UNITED NATIONS International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of Former Yugoslavia since 1991 Case No IT-95-11-T Date 12 June 2007 Original English IN TRIAL CHAMBER I Before Judge Bakone Justice Moloto Presiding Judge Janet Nosworthy Judge Frank Höpfel Registrar Mr Hans Holthuis Judgement of 12 June 2007 PROSECUTOR v MILAN MARTI JUDGEMENT The Office of the Prosecutor Mr Alex Whiting Ms Anna Richterova Mr Colin Black Ms Nisha Valabhji Counsel for Milan Martić Mr Predrag Milovan evi Mr Nikola Perovi 5 134 imst OWN Dob-I MHI an Jiddh EN 1 erqu Insulin-In IE ugh i -I horde i grrira'r $4 333 r 'i'rp lbvilmi Wm JInoI-n nm 'Il'j'sls J' oil-now - '61 II Xi 'M mskwu In lu plls'r s Lu I - Nun- 939 - I hill-Inf A k 5 E inihl - 1 f l un l I Null 1 4 j'SHIBhll r 'cnm u-I- 1_ imam Chi FII- HI In - Iul I 1 I Contents List of abbreviations and acronyms 5 I INTRODUCTION 7 A The Accused Milan Martić 7 B Overview of the case against Milan Martić 7 C Interpretation of the Indictment 9 D General considerations regarding the evaluation of evidence 12 1 General 12 2 Witnesses whose evidence has been assessed with particular caution 15 II APPLICABLE LAW 18 A General requirements of Article 3 of the Statute 18 1 Generally 18 2 Existence of an armed conflict and the nexus requirement 19 3 The Tadić conditions 20 4 “Persons taking no active part in the hostilities” 21 B General requirements of Article 5 of the Statute 21 1 Elements 21 2 Applicability of Article 5 to non-civilians 23 C Murder 27 D Extermination 28 E Attacks on civilians 29 F Torture 30 G Cruel treatment 32 H Other inhumane acts 32 I Imprisonment 33 J Wanton destruction of villages or devastation not justified by military necessity 34 K Destruction or wilful damage done to institutions dedicated to education or religion 36 L Plunder of public or private property 37 M Deportation and other inhumane acts forcible transfer 38 N Persecution 40 O The Defence’s challenge to the concept of JCE 42 III FACTUAL FINDINGS 43 A Background 43 B The SAO Krajina 44 1 Development of the SAO Krajina 44 2 Support provided to the SAO Krajina 49 3 Training camp in Golubić and “Martić’s Police” 51 C The RSK 53 1 Development of the RSK 53 2 Cooperation with and assistance from Serbia 58 D Armed clashes between Serb and Croatian forces 60 1 During spring and summer of 1991 60 2 Hrvatska Dubica Cerovljani and Ba in 63 a Take-over of Hrvatska Kostajnica and Hrvatska Dubica 63 b Hrvatska Dubica 64 c Cerovljani 68 d Ba in and surroundings 69 e Destruction in Cerovljani Hrvatska Dubica and Baćin after December 1991 71 3 Saborsko area 72 a Municipality of Plaški 72 Case No IT-95-11-T 2 12 June 2007 b Lipovača 73 c Poljanak and Vukovići 76 d Saborsko 79 i Attack on Saborsko on 12 November 1991 81 ii Killings in Saborsko on 12 November 1991 83 4 kabrnja and Nadin 86 a kabrnja Nadin and surrounding villages 86 b Situation in Škabrnja Nadin and surroundings prior to 18 November 1991 86 c Attack on kabrnja and Nadin on 18 and 19 November 1991 88 d Evidence of units present in Škabrnja 90 e Killings in Škabrnja and Nadin 92 i Killings at Slavko Šegarić’s house in Ambar on 18 November 1991 92 ii Killings at Petar Pavi i ’s house in Škabrnja on 18 November 1991 93 iii Killings at Pere Sopić’s house in Nadin on 19 November 1991 95 iv Other killings in Škabrnja and Nadin 96 f Investigations into the events in Škabrnja and Nadin on 18 and 19 November 1991 100 g Destruction in kabrnja and Nadin 100 5 Bru ka 101 E Detention-related crimes 104 1 SJB in Titova Korenica 104 2 Detention facilities in Benkovac 105 3 Detention facilities in Knin 105 a Detention at the JNA 9th Corps barracks 106 b Detention facility at the old hospital in Knin 107 F Crimes of deportation and forcible transfer 110 G Attacks on Zagreb on 2 and 3 May 1995 113 1 “Operation Flash” 113 2 Shelling of Zagreb 114 a 1 May 1995 – Preparation for attack 114 b 2 May 1995 114 c 3 May 1995 116 3 Involvement of the RSK leadership in the shelling of Zagreb 117 H Acts of persecution carried out against non-Serbs in the SAO Krajina and the RSK 120 1 1991 120 2 1992 121 3 1993-1995 122 I The political objective of the Serb leadership 122 J Milan Martić’s knowledge of and reactions to crimes committed 125 IV RESPONSIBILITY OF MILAN MARTIĆ 129 A Findings on the crimes charged 129 1 General requirements of Article 3 of the Statute 129 2 General requirements under Article 5 of the Statute 131 3 Counts 1 3 to 4 and 12 to 14 – Persecution murder destruction and plunder Articles 3 and 5 132 a Hrvatska Dubica 132 b Cerovljani 134 c Baćin and surroundings 135 d Lipovača and neighbouring hamlets 137 e Vukovići and Poljanak 138 f Saborsko 140 g Vaganac 142 h Škabrnja 143 i Bruška 147 4 Count 2 – Extermination 148 Case No IT-95-11-T 3 12 June 2007 5 Counts 1 and 5 to 9 – Detention-related crimes and persecution 149 a Detention facility at the JNA 9th Corps barracks in Knin 149 b Detention facility at the old hospital in Knin 150 c Detention facility at the SJB in Titova Korenica 151 d Detention facilities in Benkovac 152 6 Counts 1 10 and 11 – Persecution deportation and forcible transfer 153 7 Counts 1 and 15 to 19 – Shelling of Zagreb on 2 and 3 May 1995 155 B Findings on the individual criminal responsibility of Milan Martić 156 1 JCE pursuant to Article 7 1 of the Statute 156 2 Ordering pursuant to Article 7 1 of the Statute 158 3 Findings on Counts 1 to 14 158 a Common purpose 158 b Plurality of persons 160 c Milan Martić’s participation in the JCE 161 4 Findings on Counts 1 and 15 to 19 164 a Milan Martić’s ordering of the shelling of Zagreb on 2 and 3 May 1995 164 b Military targets in Zagreb and the nature of the M 87 Orkan 165 c Defence argument on reprisals 166 d General requirements of Article 3 and Article 5 of the Statute 168 e Counts 15 and 16 – Murder 169 f Counts 17 and 18 – Inhumane acts under Article 5 i and cruel treatment under Article 3 169 g Count 19 – Attacks on civilians under Article 3 169 h Count 1 – Persecution 170 C Cumulative convictions 170 D Summary of the Trial Chamber’s findings in relation to each count 172 V SENTENCING LAW AND FACTS 173 A Applicable law 173 1 Principles and purposes of sentencing 175 2 Gravity and individual circumstances of the convicted person 175 3 Aggravating and mitigating factors 177 a Aggravating circumstances 178 b Mitigating circumstances 180 4 General practice regarding sentencing in the former Yugoslavia 183 VI DISPOSITION 185 ANNEX A – PROCEDURAL HISTORY 187 A Pre-trial proceedings 187 B Trial proceedings 189 1 Overview 189 2 Testimony and evidence of Milan Babi 191 3 Site visit 193 ANNEX B – LIST OF CASES SOURCES AND SHORT CITES 194 C ICTY 194 D ICTR 197 E ICJ 197 F Other 197 Case No IT-95-11-T 4 12 June 2007 List of abbreviations and acronyms Additional Protocol I Additional Protocol II APC BiH Common Article 3 Defence Defence Final Trial Brief ECHR Ex fn FNU Geneva Convention III Geneva Convention IV Geneva Conventions HDZ HVO ICCPR ICRC Indictment JCE JNA MUP p pp para paras PJM Prosecution Prosecution Final Trial Brief Rules Rules of Detention RS RSK SAO SDB SDS SFRY Case No IT-95-11-T Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of International Armed Conflicts Protocol I Geneva 12 December 1977 Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of NonInternational Armed Conflicts Protocol II Geneva 12 December 1977 Armoured Personnel Carrier vehicle Bosnia and Herzegovina Article 3 common to the four Geneva Conventions of 1949 Defence of Milan Martić Final trial brief of Milan Martić filed confidentially on 5 Jan 2007 public version filed on 17 Jan 2007 European Convention for the Protection of Human Rights and Fundamental Freedoms Rome 4 November 1950 Exhibit Footnote First name unknown Geneva Convention Relative to the Treatment of Prisoners of War of 12 August 1949 Geneva Convention Relative to the Protection of Civilian Persons in Time of War of 12 August 1949 Geneva Conventions I to IV of 12 August 1949 Croatian Democratic Union Croatian Armed Forces International Covenant on Civil and Political Rights G A res 2200A XXI 21 U N GAOR Supp No 16 at 52 U N Doc A 6316 1966 999 U N T S 171 International Committee of the Red Cross Second Amended Indictment in this case filed on 9 Dec 2005 Joint criminal enterprise pursuant to Article 7 1 of the Statute Yugoslav People’s Army Ministry of Interior Page Pages Paragraph Paragraphs Special Police Brigade The Office of the Prosecutor Final Trial Brief of the Prosecution filed confidentially on 5 Jan 2007 public version filed on 17 Jan 2007 Rules of Procedure and Evidence of the Tribunal Rules Governing the Detention of Persons Awaiting Trial or Appeal Before the Tribunal or Otherwise Detained on the Authority of the ICTY Republika Srpska in Bosnia and Herzegovina Republic of Serbian Krajina Serbian Autonomous District State Security Service Serbian Democratic Party Socialist Federal Republic of Yugoslavia 5 12 June 2007 SJB SNC Statute SUP SVK T TO UN UNCIVPOL UNCRO UNDU UNMO UNPA UNPROFOR VRS VJ Z-4 Plan ZNG Case No IT-95-11-T Public Security Station i e police station Serbian National Council Statute of the International Tribunal for the Former Yugoslavia established by Security Council Resolution 827 as amended by Resolution 1481 Secretariat for Internal Affairs Army of the Republic of Serbian Krajina Page in the transcript of this trial Territorial Defence United Nations United Nations Civilian Police United Nations Confidence Restoration Operation United Nations Detention Unit United Nations Military Observers United Nations Protected Area United Nations Protection Force Army of the Republika Srpska Army of the Federal Republic of Yugoslavia Zagreb 4 Plan Croatian National Guards Corps 6 12 June 2007 I INTRODUCTION A The Accused Milan Martić 1 Milan Martić was born on 18 November 1954 in the village of Žagrović Knin municipality in the Republic of Croatia SFRY 1 He graduated from the Post-Secondary Police School in Zagreb and between 1976 and 1981 worked as a policeman at the Public Security Station “SJB” in Šibenik After 1982 Milan Martić was a Junior Police Inspector in Knin and was eventually promoted to Chief of the SJB 2 2 From 4 January 1991 until August 1995 Milan Martić held various positions within the Serbian Autonomous Region of Krajina “SAO Krajina” and the Republic of Serbian Krajina “RSK” governments including Chief of the Police in Knin Secretary for Internal Affairs of the SAO Krajina Minister of Defence of the SAO Krajina Deputy Commander of the TO of the SAO Krajina Minister of the Interior of the SAO Krajina and of the RSK and President of the RSK 3 B Overview of the case against Milan Martić 3 The Prosecutor “Prosecution” charges Milan Martić with 19 counts brought under Article 3 and Article 5 of the Statute of the Tribunal “Statute” 4 4 The Prosecution alleges that Serb forces comprised of inter alia units of the Yugoslav People’s Army ”JNA” later the Yugoslav Army “VJ” the Republika Srpska “RS” army “VRS” the Territorial Defence “TO” and forces of the Ministry of the Interior “MUP” of both the SAO Krajina later the RSK and the Republic of Serbia “Serbia” including the police forces of the SAO Krajina and the RSK commonly referred to as “Martić’s Police” and paramilitary units committed persecutions in the SAO Krajina and the RSK between August 1991 and December 1995 It is further alleged that these acts of persecution included the extermination and murder of hundreds of Croats Muslims and other non-Serb civilians including in the villages of Hrvatska Dubica Cerovljani Baćin Saborsko Poljanak including the hamlet of Vukovići Lipovača and neighbouring villages Škabrnja Nadin and Bruška including the hamlet of Marinovići the prolonged and routine imprisonment of hundreds of Croats Muslims and non-Serb 1 Ex 76 See also Ex 493 p 1 which provides Milan Martić’s birthplace as “Žagorić near Knin” Ex 493 p 1 3 See infra paras 135 151 156 4 Article 3 Counts 4 and 16 Murder Count 8 Torture Counts 9 and 18 Cruel treatment Count 12 Wanton destruction of villages or devastation not justified by military necessity Count 13 Destruction or wilful damage done to institutions dedicated to education or religion Count 14 Plunder of public or private property Count 19 Attacks on civilians Article 5 Count 1 Persecutions Count 2 Extermination Counts 3 and 15 Murder Count 5 Imprisonment Count 6 Torture Count 7 and 17 Inhumane Acts Count 10 Deportation Count 11 Other inhumane Acts Forcible transfer 2 Case No IT-95-11-T 7 12 June 2007 civilians in specified detention facilities the torture and inhumane treatment of prisoners and the deportation and forcible transfer of tens of thousands of non-Serb civilians from the territory of the SAO Krajina and the RSK In addition it is alleged that public and private property in the SAO Krajina and the RSK was intentionally destroyed or plundered including buildings dedicated to religion or education that restrictive and discriminatory measures were imposed against the Croat Muslim and other non-Serb civilian population Moreover it is alleged that unlawful attacks were carried out on Zagreb and undefended Croat and Muslim villages 5 For each count individual criminal responsibility is charged under both Article 7 1 and 3 of the Statute The Prosecution alleges that Milan Martić participated in a joint criminal enterprise “JCE” together with among others Slobodan Milošević Veljko Kadijević Blagoje Adžić Milan Babić Jovica Stanišić Franko “Frenki” Simatović Radovan Karadžić Ratko Mladić and other named and unnamed individuals of inter alia the JNA later the VJ the RSK army “SVK” the VRS the TO and forces of the MUP of both the SAO Krajina later the RSK and Serbia including “Martić’s Police” and the State Security Service “SDB” of Serbia and Serb paramilitary forces It is alleged that the JCE came into existence before 1 August 1991 and continued until at least August 1995 and that the common purpose of the JCE was “the forcible removal of a majority of the Croat Muslim and other non-Serb population from approximately one-third of the territory of the Republic of Croatia “Croatia” and large parts of the Republic of Bosnia and Herzegovina “BiH” in order to make them part of a new Serb-dominated state ” 5 The Prosecution alleges that all crimes charged in the Indictment were within the object of the JCE and that at all relevant times Milan Martić held the necessary state of mind for the commission of each of these crimes In the alternative the Prosecution alleges that the crimes enumerated in Counts 1 to 9 and 12 to 19 were a natural and foreseeable consequence of the execution of the common purpose of the JCE and that Milan Martić was aware that such crimes were the possible outcome of the execution of the JCE 6 The Prosecution alleges that Milan Martić participated in the JCE by inter alia creating financing supplying training and directing the “Martić’s Police” and the TO of the SAO Krajina and the RSK and by creating training and directing special police forces of the SDB of Serbia Moreover the Prosecution alleges that Milan Martić participated in the planning preparation and execution of the take-over of territories in the SAO Krajina and RSK territory and that Milan Martić personally participated in military actions and subsequent crimes of these forces including in the subsequent removal of the non-Serb population 5 Indictment paras 4 6 Case No IT-95-11-T 8 12 June 2007 7 The Prosecution also charges Milan Martić with responsibility for each count pursuant to Article 7 1 for having planned instigated ordered committed or otherwise aided and abetted in the planning preparation execution and commission of these crimes 8 The Prosecution alleges that Milan Martić by virtue of the various positions he held from 1991 to 1995 in the SAO Krajina and the RSK is individually criminally responsible pursuant to Article 7 3 of the Statute as a superior for failing to prevent or punish the crimes charged and allegedly committed by the above-mentioned forces C Interpretation of the Indictment 9 Pursuant to Article 18 4 of the Statute an indictment shall contain “a concise statement of the facts and the crime or crimes with which the accused is charged” According to the well established jurisprudence of the Tribunal this means that the indictment must set out the material facts underpinning the charges “with enough detail to inform a defendant clearly of the charges against him so that he may prepare his defence ” 6 10 Some paragraphs of the Indictment identify specific victims and or sites of alleged crimes 7 while other paragraphs of the Indictment use a non-exhaustive enumeration of victims and crime sites 8 The Trial Chamber also heard evidence regarding victims and sites of crimes which are not specified in the Indictment Having regard to the right of the accused to be informed promptly and in detail of the nature and cause of the charges against him 9 and in view of the degree of specificity required in the Indictment the Trial Chamber has considered the evidence as described below 10 6 Kupreškić et al Appeal Judgement para 88 See also Naletili and Martinovi Appeal Judgement para 23 Staki Appeal Judgement para 116 Kvo ka et al Appeal Judgement para 28 Bla ki Appeal Judgement para 209 7 E g paras 26 28-29 32-34 and 39 of the Indictment 8 E g paras 23 a 23 b - d 30-31 of the Indictment 9 Article 21 4 a of the Statute 10 The Appeals Chamber in Kupreškić et al held that “A decisive factor in determining the degree of specificity with which the Prosecution is required to particularise the facts of its case in the indictment is the nature of the alleged criminal conduct charged to the accused ” Kupreškić et al Appeal Judgement para 89 emphasis added In a case based upon individual responsibility where it is not alleged that the accused personally committed the acts for which he is to be held responsible what is most material is the conduct of the accused by which he may be found to have planned instigated ordered committed or otherwise aided and abetted Prosecutor v Milorad Krnojelac Case No IT97-25-PT Decision on Preliminary Motion on Form of Amended Indictment 11 Feb 2000 para 18 Where it is alleged that the accused planned instigated ordered or aided and abetted the alleged crimes the Prosecution is required to identify the “particular acts” or “the particular course of conduct” on the part of the accused which forms the basis for the charges in question Naletili and Martinovi Appeal Judgement para 24 If the Prosecution relies upon a theory of JCE it must plead the purpose of the enterprise the identity of the participants and the nature of the accused’s participation in the enterprise Kvo ka et al Appeal Judgement para 28 The degree of precision required for the material facts relating to those acts of other persons is higher than that required for an allegation of superior responsibility but lower than where the accused is alleged to have personally done the acts in question Prosecutor v Milorad Krnojelac Case No IT-97-25-PT Decision on Preliminary Motion on Form of Amended Indictment 11 Feb 2000 para 18 See also Prli Decision para 46 Furthermore in certain cases “the sheer scale of the alleged crimes ‘makes it impracticable to require a high degree of specificity in such matters as the identity of the victims and the dates for the commission of the crimes ’” Kupreškić et al Appeal Judgement para 89 Case No IT-95-11-T 9 12 June 2007 11 In determining the innocence or guilt of Milan Martić in relation to the charges in paragraphs 26 28 29 and 32 to 34 of the Indictment in light of the wording of these paragraphs 11 the Trial Chamber has only considered evidence concerning victims listed in Annex 1 of the Indictment 12 In determining the innocence or guilt of Milan Martić in relation to the charges in paragraphs 27 30 and 31 of the Indictment in light of the wording of these paragraphs the Trial Chamber has considered evidence concerning victims who are not listed in Annex I to the Indictment but who are proven beyond reasonable doubt as having been killed during the events described in those paragraphs 12 13 In determining the innocence or guilt of Milan Martić under Count 1 Persecutions the Trial Chamber has considered evidence concerning unlisted victims of the events described in paragraph 23 a of the Indictment only with respect to the events described in paragraphs 27 30 and 31 of the Indictment 14 Concerning the events described in paragraphs 23 b to d of the Indictment relevant to crimes allegedly committed in detention facilities the Trial Chamber is of the view that the range of crime sites shall correspond to the scope of paragraph 39 of the Indictment 15 As to paragraph 39 of the Indictment and in relation to Count 5 Imprisonment Counts 6 and 8 Torture Count 7 Inhumane acts and Count 9 Cruel treatment in light of the wording of paragraph 38 of the Indictment the Trial Chamber finds that the relevant time period applicable to these counts is from August 1991 to December 1992 The Trial Chamber finds that this time period shall also govern paragraphs 23 b to d of the Indictment relating to Count 1 Persecutions which concern the same events 16 In determining the innocence or guilt of Milan Martić under Count 12 Wanton destruction or devastation Count 13 Destruction or wilful damage done to institutions dedicated to education or religion and Count 14 Plunder in light of the wording of paragraph 47 of the Indictment the 11 These paragraphs provide an exhaustive enumeration of victims allegedly killed in each village and further identify each victim by referring to Annex I to the Indictment listing their names Paragraph 26 refers to “fifty-six victims” allegedly killed in a location near the village of Baćin and “thirty civilians from Baćin and twenty-four from the villages Dubica and Cerovljani” allegedly killed into an unknown location Paragraph 28 refers to “seven civilians” allegedly killed in Lipova a Paragraph 29 refers to the alleged execution of “ten civilians” in Vukovići near Poljanak Paragraph 32 refers to the killing of “seven non-Serb civilians” in the village of Nadin paragraph 34 refers to “ten civilians among them nine Croats” allegedly killed in the village of Bru ka emphasis in original 12 These paragraphs provide a non-exhaustive enumeration of victims allegedly killed in each village Paragraph 27 alleges that members of Martić’s Police and other Serb forces entered the villages of Saborsko Poljanak and Lipova a and they allegedly killed “all remaining non-Serb inhabitants they found” Paragraph 30 alleges that “members of Martić’s Police and the JNA and the TO entered the village of Saborsko where they allegedly killed at least twenty-nine Case No IT-95-11-T 10 12 June 2007 Trial Chamber has considered only evidence concerning destruction and plunder allegedly committed in the villages listed in paragraph 47 during the period between August and December 1991 The Trial Chamber further finds that this time period shall also govern paragraph 23 j of the Indictment relating to Count 1 which concerns the same events 17 There are situations where the Trial Chamber is satisfied that the Defence has been put on notice of the Prosecution’s case regarding a particular unspecified victim or crime site that is not specifically included in the Indictment in a manner which has allowed the Defence to prepare its case adequately 13 In such cases the Trial Chamber has considered this evidence as a basis for a conviction under the relevant counts 18 The Trial Chamber notes that in cases where the evidence on unspecified victims and crime sites was not relied upon to determine the innocence or guilt of Milan Martić such evidence has been utilised where appropriate as corroborative of a consistent pattern of conduct from which inference may be drawn relevant to the elements of crimes with which Milan Martić is charged 14 19 The Trial Chamber notes that the Prosecution has decided “not to pursue those crimes alleged in the indictment that occurred in Bosnia and Herzegovina with the exception of those crimes occurring in Bosanski Novi including Bosanski sic Kostajnica … ” 15 At the Rule 98 bis stage of the trial the Prosecution stated that it had reviewed the evidence and concluded that the evidence did not even under the standard applicable pursuant to Rule 98 bis support a conviction on the factual allegations under Counts 5 to 9 concerning detention at the Bosanska Kostajnica SJB and the Bosanski Novi SJB 16 The Trial Chamber will therefore only consider evidence relating to Croat civilians” Paragraph 31 alleges that members of Martić’s Police and other Serb forces entered Škabrnja and allegedly “killed at least thirty-eight non-Serb civilians in their homes or in the streets” emphasis in original 13 The Prosecution Pre-Trial Brief its opening statement and Rule 65 ter witness summaries provided to the Defence sufficiently in advance could satisfy this requirement Naletili and Martinovi Appeal Judgement paras 27 45 Kupre ki et al Appeal Judgement paras 114-124 Kvo ka et al Appeal Judgement paras 34 43-54 Gacumbitsi Appeal Judgement paras 55-58 The relevant factors to be considered should be the timing of these filings the relevance of the information to the ability of the accused to prepare his defence and the impact of the newly-disclosed material facts on the Prosecution case Ntakirutimana Appeal Judgement para 27 Kupreškić et al Appeal Judgement paras 119-121 The mere provision of witness statements or of potential exhibits by the Prosecution pursuant to the disclosure requirements does not suffice to inform an accused of material facts which the Prosecution intends to prove at trial Naletili and Martinovi Appeal Judgement para 27 Ntakirutimana Appeal Judgement para 27 citing Prosecution v Radoslav Brđanin and Momir Talić Case No IT-99-36-PT Decision on Form of Further Amended Indictment and Prosecution Application to Amend 26 Jun 2001 para 62 The Defence’s submissions at trial for example in a motion for judgement of acquittal Final Trial Brief or closing arguments may in some instances assist in an assessment as to what extent the Defence was put on notice of the Prosecution’s case and was able to respond to the Prosecution’s allegations Naletili and Martinovi Appeal Judgement para 27 citing Kvočka et al Appeal Judgement paras 52 53 Kordić and Čerkez Appeal Judgement para 148 Cf Mrk i et al Decision para 19 14 Rule 93 of the Rules Kvo ka et al Trial Judgement fn 7 paras 547 556 Krnojelac Trial Judgement para 230 15 Prosecution’s Estimate of Time Required for Prosecution Case 23 November 2005 para 2 Pre-Trial Conference 12 Dec 2005 T 222 16 Indictment paras 39 d and e respectively Rule 98 bis arguments 26 Jun 2006 T 5889-5890 Case No IT-95-11-T 11 12 June 2007 Bosanski Novi and Bosanska Kostajnica under Counts 1 except evidence under paragraph 23 b of the Indictment which concerns detention 10 and 11 D General considerations regarding the evaluation of evidence 1 General 20 The Trial Chamber has considered the charges against Milan Martić in light of the entire trial record and in this regard has carefully assessed and weighed the evidence in accordance with the Statute and its Rules of Procedure and Evidence “Rules” Where no guidance is given by these sources it has assessed the evidence in such a way as will best favour a fair determination of the case and which is consistent with the spirit of the Statute and the general principles of law 17 21 Article 21 3 of the Statute provides that the accused shall be presumed innocent until proven guilty 18 The Prosecution therefore bears the burden of proving the guilt of the accused and in accordance with Rule 87 A of the Rules the Prosecution must do so beyond reasonable doubt 19 In determining whether the Prosecution has done so with respect to each particular count the Trial Chamber has carefully considered whether there is any reasonable conclusion available from the evidence other than the guilt of the accused 20 22 Article 21 4 g of the Statute provides that no accused shall be compelled to testify against himself In the present case Milan Martić exercised his right not to testify 21 No adverse inferences were drawn from the fact that he did not testify 23 Pursuant to Rule 84 bis of the Rules Milan Martić made a statement on 13 December 2005 22 In accordance with Rule 84 bis B of the Rules the Trial Chamber has considered the probative value if any of the statement and has found that the statement does not have any probative value 23 17 Rule 89 B of the Rules This provision is in accordance with all major human rights instruments see e g International Covenant on Civil and Political Rights Article 14 2 European Convention on Human Rights Article 6 2 19 E g Krnojelac Trial Judgement para 66 Limaj et al Trial Judgement para 10 See also Ntakirutimana Appeal Judgement para 140 Niyitegeka Appeal Judgement para 60 The fact that the Defence has not challenged certain factual allegations contained in the Indictment does not mean that the Trial Chamber has accepted these facts to be proven Furthermore the Trial Chamber interprets the standard “beyond reasonable doubt” to mean a high degree of probability it does not mean certainty or proof beyond a shadow of a doubt 20 Čelibići Appeal Judgement para 458 21 Hearing 24 Aug 2006 T 7122 22 Hearing 13 Dec 2005 T 296-318 23 With respect to the opening statement of Milan Martić see Rule 84 bis B of the Rules 18 Case No IT-95-11-T 12 12 June 2007 24 The Trial Chamber issued a decision adopting guidelines on the standards governing the admission of evidence 24 In addition to direct evidence the Trial Chamber has admitted hearsay and circumstantial evidence 25 In evaluating the probative value of hearsay evidence the Trial Chamber has carefully considered all indicia of its reliability including whether the evidence was “voluntary truthful and trustworthy” and has considered its content and the circumstances under which the evidence arose 26 In some instances the Trial Chamber has relied upon circumstantial evidence in order to determine whether or not a certain conclusion could be drawn The Trial Chamber recalls that the conclusion must be the only reasonable conclusion available 27 25 In evaluating the evidence given viva voce the demeanour and conduct of witnesses has been considered The Trial Chamber has also given due regard to the individual circumstances of a witness including the witness’ possible involvement in the events and fear of self-incrimination the witness’ relationship with Milan Martić and any protective measures granted to the witness The Trial