31 March 2003
Mladen Naletilic was born on 1 December 1946 in Siroki Brijeg, Bosnia and Herzegovina, but lived primarily in Germany. Upon his return to Siroki Brijeg in 1991, he founded and commanded a military group called the Convicts’ Battalion (“KB”). Vinko Martinovic was born on 12 September 1963 in Mostar, Bosnia and Herzegovina and was raised in a part of Mostar called Rodoc. He was commander of the Vinko Skrobo Anti-Terrorist-Groups (“ATG”) in the operations in Mostar relevant to the Indictment.2
The Judgement covers the period running from April 1993 to January 1994 and the conflict between the Bosnian Croats (“BH Croats”) and Bosnian Muslims (“BH Muslims”), which ethnic groups had co-operated and jointly fought on the same side in 1992 against the Serb-Montenegrin forces, sometimes referred to as the Serb forces or Yugoslav People’s Army (“JNA”). The Second Amended Indictment dated 16 October 2001 generally alleges that in 1993 the special unit “Kaznjenicka Bojna” (Convicts' Battalion, “KB”), along with other units of the army of the Republic of Croatia (HV) and the HVO, attacked villages particularly in the municipalities of Jablanica and Mostar and subsequently carried out the expulsion and forcible transfer of the Bosnian Muslim civilians, arrested Bosnian Muslim adult males, destroyed Bosnian Muslim properties and the Sovici mosque. Between April 1993 and at least January 1994, Bosnian Muslim civilians and prisoners of war under the command of Naletilic and Martinovic were interned in the Heliodrom detention centre.
It is alleged that during their detention Bosnian Muslim detainees were repeatedly tortured by Naletilic and Martinovic (the “Accused”) and their subordinates. Severe physical and mental suffering was intentionally inflicted on them in order to obtain information, as punishment, in retaliation for adverse developments on the front lines, to intimidate or based on ethnicity or religion. The indictment also alleges that, between May 1993 and at least January 1994, detainees were taken to the confrontation lines to be used as human shields and to perform various dangerous military support tasks benefiting the HV and HVO.
The indictment charges the Accused on the basis of individual criminal responsibility (Article 7(1) of the Statute of the Tribunal) and superior criminal responsibility (Article 7(3) of the Statute) with:
· Five counts of crimes against humanity (Article 5: persecutions on political, racial and religious grounds; inhumane acts; murder; torture),
· Eight counts of grave breaches of the 1949 Geneva Conventions (Article 2: inhuman treatment; wilful killing; torture; wilfully causing great suffering or serious injury to body or health; unlawful transfer of a civilian; extensive destruction of property) and
· Nine counts of violations of the laws or customs of war (Article 3: cruel treatment; unlawful labour; murder; wanton destruction not justified by military necessity; plunder of public or private property; seizure, destruction or wilful damage done to institutions dedicated to religion).
The Trial Chamber found Mladen Naletilic guilty on eight counts of crimes against humanity (persecutions on political, racial and religious grounds; torture), violations of the laws or customs of war (unlawful labour; wanton destruction not justified by military necessity; and plunder of public or private property) and grave breaches of the Geneva Conventions (torture; wilfully causing great suffering or serious injury to body or health; unlawful transfer of a civilian), and sentenced him to a single sentence of 20 years’ imprisonment.3
The Trial Chamber found Vinko Martinovic guilty on nine counts of crimes against humanity (persecutions on political, racial and religious grounds; inhumane acts; murder), violations of the laws or customs of war (unlawful labour; plunder of public or private property) and grave breaches of the Geneva Conventions (inhuman treatment; wilfully causing great suffering or serious injury to body or health; wilful killing; unlawful transfer of a civilian), and sentenced him to a single sentence of 18 years’ imprisonment.
The Trial of Mladen Naletilic (aka “Tuta”) and Vinko Martinovic (aka “Stela”) started on 10 September 2001 and concluded on 31 October 2002. The Chamber heard a total of 84 witnesses for the Prosecution, 35 for the Naletilic Defence and 27 for the Martinovic Defence. Approximately 2750 exhibits were admitted. The Judgement considers in details the history of the conflict in the area of Mostar as developed during the proceedings as well as the position of the respective parties. It reviews the applicable law and addresses each count accordingly and enters convictions of guilt or innocence on the attached crimes. Beyond the actual crimes and the role of the Accused, the Judgement inter alia addresses the notion of “occupation” in international humanitarian law, sets clear the elements of unlawful labour under Article 3 of the Statute and contributes to the development of international humanitarian law by prosecuting for the first time the charge of “unlawful transfer of a civilian ” under Article 2(g) of the Statute as a grave breach of the Geneva Conventions of 1949.4
“Occupation” in international humanitarian law and the “actual authority test”
“Occupation” is relevant to the charges of unlawful labour of civilians (Count 5), forcible transfer of a civilian (Count 18) and destruction of property (Count 19). Articles 49, 51 and 53 of Geneva Convention IV, respectively dealing with forcible transfers, labour and destruction of property fall within its Section on “Occupied Territories”.5 The Chamber noted that the jurisprudence of the Tribunal relating to the applicable legal test is inconsistent and determined that the overall control test submitted in the Blaskic Trial Judgement is not applicable to the existence of an occupation.6 It held that there is an essential distinction between the determination of a state of occupation and the existence of an international armed conflict: a further degree of control being required to establish occupation.
