"Judgement"

26 February 2001
Trial Chamber III (Judges May [Presiding], Bennouna and Robinson)

Procedural Background

The case concerns the conflict between the Bosnian Muslims and Bosnian Croats in the Lasva River Valley in Central Bosnia in 1992 and 1993. Dario Kordic was a politician, "described as the most important Bosnian Croat political figure in the area."1 Mario Cerkez was a military man, commander of a Brigade in the Bosnian Croat armed forces. The charges against them arise from events during the conflict.

The initial Indictment confirmed on 10 November 1995 contains 44 counts and charges each accused with eight grave breaches of the Geneva Conventions, ten violations of the laws or customs of war and four crimes against humanity. The first two counts charge the accused with persecution as a crime against humanity. The other counts charge offences relating to murder, inhuman treatment, detention and destruction. The Indictment alleges that the accused participated in a widespread or systematic campaign of persecution of the Bosnian Muslims in that region culminating in a series of attacks over a two-year period on towns and villages in the Lasva River Valley and surroundings. Many Muslim civilians were killed, seriously wounded or detained. During that time, their homes were burned, their towns, villages and places of worship destroyed, and their property plundered.

On 6 October 1997, the two co-accused surrendered voluntarily to the Tribunal.

The Defence case for both accused amounted "to a complete denial of the prosecution case, putting virtually everything in dispute."2 Not only was the responsibility of the accused for the crimes alleged against them challenged, there was also "a dispute as to whether the crimes underlying the charges against these accused were committed or not."3

I - THE LAW

The Trial Chamber found "that, while it was not until April 1993 that a generalised state of armed conflict in the form of protracted violence broke out in the territory of Central Bosnia between the Croatian Defence Council (hereinafter "HVO") and the Armed Forces of the Republic of Bosnia and Herzegovina (hereinafter "AbiH"), prior to that period there were localised areas of conflict, within which a state of armed conflict could be said to exist."4 It also found that a clear nexus existed "between the armed conflict between the Bosnian Croats and the Bosnian Muslims in Bosnia and Herzegovina and the acts alleged in the Indictment to have been committed by the two accused persons."5 The Trial Chamber found "that the conflict between the Bosnian Croats and the Bosnian Muslims in Bosnia and Herzegovina was internationalised by the intervention of the Republic of Croatia in that conflict through its troops."6 The Judges applied the Judgements rendered by the Appeals Chamber on 15 July 1999, 24 March 2000 and 20 February 2001 in the cases The Prosecutor v. Dusko Tadic7, Zlatko Aleksovski8 and Zejnil Delalic et al.9 respectively and held "that the Bosnian Muslim victims were in the hands of a party to the conflict, namely the Bosnian Croats, to whom they owed no allegiance."10 The Trial Chamber therefore concluded "that the Bosnian Muslims qualify as protected persons under Geneva Convention IV"11 and that Article 2 of the Statute12 "is applicable in the circumstances of this case."13

The Trial Chamber also found that persecution may include conduct not specifically listed as a crime against humanity in Article 5 of the Statute14. It noted that the Indictment against Dario Kordic is the first one in the history of the Tribunal to allege the act of encouraging and promoting hatred, by propaganda and otherwise, and persecution in employment as a crime against humanity.15 The Trial Chamber however found "that this act, as alleged in the Indictment, does not by itself constitute persecution as a crime against humanity." It noted that it is not enumerated as a crime elsewhere in the Statute but that "most importantly, it does not rise to the same level of gravity as the other"16 crimes against humanity listed in Article 5 of the Statute. "Furthermore, the criminal prohibition of this act has not attained the status of customary international law. Thus, to convict the accused for such an act as is alleged as persecution would violate the principle of legality."17

The Trial Chamber defined the crime of wilfully causing great suffering or serious injury to body or health set forth in Article 2(c) of the Statute as being one which "constitutes an intentional act or omission which causes serious mental or physical suffering or injury, provided the requisite level of suffering or injury can be proven. This crime is distinguished from that of inhuman treatment in that it requires a showing of serious mental or physical injury."18

The Trial Chamber further observed that the case-law of the two International Criminal Tribunals "has not addressed the crime against humanity of imprisonment."19 It stated "that the term imprisonment in Article 5(e) of the Statute should be understood as arbitrary imprisonment, that is to say, the deprivation of liberty of the individual without due process of law, as part of a widespread or systematic attack directed against a civilian population."20 It continued by holding that the Trial Chamber would "have to determine the legality of imprisonment as well as the procedural safeguards pertaining to the subsequent imprisonment of the person or group of persons in question, before determining whether or not they occurred as part of a widespread or systematic attack directed against a civilian population."21

The Trial Chamber determined that "the imprisonment of civilians will be unlawful where:

- civilians have been detained in contravention of Article 42 of Geneva Convention IV, i.e., they are detained without reasonable grounds to believe that the security of the Detaining Power makes it absolutely necessary;
- the procedural safeguards required by Article 43 of Geneva Convention IV are not complied with in respect of detained civilians, even where initial detention may have been justified; and
- they occur as part of a widespread or systematic attack directed against a civilian population."22

The Trial Chamber also found that an individual commits the offence of taking civilians as hostages set out in Article 2(h) of the Statute "when he threatens to subject civilians, who are unlawfully detained, to inhuman treatment or death as a means of achieving the fulfilment of a condition."23 It held that in the context of an international armed conflict, the elements of this offence under Article 3 of the Statute24 "are essentially the same as those of the offence of taking civilians as hostage as described by Article 2(h)" of the Statute.