Chamber has also assessed the internal consistency of each witness’ testimony and other features of his or her evidence as well as whether there is corroborating evidence Mindful that the evidence presented in this case relates to events which occurred between 1991 and 1995 the Trial Chamber has in general not treated minor discrepancies between the evidence of witnesses or between the evidence of a particular witness in court and his or her prior statement as discrediting their evidence where that witness nevertheless recounted the essence of an incident charged in acceptable detail 28 26 In some instances only one witness has given evidence of an incident with which Milan Martić has been charged In this regard the Trial Chamber recalls that the Appeals Chamber has held that the testimony of a single witness on a material fact does not as a matter of law require corroboration 29 27 Pursuant to Rule 92 bis and Rule 92 ter which allow the admission of written statements and former testimony of witnesses with or without cross-examination the Trial Chamber has admitted such statements and testimony in lieu of viva voce testimony As regards evidence in 24 Decision Adopting Guidelines on the Standards Governing the Admission of Evidence 19 Jan 2006 “Guidelines” Hearsay evidence is evidence of facts not within the testifying witness’ own knowledge Halilovi Trial Judgement para 15 Blagojevi and Joki Trial Judgement para 21 See also Prosecutor v Zlatko Aleksovski Case No IT-9514 1-AR73 Decision on Prosecutor’s Appeal on Admissibility of Evidence 16 Feb 1999 para 14 Circumstantial evidence is evidence of circumstances surrounding an event or offence from which a fact at issue may be reasonably inferred Blagojevi and Joki Trial Judgement para 21 Brðanin Trial Judgement para 35 Guidelines para 10 26 Prosecutor v Du ko Tadić Case No IT-94-1-T Decision on Defence Motion on Hearsay 5 Aug 1996 para 16 See also Prosecutor v Zlatko Aleksovski Case No IT-95-14 1-AR73 Decision on Prosecutor’s Appeal on Admissibility of Evidence 16 Feb 1999 para 15 cited in the Guidelines Annex para 8 27 Čelebići Appeal Judgement para 458 28 Kupreškić et al Appeal Judgement para 31 See also Čelebići Appeal Judgement paras 485 496-498 29 Tadi Appeal Judgement para 65 Aleksovski Appeal Judgement para 62 Kupreškić et al Appeal Judgement para 33 25 Case No IT-95-11-T 13 12 June 2007 statements and testimony admitted without cross-examination the Trial Chamber recalls that “evidence which the statement contains may lead to a conviction only if there is other evidence which corroborates the statement” 30 Such “other evidence” may include other witnesses’ testimony documentary evidence or video evidence 31 28 The Parties tendered into evidence a statement of agreed facts pursuant to Rule 65 ter H The Trial Chamber admitted the evidence based on the agreed facts subject “to the tests of relevance probative value and reliability” in accordance with Rule 89 of the Rules 32 29 The Trial Chamber has also assessed and weighed the testimony of expert witnesses When weighing an expert’s oral and written evidence the Trial Chamber considered factors such as “the professional competence of the expert the methodologies used by the expert and the credibility of the findings made in light of these factors and other evidence accepted by the Trial Chamber ” 33 In addition the Trial Chamber has duly taken into consideration all factors relevant to the position or positions held by an expert witness such as his or her status as an employee of the Prosecution or a party-related agency as well as his or her involvement in the respective party’s case preparations 34 The Trial Chamber also carefully examined the limitation of the expertise of each expert witness and the relevance and reliability of his or her evidence 35 30 Prosecutor v Stanislav Galić Case No IT-98-29-AR73 2 Decision on Interlocutory Appeal concerning Rule 92 bis C 7 Jun 2002 fn 34 31 Blagojevi and Joki Trial Judgement para 26 Halilovi Trial Judgement para 19 32 Halilovi Trial Judgement para 20 Blagojevi and Joki Trial Judgement para 28 See also Prosecutor v Vidoje Blagojevi and Dragan Jovi Case No IT-02-60-T Decision on Prosecution’s Motion for Judicial Notice of Adjudicated Facts and Documentary Evidence 19 Dec 2003 para 13 33 Vasiljević Trial Judgement para 20 Blagojevi and Joki Trial Judgement para 27 34 The Trial Chamber notes in this regard Reynaud Theunens who is an employee of the Office of the Prosecutor of the ICTY and who was accepted as a military expert for the Prosecution Ivan Gruji who is the President of the Croatian Government Commission for Detainees and Missing Persons and Assistant Minister of the government of the Republic of Croatia and who was accepted as an expert in the field of exhumation for the Prosecution Davor Strinovi who is a member of the Croatian Government Commission for Detainees and Missing Persons and who was accepted as a forensic expert for the Prosecution Jo ef Poje who is an employee of the Ministry of Defence of the Republic of Slovenia and who was accepted as an artillery expert for the Prosecution and Mladen Lon ar who is a coordinator of the National Programme of Psychosocial Aid to the War Victims within the government of the Republic of Croatia and who was accepted as an expert in the field of psychiatry for the Prosecution See also Decision on Defence’s Motion to Exclude the Evidence of Reynaud Theunens and to Call an Independent Military Expert with Confidential Annexes A B C D and E 28 Nov 2006 p 5 Decision on Prosecution’s Motions for Admission of Transcripts Pursuant to Rule 92 bis D and of Expert Reports Pursuant to Rule 94 bis 13 Jan 2006 paras 39-41 See further Prosecutor v Milan Milutinovi et al Oral Decision 13 Jul 2006 T 840-844 See also Milutinovi et al Decision para 10 35 In this regard the Trial Chamber is of the view that the factors to be examined in determining the admission of an expert report indicated in its Decision on Defence’s Submission of the Expert Report of Professor Smilja Avramov Pursuant to Rule 94 bis 9 November 2006 paras 5-12 are mutatis mutandis applicable when assessing the weight to be attached to an expert’s evidence in light of the entire trial record The Trial Chamber further observes that an expert witness may not offer his opinion on the criminal liability of the accused a matter which falls within the sole jurisdiction of the Chamber at the close of the trial Decision on Defence’s Submission on the Expert Report of Milisav Sekuli Pursuant Rule 94 bis and on Prosecution’s Motion to Exclude Certain Sections of the Military Expert Report of Milisav Sekuli and on Prosecution Motion to Reconsider Order of 7 November 2006 13 Nov 2006 p 5 with further references Case No IT-95-11-T 14 12 June 2007 30 In order to assess the authenticity of documentary evidence the Trial Chamber considered the source of the evidence and its chain of custody to the extent known The Trial Chamber did not consider unsigned undated or unstamped documents a priori to be void of authenticity Furthermore when the Trial Chamber was satisfied of the authenticity of a particular document it did not automatically accept the statements contained therein to be an accurate portrayal of the facts 36 The Trial Chamber evaluated all evidence within the context of the trial record as a whole 37 31 Between 25 and 30 September 2006 the Trial Chamber and the Parties conducted a site visit to locations in the Republic of Croatia The locations visited were Zagreb Hrvatska Dubica Cerovljani Baćin Slunj Hrvatska Kostajnica Dvor na Uni Saborsko Poljanak including the hamlet of Vukovići Lipovača Vaganac Hrvatska Korenica kabrnja Nadin Bru ka including the hamlet of Marinovići Knin Vrpolje and Golubić The purpose of the site visit was to obtain first-hand observations of the geography and topography of the relevant areas which are of direct consequence to the counts with which Milan Martić is charged 2 Witnesses whose evidence has been assessed with particular caution 32 The Trial Chamber considers that the testimony of the following witnesses should be assessed with particular caution in light of the circumstances surrounding their testimony Milan Babi Ari Kerkkanen Witness MM-003 and Witness MM-079 33 On 15 to 17 20 and 21 February and 2 and 3 March 2006 Milan Babi who was previously convicted by this Tribunal testified as a witness for the Prosecution However Milan Babić died prior to the completion of his cross-examination 38 The Trial Chamber has assessed the evidence of Milan Babić in light of the entire trial record taking into account the full range of circumstances surrounding his testimony 39 The Trial Chamber has given due consideration to the fact that the Defence was unable to complete the cross-examination of Milan Babi In this regard the Trial Chamber recalls the practice of the Tribunal requiring corroboration of evidence which has not been cross-examined when such evidence leads to a conviction of an accused 40 In order to remedy or 36 Guidelines para 5 The Trial Chamber notes in this respect that it has admitted into evidence excerpts of books e g Ex 24 Ex 860 Ex 238 Ex 793 Ex 476 Ex 870 Ex 874 Ex 937 Ex 931 Ex 1011 The Trial Chamber has considered only the parts of the books admitted in light of the trial record as a whole 37 Guidelines para 6 38 The Defence filed a motion to exclude the evidence of Milan Babi from the trial record as a result of the incomplete cross-examination On 9 June 2006 the Trial Chamber denied the motion This Decision was affirmed by the Appeals Chamber on 14 September 2006 See infra paras 537-540 As a result the evidence of Milan Babić as a whole remains in the record 39 In this regard the Trial Chamber recalls its Decision on Defence Motion to Exclude the Testimony of Witness Milan Babi Together with Associated Exhibits From Evidence 9 Jun 2006 paras 71-76 40 Prosecutor v Stanislav Galić Case No IT-98-29-AR73 2 Decision on Interlocutory Appeal concerning Rule 92 bis 7 Jun 2002 fn 34 Br anin Trial Judgement 1 Sep 2004 fn 944 Decision on Defence Motion to Exclude the Testimony of Witness Milan Babi Together with Associated Exhibits From Evidence 9 Jun 2006 paras 73-75 Case No IT-95-11-T 15 12 June 2007 ameliorate any potential unfairness which might arise out of the incomplete cross-examination the Trial Chamber afforded the Defence an opportunity to file the following additional evidence i a list of the portions of the evidence-in-chief of Milan Babi upon which it intended but was unable to cross-examine as a result of his death and ii any documents it intended to use in order to challenge those specific portions of Milan Babi ’s evidence-in-chief 41 The Defence availed itself of this opportunity and tendered excerpts of Milan Babić’s interviews with the Prosecution 42 In response and in view of the fact that the Prosecution was unable to re-examine Milan Babić the Prosecution tendered other portions of those same interviews 43 The Trial Chamber gave close attention to these documents in its assessment of the parts of Milan Babi ’s testimony which were not subject to cross-examination or re-examination 34 Furthermore the Trial Chamber considered the alleged inconsistencies between Milan Babi ’s testimony and his prior testimony or statements as well as the fact that Milan Babi testified pursuant to a plea agreement 44 In relation to the latter the Trial Chamber took into consideration that some charges against Milan Babi were dropped without prejudice that the Appeals Chamber had decided upon his appeal against his sentence at the time he appeared before this Trial Chamber and that he testified under solemn declaration 45 The Trial Chamber has also considered that Milan Babi pled guilty as co-perpetrator in a joint criminal enterprise which allegedly comprised inter alia Milan Marti The Trial Chamber is therefore of the view that Milan Babić’s evidence should be treated with caution and requires corroboration 35 On 4 5 and 9 May 2006 Ari Kerkkanen who was previously employed as a Criminal Intelligence Analyst by the Prosecution testified before the Trial Chamber as a witness for the Prosecution 46 His written statement was admitted in redacted form on 19 April 2006 47 The Trial Chamber recalls that Ari Kerkkanen was one of the organisers of and participants in several archive missions undertaken by the Prosecution including to the Croatian State Archive to collect documents on the MUP of the SAO Krajina and of the RSK 48 The Trial Chamber observes that both during his testimony and in his written statement on the documents collected Ari Kerkkanen presented views on and drew conclusions from the information contained in the documents 41 Decision on Defence Motion to Exclude the Testimony of Witness Milan Babi Together with Associated Exhibits From Evidence 9 Jun 2006 para 81 42 Defence’s Submission Pursuant to the Trial Chamber’s Order of 9 Jun 2006 4 Oct 2006 43 Prosecution’s Response to the Defence’s Submission Pursuant to the Trial Chamber’s Order of 9 June 2006 16 Oct 2006 44 Motion to Exclude the Testimony of Witness Milan Babi Together with Associated Exhibits From Evidence 2 May 2006 paras 22-31 and Annex A 45 Decision on Defence Motion to Exclude the Testimony of Witness Milan Babi Together with Associated Exhibits From Evidence 9 Jun 2006 para 76 Blagojevi and Joki Trial Judgement para 24 46 Ex 459 p 2 Ari Kerkkanen 4 May 2006 T 3997 47 Decision on the Prosecution Motion for the Admission of a Statement of a Witness Pursuant to Rule 89 F with Confidential Annex A filed confidentially on 28 Apr 2006 Case No IT-95-11-T 16 12 June 2007 although he neither possesses expertise in this area nor personal knowledge of the information 49 Accordingly the Trial Chamber has attached no weight whatsoever to such views conclusions and analyses of Ari Kerkkanen 36 Witness MM-003 testified from 8 to 10 March 2006 In its Final Trial Brief the Prosecution accepted that the evidence of Witness MM-003 should be examined “with care” since “he sought and received assistance from the OTP in order to remain in the country where he is now living” 50 The Defence submitted that this would be a factor negating the credibility of his testimony 51 On 9 April 2007 the Prosecution sent a letter to the Defence disclosing details of its assistance provided to Witness MM-003 in his asylum case 52 37 Witness MM-079 testified on 31 March 3 and 4 April 2006 In its Final Trial Brief the Prosecution acknowledged that the evidence of Witness MM-079 should be “scrutinized with care” since “he said that he hoped to receive the assistance of the OTP to remain in the country where he is relocated ” 53 Witness MM-079 testified that after his lawyer had suggested that he contact the Tribunal to seek assistance with his asylum he was interviewed by the Prosecution and that he was subsequently informed that the Prosecution had written a letter to the authorities of the state where he currently lives to ask that he be allowed to stay there until he finishes testifying at the Tribunal 54 The Trial Chamber notes that the Defence did not raise objections as to the credibility of this witness 38 The Trial Chamber notes that both Witness MM-003 and Witness MM-079 sought assistance from the Prosecution which also provided such assistance to both