"Judgement"

2 November 2001
Trial Chamber I (Judges Rodrigues [Presiding], Riad and Wald)

Procedural Background

• Miroslav Kvocka, Milojica Kos, Mlado Radic, Zoran Zigic and Dragoljub Prcac were accused of crimes based on events which followed the attack of the Serb forces on the town of Prijedor in April and May 1992, the arrests carried out by the Serbs and the mistreatment suffered by almost all those arrested, such as rape and torture. The five co-accused were charged with persecution, other crimes against humanity and war crimes committed in the region of Prijedor between 26 May and 30 August 1992 and, more specifically, in the Omarska, Keraterm and Trnopolje camps.

• Miroslav Kvocka and Mlado Radic were arrested on 9 April 1998 and Dragoljub Prcac on 5 April 2000.

• The trial of the accused Miroslav Kvocka, Mlado Radic, Milojica Kos and Zoran Zigic started on 26 February 2000. Dragoljub Prcac was arrested on 6 March 2000 and the Trial Chamber, mindful of the need for the proper administration of justice, ordered the joinder of trials after discussions with the two parties.

• The trial of the five co-accused resumed on 2 May 2000 and proceedings were declared closed on 19 July 2001.

• At the request of the Prosecutor, on 8 June 2000, the Trial Chamber issued its Decision on Judicial Notice1 which resulted from the agreement between the two parties. It decided inter alia that “at the times and places alleged in the indictment, there existed an armed conflict; that this conflict included a widespread and systematic attack against notably the Muslim and Croat civilian population; and that there was a nexus between this armed conflict and the widespread and systematic attack on the civilian population and the existence of the Omarska, Keraterm and Trnopolje camps and the mistreatment of the prisoners therein”.

• On 15 December 2000, the Trial Chamber issued its Decision on Defence Motion for Acquittal2 in which it acquitted the accused Miroslav Kvocka, Mlado Radic, Milojica Kos and Dragoljub Prcac of the crimes allegedly committed in Keraterm and Trnopolje and of certain crimes committed against a number of victims, some of whom were named. Zoran Zigic was acquitted of several crimes. The Trial Chamber decided that an accused “will not be found responsible for the crimes committed before the date of his arrival” in the camp and that incidents occurring outside the time period the accused was working therein may not be attributed to him3. It noted that “[t]he vast majority of the evidence focussed on the Omarska camp, where inhumane treatment and conditions were said to be the most horrendous.”

FACTUAL FINDINGS

On 30 April 1992, Serb forces took control of Prijedor. The take-over of Prijedor was followed shortly by the removal of the non-Serbs, Muslims and Bosnian Croats from positions of responsibility. Many lost their employment, their children could not go to school and the radio broadcast anti-Muslim and anti-Croat propaganda.

The Croats and Muslims did not accept the situation and considered reacting. Whenever they put up any significant resistance, the Serbs launched attacks such as those against the villages of Hambarine and Kozarac. On 30 May 1992, the Muslim attempt to regain control of Prijedor failed. To preclude any desire for resistance by the Croats and especially by the Muslims the Serbs interrogated any non-Serb who might present a threat and, in particular, arrested any persons exerting an authority, moral or otherwise, or representing some kind of power, especially economic. At the same time, the men were separated from the women, children and elderly. Men were interrogated. The Serbs found reasons to assemble the non-Serbs who had not left the region in centres. The Omarska, Keraterm and Trnopolje camps were then established.

The evidence presented to the Chamber made it necessary to refer not to investigation centres or assembly points but to camps. The Trnopolje camp was in fact a rather disparate collection of buildings in a village of the same name. The Omarska camp was located in the premises of a former iron mine and the Keraterm camp in a ceramics factory.

The Omarska Camp

Like Trnopolje and Keraterm, the Omarska camp was officially established on 30 May 1992 by Simo Drljaca4. It was initially planned to function for a fortnight but, in fact, remained in operation until 20 August 1992. During this almost three-month period of, more than 3,334 detainees passed through the camp. About thirty women must be added to the list, several of whom occupied high positions locally. All those detained were interrogated; almost all were beaten; many would not leave the camp alive. The Trial Chamber noted that “an atmosphere of sweeping impunity and consuming terror prevailed” within Omarska and that to those imprisoned in Omarska “it seemed that the guards were unsupervised ”5.

The Trial Chamber considered that “[d]etainees were kept in inhuman conditions and [that] an atmosphere of extreme mental and physical violence pervaded the camp.” It found that “[i]ntimidation, extortion, beatings and torture were customary practices.” The Trial Chamber added that “[t]he arrival of new detainees, interrogations, mealtimes and use of the toilets facilities provided recurrent opportunities for abuse.” Moreover, “[o]utsiders entered the camp and were permitted to attack the detainees at random and at will.” It also noted that “[m]urder was common” and that “deliberate brutality and appalling conditions were part and parcel of daily life in the camp.”6 In particular, “[t]he abuse of detainees began immediately upon their arrival at Omarska. As new detainees got off the buses the guards on duty would physically and verbally abuse them.”7 The Trial Chamber also found that “the detainees received poor quality food that was often rotten or inedible, caused by the high temperatures and sporadic electricity during the summer of 1992” and that “[t]he food was sorely inadequate in quantity.”8 Based on the evidence before it, the Trial Chamber did consider that the detainees were supplied with drinking water, but noted that “[t]he quantity of water supplied to the detainees was clearly inadequate.”9 In addition, it referred to the Standard Minimum Rules for the Treatment of Prisoners10, the Basic Principles for the Treatment of Prisoners11 and the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment12 and found that “ the hygienic conditions and the medical care available in Omarska camp were grossly inadequate.”13

The Trial Chamber held “that interrogations were regularly conducted in Omarska in a cruel and inhumane manner and that these interrogations resulted in an atmosphere of terror and violence.”14

It also found that “mental and physical violence was repeatedly inflicted on detainees confined in the administration building.”15

The Trial Chamber considered that “[t]he conditions confronting detainees in the hangar were vile”. It added that “detainees were usually taken outside the building when the guards intended to inflict particularly serious physical violence” on them16. Consequently, the Trial Chamber held that “physical and mental violence was regularly inflicted on those detained in the hangar.”17

It further described the pista as “a large L-shaped outdoor area composed primarily of concrete.” The Trial Chamber noted that the vast majority of detainees held there “were forced to endure whatever environmental conditions existed during those summer months, whether it was unrelenting exposure to the heat and sun or torrents of rain.”18 It found that “[h]undreds of detainees were held on the pista for days or weeks on end with only intermittent shelter.” The Trial Chamber also found that “a machine gun was trained on the detainees from the roof of the administration building” to prevent escape and maintain control19. Moreover, it noted that “sometimes the unbearable conditions appear to have driven the detainees insane.”20 In sum, the Trial Chamber found that “detainees were regularly subjected to mental and physical violence on the pista.”21

It considered that “[t]wo smaller buildings on the outskirts of the camp, known as the white house and red house because of the color of the building, appear to have been reserved for particularly savage treatment of detainees.”22 The Trial Chamber found that “detainees were frequently beaten and murdered in and around the red house and white house.”23

It also found that “female detainees were subjected to various forms of sexual violence in Omarska camp.”24

The Keraterm and Trnopolje Camps

As in the Omarska camp, the Trial Chamber held that “most of the detainees in the Keraterm camp were Muslims and a few were Croats.” It found that “[t]here were also only a small number of women detained in Keraterm camp”25, that “overcrowding was severe”26 and that “the conditions of hygiene were also dreadful.”27 The Trial Chamber considered that “[t]he quality and quantity of food provided was totally inadequate” and that “detainees suffered from malnutrition and starvation.”28

As in the Omarska camp, it found that “most of the detainees in Keraterm were interrogated in an attempt to identify opponents of the new Serb regime.” The Trial Chamber added that “people were called out from their rooms” and mercilessly beaten without any apparent reason. It “also heard credible evidence that women were raped in the Keraterm camp.”29

The Trial Chamber found that “Trnopolje was also a notoriously brutal camp”, that food, water and hygiene facilities were inadequate and that “violence was pervasive throughout the camp.”30

It concluded that the evidence was overwhelming that “abusive treatment and inhumane conditions in the camps were standard operating procedure.” The Trial Chamber found that “[c]amp personnel and participants in the camp’s operation rarely attempted to alleviate the suffering of detainees.” On the contrary, “most of those who participated in and contributed to the camp’s operation made extensive efforts to ensure that the detainees were tormented relentlessly.” The Trial Chamber noted that “[m]any detainees perished as a result of the inhumane conditions, in addition to those who died as a result of the physical violence inflicted” on them31. It found “that the non-Serbs detained in these camps were subjected to a series of atrocities and that the inhumane conditions were imposed as a means of degrading and subjugating them.” The Trial Chamber concluded that “[e]xtreme brutality was systematic in the camps and utilized as a tool to terrorize the Muslims, Croats and other non-Serbs imprisoned therein.”32

I – ARTICLES 3 AND 5 OF THE STATUTE

Prerequisites for crimes under Article 3 of the Statute

The Trial Chamber stated that (1) a state of armed conflict whether internal or international must have existed at the time the crime was committed and that (2) the crime must have been “closely related” to the armed conflict33. It also stated that it had previously found in its Decision on Judicial Notice that “an armed conflict existed at the times relevant to the crimes alleged and that there was a nexus between the armed conflict and the existence of the Omarska, Keraterm and Trnopolje camps, and the mistreatment of the detainees therein.”34

The Trial Chamber referred to the Judgements of Trial Chamber II of 7 May 1997 and 22 February 2001 in The Prosecutor v. Dusko Tadic35 and Dragoljub Kunarac et al.36 and of the Appeals Chamber of 20 February 2001 in The Prosecutor v. Zejnil Delalic et al.37. It reiterated that crimes under Article 3 of the Statute require that “the violations must be committed against persons ‘taking no active part in the hostilities.’” In the instant case, Trial Chamber I considered that “none of the victims was injured during combat operations and that the vast majority was unarmed persons held in detention camps”. It therefore concluded that the requirement was satisfied38 and that “all the requirements necessary for prosecution of a crime under Article 3 of the Statute” had been satisfied39.

Prerequisites for crimes under Article 5 of the Statute

On the basis of its Decision on Judicial Notice, the Trial Chamber noted that the required elements had been satisfied, that “crimes committed in Omarska camp formed part of an attack directed against the civilian population” and that “this would have had been known to all who worked in or regularly visited the camp.”40

In sum, the Trial Chamber concluded that “all the statutory prerequisites for crimes charged under Articles 3 and 5” of the Statute were met in this case41.

The constituent elements of the offences charged under Articles 3 and 5 of the Statute

Murder: the Trial Chamber was “satisfied that murder falling within the meaning of Articles 3 and 5 (murder and persecution) of the Statute was committed in the camps.”42

Torture: the Trial Chamber was persuaded by the reasoning of the Foca Trial Chamber Judgement that the State “actor requirement imposed by international human rights law is inconsistent with the application of individual criminal responsibility for international crimes found in international humanitarian law and international criminal law.”43 It also referred to Article 7(2)(e) of the Rome Statute of 17 July 1998 establishing the International Criminal Court44 on torture as a crime against humanity which does not impose the State action requirement either. The Trial Chamber also concurred with the Celebici Appeals Chamber Judgement that the prohibited purposes listed in the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 1984 “as reflected by customary international law ‘do not constitute an exhaustive list and should be regarded as merely representative’45”. It also noted that the Judgement rendered by Trial Chamber II on 10 December 1998 in The Prosecutor v. Anto Furundzija46 “ concluded that humiliating the victim or a third person constitutes a prohibited purpose for torture under international humanitarian law.”47 The Trial Chamber therefore applied the following definition of torture to the case :

“(i) Torture consists of the infliction, by act or omission, of severe pain or suffering , whether physical or mental;
(ii) the act or omission must be intentional; and
(iii) the act or omission must be for a prohibited purpose, such as obtaining information or a confession, punishing, intimidating, humiliating, or coercing the victim or a third person, or discriminating, on any ground, against the victim or a third person.”48

The Trial Chamber reiterated that the parties did “not contest that detainees in the three camps were subjected to torture” as defined in the case-law of the Tribunal . It found that “many of the acts of beating or interrogating detainees and acts of humiliation and psychological abuses […] were committed with a specific intent to punish detainees suspected of participating in armed rebellion against Bosnian Serb forces and other acts and [that] other acts were committed to obtain information or a confession.” The Trial Chamber added that “[v]irtually all acts of intentionally inflicting physical and mental violence were committed with an intent to intimidate , humiliate and discriminate against non-Serb detainees.”49 It was thus “satisfied that torture falling within the meaning of Articles 3 and 5 (torture and persecution) of the Statute was committed in the camp.”50

Cruel treatment: the Trial Chamber followed the lead of Trial Chamber II quater in its Judgement of 16 November 1998 in the case The Prosecutor v. Zejnil Delalic et al.51 and considered that “the degree of physical or mental suffering required to prove cruel treatment is lower than the one required for torture, though it must be at the same level as ‘wilfully causing great suffering or serious injury to body or health.’”52 In the instant case, Trial Chamber I held that psychological abuses, humiliation, harassment and inhumane conditions of detention had caused “severe pain and suffering to the detainees.” It found that “cruel treatment, in particular in the form of beatings and attempts at degradation”, had been committed in the camps.”53 The Trial Chamber was “satisfied that cruel treatment within the meaning of Article 3 of the Statute” had been committed54.

Outrages upon personal dignity: the Trial Chamber agreed with the Foca Trial Chamber Judgement that “the act or omission need not cause lasting suffering ” and that “it is sufficient if the act or omission ‘would be generally considered to cause serious humiliation, degradation or otherwise be a serious attack on human dignity.’”55 In the case in point, Trial Chamber I expressed the view that “murder in and of itself cannot be characterized as an outrage upon personal dignity.” It specified that “[m]urder causes death, which is different from concepts of serious humiliation, degradation or attacks on human dignity.” The Trial Chamber held that “[t]he focus of violations of dignity is primarily on acts, omission or words that do not necessarily involve long-term physical harm, but which nevertheless are serious offences deserving of punishment.”56

It considered that “[e]vidence discloses that the detainees were subjected to serious humiliating and degrading treatment through such means as inappropriate conditions of confinement in the Omarska camp.” The Trial Chamber added that “[t]he detainees were forced to perform subservient acts demonstrating Serb superiority, forced to relieve bodily functions in their clothing” and that “they endured the constant fear of being subjected to physical, mental or sexual violence in the camp”57. It therefore found that “outrages upon personal dignity within the meaning of Article 3 of the Statute were regularly committed upon detainees in Omarska camp.”58

Rape: the Trial Chamber agreed with the factors set out by Trial Chamber II in the Foca Judgement which defined “rape as a violation of sexual autonomy.”59 It reiterated that “in considering allegations of rape, the Celebici Trial Chamber stressed that coercive conditions are inherent in situations of armed conflict”60 and that the Furundzija Trial Chamber had further “emphasized that ‘any form of captivity vitiates consent.’”61 In the instant case, Trial Chamber I endorsed these findings62.

The Trial Chamber also stated that the Akayesu Trial Chamber had “defined sexual violence as ‘any act of a sexual nature which is committed on a person under circumstances which are coercive.’”63 In the case in point, Trial Chamber I concluded that “sexual violence is broader than rape and includes such crimes as sexual slavery or molestation.”64 It also noted that “[s]exual violence would also include such crimes as sexual mutilation, forced marriage and forced abortion as well as gender related crimes” explicitly listed as war crimes and crimes against humanity in Articles 7(1)(g)65, 8(2)(b)(xxii)66 and 8(2)(e)(vi)67 of the Rome Statute of 17 July 1998 establishing the International Criminal Court68.

The Trial Chamber considered that the evidence established that “female detainees in Omarska camp were subjected to forced or coerced acts of sexual penetration, as well as other acts of a sexual nature committed under coercive or abusive circumstances.”69 It was thus satisfied that “rape and other forms of sexual violence falling within the meaning of Articles 3 and 5 (rape and persecution) of the Statute were committed.”70

Persecution on political, racial and religious grounds: the Trial Chamber examined the case-law of the Tribunal71 and the case-law of World War II trials72 and concluded that acts “not inherently criminal may nonetheless become criminal and persecutorial if committed with discriminatory intent.” It reiterated that the Kordic & Cerkez Trial Chamber Judgement stated that “in order for the principle of legality not to be violated, acts in respect of which the accused are indicted under the heading of persecution must be found to constitute crimes under international law at the time of their commission.”73 In the instant case, the Trial Chamber interpreted this statement “as meaning that jointly or severally, the acts alleged in the Amended Indictment must amount to persecution, not that each discriminatory act alleged must individually be regarded as a violation of international law.”74

If based on the same acts against the same victims, it considered that “the crime of persecution subsumes other alleged acts separately constituting crimes against humanity, as long as the additional element of discrimination on specified grounds is present.”75

The Trial Chamber reiterated that the five co-accused are charged with persecution under Article 5(h) of the Statute inter alia for harassment, humiliation and psychological abuse (count 1). It noted that “[t]hese acts are not explicitly listed under Article 5 [of the Statute] nor do they appear as specific offences under other Articles of the Statute.” The Trial Chamber held that “[i]n order to constitute persecution, harassment, humiliation and psychological abuse must occupy the same level of seriousness as other listed or recognized crimes against humanity , or together with other crimes cognizable under Article 5 [of the Statute], they must form part of a course of conduct which satisfies the criteria for persecution.”