The Trial Chamber endorsed the definition in Article 42 of the Hague Regulations7:
Territory is considered occupied when it is actually placed under the authority of the hostile army.The occupation extends only to the territory where such authority has been established and can be exercised.8
It held that “to determine whether the authority of the occupying power has been actually established, the following guidelines provide some assistance:
Within the framework of Article 42 of the Hague Regulations, the Trial Chamber found that what it must determine on a case by case basis is whether the occupying power exercises an actual authority over the occupied area.14 Following the commentary to Geneva Convention IV15, the Trial Chamber however drew a distinction between the regime of Article 42 of the Hague Regulations which requires an actual state of authority (actual control ) and the applicability of the law of occupation to civilians protected by Geneva Convention IV which requires only that the civilians be in the hands of the occupying power.16 As a consequence it applied a different legal test to determine whether the law of occupation applies, depending on whether it is dealing with individuals or with property and other matters. It held that forcible transfer and unlawful labour are prohibited from the moment civilians fall into the hands of the opposing power, regardless of the stage of the hostilities, and that there is no need to establish an actual state of occupation as defined in Article 42 of the Hague Regulations. With regard to destruction of property, however, the Trial Chamber held that actual authority is required and that the “actual authority test”17 as defined above must be fulfilled.
Count 5: unlawful labour under Article 3 of the Statute
Mladen Naletilic and Vinko Martinovic were both found guilty of unlawful labour as a violation of the laws or customs of war under Article 3 of the Statute. This charge was brought under Article 51 of Geneva Convention IV and Articles 49, 50 and 52 of Geneva Convention III. The Trial Chamber recalled that the Geneva Conventions had as a whole previously been recognised as part of customary international law.18 It found that requirements additional to the existence of an armed conflict arise out of the application of the specific regime of labour as enshrined in the Geneva Conventions.
The Trial Chamber considered the scope of Article 51 of Geneva Convention IV (labour of civilians) and of Articles 49, 50 and 52 of Geneva Convention III (labour of prisoners of war) and applied the regime of Geneva Convention III in relation to forced labour, as it deemed that this regime was more favourable to the Accused. It analysed the relevant articles, their commentary, and the case-law of the Tribunal and found that “the offence of unlawful labour against prisoners of war may be defined as an intentional act or omission by which a prisoner of war is forced to perform labour prohibited under Articles 49, 50, 51 or 52 of Geneva Convention III”.19 In accordance with the previous jurisprudence of the Tribunal, it determined whether a person was not in a position to make a “real choice”20, a Trial Chamber may consider the following criteria: “(a) the substantially uncompensated aspect of the labour performed; (b) the vulnerable position in which the detainees found themselves; (c) the allegations that detainees who were unable or unwilling to work were either forced to do so or put in solitary confinement; (d) claims of longer term consequences of the labour; (e) the fact and the conditions of detention; and (f) the physical consequences of the work on the health of the internees”.21
The Trial Chamber added that, in order to establish the mens rea for this crime, the Prosecution “must prove that the perpetrator had the intent that the victim would be performing prohibited work” and that the intent “can be demonstrated by direct explicit evidence, or, in the absence of such evidence, can be inferred from the circumstances in which the labour was performed”.22
Count 18: unlawful transfer as a grave breach of the Geneva Conventions of 1949
The Accused were found guilty of unlawful transfer as a grave breach of the Geneva Conventions of 1949 under Article 2(g) of the Statute. As noted by the Trial Chamber, the present Judgement is the first to deal with this charge under this heading. The Trial Chamber considered Article 147 of Geneva Convention IV which envisages unlawful deportation and transfer as a “grave breach”, the commentary of which refers to breaches of Articles 45 and 49 of the same convention.
The Trial Chamber determined that Article 49 was the relevant article in the present case. It states that “[i]ndividual or mass forcible transfers, as well as deportations of protected persons from occupied territories to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive”. As noted by the Trial Chamber, Article 49 applies to persons in the hands of the occupying power23, prohibits transfers from occupied territory and within occupied territory, but does not prohibit evacuations as transfers motivated by the security of the population or imperative military reasons. It found that “transfers motivated by an individual’s own genuine wish to leave are lawful”.24 To determine whether a transfer is based on an individual’s “own wish”, the Trial Chamber found assistance in Article 31 of Geneva Convention IV which prohibits “physical or moral25 coercion” against protected persons, being “direct or indirect, obvious or hidden”.26 It defined “forcible transfer” as “the movement of individuals under duress from where they reside to a place (…) not of their own choosing”.27 It held that in order for the Chamber to be satisfied that a violation of Article 2(g) of the Statute has occurred, “proof of the following is required: