Press Release · Communiqué de presse (Exclusively for the use of the m edia. Not an official document)
CC/PIO/190-E The Hague, 7 May 1997 !"#C CASE: THE VERDICT . Char$es in %% counts declared inapplica&le . !ccused not $uilty on ' counts of murder . !ccused $uilty on %% counts of persecution and &eatin$s
Today, one yea !o !he day a"!e !he #eg$nn$ng o" !he !$a% o" !he A&&u'ed Du'(o TADIC, Today, TADIC, T$a% Cha)#e II *&o)+o'ed o" udge a#$e%%e .$( M&Dona%d, Pe'$d$ng, udge $n$an S!e+hen and udge a% Chand Vohah ha' handed do2n $!' "Opinion and Judgment". ut of % counts* the !ccused has &een found+ , not $uilty on - counts *9 )ude &oun!' #e&au'e o" $n'u""$&$en! e3$den&e and 11 &oun!' de&%aed $na++%$&a#%e and , $uilty on %% counts *+e'e&u!$on and #ea!$ng'4
A' +o$n!ed ou! #y !he Cha)#e $!'e%", !h$' 5udge)en! $' "the first determination of individual guilt or innocence in connection conn ection with serious violations of international humanitarian law by an international tribunal (...).The international military tribunals at Nürnberg and To Toyo!...! yo!...! were multinational in nature! representing representing only part of the world community" 4 Moe #oad%y, and $n +a!$&u%a "o !he 3$&!$)' o" !he a)ed &on"%$&! $n !he P$5edo aea, !he 3ed$&! e+e'en!' !he "$'! e3e 5ud$&$a% &onde)na!$on o" !he 6e!hn$& &%ean'$ng6 +o%$&y4 I! $' !he e'u%! o" a !hoough and )e!$&u%ou' &on'$dea!$on o" a 3o%u)$nou' uan!$!y o" !e'!$)on$a% and 2$!!en e3$den&e: du$ng !he '$8 )on!h-%ong !$a% o" !he A&&u'ed, 1 2$!ne''e' 2ee &a%%ed and ;7< e8h$#$!' 2ee !endeed #y !he Po'e&u!$on and !he De"en&e4 I! a%'o e"%e&!' a de!a$%ed e8+%oa!$on o" %ega% $''ue' a$'ed "o !he "$'! !$)e #e"oe a T$a% T$a% Cha)#e o" !he
In!ena!$ona% T$#una%4 The 2$!!en O+$n$on and udge)en! $' a '$=a#%e do&u)en!, a)oun!$ng !o <01 +age', 2$!h one Se+aa!e and D$''en!$ng O+$n$on o" 19 +age' and a "u!he <0 +age' o 'o o" anne8e' *!he $nd$&!)en!> a )a+ o" ?o'n$a and He=ego3$na> +ho!o' o" !he )ode% o" O)a'(a &a)+> +ho!o' o" .ea!e) and Tno+o%5e &a)+'> +ho!o' o" a hanga, o" an $n'&$+!$on on a 2a%% and o" !he )ode% o" !he 62h$!e hou'e6 a! O)a'(a &a)+4 Th$' +e'' e%ea'e &an #y no )ean' #e a 'u))ay o" an O+$n$on and udg)en! 2h$&h ha' #een &ae"u%%y 2oded and 2h$&h &o3e' a 3a$e!y o" $''ue' *h$'!o$&a% #a&(gound, e3$den!$ay $''ue', a++%$&a#%e %a2 o!he !han !he udg)en! $!'e%"4 Th$' +e''-e%ea'e $' )ee%y $n!ended a' a 6eade@' gu$de6 o" !he 3ed$&!4
/E 0ER"#C RE!"1 !1 23341+ he !ccused $' "a citien of the former #ugoslavia! of $erb ethnic descent! and a resident of the %epublic of &osnia and 'eregovina at the time of the alleged crimes".
The A&&u'ed 2a' &haged 2$!h <1 $nd$3$dua% &oun!' o" +e'e&u!$on, )ude, #ea!$ng' and o!he o""en&e' a%%eged !o ha3e #een &o))$!!ed $n 199 $n !he P$5edo d$'!$&! *no!h2e'!en +a! o" !he Re+u#%$& o" ?o'n$a and He=ego3$na and )oe '+e&$"$&a%%y a! !he O)a'(a, .ea!e) and Tno+o%5e &a)+', $n .o=aa& and $n !he aea o" a'($&$ and S$3&$4 In a%% &a'e' !he A&&u'ed 2a' &haged 2$!h $nd$3$dua% &$)$na% e'+on'$#$%$!y4 The A&&u'ed +%eaded no! gu$%!y and "raised a defence of alibi" 'ay$ng "that he was elsewhere when each of those acts e"eed !o $n !he &oun!'B is said to have occurred.." he Cham&er finds+ %. ?y a )a5o$!y, !he Pe'$d$ng-udge d$''en!$ng, !ha! !he a&&u'a!$on' o" 6a3e #ea&he' o" !he 19;9 ene3a Con3en!$on'6 2ee OT APPICA?E and !ha! !he A&&u'ed $' OT IT on !he 11 e%e3an! &oun!' *#e$ng , , 9, 1, 1, 1, 1, ;, 7, 9, < unn$ng !houghou! a%% !he &hage' $n !he $nd$&!)en!4 -. nan$)ou'%y, !ha! !he A&&u'ed $' OT IT on 11 &oun!', *F, 7, 19, 0, , F, , <0, <1, and $n +a! << and <; &hag$ng h$) 2$!h 1< )ude', #ea!$ng', $nhu)ane a&!' and one &a'e o" a#u'e o" +$'one'4 The Po'e&u!o ha' "a$%ed e$!he !o e'!a#%$'h #eyond ea'ona#%e dou#! !he e%e)en!' o" !he o""en&e', o !o +e'en! &on&%u'$3e e3$den&e %$n($ng !he a&&u'ed !o !he
e%a!ed a&!' o !o 'a!$'"y !he udge' #eyond ea'ona#%e dou#! !ha! 3$&!$)' na)ed 2ee )udeed4 . nan$)ou'%y, !ha! !he A&&u'ed IS IT on 11 &oun!', *1,10, 11, 1<, 1;, 1F, 17, , < and $n +a! << and <; &hag$ng h$) 2$!h +e'e&u!$on and 1; #ea!$ng'4 The Cha)#e ha' "ound !he A&&u'ed 6untruthful" a' !o h$' 2heea#ou!' a! !he !$)e o" !he a%%eged o""en&e' and ha' #een 'a!$'"$ed #eyond ea'ona#%e dou#! #y !he Po'e&u!$on@' e3$den&e !ha! !he a&&u'ed e$!he 2a' +e'en! a! !he '&ene o", o d$d +a!$&$+a!e $n!o, !he a%%eged o""en&e'4
GGGGG ##. 2!C5!3 !N" 3E6!3 2#N"#N61 C5N 78 C5N %% counts inapplica&le
A' +e3$ou'%y '!a!ed, 11 &oun!' &hag$ng a3e ?ea&he' o" !he ene3a Con3en!$on o" 19;9 ha3e #een de&%aed $na++%$&a#%e #y a )a5o$!y o" udge'4 The'e &oun!' ae &oun!' , , 9, 1, 1, 1, 1, ;, 7, 9 and <4 o "u!he de!a$%', 'ee +age o" !h$' Pe'' Re%ea'e4 Count % + Persecution Accused guilty of persecution
14 A' !o !he e3en!' a%%eged !o ha3e !a(en +%a&e du$ng and 'u#'euen! !o !he a!!a&( on .o=aa& and $!' ou!%y$ng 3$%%age', !he T$a% Cha)#e $' 'a!$'"$ed #eyond ea'ona#%e dou#! !ha! !he A&&u'ed: - "participated in the attac on oarac and the surroundings areas and in the collection and forced transfer of civilians to detention camp * participated in the calling*out of four +uslim men from a column of civilians (...) and the beatings! calling*out! separation and forced transfer of non*$erb civilians * participated in the beating of a +uslim policeman in oarac * iced one +uslim prisoner and beat another while they were held at the ,ri-edor military barracs * and illed two +uslim policemen in oarac. 4 A' !o !he e3en!' a%%eged !o ha3e !a(en +%a&e a! !he O)a'(a and .ea!e) &a)+', !he
T$a% Cha)#e ha' "ound !ha! !he A&&u'ed: - "too part in the beating of din +ral- and $enad +uslimovic in the administration building and the hangar building respectively *O)a'(a &a)+> - too part in the beatings of the prisoners and too part in one mass*beating of prisoners from room / *.ea!e)4 <4 A' !o !he e3en!' a%%eged !o ha3e !a(en +%a&e $n !he Tno+o%5e &a)+: - !he T$a% Cha)#e no!e' !ha! )o'! o" !he a%%ega!$on' 2ee 'u++o!ed on%y #y !he !e'!$)ony o" Dagan O+a&$&, 2ho) !e'!$)ony unde !he +'eudony) o" $!ne'' 2a' %a!e 2$!hda2n4 - The on%y e)a$n$ng +o!$on o" !he $n$!$a% &hage dea%' 2$!h a%%eged $n&$den!' o" !an'"e and un%a2"u% &on"$ne)en! $n !he Tno+o%5e &a)+4 The T$a% Cha)#e "finds beyond reasonable doubt that the accused participated in the transfer to and in the initial confinement of non*$erbs in camps generally! and in the Trnopol-e camp in particular. 'owever! the Trial 0hamber finds that the accused did not tae an active role in the continued confinement of non*$erbs in the Trnopol-e camp". ;4 A' !o !he a%%eged +a!$&$+a!$on o" !he a&&u'ed $n !he 'e$=ue, 'e%e&!$on and !an'+o!a!$on o" $nd$3$dua%' "o de!en!$on, !he T$a% Cha)#e "is satisfied beyond reasonable doubt that the accused pa rticipated (...) and was aware that the ma-ority of surviving prisoners would be deported from &osnia and 'eregovina". 4 A' !o !he a%%ega!$on' o" +%unde and de'!u&!$on o" +e'ona% and ea% +o+e!y o" nonSe#', !he T$a% Cha)#e '!a!e' !ha! "evidence regarding the accused1s role in the destruction! plunder and looting is non*e2istent". F4 9he acts of the accused constitute persecution9. The T$a% Cha)#e no!e' "the horrendous treatment inflicted on the non*$erb population of opstina ,ri-edor on the basis of religion and politics(...) 3 policy to terrorie the non* $erb civilian population of opstina ,ri-edor on discriminatory grounds is evident and that its implementation was widespread and systematic throughout! at the minimum! opstina ,ri-edor is apparent. The events described in paragraph 4 of the indictment Coun! 1B occurred within this conte2t of discrimination." $!h egad !o !he a&&u'ed, !he T$a% Cha)#e no!e' !ha! "he was one of the first $5$
member in opstina ,ri-edor and! in his own estimation! a trusted $5$ member who was ased to run a crucial plebiscite in the oarac area...3s organier of the plebiscite in oarac and ,resident of the local $5$! the accused had nowledge and supported the plan for a 6reater $erbia ...'e himself admits this nowledge and support for the plan whe n he describes himself as an enthusiastic supporter of the creation of Re+u#%$(a S'+(a46 The T$a% Cha)#e &on&%ude':6 The accused1s role in! $n!e a%$a ! the attac on oarac and the surrounding areas! as well as the seiure! collection! segregation and forced transfer of civilians to camps! calling*out of civilians! beatings and illings described above clearly constituted an infringement of the victims1 en-oyment of their fundamental rights and these acts were taen against non*$erbs on the basis of religious and political discrimination. 7urther! these acts occurred during an armed conflict! were taen against civilian as part of a widespread or systematic attac on the civilian population in furtherance of a policy to commit these acts! and the accused had nowledge of the wider conte2t in which his acts occurred". he accused is thus $uilty of a Crime a$ainst /umanity. Counts - to :+ 2orci&le sexual intercourse ;ith 929 Counts withdrawn at the Prosecutor's request.
Counts <* =* %* and %%+ >illin$s* &eatin$s and sexual mutilation in mars?a Accused not guilty of murder Accused guilty of cruel treatment and inhumane acts
14 A' !o !he #ea!$ng o" E)$ ?egano3$& and Sena d Mu'%$)o3$&, !he T$a% Cha)#e"is satisfied beyond reasonable doubt that the accused was one of the men who severely beat them." 4 A' !o !he #ea!$ng' o" !he E)$ .aa#a'$&, a')$n Hn$& and En3e A%$&, !he T$a% Cha)#e $' "further so satisfied that the accused was present on the hangar floor when the three victims were called out and attaced...! that the accused attaced Jasmin 'rnic with a nife...! too part in the attac upon and the beating of mir arabasic...and too part in the beating of Jasmin 'rnic". <4 A' !o !he a''au%! u+on and !he 'e8ua% )u!$%a!$on o" $(e! Haa)#a'$&, !he T$a% Cha)#e "is satisfied beyond reasonable doubt that the accused was on the hangar floor on this occasion...but is not satisfied that he too any active part in the assault and the mutilation". Ho2e3e, egad$ng !he !o!a%$!y o" !he a&!' &haged $n !h$' +aaga+h o" !he
Ind$&!)en!, !he T$a% Cha)#e "$nd' !ha! " the 3ccused in some instances was himself the p erpetator and in others intentionally assisted directly and substantially in the common purpose of inflicting physical suffering upon them and thereby aided and a betted in the commission of the crimes and is therefore individually responsible for each of them..." The T$a% Cha)#e !hu' "$nd' #eyond ea'ona#%e dou#! !ha! !he A&&u'ed $' gu$%!y a' &haged $n Coun! 10 *&ue% !ea!)en! and Coun! 11 *$nhu)ane a&!'4 ;4 A' !o !he a%%eged dea!h' o" $(e! Haa)#a'$&, E)$ .aa#a'$&, a')$n Hn$& and En3e A%$& "which it is said resulted from the assaults upon them"! !he T$a% Cha)#e no!e' !ha! "the ,rosecutor failed to elicit clear and definitive evidence from witnesses about the condition of the four prisoners after they had been assaulted (...) and to establish beyond reasonable doubt that any of these four prisoners died from in-uries received in the assaults made on them in the hangar...". 4 he rial Cham&er finds the accused $uilty of a violation of the la;s and customs of ;ar for his participation in the &eatin$s and other $rievous acts of violence inflicted on Enver !lic* Emir >ara&asic* @as?o /rnic* 1enad Auslimovic* 2i?ret /aram&asic and Ermir 7e$anovic* none of ;hom ;ere ta?in$ part in the hostilities. 2urther* it finds the accused $uilty of a crime a$ainst humanity+ the &eatin$s and other acts of violence ;hich ;ere suffered &y the six victims ;ere committed durin$ an armed conflict as part of a ;idespread or systematic attac? on a civilian population. "The accused intended for discriminatory reasons to inflict severe damage to the victims' physical and human dignity". Counts % and %:+ 7eatin$ of 1efi? 1ivac in mars?a Accused guilty
14 The Cha)#e "$nd' #eyond ea'ona#%e dou#! !ha! "$efi $ivac was beaten and that the accused was part of the group that threw $efi $ivac onto the floor...after he had been beaten and that $efi $ivac later died from these in-uries". 4 Ho2e3e, "there is no direct testimony that the accused was present during the beating of $efi $ivac" 4 ?u! !he T$a% Cha)#e "$nd' !ha! !hee $' e3$den&e !ha! "the accused intentionally assisted directly and substantially in the common purpose of the group to inflict severe suffering upon $efi $ivac". <4 he rial Cham&er finds the accused $uilty of a violation of the la;s and customs of ;ar (cruel treatment on a prisoner ;ho did not ta?e active part in the hostilities) and of a crime a$ainst humanity (inhumane act committed durin$ an armed conflict as part of a ;idespread and systematic attac? on a civilian population and intended for discriminatory reasons to inflict severe dama$e to the victimBs physical
inte$rity and human di$nity). Counts %< and %=+ 7eatin$s at mars?a Accused guilty
14 The T$a% Cha)#e $' 'a!$'"$ed #eyond ea'ona#%e dou#! !ha! !he a&&u'ed "severely beat and iced 'ai-a leovic and severely beat $alih leovic." 4 he rial Cham&er finds the accused $uilty of a violation of the la;s and customs of ;ar (cruel treatment of t;o Auslims neither of ;hom ;ere ta?in$ active part in the hostilities) and of a crime a$ainst humanity (inhumane act comm itted durin$ an armed conflict as part of a ;idespread...etc* see a&ove). Counts %' and -+ !&use of prisoners in mars?a Accused not guilty