witnesses The Trial Chamber therefore considers that there is significant doubt as to the credibility of both witnesses and has consequently given weight only to the parts of their respective evidence which are corroborated by other evidence 48 Ex 459 pp 2-4 Prosecution’s Reply to Defense Response to Prosecution’s Motion for Admission of Statement of Witness MM-014 Pursuant to Rule 89 F filed confidentially on 19 Apr 2006 para 6 where the Prosecution acknowledges that Ari Kerkkanen lacks expertise 50 Prosecution Final Trial Brief para 44 51 Witness MM-003 10 Mar 2006 T 2175-2188 Defence Closing Argument 11 Jan 2007 T 11330-11331 52 Letter from Alex Whiting to Predrag Milovan evi dated 9 April 2007 The Trial Chamber was copied on this letter 53 Prosecution Final Trial Brief para 85 Witness MM-079 31 Mar 2006 T 3025-3028 54 Witness MM-079 31 Mar 2006 T 3025-3026 49 Case No IT-95-11-T 17 12 June 2007 II APPLICABLE LAW A General requirements of Article 3 of the Statute 1 Generally 39 Milan Martić is charged with the following crimes as violations of the laws and customs of war punishable under Article 3 of the Statute murder torture and cruel treatment based on Article 3 common to the four Geneva Conventions of 12 August 1949 “Common Article 3” and attacks on civilians based on Article 51 2 of Additional Protocol I and Article 13 2 of Additional Protocol II 55 In addition Milan Martić is charged with wanton destruction of villages or devastation not justified by military necessity destruction or wilful damage done to institutions dedicated to education or religion and plunder of public or private property punishable under Article 3 b d and e respectively 56 Article 3 of the Statute provides in its relevant parts The International Tribunal shall have the power to prosecute persons violating the laws or customs of war Such violations shall include but not be limited to … b wanton destruction of cities towns or villages or devastation not justified by military necessity … d seizure of destruction or wilful damage done to institutions dedicated to religion charity and education the arts and sciences historic monuments and works of art and science e plunder of public or private property 40 Article 3 of the Statute has been defined in the jurisprudence of the Tribunal as a general clause covering all violations of international humanitarian law not covered by Articles 2 4 or 5 of the Statute 57 The application of Article 3 of the Statute requires a determination that a state of armed conflict existed at the time the crime was committed and that the alleged crime was “closely 55 Counts 4 and 16 murder Count 8 torture Counts 9 and 18 cruel treatment Count 19 attacks on civilians of the Indictment Common Article 3 in its relevant parts reads In case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties each Party to the conflict shall be bound to apply as a minimum the following provisions 1 Persons taking no active part in the hostilities including members of armed forces who have laid down their arms and those placed hors de combat by sickness wounds detention or any other cause shall in all circumstances be treated humanely without any adverse distinction founded on race colour religion or faith sex birth or wealth or any other similar criteria To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the abovementioned persons a violence to life and person in particular murder of all kinds mutilation cruel treatment and torture … 56 57 Counts 12-14 of the Indictment Tadi Jurisdiction Decision para 89 re-affirmed in elebi i Appeal Judgement paras 133-136 Case No IT-95-11-T 18 12 June 2007 related” to the armed conflict 58 Furthermore four conditions known as the Tadi conditions must be fulfilled for a crime to fall within the jurisdiction of the Tribunal 59 2 Existence of an armed conflict and the nexus requirement 41 An armed conflict exists “whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organised groups or between such groups within a State ” 60 Until a general conclusion of peace or a peaceful settlement is reached international humanitarian law continues to apply “in the whole territory of the warring States or in the case of internal conflicts the whole territory under the control of a party whether or not actual combat takes place there” 61 42 Common Article 3 requires the warring parties to abide by certain fundamental humanitarian standards by ensuring “the application of the rules of humanity which are recognized as essential by civilized nations” and as such the provisions of Common Article 3 have general applicability 62 When an accused is charged with violation of Article 3 of the Statute it is immaterial whether the armed conflict was international or non-international in nature 63 43 When the alleged crime did not occur at a time and place in which fighting was actually taking place “it would be sufficient … that the alleged crimes were closely related to hostilities occurring in other parts of the territories controlled by the parties to the conflict ” 64 The crime “need not have been planned or supported by some form of policy” 65 The armed conflict “need not have been causal to the commission of the crime but the existence of an armed conflict must at a minimum have played a substantial part in the perpetrator’s ability to commit it his decision to commit it the manner in which it was committed or the purpose for which it was committed ” 66 58 Tadi Jurisdiction Decision paras 67-70 Tadi Jurisdiction Decision para 94 See also Kunarac et al Appeal Judgement para 66 60 Tadi Jurisdiction Decision para 70 The term “protracted” is significant in excluding mere cases of civil unrest or single acts of terrorism in cases of non-international conflicts see Kordi and erkez Appeal Judgement para 341 61 Tadi Jurisdiction Decision para 70 See also Kunarac et al Appeal Judgement paras 57 64 In para 64 the Appeals Chamber held that “the Prosecutor did not have to prove that there was an armed conflict in each and every square inch of the general area The state of armed conflict is not limited to the areas of actual military combat but exists across the entire territory under the control of the warring parties ” 62 ICRC Commentary on Geneva Convention IV p 34 63 Tadi Jurisdiction Decision para 137 elebi i Appeal Judgement paras 140 147-150 420 where the Appeals Chamber held that the provisions of Common Article 3 are applicable to both international and non-international conflicts See also Galić Appeal Judgement para 120 64 Kunarac et al Appeal Judgement para 57 The Trial Chamber notes that the term “hostilities” is not synonymous with the term “armed conflict ” An armed conflict may continue to exist after the hostilities in an area have ceased The state of armed conflict ends when a peace agreement has been achieved or – in case of a non-international conflict – if a peaceful settlement has been reached see Tadi Jurisdiction Decision para 70 65 Kunarac et al Appeal Judgement para 58 66 Kunarac et al Appeal Judgement para 58 59 Case No IT-95-11-T 19 12 June 2007 However “ i t is essential … that a Trial Chamber establish the existence of a geographical and temporal linkage between the crimes ascribed to the accused and the armed conflict ” 67 3 The Tadić conditions 44 The four Tadić conditions referred to above are i the violation must constitute an infringement of a rule of international humanitarian law ii the rule must be customary in nature or if it belongs to treaty law the required conditions must be met 68 iii the violation must be “serious” that is to say it must constitute a breach of a rule protecting important values and the breach must involve grave consequences for the victim and iv the violation of the rule must entail under customary or conventional law the individual criminal responsibility of the person breaching the rule 69 45 With regard to murder torture and cruel treatment the Appeals Chamber has held that Common Article 3 “is indeed regarded as being part of customary international law and serious violations thereof would at once satisfy the four requirements” 70 In relation to attacks on civilians the Appeals Chamber in Strugar held that “the principles” contained in Article 51 2 of Additional Protocol I and Article 13 2 of Additional Protocol II have attained the status of customary international law 71 Moreover it is clear that attacks against civilians undoubtedly breach rules protecting important values and involves grave consequences for the victim 72 The Appeals Chamber in Strugar also found that “ c ustomary international law establishes that a violation of these principles entails individual criminal responsibility ” 73 46 Concerning the crimes of wanton destruction of villages or devastation and destruction or wilful damage done to institutions dedicated to education or religion it is established in the jurisprudence of the Tribunal that the crimes meet the four Tadić conditions 74 Concerning the 67 Staki Appeal Judgement para 342 These conditions are that the treaty i was unquestionably binding on the parties at the time of the alleged offence and ii was not in conflict with or derogated from peremptory norms of international law as are most customary rules of international humanitarian law Tadi Jurisdiction Decision para 143 69 Tadi Jurisdiction Decision para 94 See also Kunarac et al Appeal Judgement para 66 70 Kunarac et al Appeal Judgement para 68 referring to Tadi Jurisdiction Decision paras 98-34 and elebi i Appeal Judgement para 125 71 Prosecutor v Pavle Strugar et al Case No IT-01-42-AR72 Decision on Interlocutory Appeal 22 Nov 2002 22 Nov 2002 para 9 Blaškić Appeal Judgement paras 157-158 72 Galić Trial Judgement paras 27 45 Strugar Trial Judgement para 221 73 Prosecutor v Pavle Strugar et al Case No IT-01-42-AR72 Decision on Interlocutory Appeal 22 Nov 2002 22 Nov 2002 para 10 74 Regarding wanton destruction of villages or devastation not justified by military necessity pursuant to Article 3 b of the Statute see Hadžihasanović and Kubura Rule 98 bis Appeal Decision para 30 see also paras 28-29 Br anin Trial Judgement para 157 Strugar Trial Judgement para 231 Regarding destruction or wilful damage done to institutions dedicated to education or religion pursuant to Article 3 d see Hadžihasanović and Kubura Rule 98 bis Appeal Decision paras 44-48 with further references Hadžihasanović and Kubura Trial Judgement para 63 Br anin Trial Judgement para 157 Strugar Trial Judgement para 232 68 Case No IT-95-11-T 20 12 June 2007 crime of plunder it is well-established that the first second and fourth conditions are met 75 As regards the third condition the Trial Chamber finds that the jurisprudence establishes that the crime is a breach of a rule protecting important values 76 and that whether the breach involves grave consequences for the victim has to be decided on a case-by-case basis 77 4 “Persons taking no active part in the hostilities” 47 In relation to charges based on Common Article 3 including in this case the charges of murder torture and cruel treatment the Prosecution must prove that the victim was taking no active part in the hostilities when the crime was committed 78 The perpetrator of the crime must have known or should have been aware that the victim was taking no active part in the hostilities 79 It is the specific situation of the victim at the moment the crime was committed that must be taken into account in determining the victim’s protection under Common Article 3 80 B General requirements of Article 5 of the Statute 1 Elements 48 Milan Martić is charged with the following crimes against humanity punishable under Article 5 of the Statute murder extermination deportation imprisonment torture persecution and other inhumane acts including forcible transfer Article 5 of the Statute provides The International Tribunal shall have the power to prosecute persons responsible for the following crimes when committed in armed conflict whether international or internal in character and directed against any civilian population a murder b extermination c enslavement d deportation e imprisonment f torture g rape h persecutions on political racial and religious grounds i other inhumane acts In order to constitute a crime against humanity under Article 5 of the Statute the acts of the accused must have been carried out during armed conflict whether international or non-international in 75 Hadžihasanović and Kubura Rule 98 bis Appeal Decision paras 37-38 with further references Kordi and erkez Appeal Judgement para 81 77 Kordi and erkez Appeal Judgement paras 82-83 78 elebići Appeal Judgement para 420 Tadi Trial Judgement para 615 79 Halilovi Trial Judgement para 36 Kraji nik Trial Judgement para 847 80 Tadi Trial Judgement paras 615-616 Halilovi Trial Judgement paras 33-34 See also ICRC Commentary on Geneva Convention III p 39 “a man who has surrendered individually is entitled to the same humane treatment as he would receive if the whole army to which he belongs had capitulated The important thing is that the man in question will be taking no further part in the fighting ” 76 Case No IT-95-11-T 21 12 June 2007 character 81 This is a jurisdictional requirement which is satisfied by proof that there was an armed conflict and that objectively the acts of the accused were linked geographically as well as temporally with the armed conflict 82 49 The acts of the accused must have formed part of a widespread or systematic attack directed against any civilian population 83 Five elements have been set out in the jurisprudence for the establishment of this requirement 1 ‘Attack’ may be defined as a course of conduct involving the commission of acts of violence 84 It is not limited to the use of armed force but may also encompass any mistreatment of the civilian population 85 ‘Attack’ is a concept different from that of “armed conflict” The attack may precede outlast or continue during the armed conflict and need not be part of it 86 2 The attack must be directed against any civilian population that is it must be established that the civilian population was the primary object of the attack 87 It is not required that the entire population be subjected to the attack however the Chamber must be satisfied that the attack was in fact directed against a civilian “population” rather than against a limited and randomly selected number of individuals 88 3 The attack must be widespread or systematic ‘Widespread’ refers to the large-scale nature of the attack and the number of targeted persons while the phrase ‘systematic’ refers to the organised 81 Tadi Jurisdiction Decision paras 70 142 Kunarac et al Appeal Judgement para 86 See infra section II A Kunarac et al Appeal Judgement paras 83-84 referring to Tadić Appeal Judgement paras 249 251 83 Blaškić Appeal Judgement para 98 with further references 84 Kunarac et al Trial Judgement para 415 affirmed by Kunarac et al Appeal Judgement para 89 85 Kunarac et al Appeal Judgement para 86 86 Tadi Appeal Judgement para 251 Kunarac et al Appeal Judgement para 86 87 Kunarac et al Appeal Judgement para 91 See also Blaškić Appeal Judgement paras 110-115 where the Appeals Chamber discussed in detail the scope of the term “civilian population” 88 Kunarac et al Appeal Judgement para 90 The Appeals Chamber also held para 91 that 82 i n order to determine whether the attack may be said to have been so directed the Trial Chamber will consider inter alia the means and method used in the course of the attack the status of the victims their number the discriminatory nature of the attack the nature of the crimes committed in its course the resistance to the assailants at the time and the extent to which the attacking force may be said to have complied or attempted to comply with the precautionary requirements of the laws of war To the extent that the alleged crimes against humanity were committed in the course of an armed conflict the laws of war provide a benchmark against which the Chamber may assess the nature of the attack and the legality of the acts committed in its midst Case No IT-95-11-T 22 12 June 2007 nature of the acts of violence and the improbability of their random occurrence 89 It is settled jurisprudence that the existence of a plan need not be proven 90 4 The acts of the perpetrator must objectively form part of the attack on the civilian population However it is not required that the acts be committed in the midst of the attack A crime which is committed before or after the main attack or away from it must be sufficiently connected with the attack and not be an isolated act 91 5 The perpetrator must have known of the attack on the civilian population and that his or her acts formed part of the attack or at least have taken the risk that his or her acts were part of the attack 92 However the perpetrator need not know of the details of the attack 93 It is the attack not the acts of the accused which must be directed against the target population 94 2 Applicability of Article 5 to non-civilians 50 As a preliminary point the Trial Chamber notes that it is well established that the term “civilian population” in the general requirements of Article 5 should be given a broad definition and that the presence of combatants within a civilian population does not necessarily alter its characterisation as such 95 51 The Trial Chamber now turns to the question of the required status of the victims under Article 5 As held by the Appeals Chamber in Bla kić “the status of the victim as a civilian” is one of the elements which characterises a crime against humanity 96 In defining the term “civilian” the Appeals Chamber in Bla kić relied upon the provisions of Article 50 of Additional Protocol I 89 Kordi and erkez Appeal Judgement para 94 with further references Relevant factors include “the consequences of the attack upon the targeted population the number of victims the nature of the acts the possible participation of officials or authorities and any identifiable patterns of crimes” Kunarac et al Appeal Judgement para 95 90 Bla ki Appeal Judgement para 120 with further references also holding that the existence of a plan “may be evidentially relevant in proving that an attack was directed against a civilian population and that it was widespread or systematic” ibid 91 Kunarac et al Appeal Judgement paras 85 99-101 with further references A crime would be regarded as an “isolated act” when it is so far removed from that attack that having considered the context and circumstances in which it was committed it cannot reasonably be said to have been part of the attack ibid 92 Kunarac et al Appeal Judgement paras 99 102 also holding para 103 that “the motives of the accused for taking part in the attack are irrelevant and a crime against humanity may be committed for purely personal reasons ” 93 Kunarac et al Appeal Judgement para 102 94 Kordi and erkez Appeal Judgement para 99 Kunarac et al Appeal Judgement para 103 95 Article 50 of Additional Protocol I provides that the “civilian population comprises all persons who are civilians” and that the “presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character ” See also Bla kić Appeal Judgement which held that “ t hus in order to determine whether the presence of soldiers within a civilian population deprives the population of its civilian character the number of soldiers as well as whether they are on leave must be examined ” para 115 96 Bla kić Appeal Judgement para 107 Case No IT-95-11-T 23 12 June 2007 which it found “may largely be viewed as reflecting customary law ” 97 Article 50 of Additional Protocol I defines civilians as follows 1 A civilian is any person who does not belong to one of the categories of persons referred to in Article 4 A 1 2 3 and 6 of the Third Convention and in Article 43 of this Protocol In case of doubt whether a person is a civilian that person shall be considered to be a civilian 98 In light of this finding of the Appeals Chamber the Trial Chamber finds no reason why Article 50 of Additional Protocol I should not also be applied when determining to the status of victims under Article 5 of the Statute 52 The Appeals Chamber in Blaškić further held that “ r ead together Article 50 of Additional Protocol I and Article 4A of Geneva Convention III establish that members of the armed forces and members of militias or volunteer corps forming part of such armed forces cannot claim civilian status” 99 The Bla kić Appeals Chamber continued that neither may “members of organized resistance groups” claim civilian status provided that they are commanded by a person responsible 97 98 Bla kić Appeal Judgement para 110 Article 4 A 1 2 3 and 6 of Geneva Convention III provides A Prisoners of war in the sense of the present Convention are persons belonging to one of the following categories who have fallen into the power of the enemy 1 Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces 2 Members of other militias and members of other volunteer corps including those of organized resistance movements belonging to a Party to the conflict and operating in or outside their own territory even if this territory is occupied provided that such militias or volunteer corps including such organized resistance movements fulfil the following conditions a That of being commanded by a person responsible for his subordinates b That of having a fixed distinctive sign recognizable at a distance c That of carrying arms openly d That of conducting their operations in accordance with the laws and customs of war 3 Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power … 6 Inhabitants of a non-occupied territory who on the approach of the enemy spontaneously take up arms to resist the invading forces without having had time to form themselves into regular armed units provided they carry arms openly and respect the laws and customs of war “ Article 43 of Additional Protocol I provides 1 The armed forces of a Party to a conflict consist of all organized armed forces groups and units which are under a command responsible to that Party for the conduct of its subordinates even if that Party is represented by a government or an authority not recognized by an adverse Party Such armed forces shall be subject to an internal disciplinary system which inter alia shall enforce compliance with the rules of international law applicable in armed conflict 2 Members of the armed forces of a Party to a conflict other than medical personnel and chaplains covered by Article 33 of the Third Convention are combatants that is to say they have the right to participate directly in hostilities 3 Whenever a Party to a conflict incorporates a paramilitary or armed law enforcement agency into its armed forces it shall so notify the other Parties to the conflict Case No IT-95-11-T 24 12 June 2007 for his subordinates that they have a fixed distinctive sign recognisable at a distance that they carry arms openly and that they conduct their operations in accordance with the laws and customs of war 100 In determining the status of the victim at the time the crimes were committed the Appeals Chamber held that the specific situation of the victim at the time the crimes are committed may not be determinative of his civilian or non-civilian status If he is indeed a member of an armed organization the fact that he is not armed or in combat at the time of the commission of crimes does not accord him civilian status 101 53 The Appeals Chamber in Kordić and Čerkez appears to have taken a different approach to that taken by the Appeals Chamber in Bla kić by expanding the concept of “civilian” The Appeals Chamber in Kordić and Čerkez repeated the language of the Appeals Chamber in Bla kić in relying upon Article 50 of Additional Protocol I as part of customary international law 102 It also followed the Appeals Chamber in Bla kić finding that “during an armed conflict until a soldier is demobilized he is considered a combatant whether or not he is in combat or for the time being armed ” 103 However the Kordić and Čerkez Appeals Chamber continued concerning evidence underlying inter alia Count 7 murder under Article 5 of the Statute read together the above excerpts … constitute evidence that numerous persons were killed during their arrest simply because they were Muslims and ABiH soldiers were killed after their arrest after being placed hors de combat These persons wilfully killed by Croat forces were without doubt … “civilians” in the sense of Article 5 of the Statute 104 Nevertheless the Appeals Chamber appears to have followed the reasoning of the Appeals Chamber in Bla kić in overturning the finding of the Trial Chamber in relation to the killing of a man and a woman shot by the HVO in their apartment It held that “as TO members the two victims are to be considered as ‘combatants’ and cannot claim the status of civilians ” 105 54 The Appeals Chamber in Galić supported the view of the Bla kić Appeal Chamber that a person hors de combat is not a civilian in the context of international humanitarian law Persons hors de combat are certainly protected in armed conflicts through Common Article 3 of the Geneva Conventions This reflects a principle of customary international law Even hors de combat however they would still be members of the armed forces of a party to the conflict and therefore fall under the category of persons referred to in Article 4 A 1 of the Third Geneva 99 Bla kić Appeal Judgement para 113 Bla kić Appeal Judgement para 113 referring to Article 4 A of Geneva Convention III 101 Bla kić Appeal Judgement para 114 102 Kordi and erkez Appeal Judgement para 97 103 Kordi and erkez Appeal Judgement para 421 See also para 50 104 Kordi and erkez Appeal Judgement paras 421-422 The Appeals Chamber thus upheld the Trial Chamber’s finding of murder under Article 5 and wilful killing under Article 2 105 Kordi and erkez Appeal Judgement para 458 The Appeals Chamber also found that “members of the armed forces resting in their homes in the area of the conflict as well as members of the TO residing in their homes remain combatants whether or not they are in combat or for the time being armed ” Kordi and erkez Appeal Judgement para 51 The Appeals Chamber also only applied the crime of imprisonment to those who were proved at trial to be civilians ibid paras 591-640 100 Case No IT-95-11-T 25 12 June 2007 Convention as such they are not civilians in the context of Article 50 paragraph 1 of Additional Protocol I Common Article 3 of the Geneva Conventions supports this conclusion in referring to “persons taking no active part in the hostilities including members of armed forces who have laid down their arms and those placed hors de combat by sickness wounds detention or any other cause” emphasis added 106 55 The Trial Chamber agrees with the findings of the Appeals Chamber in Bla kić and Galić that the term civilian is one which is narrowly defined The Trial Chamber does not therefore follow the logic of the Appeals Chamber in Kordić and Čerkez which appeared to expand the term “civilian” to cover persons hors de combat In the view of the Trial Chamber such an interpretation is not in keeping with the definition of civilians as set out in Article 50 which the Appeals Chamber found “may be largely viewed as reflecting customary international law” 107 As held by the Appeals Chamber in Bla kić and Galić the fact that a person who is not a civilian according to Article 4A of Geneva Convention III and Article 43 Additional Protocol I is not armed or in combat or is hors de combat at the time of the commission of crime does not render them civilian for the purposes of Article 5 of the Statute 56 That Article 5 of the Statute is applicable to civilians is in keeping with the fundamental principle of the distinction between civilians and combatants which permeates the laws of war and international humanitarian law In this respect the Trial Chamber recalls the ICRC Commentary to Article 50 of Additional Protocol I which provides that t he principle of the protection of the civilian population is inseparable from the principle of the distinction which should be made between military and civilian persons In view of the latter principle it is essential to have a clear definition of each of these categories 108 Article 5 of the Statute defines crimes against humanity more narrowly than required under customary international law by including a requirement of a nexus between the crime and the armed conflict 109 This requirement in Article 5 necessarily links crimes against humanity to an armed conflict in which distinction must be made between combatants and non-combatants Therefore to allow for the term “civilians” to include all persons who were not actively participating in combat 106 Galić Appeal Judgement fn 437 Bla kić Appeal Judgement para 110 The Trial Chamber recalls that the Appeals Chamber in Kordi and erkez relied upon the Appeals Chamber in Bla kić “The Appeals Chamber considers that Article 50 of Additional Protocol I contains a definition of civilians and civilian populations and the provisions in this article may largely be viewed as reflecting customary law As a result they are relevant to the consideration at issue under Article 5 of the Statute concerning crimes against humanity” footnotes omitted Kordi and erkez Appeal Judgement para 97 108 ICRC Commentary on Additional Protocols para 1911 109 Tadić Jurisdiction Decision paras 140-141 wherein the Appeals Chamber stated ibid para 141 that 107 It is by now a settled rule of customary international law that crimes against humanity do not require a connection to international armed conflict Indeed as the Prosecutor points out customary international law may not require a connection between crimes against humanity and any conflict at all Thus by requiring that crimes against humanity be committed in either internal or international armed conflict the Security Council may have defined the crime in Article 5 more narrowly than necessary under customary international law There is no question however that the definition of crimes against humanity adopted by the Security Council in Article 5 comports with the principle of nullum crimen sine lege Case No IT-95-11-T 26 12 June 2007 including those who were hors de combat at the time of the crime would impermissibly blur this necessary distinction C Murder 57 Milan Martić is charged with murder both as a violation of the laws or customs of war pursuant to Article 3 of the Statute Counts 4 and 16 and as a crime against humanity pursuant to Article 5 a of the Statute Counts 3 and 15 58 The elements of the crime of murder under