It considered that “[t]he conditions of detention prevailing in the camp […] were themselves a form of abuse, and were intended to harass, humiliate and inflict mental harm on the detainees.” The Trial Chamber added that “[t]he constant beating, demoralizing and threatening of detainees […] were calculated by participants in the operation of the camp to inflict psychological harm upon detainees.” It concluded that “humiliating treatment that forms part of a discriminatory attack against a civilian population may, in combination with other crimes or, in extreme cases alone, similarly constitute persecution.”76

The Trial Chamber was “satisfied that the horrendous conditions of detention and the demoralizing treatment of detainees in Omarska camp were sufficiently degrading and traumatizing to constitute per se an outrage upon personal dignity, which qualifies as persecution since it was clearly committed on discriminatory grounds.”77

In addition to the harassment, humiliation and psychological trauma endured by the detainees as part of their daily life in the camp, it found that “psychological abuse was also inflicted upon them through having to see and hear torturous interrogations and random brutality perpetrated on fellow inmates.” The Trial Chamber was “satisfied that the harassment, humiliation and psychological abuses fall under the actus reus of persecution.”78

It held that “the detainees in Omarska camp were selected on the basis of political, ethnic or religious criteria; their specific attributes differing from those, and being defined in distinction to those, of their Bosnian Serb captors and abusers.” The Trial Chamber added that “[w]hen all the detainees are non-Serbs or those suspected of sympathizing with non-Serbs, and all abusers are Serbs or Serb sympathizers, it is disingenuous to contend that religion, politics and ethnicity did not define the group targeted for attack.” It noted that “persons suspected of being members of these groups are also covered as possible victims of discrimination.”79

The Trial Chamber was “satisfied that intentionally directing attacks exclusively against non-Serbs detained in Omarksa camp (or their sympathizers), on the basis of their being (or supporting) non-Serbs, constitutes discrimination within the meaning of persecution.”80

In relation to the facts at hand, the Trial Chamber first noted that “virtually all the offences alleged were committed against non-Serb detainees of the camps.” It specified that “[t]he victims were targeted for attack on discriminatory grounds.” The Trial Chamber found that “[w]hile discriminatory grounds form the requisite criteria, not membership in a particular group, the discriminatory grounds in this case are founded upon exclusion from membership in a particular group, the Serb group.” Based on the totality of the evidence, it considered that it was “clear that murder, torture, rape, beatings and other forms of physical and mental violence were strategically and systematically committed against non-Serbs in Omarska.” The Trial Chamber underscored that “[m]ost of these atrocities appear to have been committed with a premeditated intent to create an atmosphere of violence and terror and to persecute those imprisoned.” In addition, it pointed out that “the facilities and the conditions prevailing in Omarska were such that the prisoners who survived their interrogations were forced to endure grossly inadequate living conditions, sustenance and medical treatment.”

The Trial Chamber found that “the non-Serb victims imprisoned in Omarska camp were denied their fundamental rights to life, liberty, property, and bodily and mental integrity, rights synonymous with or reaching the same level of gravity as the specific acts prohibited under Article 5 of the Statute.” It considered that “[t]his denial of fundamental rights has been proved beyond a reasonable doubt.” In addition, the Trial Chamber noted that “it was undisputed that participants in the camp operations targeted only non-Serbs and a small group of Serbs suspected of sympathizing with the opposing groups, for the abusive attacks and conditions, leading inevitably to the conclusion that the acts or omissions were committed on discriminatory grounds.” It consequently found that the elements of persecution as a crime against humanity had been satisfied81.

The Trial Chamber did not “doubt that the attacks specifically targeted the non -Serb population of Prijedor and purported to drive this population out of the territory or to subjugate those remaining.” It concluded that “[t]he Trnopolje and Keraterm camps appear to have been each established as part of a common plan to effectuate this goal, and the Omarska camp was clearly established to effectuate this goal.”82

The Trial Chamber considered that a secondary issue had arisen as to whether the discriminatory intent of the perpetrator or co-perpetrator of an underlying offence or of a joint criminal enterprise could be inferred from a knowing participation in the discriminatory attack or the criminal enterprise83. It found that “all of the acts enumerated under count 1 of the Amended Indictment were committed in Omarska camp”. The Trial Chamber also found that “the acts or omissions were committed both systematically and randomly by those acting according to their given roles within the camp structure and those responding spontaneously and opportunistically to the condonation of violence this structure afforded, with an intent to discriminate against and ultimately subjugate the non-Serbs detained in the camp.”84 It was “satisfied that participants in the operation of Omarska camp committed persecution within the meaning of Article 5(h) of the Statute.”85

Lastly, the Trial Chamber interpreted the oral Decisions regarding plea agreements for the accused Dragan Kolundzija, and Dusko Sikirica and Damir Dosen rendered by Trial Chamber III on 4 and 19 September 200186 respectively as supporting “a finding that those who do not physically perpetrate crimes and who are relatively low level participants can be found guilty of persecution as a crime against humanity under Article 5 of the Statute.”

Inhumane acts: the Trial Chamber found that “inhumane acts falling within the meaning of Article 5 (inhumane acts and persecution) of the Statute were committed in Omarska camp.” It considered that “[e]vidence discloses that detainees were subjected to serious bodily or mental harm through such means as beatings, torture, sexual violence, humiliation, harassment, psychological abuses and confinement in inhumane conditions.”87

II - CUMULATIVE CONVICTIONS

The issue of cumulative convictions arose with regard to many of the same crimes charged under different Articles of the Statute as well as for the same or similar crimes charged for the same acts under different subsections of the same Article of the Statute.

Relationship between offences under Articles 3 and 5 of the Statute: the Trial Chamber reiterated that “it is now settled in the Tribunal that it is permissible to enter cumulative convictions under both Articles 3 and 5 of the Statute, as they each contain materially distinct elements.”88

Relationship between offences under Article 3 of the Statute: the Trial Chamber examined the relationship between torture under Article 3(1)(a) of the Statute , cruel treatment under Article 3(1)(a) thereof and outrages upon personal dignity under Article 3(1)(c) of the Geneva Conventions and determined “which of the offences contains a unique materially distinct element not required by the other offences.”89

It considered that “[t]he requirement of a prohibited purpose which is characteristic of the offence of torture, is a materially distinct element that is not required in the offences of cruel treatment or outrages upon personal dignity.” The Trial Chamber added that “[t]he gravity of the pain inflicted in case of torture constitutes a further unique materially distinct element and makes the offence of torture more specific.” Consequently, it could not “enter cumulative convictions under torture, cruel treatment and outrages upon personal dignity to punish the same act.” The Trial Chamber held that “[t]he offence of torture is more specifically defined than the offences of cruel treatment and outrages upon personal dignity.” Thus, the offence of torture under Article 3(1)(a) of the Statute must be preferred and the offences of cruel treatment under Article 3(1)(a) thereof and outrages upon personal dignity under Article 3(1)(c) of the Geneva Conventions dismissed90.

Relationship between offences under Article 5 of the Statute: the Trial Chamber noted that persecution committed through torture under Article 5(h) of the Statute contains a materially distinct element not required by torture under Article 5(f) thereof in that persecution requires discrimination on political, racial or religious grounds. It concluded that “[i]f the Trial Chamber finds that torture was committed as part of a persecution, the offence of torture under Article 5(f ) [of the Statute] must be dismissed.”91

The Trial Chamber further examined the relationship between other inhumane acts under Article 5(i) of the Statute and persecution under Article 5(h) thereof and considered that “if any inhumane acts fall within a persecution conviction, the inhumane acts charged under Article 5(i) [of the Statute] must be dismissed” since inhumane acts have a subsidiary nature92.

It also examined the relationship between persecution under Article 5(h), torture under Article 5(f) and rape under Article 5(g) of the Statute. The Trial Chamber found that “in instances where the same act qualifies as rape, torture and persecution under Article 5 of the Statute, the Trial Chamber may convict the accused for persecution only” since the crime of persecution requires a materially distinct element, i.e. the discriminatory intent vis-à-vis the crime of torture93.

In sum, if the same act qualifies as rape, torture and persecution, the Trial Chamber may only enter convictions of torture and rape as violations of the laws or customs of war (Article 3(1)(a) and (c) of the Geneva Conventions) and persecution as a crime against humanity (Article 5(h) of the Statute). The other charges covering the same act must be dismissed94.

If the Trial Chamber finds the accused responsible for multiple crimes based on the same acts of harassment, humiliation and psychological abuse and confinement under inhumane treatment, it may only enter convictions of outrages upon personal dignity as a war crime (Article 3 of the Statute) and persecution as a crime against humanity (Article 5(h) thereof)95.

III - THEORIES OF RESPONSIBILITY

The Trial Chamber considered that “it is possible to co-perpetrate and aid or abet a joint criminal enterprise, depending primarily on whether the level of participation rises to that of sharing the intent of the criminal enterprise.” It added that “[a]n aider or abettor of a joint criminal enterprise, whose acts originally assist or otherwise facilitate the criminal endeavor, may become so involved in its operations that he may graduate to the status of a co-perpetrator of that enterprise.”96

Aiding or abetting: the Trial Chamber held that the aider or abettor of persecution must not only have knowledge of the crime that he is assisting or facilitating but “also be aware that the crimes being assisted or supported are committed with a discriminatory intent.” It found that the aider or abettor of persecution does not need to share the discriminatory intent “but must be aware of the broader discriminatory context and know that his acts of assistance or encouragement have a significant effect on the commission of the crimes.” The Trial Chamber added that “[e]ach and every act of discrimination need not be known or intended by the aider or abettor .” It concluded that the aider or abettor of persecution will “be held responsible for discriminatory acts committed by others that were a reasonably foreseeable consequence of their assistance or encouragement.”97

The joint criminal enterprise theory: the Trial Chamber believed that the case-law of the International Military Tribunal at Nuremberg98 and its progeny99 “allow for ‘aiding and abetting’ in its traditional form to exist in relation to a joint criminal enterprise and in the case of such an aider or abettor, knowledge plus substantial contribution to the enterprise is sufficient to maintain liability.” It specified that “[o]nce the evidence indicates that the participant shares the intent of the criminal enterprise , he graduates to the level of a co-perpetrator of the enterprise.”

