as the commission of the other crimes charged in this indictment, through his direct participation in crimes and through his approval, encouragement, acquiescence, and assistance in the development and continuation of the conditions in the camp and the on-going commission of crimes as described in paragraph 25 against the prisoners in the Omarska camp, including those set forth in Schedule A.

27. As the Camp Commander and then Deputy Commander, Miroslav KVOCKA had the authority to alter the conditions of confinement that existed in the camps. He had the authority to control the conduct of the guards in the camp and to prevent or control the conduct of any visitors to the camp. He had the authority to set the daily regime of the prisoners and to grant them more freedoms and rights within the camp, including access to potable water, reasonable living conditions and hygienic standards, and contact with their families or friends to receive clothing, hygienic supplies, food and medicines. In addition, as an active duty policeman, Miroslav KVOCKA had an independent duty to uphold the laws in force on the territory of Bosnia and Herzegovina and to safeguard the lives and property of civilians.

28. Dragoljub PRCAC instigated, committed or otherwise aided and abetted the persecutions of Bosnian Muslims, Bosnian Croats and other non-Serbs in the Prijedor area, on political, racial or religious grounds, as well as the commission of the other crimes charged in this indictment, through his direct participation in crimes and through his approval, encouragement, acquiescence, and assistance in the development and continuation of the conditions in the camp and the on-going commission of crimes as described in paragraph 25 against the prisoners in the Omarska camp, including those set forth in Schedule E.

29. As the Deputy Commander of the camp, Dragoljub PRCAC had the authority to alter the conditions of confinement that existed in the camps. He had the authority to control the conduct of the guards in the camp and to prevent or control the conduct of any visitors to the camp. He had the authority to set the daily regime of the prisoners and to grant them more freedoms and rights within the camp, including access to potable water, reasonable living conditions and hygienic standards, and contact with their families or friends to receive clothing, hygienic supplies, food and medicines. In addition, as a policeman on active duty, Dragoljub PRCAC had an independent duty to uphold the laws in force on the territory of Bosnia and Herzegovina and to safeguard the lives and property of civilians.

30. Milojica KOS and Mladjo RADIC instigated, committed or otherwise aided and abetted the persecutions of Bosnian Muslims, Bosnian Croats and other non-Serbs in the Prijedor area, on political, racial or religious grounds, as well as the other crimes charged in this indictment, by their direct participation in the various crimes and by their instigation, approval, encouragement, acquiescence , and assistance in the development and continuation of the conditions in the camp and the on-going commission of crimes as described in paragraph 25, against the prisoners in the Omarska camp, including those listed in Schedules B and C.

31. As Shift Commanders in the Omarska camp, Milojica KOS and Mladjo RADIC had the authority to alter the conditions of confinement that existed in the camps during the times they were on duty. They had the authority to control the conduct of the guards assigned to their shifts and to prevent or control the conduct of any visitors to the camp. They had the authority to grant the prisoners more freedoms and rights within the camp, including access to potable water, reasonable living conditions and hygienic standards, and contact with their families or friends to receive clothing, hygienic supplies, food and medicines. In addition, as policemen , Milojica KOS and Mladjo RADIC had an independent duty to uphold the laws in force on the territory of Bosnia and Herzegovina and to safeguard the lives and property of civilians.

32. Zoran ZIGIC instigated, committed or other wise aided and abetted the persecutions of Bosnian Muslims, Bosnian Croats and other non-Serbs in the Prijedor area, including those set forth in Schedule D, on political, racial or religious grounds, as well as the other crimes charged in this indictment, by his direct and continuing participation in the various crimes and his instigation, approval, encouragement , acquiescence, and assistance in the development and continuation of the conditions in the camp and the on-going commission of crimes as described in paragraph 25.

33. In addition, between 24 May 1992 and 30 August 1992, Miroslav KVOCKA, Dragoljub PRCAC, Milojica KOS and Mladjo RADIC knew or had reason to know that persons subordinate to them in the Omarska camp were about to participate in the persecution of Bosnian Muslims, Bosnian Croats and other non-Serbs in the Prijedor area, including those persons listed in Schedule A, on political, racial or religious grounds, or had done so, and failed to take necessary and reasonable measures to prevent such acts or to punish the perpetrators.