Article 3 and under Article 5 are identical with the exception that the respective general requirements for the application of these provisions must be met 110 The common elements are the following 1 the death of a victim 2 the death was the result of an act or omission of the accused or of one or more persons for whom the accused is criminally responsible 3 the act or omission was committed with intent to kill or in the knowledge that death was a probable consequence of the act or omission 111 59 For the proof of the death of the victim there is no requirement that the body be recovered Rather the death may be established by circumstantial evidence provided it is the only reasonable inference available from the evidence 112 60 The mens rea of murder is the intent to kill including indirect intent that is the knowledge that the death of the victim was a probable consequence of the act or omission 113 This Trial Chamber does not consider it to be sufficient that the perpetrator knew that death would be a possible consequence of his act or omission 114 In connection with the identity of victims it is not required for the perpetrator to have intended to target a certain individual indiscriminate intent to kill whoever is fatally injured as a result of his action is sufficient 110 Kordi and Čerkez Trial Judgement paras 229 233 236 Br anin Trial Judgement para 380 Strugar Trial Judgement para 236 Ori Trial Judgement para 345 111 Kvo ka et al Appeal Judgement para 261 112 Kvo ka et al Appeal Judgement para 260 Br anin Trial Judgement paras 383-385 Krnojelac Trial Judgement paras 326-327 Tadi Trial Judgement para 240 Relevant factors to be considered include but are not limited to proof of incidents of mistreatment directed against the victim patterns of mistreatment and disappearances of other victims the coincident or near-coincident time of death of other victims the fact that the victims were present in an area where an armed attack was carried out when where and the circumstances in which the victim was last seen behaviour of soldiers in the vicinity as well as towards other civilians at the relevant time and lack of contact by the victim with others whom he she would have been expected to contact such as his her family Halilovi Trial Judgement para 37 Krnojelac Trial Judgement para 327 113 Strugar Trial Judgement paras 235-236 Limaj et al Trial Judgement para 241 See also Ori Trial Judgement para 348 Neither negligence nor gross negligence on the part of the perpetrator is sufficient to satisfy the mental element Staki Trial Judgement para 587 Br anin Trial Judgement para 386 Ori Trial Judgement para 348 114 Strugar Trial Judgement para 236 Case No IT-95-11-T 27 12 June 2007 D Extermination 61 Milan Martić is charged with extermination a crime against humanity under Article 5 b of the Statute Count 2 62 Extermination is the act of killing on a large scale 115 The crime of extermination subsumes the elements of murder 116 The actus reus consists of any act or omission which contributes directly or indirectly to the killing of a large number of individuals 117 The actus reus also includes subjecting a large number of people “to conditions of living that would inevitably lead to death” 118 63 The requirement that killings occurred on a large scale does not suggest a numerical minimum 119 An assessment of whether this requirement has been met must be made on the basis of a case-by-case analysis of all relevant factors 120 Extermination may be established “on an accumulation of separate and unrelated incidents meaning on an aggregated basis” where a large number of killings did not occur during a single incident in a concentrated place over a short period 121 64 It is not required that the perpetrator targeted the victims on national ethnical racial or religious grounds 122 Neither is a “vast scheme of collective murder” nor knowledge of such a scheme an element of extermination 123 Moreover it is not necessary that the victims of extermination be precisely identified by name it is sufficient for it to be proven that killings occurred on a large scale 124 65 The mens rea element of extermination requires that the act or omission was committed with the intent to kill persons on a large scale or in the knowledge that the deaths of a large number of people were a probable consequence of the act or omission 125 In other words the mens rea encompasses direct intent and indirect intent 126 115 Ntakirutimana Appeal Judgement para 516 and fn 880 Staki Appeal Judgement para 259 Kraji nik Trial Judgement para 716 As regards the elements of murder see infra section II C 117 Vasiljević Trial Judgement para 229 Br anin Trial Judgement para 389 See also Rutaganda Trial Judgement para 83 Musema Trial Judgement para 219 118 Staki Appeal Judgement para 259 Ntakirutimana Appeal Judgement para 522 119 Staki Appeal Judgement para 260 Ntakirutimana Appeal Judgement para 516 120 Stakić Trial Judgement para 640 Br anin Trial Judgement para 391 Blagojevi and Joki Trial Judgement para 573 The relevant factors include “the time and place of the killings the selection of the victims and the manner in which they were targeted” Kraji nik Trial Judgement para 716 See also Nahimana et al Trial Judgement para 1061 121 Br anin Trial Judgement para 391 See also Stakić Trial Judgement para 640 122 Krsti Trial Judgement paras 499-500 Stakić Trial Judgement para 639 123 Stakić Appeal Judgement paras 258-259 See also Krsti Appeal Judgement para 225 124 Ntakirutimana Appeal Judgement para 521 endorsed by Stakić Appeal Judgement fn 552 125 Staki Appeal Judgement para 259 Ntakirutimana Appeal Judgement para 522 126 Krstić Trial Judgement para 495 Stakić Trial Judgement paras 587 641-642 Br anin Trial Judgement para 395 116 Case No IT-95-11-T 28 12 June 2007 E Attacks on civilians 66 Milan Martić is charged with attacks on civilians a violation of the laws or customs of war pursuant to Article 3 of the Statute Count 19 67 The crime of attacks on civilians is based upon Article 51 2 of Additional Protocol I and Article 13 2 of Additional Protocol II both of which provide in their relevant parts that “ t he civilian population as such as well as individual civilians shall not be made the object of attack ” 127 68 Article 49 of Additional Protocol I defines the term “attack” as “acts of violence against the adversary whether in offence or in defence” 128 In relation to attacks on civilians the Appeals Chamber in Blaškić held that there is an absolute prohibition in customary international law against the targeting of civilians 129 In Kordi and erkez the Appeals Chamber held that “the prohibition against attacking civilians and civilian objects may not be derogated from because of military necessity” 130 According to Article 52 2 of Additional Protocol I only military objectives may be lawfully attacked that is “those objects which by their nature location purpose or use make an effective contribution to military action and whose total or partial destruction capture or neutralization in the circumstances ruling at the time offers a definite military advantage” 131 69 The prohibition against targeting the civilian population does not exclude the possibility of legitimate civilian casualties incidental to an attack aimed at military targets 132 However such casualties must not be disproportionate to the concrete and direct military advantage anticipated before the attack 133 In particular indiscriminate attacks that is attacks which affect civilians or civilian objects and military objects without distinction may also be qualified as direct attacks on 127 The Indictment provides “Count 19 Attacks on civilians a Violation of the Laws or Customs of War as recognised by Article 51 2 of Additional Protocol I and Article 13 2 of Additional Protocol II to the Geneva Conventions of 1949 punishable under Articles 3 and 7 1 and 7 3 of the Statute of the Tribunal” 128 This definition of attack has been endorsed in Kordi and erkez Appeal Judgement para 47 129 Bla ki Appeal Judgement para 109 Gali Appeal Judgement para 190 130 Kordi and erkez Appeal Judgement para 54 as revised by Corrigendum of 26 January 2005 131 Article 52 2 of Additional Protocol I See also Kordić and erkez Appeal Judgement para 53 In this context see the Trial Chamber’s discussion on reprisals infra section IV B 4 c 132 Gali Appeal Judgement para 190 133 Gali Appeal Judgement para 190 The Appeals Chamber also endorsed the Trial Chamber’s finding in Gali according to which the parties to a conflict have an obligation “to remove civilians to the maximum extent feasible from the vicinity of military objectives and to avoid locating military objectives within or near densely populated areas” However “the failure of a party to abide by this obligation does not relieve the attacking side of its duty to abide by the principles of distinction and proportionality when launching an attack” Gali Appeal Judgement para 194 Case No IT-95-11-T 29 12 June 2007 civilians 134 In this regard a direct attack against civilians can be inferred from the indiscriminate character of the weapon used 135 70 It is an element of the crime that the attacks resulted in death or serious bodily injury within the civilian population at the time of such attacks 136 71 The Trial Chamber recalls that the Appeals Chamber has considered that “Article 50 of Additional Protocol I contains a definition of civilians and civilian populations” which may largely be viewed as reflecting customary law 137 72 The mens rea required for attacks against civilians is direct and indirect intent 138 F Torture 73 Milan Martić is charged with torture as a crime against humanity under Article 5 f of the Statute Count 6 and as a violation of the laws or customs of war under Article 3 of the Statute Count 8 respectively 74 The torture of persons not taking an active part in hostilities is expressly prohibited by the Geneva Conventions and the Additional Protocols both in international and non-international 134 Gali Appeal Judgement para 132 referring to Gali Trial Judgement para 57 See also ICJ Advisory Opinion Legality of the Threat or Use of Nuclear Weapons Advisory Opinion of 8 July 1996 I C J Reports 1996 para 78 135 Gali Appeal Judgement para 132 The Appeals Chamber upheld the Trial Chamber’s finding in Gali which relied inter alia on the Marti Rule 61 Decision 8 Mar 1996 paras 23-31 according to which the Trial Chamber regarded the use of a cluster bomb warhead as evidence of Milan Martić’s intent to deliberately attack the civilian population The Appeals Chamber noted also that the Trial Chamber is in principle entitled to determine on a case-bycase basis that the indiscriminate character of an attack can assist it in determining whether the attack was directed against the civilian population Among the elements that the Trial Chamber may take into account in its determination as to whether the attack was directed against civilians are “the means and method used in the course of the attack the status of the victims their number … the nature of the crimes committed in its course the resistance to the assailants at the time and the extent to which the attacking force may be said to have complied or attempted to comply with the precautionary requirements of the laws of war” Gali Appeal Judgement para 132 referring to Kunarac et al Appeal Judgement para 91 and Blaškić Appeal Judgement para 106 136 Kordić and erkez Appeal Judgement paras 55-67 137 Kordi and erkez Appeal Judgement para 97 Blaškić Appeal Judgement para 110 The Appeals Chamber based its holding on the ICRC Commentary on Additional Protocols pp 611-612 regarding Article 50 3 of Additional Protocol I which explains the principle as follows I n war time conditions it is inevitable that individuals belonging to the category of combatants become intermingled with the civilian population for example soldiers on leave visiting their families However provided that these are not regular units with fairly large numbers this does not in any way change the civilian character of a population Article 85 3 a of Additional Protocol I qualifies as a grave breach the act of “wilfully … making the civilian population or individual civilians the object of attack” The ICRC Commentary on Additional Protocols para 3474 concerning this provision reads “wilfully the accused must have acted consciously and with intent i e with his mind on the act and its consequences and willing them ‘criminal intent’ or 'malice aforethought’ this encompasses the concepts of 'wrongful intent’ or 'recklessness’ viz the attitude of an agent who without being certain of a particular result accepts the possibility of it happening on the other hand ordinary negligence or lack of foresight is not covered i e when a man acts without having his mind on the act or its consequences ” See also Galić Appeal Judgement para 140 138 Case No IT-95-11-T 30 12 June 2007 armed conflicts 139 The definition of torture is identical under both Article 3 and Article 5 of the Statute 140 It comprises the following elements 1 The intentional infliction by act or omission of severe pain or suffering whether physical or mental 2 the act or omission must have occurred in order to obtain information or a confession or to punish intimidate or coerce the victim or a third person or to discriminate on any ground against the victim or a third person “prohibited purpose” 141 75 The pain and suffering inflicted during acts of torture is more severe than the pain and suffering inflicted during other forms of mistreatment and cruel treatment 142 The Trial Chamber will assess on a case-by-case basis whether the acts or omissions charged as torture inflicted severe physical or mental pain or suffering on the part of the victim 143 In its assessment of the severity of the pain or suffering inflicted the Trial Chamber may take several factors into account including the duration of the suffering inflicted the nature of the crimes the physical or mental condition of the victim the effect of the acts on the victim the victim’s age and the victim’s position of inferiority to the perpetrator 144 76 In the jurisprudence of the Tribunal several acts have been listed as rising to the level of seriousness necessary to constitute torture These acts include beatings administering electric shocks forcing victims to watch executions of others rape forcing victims to bury the bodies of their neighbours and friends and causing burn injuries 145 77 As to the mens rea the perpetrator’s acts or omissions must be committed for a prohibited purpose The definition of torture provides a non-exhaustive list of prohibited purposes 146 There is no requirement that the act of the perpetrator be committed solely or predominantly to serve this prohibited purpose 147 Once the conduct has been carried out for one of the prohibited purposes it 139 elebi i Trial Judgement para 446 referring in fn 455 to Article 12 Geneva Conventions I and II Article 50 Geneva Convention I Article 51 Geneva Convention II Articles 17 87 and 130 Geneva Convention III Articles 32 and 147 Geneva Convention IV Common Article 3 Geneva Conventions I–IV Article 75 Additional Protocol I Article 4 Additional Protocol II 140 The definition of torture is largely based on the 1984 Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment which entered into force on 26 June 1987 141 See e g Kunarac et al Appeal Judgement paras 142-144 Brðanin Trial Judgement para 481 Furunzd ija Trial Judgement para 162 142 Br anin Trial Judgement para 483 See also elebi i Trial Judgement para 468 143 Naletili and Martinovi Appeal Judgement para 299 elebi i Trial Judgement para 469 144 Naletili and Martinovi Appeal Judgement para 300 Br anin Trial Judgement para 484 citing Kvo ka et al Trial Judgement para 143 and Krnojelac Trial Judgement para 182 145 See e g Kunarac et al Appeal Judgement para 151 elebi i Trial Judgement para 495-496 971 973 976-77 Naletili and Martinovi Trial Judgement paras 350-352 Brđanin Trial Judgement paras 492 503-511 524 146 elebi i Trial Judgement para 470 Br anin Trial Judgement para 487 147 Kunarac et al Appeal Judgement para 155 elebi i Trial Judgement para 470 Case No IT-95-11-T 31 12 June 2007 is immaterial whether there is another purpose behind the conduct 148 In addition it needs to be established that the perpetrator acted or omitted to act with direct or indirect intent G Cruel treatment 78 Milan Marti is charged with cruel treatment as a violation of the laws or customs of war as recognised in Common Article 3 pursuant to Article 3 1 a of the Statute Counts 9 and 18 79 The crime of cruel treatment is defined in the jurisprudence as an intentional act or omission causing serious mental or physical suffering or injury or constituting a serious attack on human dignity committed against a person not taking an active part in hostilities 149 The perpetrator must be shown to have acted with direct intent or with indirect intent that is in the knowledge that cruel treatment was a likely consequence of his act or omission 150 80 It is not required that the suffering caused by the cruel treatment be “lasting” 151 In its assessment of the seriousness of the act or omission the Trial Chamber will take all circumstances into consideration including factors such as the age and health of the victim and the physical and mental effects of the crime upon the victim 152 Moreover it is not required that the seriousness of the suffering or injury amounts to the level of seriousness required for torture 153 H Other inhumane acts 81 Milan Marti is charged with three counts of other inhumane acts as crimes against humanity pursuant to Article 5 i of the Statute Count 7 charges Milan Marti with “inhumane acts” in relation to events in detention centres Count 11 charges Milan Martić with “inhumane acts forcible transfers ” in relation to the removal of non-Serb inhabitants of the SAO Krajina and the RSK and Count 17 charges Milan Martić with “inhumane acts” in relation to the shelling of Zagreb 154 148 Kunarac et al Appeal Judgement para 155 elebi i Appeal Judgement para 424 Limaj et al Trial Judgement para 231 150 The Trial Chamber notes that in the jurisprudence “likely” is synonymous to “probable” see e g Prosecutor v Radoslav Br anin and Momir Tali Decision on Form of Further Amended Indictment and Prosecution Application to Amend 26 Jun 2001 para 29 Simi et al Trial Judgement para 76 citing Vasiljevi Trial Judgement para 236 Limaj et al Trial Judgement para 231 151 Kunarac et al Trial Judgement para 501 152 Simi et al Trial Judgement para 75 Vasiljevi Trial Judgement para 235 Krnojelac Trial Judgement para 131 153 elebi i Trial Judgement para 510 Kordi and erkez Trial Judgement para 245 See supra section II F 154 The elements of the crime of other inhumane acts forcible transfer are discussed in the context of deportation pursuant to Article 5 d of the Statute see infra section II M 149 Case No IT-95-11-T 32 12 June 2007 82 “Other inhumane acts” is a residual category of crimes against humanity recognised as forming part of customary international law 155 It must be emphasised that the Trial Chamber must exercise great caution in finding that an alleged act which is not regulated elsewhere in Article 5 of the Statute amounts to “other inhumane acts” within the meaning of Article 5 i 156 83 In addition to meeting the general requirements for application of Article 5 an act or omission must satisfy the following elements to fall within the category of other inhumane acts 1 the act or omission was of similar seriousness to the other crimes enumerated in Article 5 2 the act or omission caused serious mental or physical suffering or injury or constituted a serious attack on human dignity and 3 the act or omission was carried out intentionally by the accused or by persons for whom the accused bears criminal responsibility 157 84 The element of “similar seriousness” is to be evaluated in light of all factual circumstances including the nature of the act or omission the context within which it occurred the individual circumstances of the victim as well as the physical and mental effects on the victim 158 There is no requirement that the effects on the victim be long-term however any such effects will form part of the determination whether the act or omission meets the “similar seriousness” requirement 159 85 The mens rea required is that the perpetrator had direct or indirect intent to inflict by act or omission serious physical or mental suffering or to commit a serious attack on the victim’s human dignity 160 I Imprisonment 86 Milan Marti is charged with imprisonment as a crime against humanity pursuant to Article 5 e of the Statute Count 5 155 Stakić Appeal Judgement para 315 noting in fn 649 that the category of other inhumane acts was included in Art 6 c of the Nuremberg Charter Art 5 c of the Tokyo Charter and Art II 1 c of Control Council Law No 10 and that convictions have been entered on this ground The Appeals Chamber also noted “that numerous human rights treaties also prohibit inhuman and degrading treatment” including the ICCPR and the ECHR ibid Kordić and Čerkez Appeal Judgement para 117 affirming Kupreškić et al Trial Judgement para 563 156 Kordić and Čerkez Appeal Judgement para 117 In that case the Appeals Chamber noted that “‘other inhumane acts’ were charged exclusively as injuries” ibid See also Blagojević and Jokić Trial Judgement para 625 which held in relation to Article 5 i that “norms of criminal law must always provide individuals with sufficient notice of what is criminal behaviour and what is not ” 157 Kordić and Čerkez Appeal Judgement para 117 See also Krnojelac Trial Judgement paras 130-131 Vasiljevi Trial Judgement para 234 158 Galić Trial Judgement para 153 Vasiljevi Trial Judgement para 235 Krnojelac Trial Judgement para 131 elebi i Trial Judgement para 536 Kunarac et al Trial Judgement para 501 159 Vasiljević Trial Judgement para 235 160 Krnojelac Trial Judgement para 132 Vasiljevic Trial Judgement para 236 Kayishema and Ruzindana Trial Judgement para 153 Case No IT-95-11-T 33 12 June 2007 87 Imprisonment is defined as arbitrary imprisonment that is the deprivation of liberty of an individual without due process of law 161 88 Deprivation of liberty can be achieved by an act or omission on the part of the perpetrator 162 The act or omission must be committed with the intent to deprive a civilian of his or her physical liberty without due process of law or in the reasonable knowledge that his act or omission was likely to cause the deprivation of physical liberty without due process of law 163 J Wanton destruction of villages or devastation not justified by military necessity 89 Milan Martić is charged with wanton destruction of villages or devastation not justified by military necessity violations of the laws or customs of war pursuant to Article 3 b of the Statute 164 90 The following elements must be proven in relation to these violations 1 the destruction of property has occurred on a large scale 2 the destruction was not justified by military necessity and 3 the perpetrator acted with the intent to destroy the property in question or in reckless disregard of the likelihood of its destruction 165 91 The Trial Chamber considers that there is no material difference between the elements of the crimes of wanton destruction and devastation in the context of this case 166 161 Kordi and erkez Appeal Judgement para 116 The Appeals Chamber noted that the Trial Chamber had used the term “individual” in the sense of the term “civilian” Kordi and erkez Appeal Judgement fn 139 The Trial Chamber notes that the Appeals Chamber also included the requirement “as part of a widespread or systematic attack directed against a civilian population” in its definition of the crime of imprisonment The Trial Chamber recalls that this is a general requirement for crimes against humanity Accordingly this requirement does not need to be included in the definition of elements of the crime of imprisonment 162 Krnojelac Trial Judgement para 115 cited in Simi et al Trial Judgement paras 64-65 163 Simi et al Trial Judgement paras 64-65 citing Krnojelac Trial Judgement para 115 The Trial Chamber notes that the Trial Chambers in Krnojelac and in Simi et al included that the acts or omission be “performed by the accused or a person or persons for whom the accused bears criminal responsibility” ibid emphasis added The Trial Chamber considers that these words comprise definitions included in elements of Article 7 1 and 7 3 and that there is no need to include them in the definition of a crime 164 Had ihasanovi and Kubura Rule 98 bis Appeal Decision para 26 Br anin Trial Judgement para 591 Article 3 b of the Statute is derived from Article 23 g of the Hague Convention IV of 1907 and the annexed Regulations “Hague Regulations” Article 23 of the Hague Regulations reads in its relevant part In addition to the prohibitions provided by special Conventions it is especially forbidden … g To destroy or seize the enemy's property unless such destruction or seizure be imperatively demanded by the necessities of war … 165 Kordi and erkez Appeal Judgement para 74 reiterating Kordi and erkez Trial Judgement para 346 See also Naletilić and Martinovi Trial Judgement para 579 Had ihasanovi and Kubura Trial Judgement para 41 Ori Trial Judgement para 581 166 For a similar opinion with which this Trial Chamber agrees see Strugar Trial Judgement paras 290-297 reaching this conclusion both from a linguistic point of view and with reference to international instruments e g Article 6 B of Case No IT-95-11-T 34 12 June 2007 92 The element of destruction of property “on a large scale” requires that a considerable number of objects were destroyed However it is not required that a city town or village has been destroyed in its entirety 167 The Trial Chamber will assess on a case-by-case basis whether the extent of any proven destruction of a particular village was of sufficient scale to meet this element 168 93 The destruction or devastation of property is prohibited except where justified by military necessity 169 The Trial Chamber considers that military necessity may justify the infliction of collateral damage to civilian objects and as such constitutes an exception to the principles of the protection of civilian objects 170 The protection of civilian objects may cease entirely or be reduced or suspended when belligerents cannot avoid causing collateral damage to civilian property even though the object of a military attack is comprised of military objectives 171 In order to establish that the destruction was not justified by military necessity the Prosecution has to prove not only that the destruction occurred but also when and how the destruction occurred 172 An assertion of military necessity or the absence thereof will be assessed on a case-by-case basis In principle destruction carried out before fighting begins or after fighting has ceased cannot be justified by claiming military necessity 173 94 The mens rea of wanton destruction and devastation under Article 3 b of the Statute is that the perpetrator acted with direct or indirect intent 174 the Nuremberg Charter Article II 1 b of Control Council Law No 10 treating “destruction” and “devastation” together See also Brðanin Trial Judgement paras 591-593 167 Ori Trial Judgement para 585 Had ihasanovi and Kubura Trial Judgement para 43 168 Ori Trial Judgement para 585 The Trial Chamber in Had ihasanovi and Kubura held that “destruction is large scale either when a large quantity of property has been destroyed or when the value of a single destroyed object is sufficiently great” Had ihasanovi and Kubura Trial Judgement para 43 169 Kordi and erkez Appeal Judgement para 495 Kordi and erkez Trial Judgement para 346 Naletilić and Martinovi Trial Judgement para 579 Br anin Trial Judgement para 592 Strugar Trial Judgement para 295 Had ihasanovi and Kubura Trial Judgement para 45 Article 14 of the 1863 Lieber Code provides that “ m ilitary necessity as understood in modern civilized nations consists in the necessity of those measures which are indispensable for securing the ends of war and which are lawful according to the modern law and usages of war” 170 Had ihasanovi and Kubura Trial Judgement para 45 Gali Appeal Judgement para 190 171 Kupreškić et al Trial Judgement para 522 cited by Had ihasanovi and Kubura Trial Judgement para 45 172 Kordi and erkez Appeal Judgement para 495 173 Ori Trial Judgement para 588 Naletilić and Martinovi Trial Judgement para 589 However there may be rare occasions in which pre-emptive destruction could arguably fall within the scope of ‘military necessity’ when such destruction is reasonably connected with the overcoming of enemy forces Ori Trial Judgement para 588 174 Kordi and erkez Trial Judgement para 346 Naletilić and Martinovi Trial Judgement fn 1440 Br anin Trial Judgement para 593 Strugar Trial Judgement para 296 Had ihasanovi and Kubura Trial Judgement para 40 Ori Trial Judgement para 589 Case No IT-95-11-T 35 12 June 2007 K Destruction or wilful damage done to institutions dedicated to education or religion 95 Milan Martić is charged with destruction or wilful damage done to institutions dedicated to religion or education a violation of the laws or customs of war pursuant to Article 3 d of the Statute Count 13 175 96 The crime of destruction or wilful damage done to institutions dedicated to religion or education has the following elements 176 1 an act has caused damage to or destruction of an institution dedicated to religion or education 2 the damaged or destroyed institution was not used for military purposes at the time of the act and 3 the act was carried out with intent to destroy or damage or in reckless disregard of the likelihood of the destruction or damage to the institution in question 97 Article 3 d of the Statute is considered as comprising of two types of protection for cultural historical and religious monuments general protection and special protection 177 General protection applies to civilian objects that is all objects which are not military objects 178 Special protection is granted to “historic monuments works of art and places of worship provided they constitute the cultural or spiritual heritage of peoples” 179 The “cultural or spiritual heritage of peoples” covers “objects whose value transcends geographical boundaries and which are unique in character and are intimately associated with the history and culture of a people” 180 Thus special protection does not encompass all the buildings or institutions dedicated to