TABLE OF CONTENTS
A.
The International Tribunal
B. The Indictment
(a)
Wilful Killing and Murder
(b) Torture and Cruel Treatment
(c) Causing Great Suffering or Serious
Injury and Cruel Treatment
(a)
Wilful Killing and Murder
(b) Torture and Cruel Treatment
(c) Inhuman Treatment and Cruel
Treatment
(d) Causing Great Suffering or Serious
Injury and Cruel Treatment
(e) Unlawful Confinement of Civilians
(f) Plunder of Private Property
3.
ZEJNIL DELALIC and ZDRAVKO MUCIC
(a)
Wilful Killing and Murder
(b) Torture and Cruel Treatment
(c) Causing Great Suffering or Serious
Injury and Cruel Treatment
(d) Inhuman Treatment and Cruel
Treatment
(e) Unlawful Confinement of Civilians
(f) Plunder of Private Property
C. Procedural History
1.
Indictment-Related Issues
2. Provisional Release and Fitness
to Stand Trial
3. Matters Relating to the Detention
Unit
4. Assignment of Defence Counsel
5. Matters Relating to Trial Proceedings
6. Witness-Related Issues
(a)
Protective Measures
(b) Video-Link Testimony
(c) Disclosure of Witness Identity
(d) Additional Witnesses and Issuance
of Subpoenae
(e) Miscellaneous
(a)
Disclosure Requirements
(b) Admissibility of Evidence
(c) Evidence of Prior Sexual Conduct
8.
Miscellaneous Issues Relating to the Regulation of Proceedings
9. Defence of Diminished or Lack
of Mental Capacity
10. Judges’ Terms of Office
11. Motion for Judgement of Acquittal
12. Sentencing Procedure
II. BACKGROUND AND PRELIMINARY FACTUAL FINDINGS
A.
Historical and Geographical Background of the Socialist Federal Republic of
Yugoslavia
B. The Concept of All People’s
Defence (Total National Defence)
C. Disintegration of the SFRY and
Emergence of the New States
D. Role of Military Forces in the
Conflict in Bosnia and Herzegovina
1. The JNA
2. The HVO
3. Paramilitary Groups
E.
The Konjic Municipality - Geographical, Demographic and Political Structure
F. Fighting in Konjic and Existence
of the Celebici Prison-camp
1. Military Action
2. The Establishment of the Celebici
Prison-camp
3. Description of the Celebici Compound
4. The Arrival, Accommodation and
Release of Prisoners
A.
General Principles of Interpretation
1.
General Aids to Interpretation
2. Other Canons of Interpretation
3. Differences in Statutory Interpretation
Between Systems
4. Conclusion
B.
Applicable Provisions of the Statute
C. General Requirements for the
Application of Articles 2 and 3 of the Statute
1.
Provisions of Article 1
2. Existence of an Armed Conflict
3. Nexus Between the Acts of the
Accused and the Armed Conflict
1.
Nature of the Armed Conflict
(a)
Arguments of the Parties
(b) Discussion
(c) Findings
2.
Status of the Victims as "Protected Persons"
(a)
Positions of the Parties
(b) Discussion
(i) Were the Victims Protected Civilians?
(ii) Were the Victims Prisoners of War?
1.
Introduction
2. Arguments of the Parties
3. Discussion
4. Findings
F.
Individual Criminal Responsibility Under Article 7(1)
1.
Introduction
2. Arguments of the Parties
3. Discussion and Findings
G.
Individual Criminal Responsibility Under Article 7(3)
1.
Introduction
2. Legal Character of Command Responsibility
and its Status Under Customary International Law
3. The Elements of Individual Criminal
Responsibility Under Article 7(3)
(a)
Introduction
(b) The Superior–Subordinate
Relationship
(i)
Arguments of the Parties
(ii) Discussion and Findings
a.
The Responsibility of Non-Military Superiors
b. The Concept of Superior
(c)
The Mental Element: "Knew or had reason to know"
(i)
Arguments of the Parties
(ii) Discussion and Findings
a.
Actual Knowledge
b. "Had reason to know"
(d)
Necessary and Reasonable Measures
(e) Causation
H.
Construction of Criminal Statutes
1.
Aids to Construction of Criminal Statutes
2. Interpretation of the Statute
and Rules
(a)
Introduction
(b) Arguments of the Parties
(c) Discussion
(d) Findings
(a)
Introduction to Various Offences of Mistreatment
(b) Torture
(i)
Introduction
(ii) Arguments of the Parties
(iii) Discussion
a. The Definition of Torture Under Customary
International Law
b. Severity of Pain or Suffering
c. Prohibited Purpose
d. Official Sanction
a. Prohibition of Rape and Sexual Assault
Under International Humanitarian Law
b. Definition of Rape
c. Decisions of International and Regional
Judicial Bodies
(c)
Wilfully Causing Great Suffering or Serious Injury to Body or Health
(i)
Arguments of the Parties
(ii) Discussion
(iii) Findings
(d)
Inhuman Treatment
(i) Arguments of the Parties
(ii) Discussion
(iii) Findings
(i)
Arguments of the Parties
(ii) Discussion
(iii) Findings
3.
Unlawful Confinement of Civilians
(a)
Arguments of the Parties
(b) Discussion
(i)
Legality of Confinement
(ii) Procedural Safeguards
(a)
Introduction
(b) Arguments of the Parties
(c) Discussion and Findings
IV. FACTUAL AND LEGAL FINDINGS
A.
The Nature of the Evidence Before the Trial Chamber
B. Burdens of Proof
1.
Burden of Proof on the Prosecution
2. Burden of Proof on the Defence
C.
Superior Responsibility of Zejnil Delalic
1.
Introduction
2. The Indictment
3. Arguments of the Parties
(i)
Status Prior to 18 May and as a Co-ordinator from 18 May to 11 July 1992
(ii) Status as Commander of Tactical
Group 1 from 11 July to November 1992
(iii) Knowledge
(iv) Failure to Act
(i)
Status Prior to 18 May and as Co-ordinator from 18 May to 30 July 1992
(ii) Status as Commander of Tactical
Group 1 from 30 July to November 1992
(iii) Knowledge
(iv) Failure to Act
(a)
Preliminary Issues
(b) Analysis of the Activities of
Zejnil Delalic and the Concept of Superior Responsibility
a.
Seizure of the Celebici Barracks and Warehouses
b. Authorisation of 2 May 1992
c. Authorisation of 9 May 1992
d. Conclusion
(ii)
18 May to 30 July 1992: Zejnil Delalic and the Role of Co-ordinator
a.
Appointed Co-ordinator – Meaning and Functions
b. The Gajret Ceremony
c. Participation in the Borci Operation
as Co-ordinator
d. Superior of the Celebici Prison-Camp
e. Issue of Orders to Institutions by
Zejnil Delalic
f. Zejnil Delalic and the Power to Make
Appointments
g. Conclusion
(iii)
Zejnil Delalic as Commander of Tactical Group 1
a.
The Meaning of "All Formations"
b. Nature of Tactical Group 1
c. Not a Regional Commander
(i)
Introduction
(ii) The Authenticated Exhibits
(iii) Exhibits 117, 130, 131, 132,
144, 147A
(iv) Exhibits 119, 121, 122, 123,
124, 125, 126, 127, 128, 129, 133, 143, 145, 146, 147B, 147C
(v) The Videos
(vi) Conclusion
D.
Superior Responsibility of Zdravko Mucic
1.
Introduction
2. The Indictment
3. Arguments of the Parties
(a)
The Prosecution
(b) The Defence
(a)
The Status of Zdravko Mucic as a Commander
(b) Knowledge of the Accused
(c) Failure to Act
E.
Superior Responsibility of Hazim Delic
1.
Introduction
2. Arguments of the Parties
(a)
The Prosecution
(b) The Defence
F. Factual and Legal Findings Relating to Specific Events Charged in the Indictment
1.
Introduction
2. Killing of scepo Gotovac - Counts
1 and 2
(a)
Prosecution Case
(b) Defence Case
(c) Discussion and Findings
3. Killing of Zeljko Milosevic - Counts 3 and 4
(a)
Prosecution Case
(b) Defence Case
(c) Discussion and Findings
4. Killing of Simo Jovanovic - Counts 5 and 6
(a)
Prosecution Case
(b) Defence Case
(c) Discussion and Findings
5. Killing of Bosko Samoukovic - Counts 7 and 8
(a)
Prosecution Case
(b) Defence Case
(c) Discussion and Findings
6. Killing of Slavko Šusic - Counts 11 and 12
(a)
Prosecution Case
(b) Defence Case
(c) Discussion and Findings
7. Various Murders in Paragraph 22 of the Indictment - Counts 13 and 14
(a)
Murder of Milorad Kuljanin
(b) Murder of Zeljko Cecez
(c) Murder of Slobodan Babic
(d) Murder of Petko Gligorevic
(e) Murder of Gojko Miljanic
(f) Murder of Zeljko Klimenta
(g) Murder of Miroslav Vujicic
(h) Murder of Pero Mrkajic
(i) Responsibility of the Accused
8. Torture or Cruel Treatment of Momir Kuljanin - Counts 15, 16 and 17
(a)
Prosecution Case
(b) Defence Case
(c) Discussion and Findings
9. Torture and Rape of Grozdana Cecez - Counts 18, 19 and 20
(a)
Prosecution Case
(b) Defence Case
(c) Discussion and Findings
10. Torture and Rape of Witness A - Counts 21, 22 and 23
(a)
Prosecution Case
(b) Defence Case
(c) Discussion and Findings
11. Torture or Cruel Treatment of Spasoje Miljevic - Counts 24, 25 and 26
(a)
Prosecution Case
(b) Defence Case
(c) Discussion and Findings
12. Torture and Cruel Treatment of Mirko Babic - Counts 27, 28 and 29
(a)
Prosecution Case
(b) Defence Case
(c) Discussion and Findings
13. Torture or Cruel Treatment of Mirko Dordic - Counts 30, 31 and 32
(a)
Prosecution Case
(b) Defence Case
(c) Discussion and Findings
14. Responsibility of Superiors for Acts of Torture - Counts 33, 34 and 35
(a)
Prosecution Case
(b) Defence Case
(c) Discussion and Findings
(d) Responsibility of the Accused
(a)
Prosecution Case
(b) Defence Case
(c) Discussion and Findings
16. Responsibility of Superiors for Causing Great Suffering or Serious Injury - Counts 38 and 39
(a)
Mirko Kuljanin
(b) Dragan Kuljanin
(c) Vukasin Mrkajic
(d) Dusko Bendo
(e) Responsibility of the Accused
17. Inhumane Acts Involving the Use of Electrical Device - Counts 42 and 43
(a)
Prosecution Case
(b) Defence Case
(c) Discussion and Findings
18. Responsibility of Superiors for Inhumane Acts - Counts 44 and 45
(a)
Forcing Persons to Commit Fellatio with Each Other
(b) Forcing a Father and Son to
Slap Each Other Repeatedly
(c) Responsibility of the Accused
19. Inhumane Conditions - Counts 46 and 47
(a)
Prosecution Case
(b) Defence Case
(c) Discussion and Findings
(i)
Atmosphere of terror
(ii) Inadequacy of Food
(iii) Lack of Access to Water
(iv) Lack of Proper Medical Care
(v) Inadequacy of Sleeping Facilities
(vi) Inadequacy of Toilet Facilities
(d)
Legal Findings
(e) Responsibility of the Accused
20. Unlawful Confinement of Civilians - Count 48
(a)
Prosecution Case
(b) Defence Case
(c) Discussion and Findings
(d) Responsibility of the Accused
21. Plunder of Private Property - Count 49
(a)
Prosecution Case
(b) Defence Case
(c) Findings
1.
Burden of Proof on the Defence in Relation to Diminished Mental Responsibility
2. Factual Findings
1.
Applicable SFRY Penal Code Provisions on Sentencing
2. General Principles Relevant to
Sentences Imposed by the Tribunal
(a)
Retribution
(b) Protection of Society
(c) Rehabilitation
(d) Deterrence
(e) Motives for the Commission of
Offences
B. Factors Relevant to Sentencing in Respect of Each Accused
1.
Zdravko Mucic
2. Hazim Delic
3. Esad Landzo
1.
Concurrence of Sentences
2. Credit for Time Served
3. Enforcement of Sentences
ANNEX C – Map of the Bosnian Municipalities (Exhibit 44)