Tribunal Criminal Tribunal for the Former Yugoslavia

Page 16308

1 Thursday, 27 September 2007

2 [Judgement]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 3.30 p.m.

6 JUDGE PARKER: Would the court officer call the case.

7 THE REGISTRAR: Good afternoon, Your Honours. This is case number

8 IT-95-13/1-T, the Prosecutor versus Mile Mrksic et al.

9 JUDGE PARKER: The Chamber today is sitting to deliver judgement

10 in the trial of the three accused persons, Mile Mrksic, Miroslav Radic,

11 and Veselin Sljivancanin.

12 For the purposes of this hearing, the Chamber will summarize

13 briefly its findings, emphasising that this is a summary only, and that

14 the only authoritative account of the Chamber's findings, and of its

15 reasons for those findings, is to be found in the written judgement,

16 copies of which will be made available at the conclusion of this hearing.

17 The three accused, Mile Mrksic, Miroslav Radic, and

18 Veselin Sljivancanin, are indicted for their alleged involvement in the

19 mistreatment and execution of 264 Croat and other non-Serb persons taken

20 from the Vukovar Hospital by Serb forces on the 20th of November, 1991.

21 This followed the capitulation of the Croat forces at Vukovar on the 18th

22 of November. It is alleged that these persons were taken to a hangar at

23 Ovcara, where Serb forces mistreated them and later that day executed

24 them. These allegations support five counts of crimes against humanity

25 under Article 5 of the United Nations Statute establishing this Tribunal;

Page 16309

1 namely, persecutions, extermination, murder, torture, and inhumane acts,

2 and three counts of war crimes under Article 3 of the Statute, namely,

3 murder, torture, and cruel treatment.

4 It should be made clear that the indictment is limited to the

5 alleged offences relating to the mistreatment and execution of Croat and

6 non-Serb persons from Vukovar Hospital on the 20th of November, 1991. It

7 does not include the attack directed against the city of Vukovar and its

8 civilian population by the Yugoslav national army and other Serb forces in

9 1991 or the devastation brought on Vukovar over the prolonged military

10 engagement in 1991 or the very many civilian casualties and the extensive

11 damage to property resulting from the military operations or the other

12 deaths that occurred after the surrender of the Croatian forces in Vukovar

13 on the 18th of November, 1991. Most of those matters are the subject of

14 another indictment in this Tribunal, in respect of which an arrest warrant

15 against Goran Hadzic has yet to be executed. Nevertheless, these matters

16 are of some relevance to establishing elements of the offences charged in

17 this case and have been considered in the judgement. It is not open to

18 the Chamber, however, to make any finding of guilt or innocence of the

19 three accused in this trial in respect of such matters.

20 At the time of the alleged offences, the accused Mile Mrksic was a

21 colonel in the Yugoslav People's Army. In this summary I will refer to it

22 as the JNA. He commanded both the prestigious Guards Motorised Brigade of

23 the JNA and Operational Group South. As commander of Operational Group

24 South, he had command of all Serb forces including JNA, Territorial

25 Defence, and paramilitary forces in the geographic area in which all the

Page 16310

1 charged offences are alleged to have occurred. Later he became a general

2 and for a time he commanded the army of the then-Serbian Krajina.

3 Miroslav Radic was a captain in the JNA at the time of the alleged

4 offences. He was a company commander of the 1st Battalion of the

5 Guards Motorised Brigade. Veselin Sljivancanin was a major in the JNA and

6 held the post of head of the security organ of both the Guards Motorised

7 Brigade and Operational Group South at the time of the alleged offences.

8 He was later promoted to the rank of colonel.

9 After several months of intense military operations between JNA

10 and other Serb forces and Croatian forces, the Croatian forces in the

11 Vukovar area capitulated on the 18th of November, 1991. By agreement

12 reached that day, Croatian fighters from the Mitnica area of Vukovar

13 surrendered to the JNA forces of Operational Group South. The surrender

14 later that day was monitored by representatives of the International

15 Committee of the Red Cross. The prisoners of war were then taken to a

16 large hangar at Ovcara near Vukovar, which had been selected earlier that

17 day on the orders of Mile Mrksic. The prisoners of war were held there

18 overnight, and the following morning they were transported to a prisoner

19 of war facility at Sremska Mitrovica, which was across the border in

20 Serbia. No incidents occurred during this evacuation.

21 Also on the 18th of November, 1991, in Zagreb, an agreement was

22 reached between the Government of Croatia and the JNA representatives for

23 the evacuation of Vukovar Hospital. Wounded or sick patients of Vukovar

24 Hospital who were fit to make the journey were to be evacuated to Croatia.

25 The hospital was to be under the protection of the International Committee

Page 16311

1 of the Red Cross. The evacuation was to be monitored by the European

2 Community Monitoring Mission, who were to have full access to all stages

3 of the evacuation. Despite contrary views expressed by a number of Croat

4 witnesses, the agreement did not apply to hospital staff, their family

5 members, or to persons who were not patients in the hospital.

6 On the 18th of November, Vukovar Hospital, which had been severely

7 damaged in the fighting, was full beyond its capacity. A large number of

8 civilians had also gathered there in the hope that they would also be

9 evacuated. Inside the hospital there were sick, wounded, hospital staff,

10 and some family members of hospital staff. Despite contrary evidence of

11 some Croat witnesses, there were also members of the Croatian forces,

12 pretending to be patients or hospital staff. Operational Group South

13 entered the Vukovar Hospital on the 19th of November. The accused

14 Miroslav Radic placed guards at the entrance until later that day when the

15 military police of the Guards Motorised Brigade took over the duty of

16 securing the hospital. In the afternoon of the 19th of November, 1991,

17 most of the civilians who had gathered at the hospital were transported by

18 the JNA to Velepromet, a large warehouse located nearby.

19 International representatives, both ECMM and ICRC, were in Vukovar

20 on the 18th and 19th of November. ECMM's access to the hospital on the

21 18th and the 19th of November was prevented by the JNA. An ICRC

22 representative was allowed only limited access to the hospital on the 19th

23 of November. On that day international representatives were told by a

24 senior JNA officer of Operational Group south in Mile Mrksic's presence

25 that members of the Croatian forces, that is, whether patients or

Page 16312

1 otherwise, would not be allowed to leave the hospital in the evacuation,

2 because if they were allowed to leave Serb irregulars or local citizens

3 would attack the convey. Instead, they would be held by the JNA as

4 prisoners of war, and later they would be exchanged for JNA prisoners.

5 The ECMM were told not to get involved in the evacuation. The agreement

6 for the evacuation of the wounded, signed the previous day, was being

7 ignored.

8 On the 19th of November, 1991, Mile Mrksic ordered the evacuation

9 of the Vukovar Hospital. This was to occur on the 20th of November. He

10 put the accused Veselin Sljivancanin in charge. He was to separate the

11 people in the hospital into two groups: War crimes suspects and

12 civilians. The war crimes suspects, that is, the members of the Croatian

13 forces, were to be transported under JNA guard to the prisoner of war

14 facility in Sremska Mitrovica in Serbia. Civilians were to be taken, as

15 they chose, to Croatia or Serbia. Veselin Sljivancanin was given

16 responsibility for security of the prisoners of war until they reached

17 Sremska Mitrovica.

18 On the 20th of November, at about 0700 hours, staff of the

19 Vukovar Hospital were called to a meeting organized by the accused

20 Veselin Sljivancanin. While the meeting was in progress, JNA soldiers

21 went through the hospital and told those who were able to walk to leave.

22 At the exit, JNA soldiers separated the men from the women, children, and

23 the elderly. The men were searched by JNA soldiers and ordered to board

24 waiting buses under armed guard. There were over 200 men, and also two

25 women, in this group. They were all Croat or non-Serb. They were or were

Page 16313

1 believed to be involved in the Croat forces. At the same time on the

2 other side of the hospital, the women, children, and a few elderly men

3 were gathered and boarded different buses to go either to Serbia or

4 Croatia. The buses with the male prisoners left the Vukovar Hospital at

5 about 1000 hours. They went in a convoy first to the JNA barracks in

6 Vukovar.

7 Attempts by the ECMM and the ICRC representatives to reach the

8 hospital that morning were prevented by the JNA. They were held for two

9 hours in the city centre at a bridge over the Vuka River. A JNA armoured

10 vehicle blocked their way to the hospital. The accused

11 Veselin Sljivancanin was at the bridge and suggested falsely that the

12 representatives could not proceed further for safety reasons. While they

13 were held at the bridge, the buses carrying the men from the hospital,

14 travelling in the opposite direction, crossed the Vuka River on a nearby

15 bridge, heading towards the JNA barracks. Following this, the ECMM and

16 ICRC representatives were finally able to reach the hospital at about 1030

17 hours. They found primarily women and children remaining there. The men

18 had been removed, apart from a few elderly and male staff.