The Trial Chamber considered "that the elements for the crime of wanton destruction not justified by military necessity charged under Article 3(b) of the Statute are satisfied where:

(i) the destruction of property occurs on a large scale;
(ii) the destruction is not justified by military necessity; and
(iii) the perpetrator acted with the intent to destroy the property in question or in reckless disregard of the likelihood of its destruction."25

It observed moreover "that, while property situated on enemy territory is not protected under the Geneva Conventions, and is therefore not included in the crime of extensive destruction of property listed as a grave breach of the Geneva Conventions, the destruction of such property is criminalised under Article 3 of the Statute."26

II - INDIVIDUAL CRIMINAL RESPONSIBILITY

The Trial Chamber examined the distinct features of Article 7(1)27 and (3)28 of the Statute. It referred to the Review of the Indictments Pursuant to Rule 61 of the Rules of Procedure and Evidence issued by Trial Chamber I on 11 July 1996 in the case The Prosecutor v. Radovan Karadzic and Ratko Mladic29 and expressed the view "that in cases where the evidence presented demonstrates that a superior would not only have been informed of subordinates' crimes committed under his authority, but also exercised his powers to plan, instigate or otherwise aid and abet in the planning, preparation or execution of these crimes, the type of criminal responsibility incurred may be better characterised by Article 7(1)" of the Statute30. It continued by asserting that "[w]here the omissions of an accused in a position of superior authority contribute (for instance by encouraging the perpetrator) to the commission of a crime by a subordinate, the conduct of the superior may constitute a basis for liability under Article 7(1)" of the Statute31.

The Trial Chamber also expressed "the view that no formal superior-subordinate relationship is required for a finding of 'ordering' so long as it is demonstrated that the accused possessed the authority to order." It did not concur with Trial Chambers I of the Tribunal and of the International Criminal Tribunal for Rwanda in the Judgements rendered on 3 March 2000 and 9 January 1997 in the cases The Prosecutor v. Tihomir Blaskic (hereinafter "Blaskic Judgement")32 and Jean-Paul Akayesu33. Trial Chamber III, however, did agree with the finding of the Blaskic Judgement "that there is no requirement that an order be given in writing or in any particular form, and that the existence of an order may be proven through circumstantial evidence."34

The Trial Chamber further considered "that a government official will only be held liable under the doctrine of command responsibility if he was part of a superior-subordinate relationship, even if that relationship is an indirect one. Even though arguably effective control may be achieved through substantial influence, a demonstration of such powers of influence will not be sufficient in the absence of a showing that he had effective control over subordinates, in the sense of possessing the material ability to prevent subordinate offences or punish subordinate offenders after the commission of the crimes."35 In sum, only those superiors, de jure or de facto, military or civilian, who are directly or indirectly part of a chain of command, with the actual power to control or punish the acts of subordinates, may incur criminal responsibility36.

The Trial Chamber considered the elements for a determination of superior authority37. It held that whether de jure or de facto, military or civilian, the existence of a position of authority must be based on an assessment of the reality of the accused's authority . It referred to the Judgement rendered by Trial Chamber II quater on 16 November 1998 in the case The Prosecutor v. Zejnil Delalic et al.38 and ruled that "the capacity to sign orders will be indicative of some authority. The authority to issue orders, however, may be assumed de facto."39 Therefore in order to make a proper determination of a superior's status and actual powers of control, it is necessary to look to the substance of the documents signed and whether there is evidence of them being acted upon40.

The Trial Chamber held that the following indicia may be used when determining the mental element: the number, type and scope of illegal acts; the time during which they occurred; the number and type of troops involved; the logistics involved, if any; the geographical location of the acts; their widespread occurrence; the tactical tempo of operations; the modus operandi of similar illegal acts; the officers and staff involved and the location of the commander at the time41. "Depending on the position of authority held by a superior, whether military or civilian, de jure or de facto, and his level of responsibility in the chain of command, the evidence required to demonstrate actual knowledge may be different. [...] In the case of de facto commanders of more informal military structures, or of civilians leaders holding de facto positions of authority, the standard of proof will be higher."42 The Trial Chamber ruled that the above-mentioned indicia could also be used in the context "to determine whether knowledge of the underlying offences alleged could be imputed to an accused."43