By their involvement in the above acts and omissions, Miroslav KVOCKA, Dragoljub PRCAC, Milojica KOS, Mladjo RADIC and Zoran ZIGIC committed:

Count 1: persecutions on political, racial or religious grounds, a CRIME AGAINST HUMANITY, punishable under Articles 5(h) and 7(1) of the Statute of the Tribunal.

Count 2: inhumane acts, a CRIME AGAINST HUMANITY, punishable under Articles 5(i) and 7(1) of the Statute of the Tribunal;

Count 3: outrages upon personal dignity, a VIOLATION OF THE LAWS OR CUSTOMS OF WAR, as recognised by Article 3(1)(c) of the Geneva Conventions of 1949, punishable under Articles 3 and 7(1) of the Statute of the Tribunal.

In addition, Miroslav KVOCKA, Dragoljub PRCAC, Milojica KOS and Mladjo RADIC, are criminally responsible for the crimes set forth in Counts 1 to 3 pursuant to Article 7(3) of the Statute of the Tribunal.

COUNTS 4 & 5
(MURDER)

34. Between 24 May 1992 and 30 August 1992, Miroslav KVOCKA, Dragoljub PRCAC, Milojica KOS and Mladjo RADIC participated in the murder of prisoners at the Omarska camp, including those listed in Schedules A-E. During that period , camp guards and other Serbs allowed into the Omarska camp, who were subject to the authority and control of Miroslav KVOCKA, Dragoljub PRCAC, Milojica KOS, and Mladjo RADIC, murdered prisoners in the Omarska camp, subjected prisoners to torture and beatings that often resulted in death, and/or confined prisoners in inhumane conditions which resulted in their physical debilitation or death.

35. Miroslav KVOCKA, Dragoljub PRCAC, Milojica KOS, and Mladjo RADIC instigated, committed or otherwise aided and abetted the murder of Bosnian Muslim and Bosnian Croat prisoners by their approval, encouragement, acquiescence , assistance and, in certain instances, direct participation in the acts described above and in Schedules A-E.

36. In addition, between 24 May 1992 and 30 August 1992, Miroslav KVOCKA, Dragoljub PRCAC, Milojica KOS, and Mladjo RADIC knew or had reason to know that persons subordinate to them in the Omarska camp were about to participate in the murder of Bosnian Muslim, Bosnian Croat and non-Serb prisoners in the Omarska camp, or had done so, and failed to take necessary and reasonable measures to prevent such acts or to punish the perpetrators.

By their participation in the acts or omissions described in the above paragraphs , the accused Miroslav KVOCKA, Dragoljub PRCAC, Milojica KOS and Mladjo RADIC committed:

Count 4: murder, a CRIME AGAINST HUMANITY, punishable under Articles 5(a) and 7(1) and 7(3) of the Statute of the Tribunal; and,

Count 5: murder, a VIOLATION OF THE LAWS OR CUSTOMS OF WAR, as recognised by Article 3(1)(a) of the Geneva Conventions of 1949, punishable under Articles 3 and 7(1) and 7(3) of the Statute of the Tribunal.

COUNTS 6 & 7
(MURDER)

37. Between 24 May 1992 and 30 August 1992, Zoran ZIGIC, alone or with others , entered the Omarska and Keraterm camps and directly participated in the murder of prisoners, including:

a. During late June 1992, at the Keraterm camp, Zoran ZIGIC and others, including Dusan Knezevic, severely beat a group of prisoners, including Emsud Bahonjic and a man named Sead Jusufagic, known by the nickname “Car”, over a period of several days. Bahonjic and "Car" were particularly subjected to violent beatings and various degrading and humiliating and/or painful acts, such as being forced to lie on broken glass, to repeatedly jump from a truck, and to commit fellatio with another prisoner . Bahonjic and "Car" died several days later as a result of the injuries received from the beatings.