19 The buses carrying the prisoners of war, that is, the men from the

20 hospital, arrived at the JNA barracks in Vukovar at about 1030 hours.

21 Local Serb Territorial Defence and paramilitary forces milled around the

22 buses, physically threatening and verbally abusing the men on the buses.

23 Order was eventually established when the JNA military police removed the

24 Territorial Defence members and the paramilitary forces from the barracks

25 compound. JNA soldiers had also removed some 12 to 15 identified men from

Page 16314

1 the buses. These men were beaten with rifle-butts, punched, and kicked,

2 and then taken back to the hospital, where the accused

3 Veselin Sljivancanin, in consultation with leaders of the local

4 Territorial Defence, questioned them about their possible involvement in

5 the Croatian forces. These men were hospital staff or family members of

6 hospital staff. They had been returned to the hospital on the orders of

7 Veselin Sljivancanin. Some of these men were sent back to the JNA

8 barracks, the others were allowed to join the convoy of women and

9 children.

10 In the meantime, that, morning the self-described government of

11 Slavonia, Baranja, and Western Srem, operating in the area of Vukovar,

12 which had been established by Serb people in the area, held a meeting at

13 Velepromet. This government will be referred to as the local Serb

14 government. Goran Hadzic was present as the prime minister of the

15 government and Slavko Dokmanovic as the minister of agriculture.

16 Captain Jaksic of the Vukovar Territorial Defence was present, as well as

17 two senior officers of the JNA: Lieutenant-Colonel Panic, Chief of Staff

18 of Operation Group south, and Colonel Vujic from the security

19 administration in Belgrade. At this meeting there was strong opposition

20 to the JNA removing prisoners of war from Vukovar to Sremska Mitrovica in

21 Serbia. Some spoke of putting the war criminals on trial in Vukovar

22 before local judiciary. At this, meeting Lieutenant-Colonel Panic

23 conveyed from the accused Mile Mrksic that he, that is, Mrksic, was

24 prepared to act in accordance with the decision of the government meeting

25 as to what should be done with the prisoners of war from Vukovar Hospital.

Page 16315

1 However, the decision indicates that no final decision was reached during

2 the actual meeting, although late that day the Prime Minister Goran Hadzic

3 stated that an agreement had been reached for the prisoners to be detained

4 in "our detention camps" in the surroundings of Vukovar. What followed is

5 consistent with this.

6 After this meeting of the local Serb government the buses, still

7 loaded with the men, prisoner from the hospital under armed guard, left

8 the JNA barracks together and went not to Sremska Mitrovica in Serbia but

9 to the hangar at Ovcara. They arrived there between 1330 and 1430 hours.

10 The buses were emptied one by one and, as they were unloading, a gauntlet

11 of two rows of soldiers, about 10 to 15 on each side, was formed. The

12 prisoners had to pass between the soldiers who were beating them severely

13 with wooden sticks, rifle-butts, poles, chains, and even crutches. The

14 prisoners of war were then forced into the hangar and remained imprisoned

15 there under inhumane conditions until late that evening. The vast

16 majority of the prisoners in the hangar were further severely beaten in

17 many cases with implements such as iron rods and rifle-butts and kicked.

18 Several prisoners, believed to have been prominent within the Croatian

19 forces, were beaten particularly severely. Witnesses believed that some

20 may have died of the beatings. Some sort of a roster system was

21 established with different shifts of beaters taking turns in mistreating

22 the prisoners.

23 The soldiers who participated in the violent gauntlet in front of

24 the hangar and in the beatings inside the hangar were Serb Territorial

25 Defence soldiers, including a leader, Miroljub Vujovic, and paramilitary

Page 16316

1 soldiers. They had followed the buses to Ovcara and remained there until

2 late that evening. One or more JNA soldiers may also have participated in

3 the beatings at their own volition.