The Trial Chamber considered "that a superior has discharged his duty to prevent or punish if he uses every means in his powers to do so. Such a determination will be based on the circumstances of each case. … The duty to prevent should be understood as resting on a superior at any stage before the commission of a subordinate crime if he acquires knowledge that such a crime is being prepared or planned, or when he has reasonable grounds to suspect subordinate crimes."44 The Trial Chamber added that "the duty to punish naturally arises after a crime has been committed. Persons who assume command after the commission are under the same duty to punish. This duty includes at least an obligation to investigate the crimes to establish the facts and to report them to the competent authorities, if the superior does not have the power to sanction himself. Civilian superiors would be under similar obligations, depending upon the effective powers exercised and whether they include an ability to require the competent authorities to take action."45

The Trial Chamber broadly defined the notion of "self-defence" "as providing a defence to a person who acts to defend or protect himself or his property (or another person or person's property) against attack, provided that the acts constitute a reasonable, necessary and proportionate reaction to the attack."46 The Trial Chamber noted that the Statute "does not provide for self-defence as a ground for excluding criminal responsibility."47 It considered however that the principle of self-defence enshrined in Article 31(1)(c) of the Rome Statute for an International Criminal Court48 "reflects provisions found in most national criminal codes and may be regarded as constituting a rule of customary international law."49 The Trial Chamber considered that Article 31(1)(c) of the Rome Statute makes clear "that any argument raising self-defence must be assessed on its own facts and in the specific circumstances relating to each charge."50

III - THE FACTS

The relevant history begins with the founding of a Bosnian Croat political party in 1990, the Croatian Democratic Union of Bosnia and Herzegovina, or "HDZ-BiH". This was an offshoot of its Croatian parent, the nationalist HDZ party. In late 1991 the HDZ-BiH set up a separate Croatian community within Bosnia, the HZ H-B, which the Trial Chamber found had been established "with the intention that it should secede from Bosnia and Herzegovina and with a view to unification"51, in due course, with the Republic of Croatia. The HZ H-B thereafter created another body, the Croatian Defence Council, "the HVO", as the executive and defence authority of the Bosnian Croat community. Local municipal HVOs were then set up as the executive and military power in the municipalities.

Dario Kordic rose rapidly in the HDZ-BiH political party, became its President in his hometown, Busovaca; President of his Regional Community and then Vice-President of the HZ H-B52. Mario Cerkez was one of the founders of the HVO in Vitez and the commander of its local brigade, known as the Viteska Brigade.

Persecution

In 1992 the HVO began to take over all power in the municipalities in Central Bosnia, in particular in Busovaca, Vitez and Kiseljak. It met little armed resistance except in Novi Travnik and the village of Ahmici. The Trial Chamber found "that the weight of the evidence points clearly to persecution of the Bosnian Muslims in the Central Bosnian municipalities taken over by the HVO: Busovaca, Novi Travnik, Vares, Kiseljak, Vitez, Kresevo ad Zepce. The persecution followed a pattern in each municipality and demonstrates that the HVO had launched a campaign against the Bosnian Muslims in these municipalities."53 In these incidents Dario Kordic demonstrated both his political and military authority. The Trial Chamber found that, on the eve of the conflict in late 1992, Dario Kordic "combined political authority in Central Bosnia (as leader of the Bosnian Croats in the Lasva Valley) with military authority."54 His military authority did not involve a formal rank but was a position he had won for himself. Accordingly, a precise position in the chain of command cannot be ascribed to him; it is not suggested that he had power to discipline or punish troops. The Trial Chamber was "satisfied that by this time Dario Kordic had a role which was at least consultative in relation to the Commander of the CBOZ, Colonel Blaskic."55 It however found that he had no command responsibility as laid down in Article 7(3) of the Statute.

In 1993 began with peace talks and the Vance-Owen Peace Plan. However, the situation soon degenerated into conflict, first in Gornji Vakuf and thereafter in Busovaca. The HVO attacked the latter municipality in January 1993 using artillery and infantry on civilian targets and setting a pattern for subsequent attacks on towns and villages. The Trial Chamber found that all the elements in the underlying offences relating to Busovaca are made out in Counts 3-4 (unlawful attacks on civilian and civilian objects) and 7-13 (wilful killings, murder, inhuman acts and treatment)56. The evidence shows that Dario Kordic participated "in the conduct of military affairs"57 and "was implicated in this attack on Busovaca as a leader exerting both political and military authority."58

In April 1993 it was the turn of Vitez and the Muslim villages of the Lasva River Valley to come under attack. The Trial Chamber found that the evidence points to a well-organised and planned HVO attack on these locations, in particular the village of Ahmici where the assault early in the morning of 16 April resulted in a massacre of more than 100 people, including 32 women and 11 children under the age of 1859, and the destruction of the village. Similar attacks occurred on the villages up and down the Lasva River Valley and on the town of Vitez. The Trial Chamber found that Dario Kordic was present at a meeting of politicians in the headquarters of Colonel Blaskic on 15 April 1993 when the attacks on Ahmici and the other villages were authorised60, that Mario Cerkez was present at a subsequent military meeting when plans were drawn up, and that Dario Kordic was associated with an order given by Colonel Blaskic to kill all the military-aged men, expel the civilians and set fire to the houses in Ahmici61. In addition, the Trial Chamber found that the attacks followed "a well-organised and planned HVO attack upon Ahmici with the aim of killing or driving out the Muslim population, resulting in a massacre."62 From the overwhelming evidence, it further drew the inference "that there was by this time a common design or plan conceived and executed by the Bosnian Croat leadership to ethnically cleanse the Lasva Valley of Muslims. Dario Kordic, as the local political leader, was part of this design or plan, his principal role being that of planner and instigator of it."63 Accordingly, the Trial Chamber found that the underlying offences relating to Vitez, Stari Vitez, Veceriska, Ahmici, Nadioci, Pirici and Santici are made out in Counts 3-4 (unlawful attacks on civilian objects) and 7-20 (unlawful killings, murder, inhumane acts and treatment)64.

The Trial Chamber expressed the view that there was "insufficient evidence on which to found a conviction on Counts 3 and 4. Accordingly, the allegations in relation to Loncari, Putis and Ocehnici in Counts 3 and 4 are not proved. There is, however, evidence of destruction in Ocehnici (Counts 37 and 38)."65

The fighting around Vitez continued after 16 April 1993. On 18 April 1993 a truck bomb exploded near the mosque in Stari Vitez killing at least 6 people and injuring 50 others. The Trial Chamber found that this was an act of "pure terrorism committed by elements within the HVO"66 in Vitez but that there was "no evidence to connect either of the accused with this action"67.

On 18 April 1993, the HVO attacked the villages in the Kiseljak municipality. The Trial Chamber held that the attacks were "part of the general offensive launched by the HVO against the Muslims in this area and in relation to Rotilj the underlying offences in Counts 3-4 and 7-13 [we]re made out."68 The Trial Chamber also found that Dario Kordic as the local political leader "was involved in these attacks in a municipality about 25 kilometres from Busovaca. The attacks had occurred two days after the attacks on the Muslim villages of the Lasva Valley and were part of the pattern of attacks on the Muslims of Central Bosnia. Blaskic would not have launched the attacks without political approval which the Trial Chamber accepted meant the approval of the local leadership in the person of Dario Kordic. The clear inference is that the latter was thus associated with the giving of orders to attack the villages, including Rotilj."69

On 19 April 1993 the market place in Zenica was shelled. Fifteen people were killed and many others injured. The Trial Chamber found "that the HVO fired the shells at the radio station, missed and hit the market-place with the concomitant death and destruction"70. It characterised this as "a pure act of terrorism. Thus, the underlying offences in Counts 3-4 and 7-13 [we]re made out insofar as they relate to Zenica."71 The Trial Chamber could however "find no connection between this act and Dario Kordic"72 but did not hold that it was consistent with a military action, the result of a military command which had no political connection but not with the pattern of the other HVO attacks on towns and villages at this time and thus not part of the common design or plan. If it had a political connection the Trial Chamber did not consider that any had been demonstrated and that, in these circumstances, it was not possible to draw the inference that Dario Kordic was implicated in the unlawful attack. The Trial Chamber added "that the evidence clearly shows Dario Kordic exercising authority over HVO forces."73

The Trial Chamber found that during this period the Viteska Brigade was in the thick of the fighting and that on 16 April 1993 Mario Cerkez was the commander. The Brigade took part in operations in Vitez, Veceriska and Ahmici on 16 April 1993 (but only later in the day and not during the initial assault on Ahmici)74. The Trial Chamber found clear evidence of that. However, despite his presence at the military meeting on 15 April, there was no evidence satisfying the Trial Chamber beyond a reasonable doubt that Mario Cerkez "bears any responsibility for the attack on Ahmici on 16 April"75. Such responsibility falls to the 4th Battalion Military Police which was not under his command. The Brigade was not involved in the initial attack and any involvement in the area was subsequent to the massacre76.

By the end of April 1993 a cease-fire was in place, but in June further fighting broke out in Central Bosnia. The HVO launched another series of attacks, this time, on villages in the Kiseljak municipality, including the village of Tulica where 12 people were killed and the village was destroyed. The Trial Chamber saw in these offensives another manifestation of the HVO design to subjugate the Muslims of Central Bosnia. As it did with the offensives against the villages in April, the Trial Chamber found that the attacks would not have been launched without the approval of the local political leadership in the person of Dario Kordic. The Trial Chamber stated "that the attacks on Tulica and Han Ploca-Grahovci were part of a sustained HVO attack in which civilians were murdered and subjected to inhumane treatment and the underlying offences in Counts 7-13 of the Indictment in relation of these events are made out."77 The direct involvement of Dario Kordic was also pointed out78.