14 A' !o !he a%%ega!$on' !ha! !he a&&u'ed 2a' a )e)#e o" a gou+ o" Se#' #ea!$ng +$'one' and "o&$ng !he) !o d$n( 2a!e "o) !he gound %$(e an$)a%', !he a&&u'ed 2a' no! na)ed #y !he Po'e&u!$on@' 2$!ne'' a' +a! o" !he gou+4 4 A' !o !he a%%ega!$on !ha! !he a&&u'ed d$'&haged !he &on!en!' o" a "$e e8!$ngu$'he $n!o !he )ou!h o" a )an $n a #ao2, "two factual deficiencies in the ,rosecution case have been e2posed8 ...no evidence has been furnished of such discharge! and....the ,rosecution has failed to establish that the man $n !he #ao2B was alive." <4 he rial Cham&er finds the accused not $uilty+ "no conclusive evidence has been presented linking the accused with the related acts." Counts -- and -+ 7eatin$ and a&use of /ase #cic in mars?a Accused guilty
14 The T$a% Cha)#e "$nd' #eyond ea'ona#%e dou#! !ha! !he a&&u'ed "was part of a group of $erbs who beat and iced 'ase 9cic until he was unconscious." 4 2or these acts committed in the context of the armed conflict* the rial Cham&er finds the accused $uilty of a violation of the la;s and customs of ;ar (cruel treatment of a Auslim not ta?in$ active part in the hostilities) and of a crime a$ainst humanity (inhumane act committed durin$ an armed conflict as part of a ;idespread...etc* see a&ove). Counts -* -<* and -D+ : ?illin$s in >oarac
Accused not guilty
14 The T$a% Cha)#e $' no! 'a!$'"$ed #eyond ea'ona#%e dou#! !ha! !he 'hoo!$ng and ($%%$ng #y !he a&&u'ed o" !he $nd$3$dua%' a! a ($o'( a! !he &one o" Ma'a%a T$!a S!ee! and !he oad !o .a%a!e $n .o=aa& o&&ued a' a%%eged, o $n "a&! !ha! !he 'hoo!$ng d$d !a(e +%a&e4 4 The T$a% Cha)#e ho2e3e $' 'a!$'"$ed !ha! !he a&&u'ed +a!$&$+a!ed $n !he &a%%$ng-ou! o" +eo+%e "o) !he )o3$ng &o%u)n4 <4 he rial Cham&er finds the accused not $uilty of murder (violation of the la;s and customs of ;ar) + "the Chamber is not satisfied beyond reasonable doubt that the four persons named were murdered". 2urther it finds the accused not $uilty of an inhumane act (crime a$ainst humanity)+ "although this Trial Chamber is convinced of the accused's participation in the callingout of people! such participation per se! in the Trial Chamber's view! cannot patently constitute an inhumane act within the meaning of Article of the #tatute FCrimes a$ainst humanityG9.
Counts * %* and :+ ?illin$s and D &eatin$s in @as?ici and 1ivci Accused not guilty of killing Accused not guilty of $ beatings Accused guilty of $ beatings
14 A' !o !he a%%eged ($%%$ng o" )en !a(en "o) !he$ h o)e', !he T$a% Cha)#e $' 'a!$'"$ed #eyond ea'ona#%e dou#! !ha! !he a&&u'ed 2a' +a! o" !he gou+ o" Se#' 2ho ounded u+ !he )en $n !he 3$%%age4 ?u! "it cannot be satisfied beyond reasonable doubt that the accused had any part in the illing of the five men or any of them...Nothing is nown as to who shot them or in what circumstances." 4 A' !o !he #ea!$ng' o" ?e$do ?a%$&, Se"$( ?a%$&, I')e! a'($& and Sa%(o a'($&, !he T$a% Cha)#e $' 'a!$'"$ed #eyond ea'ona#%e dou#! !ha! !he a&&u'ed "too part in the brutal and violent beating." <4 A' !o !he #ea!$ng o" I%$5a' E%(a'o3$&, $5a' E%(a'o3$&, Meho .en5a and Ada) a(u+o3$& "there is no evidence". ;4 he rial Cham&er then concludes that the accused is not $uilty of murder and not $uilty of some of the &eatin$s. 4here the accused is found $uilty of part of the
&eatin$s he is $uilty of a violation of the la;s and customs of ;ar (cruel treatment committed in the context of an armed conflict) and of a crime a$ainst humanity (inhumane acts committed durin$ an armed conflict as part of a ;idespread.* etc* see a&ove). ###. /E !CC51E"B1 "E2ENCE 2 !3#7#
Du'(o Tad$& a$'ed a de"en&e o" a%$#$ !o ea&h o" !he &oun!' &haged, &%a$)$ng he 2a' 'o)e2hee e%'e a! !he !$)e o" !he a%%eged a&!'4 He !e'!$"$ed unde 'o%e)n de&%aa!$on !ha! he had ne3e #een !o !he O)a'(a o .ea!e) &a)+' no had he +a!$&$+a!ed $n e!hn$& &%ean'$ng $n .o=aa&4 He !e'!$"$ed !ha! he ha d #een !o Tno+o%5e on "$3e o&&a'$on' #u! 2a' ne3e $n'$de !he &a)+4 A&&od$ng !o !he A&&u'ed, #e!2een < May and 1 une 199, he %$3ed 2$!h h$' "a)$%y $n ?an5a u(a, and 3$'$!ed o+'!$na P$5edo on%y "ou !$)e'4 ?e!2een 1 une and 1 Augu'! 199, he 'a$d he 2o(ed a' a e'e3e !a""$& +o%$&e)an a! a !a""$& &he&(+o$n! a! O%o3&$, &%o'e !o P$5edo4 o) 1 Augu'! un!$% 1 o3e)#e 199, he 'a$d 2o(ed $n .o=aa& a' a !a""$& +o%$&e)an4 On 1 Augu'! 199, he 2a' e%e&!ed Pe'$den! o" !he o&a% ?oad o" !he SDS $n .o=aa& and a++o$n!ed a' A&!$ng Se&e!ay o" !he o&a% Co))une o" .o=aa&4 On 9 Se+!e)#e 199, he 2a' e%e&!ed Se&e!ay o" !he o&a% Co))une, a de&$'$on 2h$&h #e&a)e e""e&!$3e on 9 o3e)#e 1994 In $!' "$nd$ng' o" "a&!, !he T$a% Cha)#e )ade !he "o%%o2$ng o#'e3a!$on' on !he A&&u'ed@' a%$#$ "o !he &$)e' a%%eged $n !he 3a$ou' +a aga+h' o" !he $nd$&!)en!: Count % (Para$raph : of the #ndictment)+ The e3en!' a%%eged $n !h$' +aaga+h ae 'a$d !o ha3e o&&ued a! 3a$ou' %o&a!$on' $n o+'!$na P$5edo #e!2een < May and <1 De&e)#e 199, a++o8$)a!e%y4 A&&od$ng !o !he Cha)#e, "the 5efence assertion that the accused was not in oarac at this time cannot be accepted. The evidence of the 5efence witnesses who happened to be in oarac during the attac
(. . .) attests only to their not having seen the accused in oarac while they were there." Counts ,%% (para$raph <)+ o !he e3en!' a%%eged, !he a&&u'ed e%$e' e8&%u'$3e%y on h$' de"en&e o" a%$#$4 He 'ay' !ha! on 1 une 199, 2hen !he !hee e3en!' a%%eged o&&ued, he 2a' %$3$ng $n P$5edo and 2o($ng a' a !a""$& +o%$&e)an4 ":T;he Trial 0hamber does not accept the accused1s account of his whereabouts from <= June to <> June ?/. (. . .) 3ccordingly! for
the incidents alleged in paragraph @! the accused1s checpoint duty affords no alibi." Counts %-,%: (para$raph =)+ o !he e3en!' a%%eged $n +aaga+h 7, 2h$&h o&&ued on , 9 o 10 u%y 199, "the accused has no specific alibi for the late evening and night of A or
"(. . .) the Trial 0hamber re-ects the 5efence contention that the accused was somehow rendered largely immobile because of the fact that he did not own a car." E3en $" !he e3en!' a%%eged !oo( +%a&e on !he n$gh! o" 9 u%y 199, a n$gh! 2hen !he e&od' o" O%o3&$ &he&(+o$n! 'ho2 h$) !o ha3 e #een on du!y, and ":e;ven if these records are accepted as accurately reflecting the shifts to which the accused was assigned! they can only establish the hours when the accused was meant to be on duty at the checpoint they do not of themselves establish his presence there throughout those ho urs." Counts %,%D (para$raph D)+ The Cha)#e "$nd' !ha! $" !he e3en!' a%%eged $n !h$' +aaga+h "occurred in the afternoon of /> July ?/! as the evidence of rmin $triovic states! the accused has no specific alibi. 'is checpoint duty at Orlovci on that date began at > p.m. and if the accused had transport available to him he would have had ample time during that day to travel to Omarsa from ,ri-edor! carry out the acts alleged and return in time to tae up his checpoint duties." Counts %D,- (para$raph ')+ The e3en!' a%%eged ae 'a$d !o ha3e o&&ued a! !he O)a'(a &a)+, $n %a!e une o ea%y u%y4
"The 5efence contention that the accused was never at the Omarsa camp and that! in any event! at the relevant time! his duties with the traffic police precluded him from having committed the acts alleged (. . .) is re-ected by the Trial 0hamber. Numerous credible witnesses have testified that they saw the accused at the camp and (. . .) the accused1s assignment to the Orlovci checpoint wou ld not preclude him from carrying out what the ,rosecution described as his "higher duty" as a traffic policeman to implement ethnic cleansing to achieve a 6reater $erbia. 3ccordingly! the Trial 0hamber re-ects the accused1s alibi and his assertion that he was never at the Omarsa camp." Counts -%,- (para$raph %)+ The e3en!' &haged $n !h$' +aaga+h a++ea !o ha3e o&&ued on 7 o u%y 1994 "The Trial 0hamber finds that the assignment records for the Orlovci checpoint do not provide the accused with an alibi (. . .) The assignment records reflect that on those nights! the accused was off duty. On > July ?/! the accused was off duty after > a.m. and offered no testimony regarding his whereabouts. On A July ?/ the records reflect
that he completed his assignment at > p.m. and he liewise offered no testimony regarding his whereabouts at the time these events occurred. ,ri-edor is about /B ilometres from the Omarsa camp. The travel time is CB*C= minutes by car." Counts -:,-D (para$raph %%)+ Th$' +aaga+h &hage' !he a&&u'ed 2$!h e3en!' o&&u$ng aound 7 May 199 $n .o=aa&4 Thee 2$!ne''e' 2ee &a%%ed #y !he Po'e&u!$on !o g$3e e3$den&e a#ou! !he a&&u'ed@' o%e, and add$!$ona% Po'e&u!$on 2$!ne'' !e'!$)ony 'ough! !o e'!a#%$'h !he a&&u'ed@' +e'en&e $n .o=aa& on !h$' day4
h$%e no!$ng $n&on'$'!en&$e' #e!2een !he e3$den&e o" !he'e 2$!ne''e', !he T$a% Cha)#e "ound !ha! !he "evidence of all or any (. . .) of four 5efence witnesses! who had passed through +arsala Tita $treet! does not afford an alibi to the accused e2cept to indicate that they did not happen to see the accused in oarac on that day while they were there." Counts -',: (para$raph %-)+ The e3en!' ae a%%eged !o ha3e ha++ened aound 1; une 199 $n a'($&$ and S$3&$4 The T$a% Cha)#e "ound !ha! !he a&&u'ed@' a%$#$ "does not deal specifically with <4 June ?/ and (. . .) is generally unspecific as to date in respect of this period". #0. THE IAPPICA?IIT O THE COTS C/!R6#N6 /E !CC51E" 4#/ RAVE ?REACHES
The T$a% Cha)#e, #y a )a5o$!y o" !2o !o one *udge M&Dona%d, d$''en!$ng, "$nd' !ha! !he a&&u'ed &ou%d no! #e &haged 2$!h ga3e #ea&he' unde A!$&%e #e&au'e !he a%%eged 3$&!$)' 2ee no! +o!e&!ed +e'on' unde A!$&%e ; o" !he ou!h ene3a Con3en!$on o" 19;94 6 7or that reason! 3rticle / is inapplicable (e2cept in respect of citiens of the %epublic of &osnia and 'eregovina who actually found themselves in the hands of the JN3 :#ugoslavia ,eople1s 3rmy; before +ay ?/ or the DJ :3rmy of the 7ederal %epublic of #ugoslavia; and 7%# :7ederal %epublic of #ugoslavia;! after +ay)". In &on'euen&e o" !h$' "$nd$ng, Coun!' , , 9, 1, 1, 1, 1, ;, 7, 9 and < ha3e #een d$')$''ed4 In ode "o A!$&%e !o #e a++%$&a#%e, !he 3$&!$)' )u'! #e +o!e&!ed +e'on', and !he &on"%$&! )u'! #e $n!ena!$ona% $n &haa&!e4 The )a5o$!y "$nd' !ha! 2h$%e "from the beginning of ?/ until +ay ?/! a state of international armed conflict e2isted in at least part of the territory of &osnia and 'eregovina (. . .) between the forces of the %epublic of &osnia and 'eregovina on the one hand and those of the 7ederal %epublic of #ugoslavia ($erbia and +ontenegro)! being the JN3 (later the DJ)! woring
with sundry paramilitary and &osnian $erb forces! on the other"! a"!e 19 May 199, !h$' a)ed &on"%$&! 2a' no! o" a &haa&!e !o 5u'!$"y !he $)+o'$!$on o" A!$&%e *ga3e #ea&he' o" !he S!a!u!e, #e&au'e !he 3$&!$)' 2ee no! +o!e&!ed +e'on', !ha! $', !hey 2ee no! $n !he hand' o" a +a!y !o !he &on"%$&! o o&&u+y$ng +o2e o" 2h$&h !hey 2ee no! na!$ona%'4 On 19 May 199, !he A o""$&$a%%y 2$!hde2 "o) !he Re+u#%$& o" ?o'n$a and He=ego3$na4 "(. . .) the Euestion for this Trial 0hamber is whether! after +ay ?/! the 7ederal %epublic of #ugoslavia (. . .) by its withdrawal from the territory of the %epublic of &osnia and 'eregovina and notwithstanding its continuing support for the D%$ A)y o" Re+u#%$(a S+'(aB ! had sufficiently distanced itself from the D%$ so that those forces could not be regarded as de "a&!o organs or agents or the DJ and hence of the 7%# (. . .)" I" a agen&y e%a!$on'h$+ &ou%d #e +o3en, !hen a&!' &o))$!!ed #y !he VRS aga$n'! na!$ona%' o" !he Re+ u#%$& o" ?o'n$a and He=ego3$na &ou%d #e &on'$deed !o #e a&!' aga$n'! non-na!$ona%'4 In de&$d$ng 2ha! &on'!$!u!e' agen&y "o !he +u+o'e' o" !he a++%$&a#$%$!y o" A!$&%e , !he Cha)#e &on'$deed !he 0ase 0oncerning +ilitary and ,aramilitary 3ctivities in and 3gainst Nicaragua :Nicaragua;, 2h$&h 2a' de&$ded #y !he In!ena!$ona% Cou! o" u'!$&e4 h$%e no!$ng !ha! !ha! &a'e 2a' &on&ened 2$!h !he e'+on'$#$%$!y o" a S!a!e and !he e8!an! &a'e $' &on&ened 2$!h !he e'+on'$#$%$!y o" $nd$3$dua%', and !ha! !he "a&!' o" ea&h &a'e ae 'u#'!an!$a%%y d$""een!, !he )a5o$!y a++%$ed !he e''en&e o" !he !e'! 2h$&h !hey &on'$deed !o #e %a$d do2n $n Nicaragua4 Thee, !he In!ena!$ona% Cou! o" u'!$&e a'(ed: 62he!he o no! !he e%a!$on'h$+ o" !he contras !o !he S o3en)en! 2a' 'o )u&h one o" de+enden&e on !he one '$de and &on!o% on !he o!he !ha! $! 2ou%d #e $gh! !o eua!e !he &on!a', "o %ega% +u+o'e', 2$!h an ogan o" !he S o3en)en!, o a' a&!$ng on #eha%" o" !ha! o3en)en!64 In !he &on!e8! o" !he e8!an! &a'e, !he !e'! 2ou%d #e 2he!he 6the reEuisite degree of command and control by the DJ! and hence the 7%# (. . .) over the D%$ is established for the purpose of imputing the acts of those forces operating in opstina ,ri-edor or the D%$ as a whole to the 7%# (. . .)." A&&od$ng !o !he Cha)#e, !he Po'e&u!o )u'! +o3e !ha! "the nature of the relationship between the D%$ and the government of the 7%#! and between the D%$ and DJ in particular! was of such a character. 9n doing so it is neither necessary or sufficient merely to show that the D%$ was dependent! even completely dependent! on the DJ and the 7%# (. . .) for the necessities of war. 9t must also be shown that the DJ and the 7%# e2ercised the potential for control inherent in that relationship of dependency or that the D%$ has otherwise placed itself under the control of the
6overnment of the 7%#." In o!he 2od', !he !e'! $' one o" e""e&!$3e &on!o%4 The T$a% Cha)#e "ound !ha! !hee 2ee !2o e%a!$on'h$+' o" e'+e&$a% $)+o!an&e !o !he de!e)$na!$on: *1 !ha! #e!2een !he enea% M%ad$& and !he VRS Ma$n S!a"" and ?e%gade> and * !ha! #e!2een !he SDS *and hen&e RS and !he o3en)en! o" R4 h$%e "$nd$ng !ha! !hee 2a' &o-od$na!$on #e!2een !he VRS Ma$n S !a"" and !he V Ma$n S!a"" $n ?e%gade, !he )a5o$!y he%d !ha! "co*ordination is not the same as command and control. The only other evidence submitted by the ,rosecution was that! in addition to routing all high*level D%$ communications through secure lins in &elgrade! a communications lin for everyday use was established and maintained between D%$ +ain $taff 'eadEuarters and the DJ +ain $taff in &elgrade. No further evidence was led by the ,rosecution on the nature of this relationship." Regad$ng *, !he )a5o$!y no!ed !ha! !he +o%$!$&a% %eade' o" RS 2ee +o+u%a%y e%e&!ed #y !he ?o'n$an Se#' o" !he Re+u#%$& o" ?o'n$a and He=ego3$na, and !he $nde+enden&e o" RS 2a' de&%aed #y a 3o!e o" !he ?o'n$an Se# A''e)#%y, and a'(ed 2he!he, $n '+$!e o" !h$', $! &ou%d $n"e !ha! !he ne&e''ay deg ee o" e""e&!$3e &on!o% 2a' e8e&$'ed #y !he R o3e !he )$%$!ay o+ea!$on' o" !he RS a)ed "o&e', and "$nd !ha! !he VRS 2a' no!h$ng )oe !han a de facto ogan o agen! o" !he R4 The )a5o$!y "ound !ha! !hee 2a' no e3$den&e !ha! non-?o'n$an Se# )e)#e' o" !he VRS 2ee '+e&$"$&a%%y &haged #y ?e%gade 2$!h !he &ay$ng ou! o" &e!a$n a&!' o" $!' #eha%"4 Se&ond%y, 2h$%e "it is clear from the evidence presented that the pay of all
to attempt to direct! the actual military operations of the D%$! or to influence those operations b eyond that which would have flowed naturally from the co*ordination of military ob-ectives and activities by the D%$ and DJ at the highest levels. 9n sum! while (. . .) the evidence available to this Trial 0hamber clearly shows that the "various forms of assistance provided" to the armed forces of the %$ by the 6overnment of the 7%# (. . .) was "crucial to the pursuit of their activities"! and (. . .) those forces were almost completely dependent on the supplies of the DJ to carry out offensive operations! evidence that the 7%# (. . .) through the DJ "made use of the potential for control inherent in that dependence"! or was otherwise given effective control over those forces and which it e2ercised! is similarly insufficient. "9t is of course possible! on or in spite of the evidence presented! to view the acts of the JN3 and the 6overnment of the 7%# (. . .) on or about +ay ?/ as nothing more than a cynical and intentional creation of the ob-ective factors necessary to distance themselves from direct legal responsibility for the acts of the armed forces of the %$! while doing everything to ensure that the material factors necessary to ensure the successful continuation of the armed conflict to achieve the same military and political goals were ept in place. ven if the legal effect of creating such ob-ective factors! which caused no small amount of difficulty to the JN3 and the 6overnment of the 7%# (. . .) could be vitiated by reason of some fraudulent intention! which this Trial 0hamber doubt! that is not the only nor the most reasonable conclusion open on the evidence presented. There is! in short! no evidence on which this Trial 0hamber may confidently conclude that the armed forces of the %$ and the %$ as a whole! were anything more than allies! albeit highly dependent allies! of the 6overnment of the 7%#." Thu', !he "Trial 0hamber is! by ma-ority with the ,residing Judge dissenting! of the view that! on the evidence presented to it! after +ay ?/ the armed forces of the %$ could not be considered as de facto organs or agents if the 7%# (. . .)! either in opstina ,ri-edor or more generally." 1eparate and "issentin$ pinion of @ud$e Ac"onald
The Pe'$d$ng udge, a#$e%%e .$( M&Dona%d, "ound, ho2e3e, !o !he &on!ay4 She &on&%uded !ha! a! a%% !$)e' e%e3an! !o !he Ind$&!)en!, !he a)ed &on"%$&! $n o+'!$na P$5edo 2a' $n!ena!$ona% $n &haa&!e, !ha! !he 3$&!$)' 2ee +o!e&!ed +e'on' and !ha! A!$&%e 2a' a++%$&a#%e4 In he 'e+aa!e and d$''en!$ng o+$n$on, udge M&Dona%d no!e' !ha! !he )a5o$!y +u+o!' !o a++%y !he e''en&e o" !he !e'! $n !he Nicaragua&a'e4 "The standard crafted by the ma-ority! however! departs from Nicaragua (. . .). the standard the ma-ority has created
is even more demanding." A&&od$ng !o !he udge: "(. . .) there are two bases on which the acts of the D%$ could be attributed to the 7%# (. . .)8 where the D%$ acted as an agent of the 7%# (. . .)! which could be established by a finding of dependency on the one side and control on the other or where the D%$ was specifically charged by the 7%# (. . .) to carry out a particular act on behalf of 7%# (. . .) thereby maing the act itself attributable to the 7%# (. . .) 9n Nicaragua! the court reEuired a showing of effective control for this latter determination. h$%e "$nd$ng !ha! !he "evidence presented to the Trial 0hamber supports a finding of effective control of the D%$ by the 7%# (. . .) in opstina ,ri-edor at all times relevant to the charges in the 9ndictment!" udge M&Dona%d '!a!e' !ha! "the appropriate test of agency from Nicaragua is one of 1dependency and control1 and a showing of effective control is not reEuired". A&&od$ng !o udge M&Dona%d: "the evidence supports a finding beyond reasonable doubt that the D%$ acted as an agent of the 7%# (. . .) in regard to the attac and occupation of opstina ,ri-edor during the times relevant to the charges in the 9ndictment and the victims are thus protected persons. The dependency of the D%$ on and the e2ercise of control by the 7%# (. . .) support this finding of agency under either the ma-ority1s standard of effective control or under the more general test of dependency and control. (. . .) 