4 When the buses with the prisoners of war arrived at the hangar,

5 there were some 15 to 20 JNA soldiers to secure the prisoners. They were

6 primarily JNA military policemen. More JNA military police arrived later.

7 Their efforts at securing the prisoners were inconsistent and

8 insufficient. At times members of the Territorial Defence and

9 paramilitaries were kept outside the hangar, but at other times,

10 especially when the prisoners first arrived, they had unrestricted access

11 to the prisoners of war.

12 A number of senior JNA officers came to Ovcara in the afternoon of

13 the 20th of November. They saw what was happening. Some of them took

14 steps to ensure that the military police were more effective. These

15 efforts were either not effective or were only effective for a limited

16 time.

17 That evening at a time between 2000 hours and 2100 hours, the

18 order came from Mile Mrksic at Operational Group South for the JNA

19 military police guarding the prisoners of war to withdraw. They did

20 withdraw before 2100 hours leaving the Serb Territorial Defence and

21 paramilitary forces with unrestricted access to the prisoners. The

22 prisoners of war were left in the custody of the Vukovar Territorial

23 Defence, who were at the time under the command of Miroljub Vujovic.

24 The prisoners were then taken by Territorial Defence and

25 paramilitary forces in small groups to an isolated location and shot.

Page 16317

1 Their bodies were buried there in a mass grave that had been dug earlier

2 that day. The grave remained undiscovered until almost one year later,

3 and the exhumation process did not begin until 1996. 200 bodies were

4 exhumed. Detailed autopsies have been conducted. The Chamber finds from

5 all the evidence that all 200 persons died on the night of the 20th/21st

6 of November, 1991, at Ovcara from trauma caused by physical violence in

7 almost all cases from one or more gun-shot wounds.

8 190 of the 200 persons buried in the mass grave have been

9 identified; they are among those named in the indictment. The evidence

10 also establishes that another four identified persons, who were held as

11 prisoners at the hangar that day, have not been seen since. Each of them

12 was severely beaten that day by Serb forces. It cannot be determined from

13 the evidence whether their bodies are among the ten unidentified bodies

14 found in the mass grave. In the judgement the Chamber has set out the

15 effect of some other evidence relating to other persons named in the

16 indictment as victims of the murder. For reasons given, the Chamber has

17 not been able to conclude whether some or all of these persons died at

18 Ovcara as alleged. Our findings, of course, do not preclude that more

19 than 200 persons, of whom 194 have been identified, died at Ovcara that

20 day. However, the available evidence does not enable that to be

21 determined. It is established that 194 of the victims named in the

22 indictment were murdered at Ovcara by Serb forces on the night of the

23 20th/21st of November, 1991.

24 Counts 1, 2, 3, 5, and 6 of the indictment are charged as crimes

25 against humanity under Article 5 of the Statute of the Tribunal. For

Page 16318

1 reasons set out in the judgement, it is necessary, for the purposes of

2 Article 5 of the Statute, that the victims of the underlying crime must be

3 civilians. "Civilian" in Article 5 of the Statute does not include

4 combatants or fighters hors de combat. In the present case the persons

5 removed by the JNA forces from Vukovar Hospital on 20th of November, 1991,

6 and murdered at Ovcara by Serb forces had been specifically identified and

7 selected because of their own, or believed, involvement in the Croatian

8 forces in Vukovar. The Serb forces who mistreated the victims and

9 murdered them acted on the understanding that the victims were prisoners

10 of war, not civilians. The jurisdictional prerequisites to Article 5 of

11 the Statute have not been established. It follows that convictions should

12 not be rendered in respect of Counts 1, 2, 3, 5, and 6. These charges

13 will be dismissed with respect to all three accused, and in this summary

14 the Chamber will not discuss these counts any further.

15 Counts 4, 7, and 8 of the indictment, which are based essentially

16 on the same conduct, are charged as war crimes under Article 3 of the

17 Statute. Article 3 applies to offences against prisoners of war. The

18 Chamber is satisfied that an armed conflict existed in Croatia at the

19 material time and that other jurisdictional requirements for Article 3

20 have been established. The conduct of each of the three accused will,

21 therefore, be fully considered in connection with these charges of war

22 crimes.

23 Count 4 alleges the offence of murder with respect to at least 264

24 persons identified in the indictment. For reasons which have been

25 explained, Count 4 has been established with respect to 194 identified

Page 16319

1 victims of murder. The evidence that is available does not enable

2 findings to be made about the other persons listed in the indictment.

3 Counts 7 and 8 allege, respectively, the offences of torture and

4 of cruel treatment. These charges rely on the imprisonment of the

5 prisoners of war at the hangar at Ovcara were their physical abuse, the

6 conditions of detention, and the deprivation of medical care. The

7 evidence demonstrates that prisoners of war were beaten, in many cases

8 gravely, as punishment for their actual or believed involvement in the

9 Croat forces. This establishes the elements of the offence of torture,

10 Count 7. The same beatings would also constitute cruel treatment, Count

11 8, but as the physical acts are the same, only a conviction for torture is

12 appropriate. However, the elements of the offence of cruel treatment are

13 also established with respect to the conditions of detention at Ovcara.

14 The reasons are more fully given in the written judgement.

15 There remains the further critical issue whether the three accused

16 or any of them have been proved to have been criminally responsible for

17 the offences established by the Prosecution.

18 The main allegation in the indictment in this respect is that the

19 accused were involved in a joint criminal enterprise, a common purpose of

20 which the commission of the crimes alleged in the indictment. In essence,

21 the allegation is that the three accused men acted together to achieve the

22 murder of the prisoners of war from the hospital and their mistreatment.

23 There is no direct evidence which establishes this. While, on an

24 incomplete understanding of some of the events of the 20th and 21st of

25 November, and some isolated pieces of evidence, such a view could be

Page 16320

1 suggested. In the finding of the Chamber, the evidence does not establish

2 that these three accused or any of them joined in any joint criminal

3 enterprise for the commission of the offences charged in the indictment.

4 While many of the facts that follow were strenuously contested,

5 the evidence establishes, in the Chamber's view, that on the orders of the

6 accused Mile Mrksic given on the 19th of November, 1991, implemented by

7 the accused Veselin Sljivancanin, the prisoners of war were taken from the

8 hospital on the morning of the 20th of November and eventually to Ovcara.

9 The Chamber is satisfied, however, that the original intention of

10 Mile Mrksic was for the prisoners of war to be taken to Sremska Mitrovica,

11 among other things with a view to their being later exchanged for Serb

12 prisoners of war held by Croatian authorities. This was the order given

13 to Veselin Sljivancanin and communicated to many others involved in the

14 evacuation. It was what had been done with other prisoners of war on the

15 preceding days.

16 During the morning of the 20th of November, the accused

17 Mile Mrksic changed his mind and then his orders. First, the prisoners

18 were held in buses at the JNA barracks, and then at the hangar at Ovcara,

19 but in each case they were still guarded, albeit less than effectively, by

20 JNA military police. Eventually, late in the day, the accused Mile Mrksic

21 decided and ordered that the JNA military police guarding the prisoners be

22 withdrawn. The effect of the evidence is that it was at the time of this

23 order that the accused Mile Mrksic finally decided that the prisoners of

24 war should be left in the custody of the Vukovar Territorial Defence. The

25 full reasons for his conduct are known only to Mile Mrksic. The wishes of

Page 16321

1 the local Serb government, which had no lawful authority or power to

2 direct the accused Mile Mrksic or the JNA as to what should be done with

3 the prisoners of war, appear to have been a significant factor.

4 What is material is that the evidence does not indicate that at

5 any time either Veselin Sljivancanin or Miroslav Radic had any involvement

6 in the process by which Mile Mrksic came to reach his decision that the

7 JNA should relinquish its custody of the prisoners of war by withdrawing

8 the JNA military police who were guarding them. These factual

9 circumstances preclude any conclusion that the accused men were acting

10 together in a joint criminal enterprise.

11 The indictment also alleges that Mile Mrksic is, among other forms

12 of liability, responsible for having ordered the commission of the crimes

13 with which he was charged. However, there is a complete absence of

14 evidence to support such a conclusion. Even though, as the commander of

15 Operational Group South, Mile Mrksic was in the position of authority in

16 respect of the Territorial Defence and paramilitary forces who perpetrated

17 the crimes of cruel treatment, torture, and murder at Ovcara, it has not

18 been established that he ordered them to commit the crimes charged.