On 8 September 1993, the HVO launched a successful attack on the village of Grbavica which Colonel Blaskic and Mario Cerkez commanded from a nearby church. This location, referred to as 'Divjak' in the Indictment, is the subject of allegations in Counts 37-39 against Dario Kordic. The Trial Chamber could however find no evidence to connect him with the attack which appears to have been another military operation and not part of the common plan or design79.

In October 1993, events moved to Vares municipality. The village of Stupni Do is located about a kilometre south of the town of Vares. On 23 October 1993, drunken soldiers attacked the village80 and 38 people lost their lives. Five or six of them were soldiers and the others civilians81. It was not disputed that Ivica Rajic and his troops from Kiseljak were responsible for the massacre. The Trial Chamber found "that the attack on Stupni Do was a concerted attack by the HVO upon the village, with a view to removing the Muslim population. […I]t was part of the HVO offensive against the Muslim population of Central Bosnia and the result was a massacre."82 Some resistance was put up in the village but the Trial Chamber saw no justification for the attack. "The underlying offences in relation to Counts 7-13 are accordingly established in relation to Stupni Do."83 However, the Trial Chamber found that Kordic's connection with Vares was "tenuous and [that] the evidence does not establish that he was in control of Kiseljak where the troops came from. The fact that Kordic was the leading political figure in Central Bosnia does not, of itself, establish that Kordic was involved in this offence."84 It found that the influence and authority of Dario Kordic, concentrated in the Lasva River Valley, "did not extend to Stupni Do which was thus outside his sphere of authority and [that] the attack on the village was not part of any common plan or design to which he was a party."85

The Trial Chamber however considered that the offences under Counts 3 and 4 relating to the locality of Novi Travnik and Stari Vitez were not made out86. It accepted that the evidence demonstrates "that Dario Kordic, while exercising power politically and becoming Vice-President of the HR H-B, also exercised military power in controlling movements on the roads, threatening to blow up the Vitezit factory, refusing to allow children to leave Stari Vitez, involving himself in the defence of Krizencevo Selo and, finally, introducing himself as the third in order of military seniority."87

Imprisonment and inhuman treatment

During the HVO offensives hundreds of Bosnian Muslim civilians were rounded up and detained in makeshift camps where conditions varied but were generally inhuman. The Trial Chamber found that the underlying offences in Counts 21-36 were made out88. The Trial Chamber also found that, while detained, the Bosnian Muslim detainees were systematically subjected to unjustified arbitrary and unlawful imprisonment (which was part of the common design or plan), that they used as hostages and human shields and were "forced without justification to dig trenches and that, as a result of the latter activity, a number were killed or wounded."89 The assertion that they were detained for security reasons, or for their own safety, was without foundation. The Trial Chamber therefore held "that the detained Bosnian Muslims were unlawfully confined and subjected to inhuman treatment."90

The Trial Chamber also held that, as Commander of the Viteska Brigade, Mario Cerkez was responsible "for the unlawful imprisonment and inhuman treatment of the detainees in the Vitez detention facilities"91 Mario Cerkez supervised the police and the Trial Chamber noted "that it would not be surprising for a Brigade Commander to take charge of the prisoners detained in his own headquarters."92 With regard to the trench-digging, the Trial Chamber accepted the evidence of Witness AT. It also accepted "that a Brigade Commander is responsible for what happens to prisoners in his area of responsibility."93 However, it found "that Kaonik camp was not part of Cerkez's responsibility and that Dubravica school was also outside it"94.

As a political leader Dario Kordic was involved in the common plan in the areas for which he had political responsibility and was responsible for the unlawful imprisonment of detainees there. However, the camps were run by the military and the evidence was not such as to allow an inference to be drawn with certainty that Dario Kordic was connected with the way in which the detainees were treated or that the treatment was part of the common plan or design95.

Destruction and plunder

The Trial Chamber found that there was a pattern of destruction "and plunder in all the places attacked by the HVO and mentioned in Counts 37-39 and 40-42"96. Two "alternative legal requirements need to be proved in order for this crime to be made out. Either the property destroyed must have been 'accorded general protection' under the Geneva Conventions, or, if not accorded general protection, the property must have been situated in 'occupied territory'. The property destroyed was mostly houses, dwellings, businesses, i.e., not property generally protected in the Geneva Conventions."97 The Trial Chamber further expressed the opinion that "the property was not located in occupied territory."98 Accordingly, the Trial Chamber considered "that the offences of extensive destruction or property alleged in Counts 37 and 40 of the Indictment on the basis of Article 2 of the Statute [we]re not made out."99 The HVO deliberately targeted mosques and other religious and educational institutions. The underlying offences in Counts 43 and 44 were made out. Everything formed part of the common plan and the accused were implicated in the offences where they were found responsible for attacks100.

Cumulative convictions

The Trial Chamber referred to the recent Appeals Chamber Judgement of 20 February 2001 in the case The Prosecutor v. Zejnil Delalic et al.101 on the "issue of improper cumulative conviction"102 and reiterated that the case-law of the Tribunal "permits the practice of cumulative charging."103 As a result the accused was acquitted of those counts for which a cumulative conviction would be inappropriate.

Findings as to responsibility under Article 7(1) of the Statute

As relates to Counts 1 and 2 alleging persecution, the Trial Chamber ruled, "on overwhelming evidence, that there was a campaign of persecution throughout the Indictment period"104 aimed at the Bosnian Muslims. "This campaign was led by the HDZ-BiH and conducted through the instruments of the HZ H-B and the HVO and orchestrated from Zagreb. It took the form of the most extreme expression of persecution, i.e. attacking towns and villages with the concomitant destruction and plunder, killing"105, injury and detention. The purpose of the campaign "was the subjugation of the Bosnian Muslim population."106 The Trial Chamber thus rejected the Defence case that these events amounted to a civil war and that the Bosnian Croats were on the defensive and themselves subject to persecution. For these purposes, the fact that individual atrocities were committed against Bosnian Croats was "irrelevant although they may be the subject of other criminal proceedings."107

On the basis of "the accused's positions as Vice-President of the HDZ-BiH and President of the Busovaca HDZ, his role in the HVO take-over and attack on Busovaca and his role in the attacks in the Lasva Valley and Kiseljak and in the confinement of Muslims"108, the Trial Chamber held that "Dario Kordic was the political leader of the Bosnian Croats in Central Bosnia with particular authority in the Lasva Valley"109. "[A]lthough having no formal position in the chain of command, he was associated with the military leadership and as such, participated in the HVO take-over of the municipalities and the attacks on Busovaca in January and the Lasva Valley in April and Kiseljak in June 1993. Whatever positions he may have held, the evidence did not support the contention that Dario Kordic was in the very highest echelons of the Bosnian Croat leadership or that he conceived the campaign of persecution. He was a regional leader and lent himself enthusiastically to the common design of persecution by planning, preparing and ordering those parts of the campaign which fell within his sphere of authority."110

The Trial Chamber considered that, as the Commander of the Viteska Brigade, Mario Cerkez participated in the attacks on Vitez, Stari Vitez and Veceriska. "This was a high point of the campaign of persecution. The accused played his part in that campaign by commanding the troops involved in some of the incidents. As such he was a co-perpetrator; and that he had the necessary mens rea may be inferred, also in his case, from his part in the campaign."111

In relation to Counts 3-44 alleging unlawful attacks, wilful killings, inhuman treatment, detention and destruction, the Trial Chamber held, on the basis of the same evidence on which it relied for the counts relating to persecution, that where Dario "Kordic participated in the HVO attacks he intended to commit the crimes associated with them and did so."112 His role was as political leader and his responsibility under Article 7(1) of the Statute was to plan, instigate and order the crimes. As a result, the Trial Chamber found the accused Dario Kordic liable under Article 7(1) of the Statute.

The Trial Chamber considered that where Mario Cerkez "participated in attacks as Commander of the Viteska Brigade, he committed the crimes associated with them, intending to commit the crimes. His responsibility as Commander of the Brigade was as a co-perpetrator in crimes which he committed."113 The Trial Chamber therefore found the accused, Mario Cerkez, liable under Article 7(1) of the Statute.

Findings as to responsibility under Article 7(3) of the Statute

The Trial Chamber examined the allegation that the accused were also guilty by reason of their superior responsibility and failure to prevent the crimes and punish the perpetrators. It noted that such responsibility "may attach to civilians once it is established that the requisite power to prevent and punish exists"114.

It considered that "Dario Kordic was a civilian and a politician with tremendous influence and power in Central Bosnia. He occupied an important position in the leadership of the HZ H-B"115 and "played an important role in military matters, even at times issuing orders, and exercising authority over HVO forces"116. The Trial Chamber reiterated that the Appeals Chamber had defined the notion of "effective control" as "a material ability to prevent or punish criminal conduct, however that control is exercised" in the Judgement rendered on 20 February 2001 in the case The Prosecutor v. Zejnil Delalic et al.117. Nonetheless, the Trial Chamber found that Dario Kordic did not possess the authority either to prevent the crimes or to punish the perpetrators and could not be liable under Article 7(3) of the Statute.

The Trial Chamber was satisfied that Mario Cerkez knew of the impending attacks by the troops under his command on Vitez, Stari Vitez and Veceriska and found that he "failed to take the necessary measures to prevent those attacks"118 and to punish those responsible for them. It therefore held him liable under Article 7(3) of the Statute in respect of the offences arising from attacks by the Viteska Brigade on those three locations.

Sentencing

The Trial Chamber reiterated sentencing principles which have emerged from the case-law of the Tribunal and considered the appropriate sentences in the case of the accused, emphasising that the sentences reflected the evidence in this case and the role of these accused as determined by this Trial Chamber. Both accused were convicted of many offences that "all arise from the same common design which led to the persecution and 'ethnic cleansing' of the Bosnian Muslims of the Lasva Valley and surroundings."119 The resulting sustained campaign involved "a succession of attacks on villages and towns which were characterised by a ruthlessness and savagery and in which no distinction was made as to the age of its victims: young and old were either murdered or expelled and their houses burned. The total number of dead may never be known, but it runs into hundreds, with thousands expelled. Offences of this level of barbarity could not be more grave and those who participate in them must expect sentences of commensurate severity to mark the outrage of the international community."120

The Trial Chamber ruled that as a regional political leader in Central Bosnia with particular authority in the Lasva River Valley, Dario Kordic was the effective political commander in the area where the majority of the offences were committed and that he "joined the campaign enthusiastically and played an instrumental part in the Lasva Valley offensives in 1993, in particular in ordering the attack of Ahmici and the other villages in April 1993. It found that the fact that he was a politician and took no part in the actual execution of the crimes "makes no difference: he played his part as surely as the men who fired the guns. Indeed, the fact that he was a leader aggravates the offences."121 The Trial Chamber considered that Dario Kordic "has offered no mitigation of these offences and there is none"122 and "that the overall criminality of the accused can be best reflected in a single sentence."

The Trial Chamber stressed that Mario Cerkez "was a soldier and a middle-ranking HVO commander"123 and that "he was the Commander of the Viteska Brigade during the time of the terrible events in the Lasva Valley and led it in the assaults"124 which resulted in "civilian death and destruction."125 It found that although "his troops were not involved in the massacre at Ahmici, he played his part in the campaign of persecution [...], aggravated because of his role as a commander"126 and that "[n]one of the matters submitted as mitigating circumstances amount to mitigation of these international crimes."127 The Trial Chamber considered that his overall criminality could best be reflected in a single sentence.128

The Judgement

The Trial Chamber sentenced Dario Kordic and Mario Cerkez to 25 and 15 years' imprisonment respectively.