b. During mid-July 1992, at the Keraterm camp, Zoran ZIGIC, along with camp guards, including Predrag Banovic, and others, brutally beat many prisoners, including Jasmin Izeiri, “Spija” Mesic and Drago Tokmadzic in the area in front of the detention rooms. Jasmin Izeiri, “Spija” Mesic and Drago Tokmadzic died as a result of the injuries suffered during those beatings.

c. During June 1992, in the White House at the Omarska camp, Zoran ZIGIC and others, including Dusan Knezevic, brutally beat Becir Medunjanin to death over a two day period.

d. Around 20 July 1992, Bosnian Muslim, Bosnian Croat and other non-Serb men from an area of the Prijedor municipality known as “Brdo”, that included the villages Hambarine, Carakovo, Rakovcani, Biscani and Rizvanovici, were brought to the Keraterm camp and confined in Room 3. During the evening of 24 July 1992, Serb forces, including Zoran ZIGIC, fired at Room 3 with machine guns resulting in the killing of the majority of the prisoners therein.

By his participation in the above acts, Zoran ZIGIC committed:

Count 6: murder, a CRIME AGAINST HUMANITY, punishable under Articles 5(a) and 7(1) of the Statute of the Tribunal; and,

Count 7: murder, a VIOLATION OF THE LAWS OR CUSTOMS OF WAR, as recognised by Article 3(1)(a) of the Geneva Conventions of 1949, punishable under Articles 3 and 7(1) of the Statute of the Tribunal.

COUNTS 8 to 10
(TORTURE and CRUEL TREATMENT)

38. Between 24 May 1992 and 30 August 1992, Miroslav KVOCKA, Dragoljub PRCAC, Milojica KOS, and Mladjo RADIC participated in the torture and beating of Bosnian Muslim, Bosnian Croat and other non-Serb prisoners in the Omarska camp, including those prisoners listed in Schedules A-E. During that time period , prisoners at the Omarska camp were subjected to torture and/or severe beatings on a daily basis. For many prisoners, the beatings began upon their arrival at the camp and continued throughout their detention. Camp guards and others who came to the camp used all kinds of weapons and implements to inflict the torture and/ or beatings. Many prisoners were tortured and/or beaten on repeated occasions.

39. Miroslav KVOCKA, Dragoljub PRCAC, Milojica KOS, and Mladjo RADIC instigated, committed or otherwise aided and abetted the torture and beating of Bosnian Muslim and Bosnian Croat prisoners by their approval, encouragement, acquiescence, assistance and, in certain instances, direct participation in the acts described above and in Schedules A-E.

40. In addition, during the relevant time frame, Miroslav KVOCKA, Dragoljub PRCAC, Milojica KOS and Mladjo RADIC knew or had reason to know that persons subordinate to them in the Omarska camp were about to participate in the torture and/or beating of Bosnian Muslim, Bosnian Croat and other non-Serb prisoners in the Omarska camp, or had done so, and failed to take necessary and reasonable measures to prevent such acts or to punish the perpetrators.

By their participation in the acts or omissions described above, Miroslav KVOCKA , Dragoljub PRCAC, Milojica KOS and Mladjo RADIC committed:

Count 8: torture, a CRIME AGAINST HUMANITY, punishable under Articles 5(f) and 7(1) and 7(3) of the Statute of the Tribunal;

Count 9: torture, a VIOLATION OF THE LAWS OR CUSTOMS OF WAR, as recognised by Article 3(1)(a) of the Geneva Conventions of 1949, punishable under Articles 3 and 7(1), and 7(3) of the Statute of the Tribunal.

Count 10: cruel treatment, a VIOLATION OF THE LAWS OR CUSTOMS OF WAR , as recognised by Article 3(1)(a) of the Geneva Conventions of 1949, punishable under Articles 3 and 7(1) and 7(3) of the Statute of the Tribunal.

COUNTS 11 to 13
(TORTURE and CRUEL TREATMENT)

41. Between 24 May 1992 and 30 August 1992, Zoran ZIGIC and others participated in the torture and/or beating of Bosnian Muslim, Bosnian Croat and other non-Serb prisoners in the Omarska, Keraterm and Trnopolje camps, including:

a. During the first part of June 1992, at the Keraterm camp, Zoran ZIGIC and others, including Dusan Knezevic, brutally beat and cut Fajzo Mujkanovic;

b. Between 1 and 7 June 1992, at the Keraterm camp, Zoran ZIGIC and others , including Dusan Knezevic, brutally beat Senahid Cirkic;

c. Between 5 and 15 June 1992, in the Omarska camp, Zoran ZIGIC and others , including Dusan Knezevic, severely beat Emir Beganovic, Rezak Hukanovic, Asef Kapetanovic and Sefik Terzic;

d. Between 14 June 1992 and 5 August 1992 at the Keraterm camp, Zoran ZIGIC and others, including Dusan Knezevic, beat Fikret Alic;

e. Between 20 and 25 June 1992, at the Keraterm camp, Zoran ZIGIC and others , including Dusan Knezevic, brutally beat a group of prisoners in Room 3, including Faudin Hrustic;

f. Between 22 and 27 June 1992, at the Keraterm camp, Zoran ZIGIC and others , including Dusan Knezevic, brutally beat a group of prisoners confined in Room 2, including Redzep Grabic; and,

g. Between 27 May 1992 and 5 August 1992, at the Keraterm camp, Zoran ZIGIC and others, including Dusan Knezevic, brutally beat Jasmin Ramadanovic, known as “Sengin”.

h. Between 26 May 1992 and 30 August 1992, at the Trnopolje camp, Zoran ZIGIC beat Hasan Karabasic.

By his participation in the acts described above, Zoran ZIGIC committed:

Count 11: torture, a CRIME AGAINST HUMANITY, punishable under Articles 5(f) and 7(1) of the Statute of the Tribunal;

Count 12: torture, a VIOLATION OF THE LAWS OR CUSTOMS OF WAR, as recognised by Article 3(1)(a) of the Geneva Conventions of 1949, punishable under Articles 3 and 7(1) of the Statute of the Tribunal.

Count 13: cruel treatment, a VIOLATION OF THE LAWS OR CUSTOMS OF WAR , as recognised by Article 3(1)(a) of the Geneva Conventions of 1949, punishable under Articles 3 and 7(1) of the Statute of the Tribunal.

COUNTS 14 to 17
(RAPE; TORTURE; and OUTRAGES UPON PERSONAL DIGNITY)

42. Between 24 May 1992 and 30 August 1992, at the Omarska camp, Mladjo RADIC raped and sexually assaulted female prisoners, including the rape of witness A on five occasions during June and July 1992, the rape of witness K on one occasion around the middle of July, the sexual assault of witness E between 22 June 1992 and 26 June 1992, the sexual assault of witness F between 1 June 1992 and 3 August 1992, the sexual assault of witness J on several occasions between 9 June 1992 and 3 August 1992, and the sexual assault of witness L between 22 June 1992 and 3 August 1992.

By the foregoing acts Mladjo RADIC committed:

Count 14: torture, a CRIME AGAINST HUMANITY, punishable under Articles 5(f) and 7(1) of the Statute of the Tribunal;

Count 15: rape, a CRIME AGAINST HUMANITY, punishable under Articles 5(g) and 7(1) of the Statute of the Tribunal;

Count 16: torture, a VIOLATION OF THE LAWS OR CUSTOMS OF WAR, as recognised by Article 3(1)(a) of the Geneva Conventions of 1949 punishable under Articles 3 and 7(1) of the Statute of the Tribunal.

Count 17: outrages upon personal dignity, a VIOLATION OF THE LAWS OR CUSTOMS OF WAR, as recognised by Article 3(1)(c) of the Geneva Conventions of 1949, punishable under Articles 3 and 7(1) of the Statute of the Tribunal.

____________________
Graham Blewitt
Deputy Prosecutor

Dated this twenty-first day of August 2000
The Hague, The Netherlands

E. MAP OF EASTERN BOSNIA AND PHOTOGRAPHS

1. Map of Bosnian Serb Autonomous Areas

2. Photograph of the Omarska camp, showing the Administrative Building and the White House

3. Aerial Photograph of the Omarska Camp, showing (from left to right):
the Administrative Building, the White House and the Hangar

4. Photograph of detainees from the Trnololje camp (Exhibit P3/172D)