9The evidence proves that the creation of the D%$ was a legal fiction. The only changes made after the <= +ay ?/ $ecurity 0ouncil resolution were the transfer of troops! the establishment of a +ain $taff of the D%$! and a change in the insignia. There remained the same weapons! the same eEuipment! the same officers! the same commanders! largely the same troops! the same logistics centres! the same infrastructure! the same source of payments! the same goals and mission! the same tactics! and the same operations. 9mportantly! the ob-ectives remained the same8 to create an ethnically pure $erb $tate by uniting $erbs in &osnia and 'eregovina and e2tending that $tate from the 7%# (. . .) to the 0roatian ra-ina along the important logistics and supply line that went through opstina ,ri-edor! thereby necessitating the e2pulsion of the non* $erb population of the opstina."
"3lthough there is little evidence that the D%$ was formally under the co mmand of &elgrade after +ay ?/! the D%$ clearly continued to operated as an integrated and instrumental part of the $erbian war effort. This finding is supported by e vidence that
every D%$ unit had been a unit in the JN3! the command and staffs remained virtually the same after the re*designation. (. . .) "9n addition! the evidence establishes that the D%$! in continuing the JN3 operation to tae over opstina ,ri-edor! e2ecuted the military operation for the benefit of the 7%# (. . .)6 A&&od$ng !o udge M&Dona%d, !he e3$den&e 'u++o!' a "$nd$ng !ha! "despite the purported JN3 withdrawal from &osnia and 'eregovina on +ay ?/! active elements of what had been the JN3 and was now rechristened as the DJ operated in tandem with the D%$ in &osnia and 'eregovina. 9n particular! DJ air crews and aircraft remained in &osnia and 'eregovina after the purported +ay withdrawal and wored with the D%$ throughout ?/ and ?C. This and other evidence (. . .) provides that there was no material change in the armed forces in opstina ,ri-edor! and that the conflict remained international after +ay ?/! with the 7%# (. . .) e2ercising effective control of the operations of the D%$ in opstina ,ri-edor." Regad$ng !he e%a!$on'h$+ #e!2een !he VRS Co))ande enea% Ra!(o M%ad$& and !he V Ma$n S!a"" $n ?e%gade, udge M&Dona%d "$nd' !ha!: "9t is enough that 6eneral +ladic! who had been a commander in the JN3! continued to carry out his orders which were issued by the 7%# before +ay ?/! considering the evidence that establishes that there was direct communication between his office and &elgrade." Regad$ng !he Ma5o$!y@' "$nd$ng !ha! !he R and !he VRS 2ee a%%$e', and !hu', !ha! 6!hee 2a' no e""e&!$3e &on!o%6, udge M&Dona%d "$nd' !ha! "this supports! rather than vitiates! the status of the D%$ as an agent." The udge &on&%ude': "9 Euestion why there should be a reEuirement that effective control was in fact e2ercised when the 7%# (. . .) was assured that! having transferred officers and enlisted men and provided the )a!J$e% ! thereby depleting its forces! its plan would be e2ecuted. (. . .) The occupation of opstina ,ri-edor could be accomplished only after the JN3! on behalf of the 7%#! set it in motion and gave the D%$ the wherewithal to accomplish it. Fnder such circumstances! there was no need for effective control! however! because the very establishment and continued e2istence of the D%$ is evidence of such control. (. . .) The ey issue here is whether the D%$ was indeed dependent on and controlled by the 7%# (. . .). "9n summary! the evidence supports a finding beyond reasonable doubt that the D%$ acted as an agent of the 7%# (. . .) in regard to the attac and occupation of opstina ,ri-edor during the times relevant to the charges in the 9ndictment and the victims are
thus protected persons. The dependency of the D%$ on and the e2ercise of control by the 7%# (. . .) support this finding of agency under either the ma-ority1s standard of effective control or under the more general test of dependency and control. 'owever! a close reading of Nicaragua leads me to conclude that the effective control standard supports a distinct and separate basis for the attribution of the conduct of non*agents to a $tate! and that it is not a necessary element for a finding of an agency relationship."