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4. Para. 31.
5.Para. 35.
6. Para. 109.
7. On the establishment of Croatia's intervention in the armed conflict in Central Bosnia, see also The Prosecutor v. Zlatko Aleksovski ("Lasva River Valley"), Case No. IT-95-14/1-T, Trial Chamber I bis, Judgement, 25 June 1999 (summarised in Judicial Supplement No. 6); The Prosecutor v. Tihomir Blaskic ("Lasva River Valley"), Case No. IT-95-14-T, Trial Chamber I, Judgement, 3 March 2000 (summarised in Judicial Supplement No. 13).
8. The Prosecutor v. Dusko Tadic ("Prijedor"), Case No. IT-94-1-A, Appeals Chamber, Judgement, 15 July 1999 (summarised in Judicial Supplement No. 6).
9. The Prosecutor v. Zlatko Aleksovski ("Lasva River Valley"), Case No. IT-95-14/1-A, Appeals Chamber, Judgement, 24 March 2000 (summarised in Judicial Supplement No. 13). The Prosecutor v. Zejnil Delalic et al. ("Celebici"), Case No. IT-96-21-A, Appeals Chamber, Judgement, 20 February 2001 (summarised in this issue of the Judicial Supplement).
10. Para. 154.
11. Para. 160.
12. "The International Tribunal shall have the power to prosecute persons committing or ordering to be committed grave breaches of the Geneva Conventions of 12 August 1949, namely the following acts against persons or property protected under the provisions of the relevant Geneva Convention:
(a) wilful killing;
(b) torture or inhuman treatment, including biological experiments;
(c) wilfully causing great suffering or serious injury to body or health;
(d) extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly;
(e) compelling a prisoner of war or a civilian to serve in the forces of a hostile power;
(f) wilfully depriving a prisoner of war or a civilian of the rights of fair and regular trial;
(g) unlawful deportation or transfer or unlawful confinement of a civilian;
(h) taking civilians as hostages."
13. Para. 160.
14. "The International Tribunal shall have the power to prosecute persons responsible for the following crimes when committed in armed conflict, whether international or internal in character, and directed against any civilian population:
(a) murder;
(b) extermination;
(c) enslavement;
(d) deportation;
(e) imprisonment;
(f) torture;
(g) rape;
(h) persecutions on political, racial and religious grounds;
(i) other inhumane acts."
15. Para. 209.
16. Idem.
17. Idem.
18. Para. 245.
19. Para. 296.
20. Para. 302.
21. Idem.
22. Para. 303.
23. Para. 314.
24. "The International Tribunal shall have the power to prosecute persons violating the laws or customs of war. Such violations shall include, but not be limited to:
(a) employment of poisonous weapons or other weapons calculated to cause unnecessary suffering;
(b) wanton destruction of cities, towns or villages, or devastation not justified by military necessity;
(c) attack, or bombardment, by whatever means, of undefended towns, villages, dwellings, or buildings;
(d) seizure of, destruction or wilful damage done to institutions dedicated to religion, charity and education, the arts and sciences, historic monuments and works of art and science;
(e) plunder of public or private property."
25. Para. 346.
26. Para. 347.
27. "A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 5 of the present Statute, shall be individually responsible for the crime."
28. "The fact that any of the acts referred to in articles 2 to 5 of the present Statute was committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof."
29. The Prosecutor v. Radovan Karadzic and Ratko Mladic ("Bosnia and Herzegovina"), Case No. IT-95-5, Trial Chamber I, Review of the Indictments Pursuant to Rule 61 of the Rules of Procedure and Evidence, 11 July 1996, para. 83.
30. Para. 371.
31. Idem.
32. The Prosecutor v. Tihomir Blaskic ("Lasva River Valley"), Case No. IT-95-14-T, Trial Chamber I, Judgement, 3 March 2000 (summarised in Judicial Supplement No. 13).
33. The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Trial Chamber I, Judgement, 9 January 1997.
34. Para. 388.
35. Para. 415.
36. Para. 416.
37. Para. 418.
38. The Prosecutor v. Zejnil Delalic et al. ("Celebici"), Case No. IT-96-21-T, Trial Chamber II quater, Judgement, 16 November 1998 (summarised in Judicial Supplement No. 1).
39. Para. 421.
40. Idem.
41. Para. 427.
42. Para. 428.
43. Para. 437.
44. Para. 445.
45. Idem.
46. Para. 449.
47. Idem.
48. "In addition to other grounds for excluding criminal responsibility provided for in this Statute, a person shall not be criminally responsible if, at the time of that person's conduct: […] The person acts reasonably to defend himself or herself or another person or, in the case of war crimes, property which is essential for the survival of the person or another person or property which is essential for accomplishing a military mission, against an imminent and unlawful use of force in a manner proportionate to the degree of danger to the person or the other person or property protected. The fact that the person was involved in a defensive operation conducted by forces shall not in itself constitute a ground for excluding criminal responsibility under this subparagraph."
49. Para. 451.
50. Para. 452.
51. Para. 491.
52. Para. 522.
53. Para. 520.
54. Para. 556.
55. Idem.
56. Para. 576.
57. Para. 578.
58. Para. 586.
59. Para. 625.
60. Para. 630.
61. Para. 631.
62. Para. 642.
63. Idem.
64. Para. 649.
65. Para. 660.
66. Para. 664.
67. Idem.
68. Para. 667.
69. Para. 669.
70. Para. 675.
71. Idem.
72. Idem.
73. Para. 687.
74. Para. 691.
75. Para. 703.
76. Idem.
77. Para. 723.
78. Para. 726.
79. Para. 734.
80. Para. 744.
81. Para. 746.
82. Para. 750.
83. Idem.
84. Para. 743.
85. Idem.
86. Para. 754.
87. Para. 761.
88. Para. 800.
89. Idem.
90. Idem.
91. Para. 801.
92. Idem.
93. Idem.
94. Idem.
95. Para. 802.
96. Para. 808.
97. Para. 809.
98. Idem.
99. Idem.
100. Idem.
101. The Prosecutor v. Zejnil Delalic et al. ("Celebici"), Case No. IT-96-21-A, Appeals Chamber, Judgement, 20 February 2001 (summarised and analysed in this issue of the Judicial Supplement).
102. Para. 826.
103. Para. 810. On a recent application of the Appeals Chamber's finding about the issue of cumulative charging, see also The Prosecutor v. Radoslav Brdjanin and Momir Talic ("Krajina"), Case No. IT-99-36-PT, Trial Chamber II, Decision on Objections by Momir Talic to the Form of the Amended Indictment, 20 February 2001.
104. Para. 827.
105. Idem.
106. Idem.
107. Idem.
108. Para. 829.
109. Idem.
110. Idem.
111. Para. 831.
112. Para. 834.
113. Para. 836.
114. Para. 840.
115. Para. 838.
116. Para. 839.
117. The Prosecutor v. Zejnil Delalic et al. ("Celebici"), Case No. IT-96-21-A, Appeals Chamber, Judgement, 20 February 2001 (summarised and analysed in this issue of the Judicial Supplement), para. 256; see also The Prosecutor v. Zlatko Aleksovski ("Lasva River Valley"), Case No. IT-95-14/1-T, Trial Chamber I bis, Judgement, 25 June 1999 (summarised and analysed in Judicial Supplement No. 6), paras. 108 and 111.
118. Para. 843.
119. Para. 852.
120. Idem.
121. Para. 853.
122. Para. 854.
123. Para. 855.
124. Idem.
125. Idem.
126. Idem.
127. Para. 856.
128. Idem.