The Trial Chamber expressed the view that “a co-perpetrator of a joint criminal enterprise shares the intent to carry out the joint criminal enterprise and performs an act or omission in furtherance of the enterprise; an aider or abettor of the joint criminal enterprise need only be aware that his or her contribution is assisting or facilitating a crime committed by the joint criminal enterprise.” It added that “[a]n aider or abettor need not necessarily share the intent of the co-perpetrators.” The Trial Chamber considered that “[i]n the case of a continuing crime such as those alleged in this case, the shared intent of an accused participating in a criminal enterprise may be inferred from knowledge of the criminal enterprise and continued participation, if the participation is significant in position or effect.” It held that eventually, an aider or abettor “may become a co-perpetrator, even without physically committing crimes, if their participation lasts for an extensive period or becomes more directly involved in maintaining the functioning of the enterprise.” The Trial Chamber found that “[b]y sharing the intent of the joint criminal enterprise, the aider or abettor becomes a co-perpetrator.” It acknowledged that “it may sometimes be difficult to draw distinctions between an aider or abettor and a co-perpetrator , particularly when mid-level accused are involved who do not physically perpetrate crimes.” The Trial Chamber considered however that when an accused participates in a crime which advances the goals of the criminal enterprise, it was often reasonable to hold that his “form of involvement in the enterprise has graduated to that of a co-perpetrator.”100

It decided that “[t]he level of participation necessary to render someone a participant in a joint criminal enterprise is less than the level of participation necessary to graduate an aider or abettor to a co-perpetrator of that enterprise.” Accordingly, the Trial Chamber must first determine the level of participation necessary for criminal liability to attach and then “whether the mode of participation by the accused constitutes aiding or abetting or co-perpetration.”101

It held that where the crime requires special intent, “the accused must also satisfy the additional requirements imposed by the crime”. The Trial Chamber ruled however that “if he is an aider or abettor, he need only have knowledge of the perpetrator’s shared intent” which “can be inferred from the circumstances.”102

It concluded that “assistance or facilitation provided by the aider or abettor must […] have a substantial effect on the crime committed by a co-perpetrator.”103

Participating in a joint criminal enterprise: the Trial Chamber reviewed the post World War II trials conducted by the Allies in Europe and Asia104 and considered that “the criminal intent of persons who establish or design a criminal enterprise does not necessarily have to be shared by all who knowingly participate in its execution, although it can often be inferred from continued participation .”105 It concluded that “[t]hese cases make clear that when a detention facility is operated in a manner which makes the discriminatory and persecutory intent of the operation patently clear, anyone who knowingly participates in any significant way in the operation of the facility or assists or facilitates its activity, incurs individual criminal responsibility for participation in the criminal enterprise, either as a co-perpetrator or an aider and abettor, depending upon his position in the organizational hierarchy and the degree of his participation.”106

Joint criminal enterprise: the Trial Chamber considered that persons who work in a job or participate in a system in which crimes are committed on “a large scale and systematic basis incur individual criminal responsibility if they knowingly participate in the criminal endeavor, and their acts or omissions significantly assist or facilitate the commission of the crimes.”107

The Trial Chamber stressed that “this does not mean that anyone who works in a detention camp where conditions are abusive automatically becomes liable as a participant in a joint criminal enterprise.” It added that “[t]he participation in the enterprise must be significant” which “means an act or omission that makes an enterprise efficient or effective”. It specified that “[i]n general, participation would need to be assessed on a case by case basis, especially for low or mid level actors who do not physically perpetrate crimes.” The Trial Chamber considered that “the aider or abettor or co -perpetrator would typically hold a higher position in the hierarchy or have special training, skills, or talents.”108

The Trial Chamber found that “during periods of war or mass violence, the threshold required to impute criminal responsibility to a mid or low level participant in a joint criminal enterprise as an aider and abettor or co-perpetrator of such an enterprise normally requires a more substantial level of participation than simply following orders to perform some low level function in the criminal endeavor on a single occasion.” It held that “[t]he level of participation attributed to the accused and whether that participation is deemed significant will depend on a variety of factors, including the size of the criminal enterprise, the functions performed, the position of the accused, the amount of time spent participating after acquiring knowledge of the criminality of the system, efforts made to prevent criminal activity or to impede the efficient functioning of the system, the seriousness and scope of the crimes committed and the efficiency, zealousness or gratuitous cruelty exhibited in performing the actor’s function.” The Trial Chamber considered that “[i]t would also be important to examine any direct evidence of a shared intent or agreement with the criminal endeavor, such as repeated, continuous, or extensive participation in the system, verbal expressions, or physical perpetration of a crime.” It concluded that “[p]erhaps the most important factor to examine is the role the accused played vis-à-vis the seriousness and scope of the crimes committed”109.

In sum, the Trial Chamber reiterated that an accused must have carried out acts which “substantially assisted or significantly effected the furtherance of the goals of the enterprise, with the knowledge that his acts or omissions facilitated the crimes committed through the enterprise in order to be criminally liable as a participant in a joint criminal enterprise.” It underscored that “[t]he culpable participant would not need to know of each crime committed” and that “[m]erely knowing that crimes are being committed within a system and knowingly participating in that system in a way that substantially assists or facilitates the commission of a crime or which allows the criminal enterprise to function effectively or efficiently would be enough to establish criminal liability.” The Trial Chamber concluded that “[t ]he aider or abettor or co-perpetrator of a joint criminal enterprise contributes to the commission of the crimes by playing a role that allows the system or enterprise to continue its functioning.”110

Conclusion – the Omarska camp – a joint criminal enterprise: the Trial Chamber considered that it did “not have sufficient evidence on which to determine whether Keraterm and Trnopolje camps, or the municipality of Prijedor, functioned individually or collectively as a joint criminal enterprise.” It however found that it had “an enormous amount of evidence on which to conclude beyond a reasonable doubt that Omarska camp functioned as a joint criminal enterprise.” The Trial Chamber specified that “[t]he crimes committed in Omarska were not atrocities committed in the heat of battle; they consisted of a broad mixture of serious crimes committed intentionally, maliciously, selectively, and in some instances sadistically against the non-Serbs detained in the camp.”111

It added that “[c]rimes in the Omarska camp were committed by a plurality of persons” and that “they could only have been committed by a plurality of persons, as the establishment, organization and functioning of the camp required the participation of many individuals playing a variety of roles and performing different functions of greater or lesser degrees of importance.” The Trial Chamber considered that “[ t]he joint criminal enterprise pervading the camp was the intent to persecute and subjugate non-Serb detainees.” It concluded that “[t]he persecution was committed through crimes such as murder, torture and rape and by various means, such as mental and physical violence and inhumane conditions of detention.”112

IV – CRIMINAL RESPONSIBILITY OF THE ACCUSED

The Trial Chamber reiterated that “anyone regularly working in or visiting Omarska camp would have had to know that crimes were widespread throughout the camp.” It pointed out that “[k]nowledge of the joint criminal enterprise can be inferred from such indicia as the position held by the accused, the amount of time spent in the camp, the function he performs, his movement throughout the camp, and any contact he has with detainees, staff personnel, or outsiders visiting the camp.” The Trial Chamber added that “[k]nowledge of the abuses could also be gained through ordinary senses.” It specified that “[e]ven if the accused were not eye-witnesses to crimes committed in Omarska camp, evidence of abuses could been seen by observing the bloodied, bruised and injured bodies of detainees, by observing heaps of dead bodies lying in piles around the camp and noticing the emaciated and poor condition of detainees, as well as by observing the cramped facilities or the bloodstained walls.” The Trial Chamber considered that “[e]vidence of abuses could be heard from the screams of pain and cries of suffering, from the sounds of the detainees begging for food and water and beseeching their tormentors not to beat or kill them and from the gunshots heard everywhere in the camp.” Last, it found that “[e]vidence of the abusive conditions in the camp could also be smelled as a result of the deteriorating corpses, the urine and feces soiling the detainees clothes, the broken and overflowing toilets, the dysentery afflicting the detainees and the inability of detainees to wash or bathe for weeks or months.”113

The Trial Chamber noted that the accused were not responsible for the general conditions of detention in the camp as their roles were primarily related to security of the camp. In this capacity, it held that “the accused played a role in keeping the detainees in the camp.”114

The Trial Chamber also emphasised that “crimes committed in furtherance of the joint criminal enterprise that were natural or foreseeable consequences of the enterprise can be attributed to any who knowingly participated in a significant way in the enterprise.”115

It similarly considered that any crimes which were natural or foreseeable consequences of the joint criminal enterprise of the Omarska camp can be attributable to participants in the criminal enterprise if committed during the time he participated in the enterprise.” The Trial Chamber stressed that “[l]iability for foreseeable crimes flows to aiders and abettors as well as co-perpetrators of the criminal enterprise.”116

Miroslav Kvocka

The Trial Chamber found that Miroslav Kvocka, a duty officer, was the direct subordinate of Zeljko Meakic, commander of the Omarska police station, and that he was “tasked to carry out his orders and to supervise the conduct of the guards.”117 It was persuaded by the large number of witnesses who testified that the accused “occupied a position of authority and influence within the camp.”118 Having considered all the evidence, the Trial Chamber further found that Miroslav “Kvocka participated in the operation of the camp as the functional equivalent of the deputy commander of the guard service and that he had some degree of authority over the guards.”119

The Trial Chamber considered that the accused “undoubtedly knew that a wide variety of crimes were being committed and that physical and mental violence was systematically used to threaten and terrorize the detainees in the camp.”120 It concluded that the evidence demonstrated that Miroslav “Kvocka had extensive knowledge of the abusive practices and conditions and knew that serious crimes were regularly committed in Omarska camp.”121

The Trial Chamber expressed its belief that the accused “did intervene on a few occasions and he took some steps to improve the situation of certain family members or friends.” However, it found that “he could have done far more to mitigate the terrible conditions in the camp.”122

The Trial Chamber also found that Miroslav “Kvocka was in a position of sufficient authority and influence to prevent or halt some of the abuses, either by intervening personally or by seeking assistance from others and to report abuses committed against detainees in the camp.” It underscored that “[h]is position was gained primarily by years of experience in police work” and that guards sought instructions from the accused who gave them orders that they followed and he prevented crimes from being committed on select occasions. The Trial Chamber noted that as an active duty policeman, Miroslav Kvocka may have had a duty to investigate crimes committed in the camp, although this duty was not adequately proven by the Prosecution.”123

The Trial Chamber did not have sufficient evidence to conclude that the accused “himself physically perpetrated crimes against detainees in the camp.” It held that it was “nonetheless indisputable that he was present while crimes were committed and he was undoubtedly aware that crimes of extreme physical and mental violence were routinely inflicted upon the non-Serbs imprisoned in Omarska.” Despite knowledge of the abusive treatment and conditions, the Trial Chamber noted that Miroslav “Kvocka continued to work for at least 17 days in the camp, where he performed the tasks required of him skilfully, efficiently and without complaint.”124

It regarded the evidence as sufficient to conclude that the accused’s participation in the camp was “knowing” and “willing.”125

The Trial Chamber found that Miroslav “Kvocka’s contribution to the functioning of Omarska camp was significant.” It specified that “[h]e played a key role in the administration and functioning of the camp as Zeljko Meakic’s deputy and as an experienced police officer. He knew that the detainees subjected to the abusive treatment and conditions were of non-Serb origin and that their religion, political views and ethnicity were the reasons they were detained and abused.”126

The Trial Chamber considered that “he was substantially involved in the common criminal enterprise” and that “[h]e actively contributed to the everyday functioning and maintenance of the camp and he remained culpably indifferent to the crimes committed therein.” It added that “[h]is participation enabled the camp to continue unabated its insidious policies and practices.”

The Trial Chamber found beyond reasonable doubt that the accused “was aware of the context of persecution and ethnic violence prevalent in the camp and he knew that his work in the camp facilitated the commission of crimes.” It concluded that Miroslav Kvocka was “responsible for the crimes committed in Omarska camp, which was a joint criminal enterprise.”127

The Trial Chamber reiterated that the accused “exercised authority in Omarska when Zeljko Meakic was not in the camp and that he performed the role of deputy commander of the camp.” It also reiterated that “[h]e was also the duty officer and he passed on Zeljko Meakic’s orders to others” and that detainees reported that Miroslav “Kvocka ordered the other guards to perform tasks on occasion.” The Trial Chamber concluded that “[h]e clearly had broad authority and influence within the camp.”128

However, the Trial Chamber found that the evidence did “not sufficiently demonstrate a superior-subordinate relationship” between the accused and known perpetrators of the crimes nor was there credible evidence that Miroslav “Kvocka exercised effective control over subordinates who committed crimes.”129

It considered that his participation in the joint criminal enterprise of the Omarska camp made him liable for crimes committed therein and arguably made 7(3) liability duplicative. The Trial Chamber held that the accused did “not incur superior responsibility for failing to prevent or punish crimes committed by subordinates, pursuant to Article 7(3) of the Statute.”130

It also found Miroslav “Kvocka a co-perpetrator of the joint criminal enterprise of Omarska camp.”131 In sum, the Trial Chamber found the accused guilty of co-perpetrating as part of the joint criminal enterprise persecution under Article 5 of the Statute as well as murder and torture under Article 3 of the Statute132.

Dragoljub Prcac

The Trial Chamber held that the evidence adduced at trial demonstrated convincingly that Dragoljub “Prcac had some influence in the camp.”133 Considering the totality of the evidence, the Trial Chamber found that the Prosecution had not provided sufficient proof to establish beyond a reasonable doubt that the accused had “held the position of deputy commander in the Omarska camp.” Accordingly, the allegation that Dragoljub Prcac was deputy commander of the Omarska camp was not established. The Trial Chamber did however find that the accused “was an administrative aide to the commander of Omarska camp.”134 It also found that Dragoljub “Prcac was aware of the large scale nature of the abuses committed against detainees in the Omarska camp” and that “crimes alleged against the accused in the Amended Indictment were committed during the time he worked in the camp.” The Trial Chamber added that Dragoljub “Prcac had personal knowledge of a criminal system of abusive treatment and conditions in the Omarska camp in which he worked.”135

The Trial Chamber found that there was not sufficient evidence establishing beyond a reasonable doubt that the accused “was directly involved in committing specific crimes against detainees.”136 It further found that Dragoljub “Prcac was aware of the crimes of extreme physical and mental violence routinely inflicted upon the non-Serbs detained in Omarska and of the discriminatory context in which these crimes occurred.” The Trial Chamber specified that “[h]e was also aware of the abusive conditions of detention” and that despite this knowledge, the accused continued to work for at least twenty-two days in the camp “where he performed the tasks required of him efficiently, effectively and indifferently.”137

In addition, the Trial Chamber found that Dragoljub “Prcac’s knowing participation in the camp was significant, as his acts and omissions substantially contributed to assisting and facilitating the joint criminal enterprise to persecute the non -Serb population of Prijedor who were detained in Omarska camp.”138 Consequently, it found beyond a reasonable doubt that the accused “was aware of the context of persecution and ethnic conflict prevalent in the camp and that he knew that his work in the camp facilitated the crimes committed therein.” Dragoljub Prcac was thus held “responsible for participating in the persecution committed in Omarska camp, which was a joint criminal enterprise.”139

The Trial Chamber considered that the evidence did “not prove that he held a superior -subordinate relationship with those perpetrating crimes, exercised effective control over any who committed crimes, or that he had clear authority to prevent or punish crimes.”140 It therefore held that the accused did “not incur superior responsibility pursuant to Article 7(3) of the Statute.”141

In sum, the Trial Chamber found Dragoljub Prcac guilty of co-perpetration as part of the joint criminal enterprise persecution under Article 5 of the Statute as well as murder and torture under Article 3 of the Statute142.

Milojica Kos

The Trial Chamber found that Milojica “Kos held the position of a guard shift leader in Omarska camp” and thus “a position of authority and influence over guards on his shift.”143 It noted evidence of the accused’s “direct knowledge of the abusive treatment and conditions in Omarska.”144

The Trial Chamber found that Milojica “Kos was aware of the abusive treatment and conditions prevailing in Omarska camp and that he was undoubtedly aware that crimes of extreme physical and mental violence were routinely inflicted upon the non-Serbs imprisoned in Omarska, and he was aware as well of the context of discrimination in which the crimes were committed. Despite this knowledge, he continued to work in the camp for over two months where he performed the tasks required of him without complaint or hesitation.”145

The Trial Chamber found that the evidence established beyond reasonable doubt that Milojica “Kos was directly and personally involved in beatings of detainees around mid-July 1992.” It also found that the accused “was involved in the extortion of detainees and stealing money from detainees in Omarska camp, which in this context can be characterized as part of the harassment inflicted upon detainees in the camp and thus a part of the persecutory campaign.”146

The Trial Chamber noted that “[i]n the chain of command of the police security forces, guard shift leaders ranked third after the commander and deputy commander of the camp” and that maintaining the guard station and supervising the guards were thus “crucial positions in the camp, positions afforded to only three individuals who were each responsible for the guards on one of the three shifts.” It added that “[t]he guard shift leader position was integral to the efficient and effective functioning of the camp.”147

The Trial Chamber considered that Milojica “Kos faithfully performed his responsibilities as a guard shift leader” and that evidence disclosed that the accused “was in a position to assist, direct and supervise guards on his shift.” It inferred that Milojica “Kos was also in a position to assist detainees and to prevent the abuse of detainees during his shift.”148

The Trial Chamber found that the accused’s intent to further the joint criminal enterprise could “be inferred from his continued and extensive presence as a guard shift leader in the camp, as well as his personal and direct implication in crimes of violence, harassment and intimidation committed against detainees.”149

The Trial Chamber also found that Milojica Kos’ “contribution to the maintenance and functioning of Omarska camp as a guard shift leader was substantial.” It further found that “he knowingly and intentionally contributed to the furtherance of the joint criminal enterprise.”150

The Trial Chamber was not satisfied that sufficient proof was provided demonstrating that the accused “exercised the necessary degree of effective control over those guards who were shown to have committed specific crimes, or that he had clear authority to prevent or punish crimes committed by his subordinates in the camp.” It held that Milojica Kos did “not incur superior responsibility pursuant to Article 7(3 ) of the Statute.”151

Because the accused played a key role in the functioning of the camp as a guard shift leader, because he remained there for almost the entire period it was in operation and because he personally exploited the vulnerable position of the detainees in the camp, the Trial Chamber found him “a co-perpetrator of the crimes committed in Omarska camp.” In sum, it found him guilty as a co-perpetrator of persecution under Article 5 of the Statute as well as murder and torture under Article 3 of the Statute committed as part of the joint criminal enterprise152.

Mlado Radic

The Trial Chamber found that Mlado Radic was a guard shift leader in the Omarska camp153 and that as such “was in a position of authority over the guards.”154 It also found that he “had substantial authority over guards on his shift in the camp and that he used his power to prevent crimes selectively, while ignoring the vast majority of crimes committed during his shift.”155

The Trial Chamber considered that it had “received a substantial amount of credible and consistent evidence that a large number of crimes were committed by guards” on Mlado Radic’s shift. It was clear to the Trial Chamber that “these guards perpetrated a wide range of abuses and mistreatment against the detainees” and that the accused “as their shift leader, never exercised his authority to stop the guards from committing such crimes.” It also considered that “his failure to intervene gave the guards a strong message of approving of their behavior.” The Trial Chamber added that “[ g]iven his position of authority over the guards, his non-intervention condoned, encouraged and contributed to the crime’s commission and continuance.”156

It found that Mlado Radic, “in his role as a guard shift leader, was exposed on a daily basis to killings, tortures and other abuses committed in Omarska camp against non-Serb detainees.” The Trial Chamber considered that “[h]e knew that crimes of extreme physical and mental violence were routinely committed in the camp for discriminatory purposes.” It concluded that the accused “was directly responsible for a number of these abuses.”157

The Trial Chamber found that Mlado Radic “raped Witness K and that he attempted to rape Witness J.” It also found that the sexual intimidations, harassment and assaults committed by the accused against Witnesses J, F, Sifeta Susic and Zlata Cikota clearly fall within the definition of sexual violence established in the Akayesu Trial Chamber Judgement158 and thus found that he “committed sexual violence against these survivors.”159

The Trial Chamber further found that “the rape and other forms of sexual violence were committed only against the non-Serb detainees in the camp and that they were committed solely against women, making the crimes discriminatory on multiple levels .” It noted that the accused “did not rape any of the male non-Serb detainees.” The Trial Chamber reiterated the finding of the Celebici Trial Chamber Judgement that raping a person on the basis of sex or gender is a prohibited purpose for the offence of torture160. In the instant case, Trial Chamber I added that “[t]orture also requires proof of intentional infliction of severe pain and suffering.” It concluded that Mlado Radic intentionally committed the acts. The Trial Chamber considered that “[t]he rape of Witness K and the attempted rape of Witness J manifest his intent to inflict severe pain and suffering.” Consequently , it also found the accused “guilty of the torture of Witness K and Witness J.”161

The Trial Chamber held that “threat of rape or other forms of sexual violence undoubtedly caused severe pain and suffering” to Witnesses F, Zlata Cikota and Sifeta Susic and therefore “the elements of torture were also satisfied in relation to these survivors.”162

It considered that, by every indication, Mlado Radic “participated in crimes without hesitation.”163 The Trial Chamber found that the accused’s “contribution to the maintenance and functioning of the Omarska camp was knowing and substantial.” It further found that “he willingly and intentionally contributed to the furtherance of the joint criminal enterprise to persecute and otherwise abuse the non-Serbs detained in the camp, that he was responsible for gross mistreatment of detainees in the camp, and that he physically perpetrated a number of serious crimes, particularly sexual violence.”164

The Trial Chamber reiterated that Mlado Radic exercised authority over guards on his shift, although it was not entirely clear that the accused exercised “effective control” over them. More pertinently, although there is substantial credible evidence of crimes committed by Mlado Radic’s subordinates it doubted “as to whether, within the context of a joint criminal enterprise, a co-perpetrator or aider or abettor who is held responsible for the totality of crimes committed during his tenure on the basis of a criminal enterprise theory can be found separately responsible for part of those crimes on an Article 7(3) superior responsibility theory.” Since his liability for those crimes was already covered, the Trial Chamber found that the accused’s superior responsibility within the context of a joint criminal enterprise need not be decided165 and therefore declined to find that Mlado Radic incurred “superior responsibility pursuant to Article 7(3) of the Statute.”166

The Trial Chamber considered that the accused “was not the sole perpetrator of sexual violence in the Omarska camp” and noted that there was evidence of additional sexual crimes in its factual findings that did not relate to Mlado Radic and thus that there was no reason to infer that the sexual violence underlying the persecution count or committed as part of the joint criminal enterprise was limited to the crimes of sexual violence charged against the accused. Nonetheless, due to lack of clarity on this issue in the Amended Indictment, the Trial Chamber held that “the conviction for persecution for crimes including sexual violence cover the rape crimes” for which Mlado Radic was separately charged. Insofar as rape and torture are charged as crimes against humanity under Article 5 of the Statute, the charges are subsumed within the persecution count167.

Given the circumstances of the case, the Trial Chamber considered that the accused was thus “a co-perpetrator of the joint criminal enterprise.”168

In short, it found Mlado Radic guilty as a co-perpetrator of persecution under Article 5 of the Statute as well as murder and torture under Article 3 of the Statute committed as part of the joint criminal enterprise. The Trial Chamber dismissed the charges of inhumane acts, murder, rape and torture which were subsumed within the persecution conviction under Article 5 of the Statute; outrages upon personal dignity and cruel treatment which were subsumed within the torture conviction; and outrages upon personal dignity which were subsumed within the torture conviction for the sexual violence under Article 3 of the Statute169.

Zoran Zigic

Omarska camp: the Trial Chamber found that there was “sufficient evidence to establish the physical and direct participation of the accused” in the beating of Witnesses AK, AJ and Asef Kapetanovic “with an intent to discriminate against them as Muslims.” Furthermore, it found that Zoran Zigic “aided and abetted the beating of Abdulah Brkic.” However, because Emir Beganovic did not testify that the accused had beaten him, the Trial Chamber found that Zoran Zigic was “not liable for that beating.” Nevertheless, it did believe that the accused had “made Emir Beganovic drink and wash himself from water in a puddle on the pista, with an intent to cause humiliation.” The Trial Chamber considered that, given the fact that only non-Serbs were detained in Omarska, there was sufficient reason to conclude that Zoran Zigic “attacked these men because they were of a different ethnic, religious or political group” and thus that “they were targeted for abuse for discriminatory purposes.” It further considered that “the treatment was designed to humiliate the victims.” In view of the clear intent to inflict severe pain and suffering on these detainees for prohibited purposes, the Trial Chamber concluded that torture was committed against Witnesses AK, AJ and Asef Kapetanovic by the accused170.

The Trial Chamber found that Zoran Zigic co-perpetrated the beating of Witnesses AK, AJ and Asef Kapetanovic “cumulatively characterized as torture, cruel treatment and inhumane acts”, that the accused “aided and abetted the beating of Abdulah Brkic ” which amounted “to the crimes of torture, cruel treatment and inhumane acts” and that Zoran “Zigic intentionally humiliated Emir Beganovic” which amounted to “cruel treatment.”171

The Trial Chamber found that the accused “incurred responsibility for the beating of Witness T.” It considered that, given the fact that only non-Serbs were detained in Omarska, there was sufficient reason to conclude that Zoran Zigic “attacked these men because they were of a different ethnic, religious or political group” and thus that “they were targeted for abuse for discriminatory purposes.” In view of the clear intent to inflict severe pain and suffering on Witness T for prohibited purposes , the Trial Chamber concluded that the accused committed torture and cruel treatment against Witness T. It also found that Zoran Zigic was “liable for the murder of Becir Medunjanin.”172

The Trial Chamber considered that the evidence demonstrated conclusively that the accused “regularly entered Omarska camp for the specific purpose of abusing detainees .” It reiterated that “Omarska functioned as a joint criminal enterprise” and that Zoran Zigic “played a significant role in perpetrating crimes in Omarska camp as part of that enterprise.” The Trial Chamber held that “[h]e physically and directly perpetrated crimes of serious physical and mental violence against the non-Serbs detained in Omarska camp, knowing they were non-Serbs detained in the camp by reason of their religion, politics, race or ethnicity.” It found that the accused’s “participation in Omarska camp was significant.” The Trial Chamber added that Zoran “Zigic was aware of the persecutory nature of the crimes and he aggressively and eagerly participated in the persecution of non-Serbs in Omarska and was a co-perpetrator of the joint criminal enterprise of the Omarska camp.”

Keraterm camp: the Trial Chamber was convinced that the accused “took an active role in the beating of Sead Jusufagic” and was “therefore responsible as a co-perpetrator for his subsequent death, regardless of whether he struck the final blow.”173

It considered that it had received sufficient evidence on which to conclude that Zoran “Zigic participated in the fatal beating of Emsud Bahonjic as a co-perpetrator.”174

The Trial Chamber found that the accused incurred “criminal liability for the murders of Sead Jusufagic and Emsud Bahonjic.”175

However, it considered that there was insufficient evidence about the murders of Jasmin Izejiri176 and Spija Mesic177.

The Trial Chamber found that Zoran “Zigic contributed to the fatal beating of Drago Tokmadzic” and was thus “responsible as a co-perpetrator” for his murder178.

By contrast, it found that, given the circumstances of the case, the accused did “not incur criminal responsibility for the room 3 massacre.”179

The Trial Chamber found that the beating inflicted on the basis of Fajzo Mujkanovic’s ethnicity, combined with the attempts to get information from him as well as the real and immediate threats to kill his wife and child, “intentionally inflicted severe pain and suffering, both physical and mental” constituting torture and cruel treatment180.

The Trial Chamber found Zoran Zigic “responsible for the beating of Witness AE and Redzep Grabic.” It considered that, given the fact that only non-Serbs were detained in Keraterm, there was sufficient reason to conclude that the accused “ attacked these men because they were of a different ethnic, religious or political group and thus that they were targeted for abuse for discriminatory purposes.” The Trial Chamber further considered that “the treatment was designed to humiliate the victims.” In view of the clear intent to inflict severe pain and suffering on the detainees for prohibited purposes, it found that Zoran Zigic committed torture and cruel treatment against Witness AE and Redzep Grabic181.

Based on the evidence, the Trial Chamber found that the accused “intentionally subjected Jasmin Ramadanovic to severe pain or suffering for a prohibited purpose, constituting torture and cruel treatment.”182 It also found that Zoran “Zigic kicked and wounded Witness V, constituting an inhumane act”183 but that the accused did “not incur responsibility for the beating of Witness AD.”184

The Trial Chamber found that Zoran “Zigic and others beat Edin Ganic, amounting to an inhumane act.”185 However, it did not rely on the accused’s “culpability for the assaults on Husein Ganic as one of the crimes underlying his convictions because Husein Ganic [wa]s not listed as a victim in the Amended Indictment or Schedules.” The Trial Chamber did note that the testimony was credible and could “be used as corroborating evidence of a consistent pattern of conduct, pursuant to Rule 93186.”187

It also took into account the evidence on the murder of Vahid Sivac and the beating of Huso Sivac188, the testimony of Safet Taci about his own beating189 and the testimony of Witness AN about the beating of Zeric, Ivo Sikura and Samir Sistek190 entered into the trial record. However, because the victims in these cases were not listed in the Amended Indictment or Schedules, the Trial Chamber did not rely on the culpability of Zoran “Zigic for the crimes committed against them to underly his convictions.” It did however use the evidence for corroboration purposes since it found the testimony credible and the evidence indicated a consistent pattern of conduct by the accused pursuant to Rule 93191. By contrast, the Trial Chamber could not assess the seriousness of the beating of Hase Icic’s brother and a man called “Alic” and considered that there was “insufficient information ” for it to regard the testimony of Hase Icic “as corroborating a consistent pattern of conduct.”192

The Trial Chamber found that Zoran “Zigic committed persecution, torture and murder in Keraterm camp” and that “these crimes were committed as part of a widespread or systematic attack against non-Serbs detained in the camp, constituting crimes against humanity.”193

Trnopolje camp: the Trial Chamber found the accused “responsible for the beating of Hasan Karabasic, constituting cruel treatment.”194

In sum, it found Zoran Zigic’s contribution to the crimes committed in the Omarska and Keraterm camps “intentional and substantial.” The Trial Chamber specified that “[h]e knowingly contributed to the furtherance of the joint criminal enterprise of Omarska camp as a co-perpetrator of the enterprise” and that “he also committed , instigated and aided or abetted serious crimes in Keraterm camp.” It further found the accused “responsible for cruel treatment committed in Trnopolje camp.” The Trial Chamber concluded that the crimes committed by Zoran Zigic in the camps were part of the “persecutory scheme” and that “they formed part of the widespread and systematic attack directed against non-Serbs detained in the camps, thus constituting crimes against humanity.”195

It reiterated that the accused incurred “criminal responsibility for the murder of Becir Medunjanin (counts 1, 6 and 7), the torture of Asef Kapetanovic (counts 1, 11, 12 and 13), the torture of Witnesses AK, AJ and T (counts 1, 11, 12 and 13 ), the torture of Abdulah Brkic (counts 1, 11, 12 and13) and the cruel treatment of Emir Beganovic (counts 1 and 13).”196

Even though the Trial Chamber had “sufficient evidence from which to conclude that the specific murders and tortures alleged in counts 6-7 and 11-13 with regard to crimes committed in Omarska did not form the basis of the murders and tortures included in the persecution conviction”, in fairness to the accused it did not draw this conclusion. The Trial Chamber thus found that “all crimes against humanity committed by the accused in Omarska were covered by the persecution conviction”, consequently dismissed counts 6 and 11197 and found that Zoran Zigic participated in the “Omarska camp as a co-perpetrator of the joint criminal enterprise.”198

Sentencing

The Trial Chamber underscored that “those directly inflicting the pain and suffering deserve a harsher punishment than those remaining indifferent to the abusive treatment and conditions.”199

It took note of the sentences recommended to Trial Chamber III in the case The Prosecutor v. Dusko Sikirica et al.200 i.e. 3 to 5 years’ and 5 to 7 years’ imprisonment for the two co-accused who were guard shift leaders and who did not physically perpetrate crimes. It also noted that the Plea Agreement for Dusko Sikirica, Commander of Security in Keraterm for approximately 6 weeks, recommended a sentence of 10 to 17 years’ imprisonment .

Miroslav Kvocka: the Trial Chamber considered that his experience and integrity could “be viewed as both mitigating and aggravating factors”201 and sentenced him to 7 years’ imprisonment202.

Dragoljub Prcac: the Trial Chamber noted that he was the oldest of the co -accused, that he was ill health and that he had two disabled children203. It sentenced him to 5 years’ imprisonment204.

Milojica Kos: the Trial Chamber noted that “[b]ecause he did not hold a position of high esteem in the community prior to his position in Omarska, he likely would not have been a role model for the guards”205. It sentenced him to 6 years’ imprisonment206.

Mlado Radic: the Trial Chamber considered that, by all indications, the accused relished, actively encouraged criminal activity in the camp and “appeared to regard the abuses as entertainment.”207 It sentenced him to 20 years’ imprisonment208.

Zoran Zigic: the Trial Chamber reiterated that in 1994, a Bosnian Serb court in Prijedor tried and convicted the accused for murder and sentenced him to 15 years’ imprisonment. In 1998, while he was still serving his sentence, he voluntarily surrendered to the Tribunal. Due to the fact that Zoran Zigic was imprisoned at the time of his voluntary surrender, the Trial Chamber did not consider it a mitigating factor209. It rejected the accused’s claim that intoxication should be a mitigating factor and found it aggravating instead. However, it declined to treat it as such since the Prosecution had not raised the issue210 and sentenced Zoran Zigic to 25 years’ imprisonment211.

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1. The Prosecutor v. Miroslav Kvocka et al. (“Omarska, Keraterm & Trnopolje Camps”), Case No. IT-98-30/1, Trial Chamber I, Decision on Judicial Notice, 8 June 2000 (summarised in Judicial Supplement No. 16).
2. The Prosecutor v. Miroslav Kvocka et al. (“Omarska, Keraterm & Trnopolje Camps”), Case No. IT-98-30/1, Trial Chamber I, Decision on Defence Motions for Acquittal, 15 December 2000 (summarised in Judicial Supplement No. 21).
3. Para. 61.
4. The Prosecutor v. Milan Kovacevic (“Prijedor”), Case No. IT-97-24-PT, Indictment Deleting Co-Accused, 12 May 1998.
5. Para. 43.
6. Para. 45.
7. Para. 49.
8. Para. 55.
9. Para. 57.
10. ECOSOC Resolution 663 of 31 July 1957 and 2076 of 13 May 1977.
11. General Assembly Resolution 45/111 of 14 December 1990.
12. General Assembly Resolution 43/173 of 9 December 1988.
13. Para. 67.
14. Para. 73.
15. Para. 77.
16. Para. 79.
17. Para. 80.
18. Para. 81.
19. Para. 82.
20. Para. 83.
21. Para. 84.
22. Para. 85.
23. Para. 91.
24. Para. 108.
25. Para. 111.
26. Para. 112.
27. Para. 113.
28. Idem.
29. Para. 114.
30. Para. 115.
31. Para. 116.
32. Para. 117.
33. The Prosecutor v. Dusko Tadic (“Prijedor”), Case No. IT-94-1/AR72, Appeals Chamber, Decision on Defense Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 70.
34. Para. 125.
35. The Prosecutor v. Dusko Tadic (“Prijedor”), Case No. IT-94-1-T, Trial Chamber II, Judgement, 7 May 1997 (hereinafter the “Tadic Trial Chamber Judgement”), paras. 614 to 616.
36. The Prosecutor v. Dragoljub Kunarac et al. (“Foca”), Case No. IT-96-23-T & IT-96-23/1-T, Trial Chamber II, Judgement, 22 February 2001 (hereinafter the “Foca Trial Chamber Judgement”, summarised in Judicial Supplement No. 23), para. 407.
37. The Prosecutor v. Zejnil Delalic et al. (“Celebici Camp”), Case No. IT-96-21-A, Appeals Chamber, Judgement, 20 February 2001 (hereinafter the “Celebici Appeals Chamber Judgement”, summarised in Judicial Supplement No. 23), para. 420.
38. Para. 124.
39. Para. 126.
40. Para. 129.
41. Para. 130.
42. Para. 136.
43. Para. 139.
44. “‘Torture’ means the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions”.
45. Celebici Appeals Chamber Judgement, para. 470.
46. The Prosecutor v. Anto Furundzija (“Lasva River Valley”), Case No. IT-95-17/1-T, Trial Chamber II, Judgement, 10 December 1998 (hereinafter the “Furundzija Trial Chamber Judgement”, summarised in Judicial Supplement No. 1).
47. Para. 140.
48. Para. 141. See also Foca Trial Chamber Judgement, para. 497.
49. Para. 157.
50. Para. 158.
51. The Prosecutor v. Zejnil Delalic et al. (“Celebici Camp”), Case No. IT-96-21-T, Trial Chamber II quater, Judgement, 16 November 1998 (hereinafter the “Celebici Trial Chamber Judgement”, summarised in Judicial Supplement No. 1).
52. Para. 161.
53. Para. 164.
54. Para. 165.
55. Foca Trial Chamber Judgement, para. 507.
56. Para. 172.
57. Para. 173.
58. Para. 174.
59. Foca Trial Chamber Judgement, para. 442.
60. Celebici Trial Chamber Judgement, para. 495. See also The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Trial Chamber I, Judgement, 2 October 1998 (hereinafter the “Akayesu Trial Chamber Judgement”), para. 688.
61. Furundzija Trial Chamber Judgement, para. 271.
62. Para. 178.
63. Akayesu Trial Chamber Judgement, para. 688.
64. Para. 180.
65. “For the purpose of this Statute, ‘crime against humanity’ means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:
[ …r]ape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity”.
66. “For the purpose of this Statute, ‘war crimes’ means:
[ …o]ther serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts: […c]ommitting rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article 7, paragraph 2 (f), enforced sterilization, or any other form of sexual violence also constituting a grave breach of the Geneva Conventions”.
67. “For the purpose of this Statute, ‘war crimes’ means:
[ …o]ther serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, namely, any of the following acts:
[…c]ommitting rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article 7, paragraph 2 (f), enforced sterilization, and any other form of sexual violence also constituting a serious violation of article 3 common to the four Geneva Conventions”.
68. United Nations Document A/CONF.183/69.
69. Para. 182.
70. Para. 183.
71. Tadic Trial Chamber Judgement, paras. 715 and 717; The Prosecutor v. Zoran Kupreskic et al. (“Lasva River Valley”), Case No. IT-95-16-T, Trial Chamber II, Judgement, 14 January 2000 (summarised in Judicial Supplement No. 11), paras. 605, 619, 621, 622, 629 and 631; 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), paras. 220 and 234; The Prosecutor v. Dario Kordic & Mario Cerkez (“Lasva River Valley”), Case No. IT-95-14/2-T, Trial Chamber III, Judgement, 26 February 2001 (hereinafter the “Kordic & Cerkez Trial Chamber Judgement”, summarised in Judicial Supplement No. 23), paras. 193, 203, 204 and 206; The Prosecutor v. Radislav Krstic (“Srebrenica-Drina Corps”), Case No. IT-98-33-T, Trial Chamber I, Judgement, 2 August 2001 (hereinafter the “Krstic Trial Chamber Judgement”, summarised in Judicial Supplement No. 27), paras. 617 and 618.
72. U.S. v. Ernst von Weizsaker, volume XIV, Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No. 10, page 471.
73. Kordic & Cerkez Trial Chamber Judgement, para. 192.
74. Para. 186.
75. Para. 187.
76. Para. 190.
77. Para. 191.
78. Para. 192.
79. Para. 195.
80. Para. 196.
81. Para. 197.
82. Para. 198.
83. Para. 199.
84. Para. 202.
85. Para. 204.
86. The Prosecutor v. Dusko Sikirica et al. (“Keraterm Camp”), Case No. IT-95-8, Trial Chamber III, Oral Decision regarding plea agreement for the accused Dragan Kolundzija, 4 September 2001; Oral Decision regarding plea agreement for the accused Dusko Sikirica and Damir Dosen, 19 September 2001.
87. Para. 209.
88. Para. 224. See The Prosecutor v. Goran Jelisic (“Brcko”), Case No. IT-95-10-A, Appeals Chamber, Judgement, 5 July 2001 (summarised in Judicial Supplement No. 26).
89. Para. 225.
90. Para. 226.
91. Para. 227.
92. Para. 228.
93. Para. 233.
94. Para. 234.
95. Para. 238.
96. Para. 249.
97. Para. 262.
98. Trial of Martin Gottfried Weiss and thirty-nine others, General Military Government Court of the United States Zone, Dachau, Germany, 15 November – 13 December 1945, Law Reports of Trials of War Criminals, Selected and Prepared by the United Nations War Crimes Commission, Published for the United Nations War Crimes Commission by his Majesty’s Stationary Office, London, 1947, volume XI, page 5; Trial of Josef Kramer and 44 others, British Military Court, Luneberg, 17 September –17 November 1945, Law Reports of Trials of War Criminals, Selected and Prepared by the United Nations War Crimes Commission, Published for the United Nations War Crimes Commission by his Majesty’s Stationary Office, London, 1947, volume II, page 1.
99. The Prosecutor v. Dusko Tadic (“Prijedor”), Case No. IT-94-1-A, Appeals Chamber, Judgement, 15 July 1999 (hereinafter the “Tadic Appeals Chamber Judgement”, summarised in Judicial Supplement No. 6), paras. 196 to 204, 200 and 227.
100. Para. 284.
101. Para. 287.
102. Para. 288.
103. Para. 289.
104. Trial of Max Wielen and 17 others, British Military Court, Hamburg, Germany, 1st July-3rd September, 1947, Law Reports of Trials of War Criminals, Selected and Prepared by the United Nations War Crimes Commission, Published for the United Nations War Crimes Commission by his Majesty’s Stationary Office, London, 1947 (hereinafter the “UNWCC”), volume XI, pages 31 to 53 (1947), from the Trial Chamber concluded that “the standard was not that the crimes would not have taken place – it was essentially whether the accused’s participation made the crimes easier, more efficient to commit.” (Para. 296); Trial of Otto Sandrock and Three Others, British Military Court for the Trial of War Criminals, Almelo, Holland, 24th-26th November, 1945, UNWCC, volume I, pages 35 to 43; Kiel Gestapo Case, UNWCC, volume XI, pages 42 to 44; Trial of Lieutenant-General Baba Masao, Australian Military Court, Rabaul, 28th May-2nd June, 1947, UNWCC, volume XI, pages 56 to 61; Trial of Rear-Admiral Nisuke Masuda and Four Others of the Imperial Japanese Navy, U.S. Military Commission, United States Naval Base, Kwajalein Island, Kwajalein Atoll, Marshall Islands, 7th-13th December, 1945, UNWCC, volume I, pages 71 et seq.; Trial of Willy Zuehlke, Netherlands Special Court in Amsterdam and the Netherlands Special Court of Cassation, Amsterdam, 3rd August, 1948 and 6th December, 1948, UNWCC, volume XIV, pages 139 to 151, 1948; Trial of Heinrick Gerike and Seven Others, British Military Court, Brunswick, 20th March-3rd April, 1946, UNWCC, volume VII, pages 76 to 81; The Tokyo Judgement, the International Military Tribunal for the Far East, 29 April 1946-12 November 1948, Chapter X (Roling & Ruter eds.), 1977, pages 457 and 458.
105. Para. 294.
106. Para. 306.
107. Para. 308.
108. Para. 309.
109. Para. 311.
110. Para. 312.
111. Para. 319.
112. Para. 320.
113. Para. 324.
114. Para. 325.
115. Krstic Trial Chamber Judgement, para. 616.
116. Para. 327.
117. Paras. 344, 348 and 361.
118. Para. 368.
119. Para. 372.
120. Para. 384.
121. Para. 385.
122. Para. 395.
123. Para. 396.
124. Para. 398.
125. Para. 404.
126. Para. 406.
127. Para. 408.
128. Para. 410.
129. Para. 411.
130. Para. 412.
131. Para. 414.
132. Para. 419.
133. Para. 438.
134. Para. 439.
135. Para. 449.
136. Para. 456.
137. Para. 457.
138. Para. 463.
139. Para. 464.
140. Para. 466.
141. Para. 467.
142. Para. 470.
143. Para. 485.
144. Para. 487.
145. Para. 489.
146. Para. 496.
147. Para. 497.
148. Para. 498.
149. Para. 499.
150. Para. 500.
151. Para. 502.
152. Para. 504.
153. Para. 517.
154. Para. 518.
155. Para. 526.
156. Para. 538.
157. Para. 545.
158. Akayesu Trial Chamber Judgement, para. 688.
159. Para. 559.
160. Celebici Trial Chamber Judgement, paras. 941 and 963.
161. Para. 560.
162. Para. 561.
163. Para. 565.
164. Para. 566.
165. See also Krstic Trial Chamber Judgement, para. 652.
166. Para. 570.
167. Para. 573.
168. Para. 575.
169. Para. 579.
170. Para. 597.
171. Para. 598.
172. Para. 609.
173. Para. 623.
174. Para. 624.
175. Para. 625.
176. Para. 628.
177. Para. 630.
178. Para. 633.
179. Para. 638.
180. Para. 640.
181. Para. 645.
182. Para. 649.
183. Para. 651.
184. Para. 655.
185. Para. 662.
186. “(A) Evidence of a consistent pattern of conduct relevant to serious violations of international humanitarian law under the Statute may be admissible in the interests of justice.
(B) Acts tending to show such a pattern of conduct shall be disclosed by the Prosecutor to the defence pursuant to Rule 66.”
187. Para. 663.
188. Para. 665.
189. Para. 666.
190. Paras. 667 and 668.
191. Para. 664.
192. Para. 670.
193. Para. 672.
194. Para. 681.
195. Para. 682.
196. Para. 685.
197. Para. 686.
198. Para. 688.
199. Para. 709.
200. See The Prosecutor v. Dusko Sikirica et al. (“Keraterm Camp”), Case No. IT-95-8-S, Trial Chamber III, Sentencing Judgement, 13 November 2001 (summarised in this issue of the Judicial Supplement), in which the Trial Chamber imposed sentences of 15 years’, 5 years’ and 3 years’ imprisonment on Dusko Sikirica, Damir Dosen and Dragan Kolundzija respectively.
201. Para. 716.
202. Para. 718.
203. Para. 724.
204. Para. 726.
205. Para. 732.
206. Para. 735.
207. Para. 741.
208. Para. 745.
209. Para. 746.
210. Para. 748.
211. Para. 750.