19 Mile Mrksic, however, knew of intense feelings of animosity

20 harboured by the Serb Territorial Defence and paramilitary forces against

21 members of the Croat forces. In particular this had been demonstrated in

22 the course of that day by conduct at the JNA barracks and at Ovcara, which

23 had been reported to Mile Mrksic by a number of JNA officers. He had also

24 been informed of killings at Velepromet the previous day. By ordering the

25 JNA military police to withdraw from Ovcara, when he knew of the high risk

Page 16322

1 to the prisoners of war of serious violence and death at the hands of

2 Territorial Defence and paramilitary forces, Mile Mrksic aided and abetted

3 the murders that were committed as a consequence of his order for

4 withdrawal. For these reasons, the Chamber finds that Mile Mrksic is

5 responsible under Article 7(1) of the Statute for having aided and abetted

6 the offence of murder.

7 Further, Mile Mrksic took no steps during the afternoon of the

8 20th of November to reinforce the guards at Ovcara or to improve in any

9 way the measures for securing the prisoners of war from violence and other

10 cruel treatment at the hands of the Territorial Defence and paramilitary

11 forces, despite having been informed of the severe mistreatment that was

12 occurring. By his failure to act, Mile Mrksic rendered both practical

13 assistance and encouragement to those at Ovcara who sought revenge on the

14 prisoners of war. JNA forces which he commanded had earlier established

15 and maintained the inhumane conditions of detention of the prisoners.

16 Mile Mrksic is, therefore, found responsible under Article 7(1) of the

17 Statute for having aided and abetted the crimes of torture and cruel

18 treatment.

19 The Prosecution case against Miroslav Radic is that, through his

20 participation in the evacuation of the hospital, he too participated in

21 the joint criminal enterprise alleged in the indictment or aided and

22 abetted the crimes. It is also alleged that the crimes at Ovcara were

23 committed by soldiers under his command so that he is also responsible as

24 a superior of the direct perpetrators.

25 The evidence has established that Miroslav Radic was at the

Page 16323

1 hospital on the 19th of November, 1991, and that JNA soldiers under his

2 command provided the initial security of the hospital. It has further

3 been established that Miroslav Radic was present at the compound of the

4 hospital in the morning of the 20th of November, but not that he

5 participated in the triage in front of the hospital. There is no evidence

6 that Miroslav Radic was at Ovcara on the 20th of November. For reasons

7 mentioned when discussing the responsibility of Mile Mrksic, there is no

8 evidence which establishes that Miroslav Radic participated in a joint

9 criminal enterprise as alleged, or that he aided and abetted the crimes

10 charged. Two witnesses gave quite different evidence suggesting that

11 Miroslav Radic was informed that soldiers under his command had

12 participated in the mistreatment and killing of prisoners at Ovcara. A

13 further witness suggested that he was aware of the events at Ovcara. The

14 Chamber was not able to accept the honesty of two of these witnesses or

15 the reliability of the third witness. Hence, for reasons fully set out in

16 the written judgement, the Chamber finds that it has not been established

17 by the Prosecution that Miroslav Radic had knowledge or reason to know

18 that soldiers under his command had committed crimes at Ovcara. His

19 responsibility under Article 7(3), as the superior of actual perpetrators,

20 has not been established.

21 Turning next to the accused Veselin Sljivancanin. The Chamber

22 observes that for reasons expressed when discussing the responsibility of

23 Mile Mrksic, the evidence does not establish that Veselin Sljivancanin

24 participated in any joint criminal enterprise as alleged in the

25 indictment.

Page 16324

1 The indictment also alleges that Veselin Sljivancanin is

2 responsible under Article 7(1) of the Statute, for having ordered the

3 commission of the crimes alleged in the indictment. There is no evidence

4 to suggest that Veselin Sljivancanin ordered any forces at Ovcara to

5 commit any of the offences charged in the indictment. Further, the crimes

6 in this case were perpetrated by Territorial Defence and paramilitary

7 forces; Veselin Sljivancanin had no power of command over those forces.

8 On the evidence, Veselin Sljivancanin cannot be held responsible under

9 Article 7(1) of the Statute for having ordered the commission of any of

10 the crimes established in this case, nor does the evidence establish his

11 responsibility under Article 7(3) for having failed to prevent the

12 commission of crimes or to punish the perpetrators.

13 It is the Chamber's finding that on the 20th of November, 1991,

14 Veselin Sljivancanin exercised command authority, conferred on him by

15 Mile Mrksic, over the military police involved in the evacuation of

16 prisoners of war from the hospital and guarding them on the buses and at

17 Ovcara. It is not alleged, nor does the evidence establish, that members

18 of the military police perpetrated any of the crimes in this case. On the

19 contrary, they were involved, albeit unsatisfactorily, in securing the

20 prisoners of war from mistreatment by the Territorial Defence and

21 paramilitary forces.

22 As the facts of this case reveal, the security provided to the

23 prisoners of war at Ovcara was insufficient. The number of military

24 police troops at Ovcara was far too low and their performance was at times

25 unsatisfactory, so that for much of the time the prisoners were exposed to

Page 16325

1 the hostile acts of the Territorial Defence and paramilitary forces who

2 had gathered at Ovcara.

3 Contrary to his own and other evidence, the Chamber finds that

4 Veselin Sljivancanin was at Ovcara for a time when mistreatment to the

5 prisoners was occurring; he was thus able to observe the brutal conduct of

6 the Territorial Defence and paramilitary forces and became aware that

7 serious crimes were being committed against the prisoners of war. In

8 addition, he knew of past events of the same nature, in particular the

9 mistreatment and killings of Croat prisoners of war by local Serb

10 Territorial Defence and paramilitary forces at Velepromet on the preceding

11 day as well as of other similar incidents that had taken place in the area

12 of Vukovar in the months of October and November 1991. However, he chose

13 not to resort to any of the measures available to him to seek to prevent

14 what was occurring. He failed to discharge the duty of care for prisoners

15 of war kept in the custody of the JNA, a duty which was imposed on him by

16 the laws of war and which was part of his responsibility as the security

17 organ and by the specific authority or responsibility placed on him by

18 Mile Mrksic. Veselin Sljivancanin could have sought or ordered additional

19 troops to go to Ovcara. He could have given orders to the military police

20 present there to enhance the protection. He failed to give appropriate

21 orders or take other appropriate action. This facilitated the continuing

22 mistreatment of prisoners of war, and thus the commission of the crimes of

23 torture and cruel treatment, as can only have been obvious to him in the

24 circumstances. For these reasons, the responsibility of

25 Veselin Sljivancanin, pursuant to Article 7(1) of the Statute, for having

Page 16326

1 aided and abetted the crimes of torture and cruel treatment has been

2 established.

3 He has not been found responsible, however, for having aided and

4 abetted the crime of cruel treatment committed by the imposition of

5 inhumane conditions of detention in the hangar at Ovcara, as the evidence

6 does not demonstrate that Veselin Sljivancanin entered the hangar so as to

7 be able to observe the conditions of detention in the hangar.

8 The crime of murder was committed during the night after the

9 withdrawal of all JNA military police from Ovcara, pursuant to the order

10 of Mile Mrksic. By that order, Veselin Sljivancanin necessarily ceased to

11 be responsible for the security of the prisoners of war, and his command

12 authority in respect of the military police that provided security came to

13 an end. He is not responsible, therefore, for the murders committed by

14 the Territorial Defence and paramilitary troops after the JNA military

15 police were withdrawn from Ovcara.

16 With respect to sentence, the Chamber has set out in the written

17 judgement the many factors that have been taken into account in assessing

18 appropriate sentences. In particular, the Chamber has taken into account,

19 as it is required to do, the sentencing structure in the former

20 Yugoslavia. The Chamber notes that the effect today of the law in both

21 Serbia and Croatia for murder and for aiding and abetting murder committed

22 in 1991 in the circumstances of this case is to allow a maximum penalty of

23 imprisonment for 20 years. It has also looked at sentences imposed in

24 this Tribunal, but it has not found other cases where the circumstances

25 are sufficiently similar to this case to provide any useful guide.

Page 16327

1 The Chamber would emphasise that this case concerns essentially

2 the tragic events at Ovcara on the 20th of November, 1991, when, as it has

3 been proved, 194 identified persons were murdered and earlier prisoners of

4 war were tortured by being severely beaten as punishment for their

5 participation in the Croat forces in the struggle for Vukovar. They were

6 also cruelly treated by being held captive by the JNA in inhumane

7 conditions. The evidence shows that the actual perpetrators of the

8 murders and torture and associated beatings were members of the Serb

9 Territorial Defence forces, many from the Vukovar area itself, and Serb

10 paramilitary forces. The murders, torture, and associated beatings were

11 not ordered by either Mile Mrksic or Veselin Sljivancanin.

12 Mile Mrksic is to be punished for aiding and abetting the murders

13 because, knowing of the presence of the Territorial Defence and

14 paramilitary forces at Ovcara and of the threat they presented to the

15 prisoners of war, apparently in response to pressure from the local Serb

16 government, he withdrew the JNA troops guarding the prisoners, with the

17 consequence that the Territorial Defence and paramilitary forces were able

18 to murder the prisoners. JNA forces which he had established had earlier

19 established the inhumane conditions of detention and he failed to act

20 effectively during the afternoon to ensure that the prisoners were

21 properly protected by JNA guards from torture by Serb Territorial Defence

22 and paramilitary forces.

23 Veselin Sljivancanin is to be punished for aiding and abetting

24 torture because he failed, either or both, to act to secure adequate JNA

25 guards at Ovcara or to ensure that JNA guards at Ovcara under his

Page 16328

1 authority acted to prevent the Serb Territorial Defence and paramilitary

2 forces from beating the prisoners of war to punish them for their role in

3 the Croat forces at Vukovar.

4 Mile Mrksic, will you please stand.

5 [The accused Mrksic stands up]

6 JUDGE PARKER: The Chamber finds you guilty pursuant to Article

7 7(1) of the Statute of the following counts:

8 Count 4: Murder, a violation of the laws or customs of war, under

9 Article 3 of the Statute, for having aided and abetted the murder of 194

10 persons identified in the schedule to this judgement, at a site located

11 near the hangar at Ovcara on the 20th and 21st of November, 1991.

12 Count 7: Torture, a violation of the laws or customs of war,

13 under Article 3 of the Statute, for having aided and abetted the torture

14 of the prisoners of war at the hangar at Ovcara on the 20th of November,

15 1991.

16 Count 8: Cruel treatment, a violation of the laws or customs of

17 war, under Article 3 of the Statute, for having aided and abetted the

18 maintenance of inhumane conditions of detention at the hangar at Ovcara on

19 the 20th of November, 1991.

20 Mile Mrksic, you are sentenced to a single sentence of 20 years'

21 imprisonment. Full credit will be given for the time you have spent in

22 custody. You will remain in the custody of the Tribunal pending the

23 finalisation of arrangements for your transfer to the state where you will

24 serve your sentence.

25 You may sit down.

Page 16329

1 [The accused Mrksic sits down]

2 JUDGE PARKER: Miroslav Radic, would you please stand.

3 [The accused Radic stands up]

4 JUDGE PARKER: The Chamber finds you not guilty on all counts in

5 the indictment. The Chamber orders that you be released from United

6 Nations Detention Unit immediately on the completion of the necessary

7 modalities. You may sit down.

8 [The accused Radic sits down]

9 [The accused Sljivancanin stands up]

10 JUDGE PARKER: Veselin Sljivancanin, the Chamber finds you guilty

11 pursuant to Article 7(1) of the Statute of the following count:

12 Count 7: Torture, a violation of the laws or customs of war,

13 under Article 3 of the Statute, for having aided and abetted the torture

14 of prisoners of war at the hangar at Ovcara on the 20th of November, 1991.

15 The Chamber finds you not guilty on all other counts.

16 Veselin Sljivancanin, you are sentenced to five years'

17 imprisonment. Full credit will be given for the time you have spent in

18 custody. You will remain in the custody of the Tribunal pending the

19 finalisation of arrangements for your transfer to the state where you will

20 serve your sentence.

21 You may sit down.

22 [The accused Sljivancanin sits down]

23 JUDGE PARKER: That concludes this trial.

24 The Chamber will now adjourn.

25 --- Whereupon the Judgement adjourned at 4.32 p.m.