education or religion 181 175 Article 3 d of the Statute prohibits “seizure of destruction or wilful damage done to institutions dedicated to religion charity and education the arts and sciences historic monuments and works of art and science ” Article 3 d of the Statute is derived from Articles 27 and 56 of the Hague Regulations and also has its basis in the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict of 14 May 1954 “1954 Hague Convention” Articles 52 and 53 of Additional Protocol I and Article 16 of Additional Protocol II Kordi and erkez Appeal Judgement paras 89-91 Had ihasanovi and Kubura Rule 98 bis Appeal Decision paras 45-46 Br anin Trial Judgement para 595 Strugar Trial Judgement paras 303-306 176 Strugar Trial Judgement para 312 177 Kordi and erkez Appeal Judgement paras 89-91 Had ihasanovi and Kubura Rule 98 bis Appeal Decision para 45 General protection is codified inter alia in Article 52 of Additional Protocol I 178 Kordi and erkez Appeal Judgement para 89 Had ihasanovi and Kubura Rule 98 bis Appeal Decision para 45 179 Kordi and erkez Appeal Judgement para 90 Had ihasanovi and Kubura Rule 98 bis Appeal Decision para 46 both referring to Article 53 of Additional Protocol I Article 16 of Additional Protocol II reiterates the protection for the same categories of property See also Article 1 a of the 1954 Hague Convention which also codifies the special protection 180 Kordi and erkez Appeal Judgement para 91 ICRC Commentary on Additional Protocols paras 2063-2068 regarding Article 53 of Additional Protocol I paras 4840-4844 regarding Article 16 of Additional Protocol II 181 Kordi and erkez Appeal Judgement paras 89-90 92 Br anin Trial Judgement fn 1505 Case No IT-95-11-T 36 12 June 2007 98 The protection of institutions dedicated to religion or education is lost if such institutions are used for a military purpose 182 The Trial Chamber considers that this exception applies both to general protection and special protection under Article 3 d of the Statute 183 However the protection is not lost simply because military activities or military installations are situated in the immediate vicinity of the institution It is the use of an institution and not its location which is the decisive factor 184 99 The mens rea of this crime is that the perpetrator acted with direct or indirect intent 185 L Plunder of public or private property 100 Milan Martić is charged with plunder of public and private property a violation of the laws or customs of war pursuant to Article 3 e of the Statute Count 14 186 101 Plunder of public or private property under Article 3 e of the Statute is committed “when private or public property is appropriated intentionally and unlawfully” 187 The prohibition of plunder includes “all forms of unlawful appropriation of property in armed conflict for which individual criminal responsibility attaches under international law including those acts traditionally described as ‘pillage’” 188 There is no difference between public and private property under the Statute 189 102 For the crime of plunder to be established the appropriation of private or public property must be done without lawful basis or legal justification Belligerent occupants may in certain instances lawfully use private or public property in the occupied territory for their military needs 190 A party to the conflict is also allowed to seise enemy military equipment captured or found on the battlefield as war booty with the exception that the personal belongings of the 182 Kordi and erkez Trial Judgement paras 361-362 Naletili and Martinovi Trial Judgement para 605 Br anin Trial Judgement para 598 Strugar Trial Judgement para 310 Had ihasanovi and Kubura Trial Judgement paras 58 60-61 183 Had ihasanovi and Kubura Trial Judgement paras 60-61 See also ICRC Commentary on Additional Protocols paras 2069-2079 regarding Article 53 of Additional Protocol I 184 Naletili and Martinovi Trial Judgement para 605 Strugar Trial Judgement para 310 185 Br anin Trial Judgement para 599 Had ihasanovi and Kubura Trial Judgement para 59 186 The offence of plunder has also been codified in the following instruments Article 6 b of the Nuremberg Charter and Article 2 1 b of Control Council Law No 10 punishing the war crime of “plunder of public and private property” Articles 28 and 47 of the Hague Regulations Article 7 of Hague Convention IX and Article 33 of Geneva Convention IV Article 4 2 g of Additional Protocol II prohibiting pillage Article 46 of the Hague Regulations prohibiting confiscation of private property 187 Kordi and erkez Appeal Judgement para 84 188 Kordi and erkez Appeal Judgement para 79 See also Bla ki Appeal Judgement para 147 Acts of unjustified appropriation of property range from isolated acts of looting theft or plunder committed by individuals for private gain to organised seizure of property in violation of the rights of the owners undertaken within the framework of a systematic economic exploitation of the targeted area elebi i Trial Judgement para 590 Jeliši Trial Judgement para 48 Kordi and erkez Trial Judgement para 352 189 Kordi and erkez Appeal Judgement para 79 Case No IT-95-11-T 37 12 June 2007 prisoners of war may not be taken away 191 According to the Hague Regulations forcible contribution of money requisition for the needs of the occupying army and seizure of material obviously related to the conduct of military operations though restricted are lawful in principle 192 103 It is required that the property unlawfully appropriated be of “sufficient monetary value” for its appropriation to involve grave consequences for the victim 193 The assessment of whether a piece of property holds the required value “can only be made on a case-by-case basis and only in conjunction with the general circumstances of the crime” 194 This requirement could be met in cases where appropriations take place vis-à-vis a large number of people even though they do not lead to grave consequences for each individual 195 What needs to be considered here is “the overall effect on the civilian population and the multitude of offences committed” 196 104 With respect to the mens rea of this crime the unlawful appropriation of property must have been perpetrated with either direct or indirect intent 197 M Deportation and other inhumane acts forcible transfer 105 Milan Martić is charged with deportation and other inhumane acts forcible transfers under Article 5 d and i respectively Counts 10 and 11 198 106 The protected interests underlying the prohibitions against deportation and forcible transfer “include the right of the victim to stay in his or her home and community and the right not to be deprived of his or her property by being forcibly displaced to another location ” 199 190 Naletili and Martinovi Trial Judgement para 616 Had ihasanovi and Kubura Trial Judgement para 51 Had ihasanovi and Kubura Trial Judgement para 51 See also Lieber Code Article 45 Hague Regulations Article 4 Geneva Convention III Article 18 1 192 Hague Regulations Articles 51-53 Article 52 provides that “Requisitions in kind and services shall not be demanded from municipalities or inhabitants except for the needs of the army of occupation They shall be in proportion to the resources of the country and of such a nature as not to involve the inhabitants in the obligation of taking part in military operations against their own country Such requisitions and services shall only be demanded on the authority of the commander in the locality occupied Contributions in kind shall as far is possible be paid for in cash if not a receipt shall be given and the payment of the amount due shall be made as soon as possible” See also Geneva Convention IV Articles 55 2 and 57 Naletili and Martinovi Trial Judgement para 616 Simi et al Trial Judgement para 100 Article 4 2 g of Additional Protocol II prohibits pillage in non-international armed conflicts see Had ihasanovi and Kubura Trial Judgement para 52 Customary International Humanitarian Law ICRC Volume I pp 181-182 193 elebi i Trial Judgement para 1154 referred to by Kordi and erkez Trial Judgement para 352 and later upheld by Kordi and erkez Appeal Judgement para 82 194 Kordi and erkez Appeal Judgement para 82 Hadžihasanović and Kubura Trial Judgement para 55 195 Kordi and erkez Appeal Judgement para 83 Naletili and Martinovi Trial Judgement para 614 Had ihasanovi and Kubura Trial Judgement para 55 196 Kordi and erkez Appeal Judgement para 83 197 Had ihasanovi and Kubura Trial Judgement para 50 Ori Decision on the Motion for Acquittal pursuant to Rule 98 bis Hearing 8 Jun 2005 T 9027 198 In this judgement the term “forcible transfer” will be used concerning displacement charged in Count 11 199 Stakić Appeal Judgement para 277 accepting Stakić Trial Judgement para 681 191 Case No IT-95-11-T 38 12 June 2007 107 The actus reus of deportation is “the forced displacement of persons by expulsion or other forms of coercion from the area in which they are lawfully present across a de jure border or in certain circumstances a de facto border without grounds permitted under international law ” 200 The actus reus of forcible transfer is the forced displacement of persons within national boundaries 201 108 The element that the displacement be forced requires that the victims had no genuine choice in their displacement 202 In situations where the victims have consented or even requested their removal that consent “must be real in the sense that it is given voluntarily and as a result of the individual’s free will assessed in the light of surrounding circumstances ” 203 109 International law permits involuntary displacements on humanitarian grounds 204 Thus in cases where displacements are permitted on humanitarian grounds the act of displacement cannot constitute the actus reus of deportation or forcible transfer 205 However displacements for humanitarian reasons are not justifiable where the humanitarian crisis that caused the displacement is itself the result of the accused’s own unlawful activity 206 110 With regard to deportation the Stakić Appeals Chamber found that “the default principle under customary international law … is that there must be expulsion across a de jure border to another country ” 207 The Appeals Chamber has also held that under certain circumstances displacement across a de facto border may be sufficient to amount to deportation 208 111 The mens rea of deportation is that the perpetrator must intend to displace the victims across the border 209 The mens rea of forcible transfer is that the perpetrator must intend to displace the 200 Stakić Appeal Judgement para 278 Stakić Appeal Judgement para 317 202 Stakić Appeal Judgement para 279 The absence of genuine choice has been interpreted to include displacement as a result of threats or the use of force fear of violence and illegal detention Krnojelac Appeal Judgement para 229 The Appeals Chamber has held that factors other than force may render an act involuntary such as taking advantage of coercive circumstances Kunarac et al Appeal Judgement para 129 in the context of rape 203 Stakić Appeal Judgement para 279 referring to Krnojelac Appeal Judgement para 299 and Kunarac et al Appeal Judgement paras 127-128 the latter in the context of rape 204 Article 49 2 of Geneva Convention IV which is applicable to international armed conflict provides that “the Occupying Power may undertake total or partial evacuation of a given area if the security of the population or imperative military reasons so demand ” Similarly Article 17 of Additional Protocol II which is applicable to noninternational armed conflict provides that “ t he displacement of the civilian population shall not be ordered for reasons related to the conflict unless the security of the civilians involved or imperative military reasons so demand ” While Article 17 of Additional Protocol II does not use the term “evacuation” it is clear from reading the provision that the same temporary measure as described in Article 49 2 of Geneva Convention IV is intended 205 Stakić Appeal Judgement para 286 noting that “the participation of an NGO in facilitating displacements does not in and of itself render an otherwise unlawful transfer lawful” ibid 206 Stakić Appeal Judgement para 287 207 Stakić Appeal Judgement para 300 208 In general the question whether a particular de facto border is sufficient for the purposes of the crime of deportation should be examined on a case by case basis in light of customary international law Stakić Appeal Judgement para 300 footnotes omitted 209 Stakić Appeal Judgement para 278 201 Case No IT-95-11-T 39 12 June 2007 victims within the relevant national border 210 It is not necessary for either crime that the perpetrator intends the displacement to be permanent 211 N Persecution 112 Milan Martić is charged with persecution as a crime against humanity pursuant to Article 5 h of the Statute Count 1 113 The crime of persecution consists of an act or omission which 1 discriminates in fact and which denies or infringes upon a fundamental right laid down in international customary or treaty law and 2 was carried out deliberately with the intention to discriminate on political racial or religious grounds 212 114 Each of the three grounds listed is in itself sufficient to qualify conduct as persecution notwithstanding the conjunctive “and” in the text of Article 5 h 213 115 What distinguishes persecution from other crimes against humanity is that the underlying act is committed on discriminatory grounds 214 There is no comprehensive list of the acts which may constitute persecution 215 Such acts may be one of those listed under Article 5 of the Statute or one of the acts constituting a crime under other articles of the Statute 216 Furthermore a persecutory act need not be prohibited explicitly either in Article 5 or elsewhere in the Statute 217 116 It is not the case however that any act if committed with the requisite discriminatory intent amounts to persecutions as a crime against humanity 218 There must be clearly defined limits on the expansion of the types of acts which qualify as persecution 219 In order to amount to persecutions the act must constitute a denial or infringement of a fundamental right laid down in 210 Stakić Appeal Judgement para 317 Stakić Appeal Judgement paras 278 317 212 Kvočka et al Appeal Judgement para 320 Krnojelac Appeal Judgement para 185 Vasiljević Appeal Judgement para 113 Bla kić Appeal Judgement para 131 Kordić and erkez Appeal Judgement para 101 Stakić Appeal Judgement para 327 213 Tadi Trial Judgement para 713 See e g Krnojelac Appeal Judgement para 184 214 Kupre kić et al Trial Judgement para 607 215 Vasiljević Trial Judgement para 246 citing Tadić Trial Judgement para 694 Kupre kić et al Trial Judgement paras 567-568 614 Bla kić Trial Judgement 218-219 Kordić and Čerkez Trial Judgement para 192 Krnojelac Trial Judgement para 433 216 Krnojelac Appeal Judgement para 219 217 Kupre kić et al Trial Judgement para 614 The Trial Chamber in Tadić held that “the persecutory act must be intended to cause and result in an infringement on an individual’s enjoyment of a basic or fundamental right” Tadić Trial Judgement para 715 Furthermore it has been held that the acts themselves do not have to be inherently criminal but they may become criminal and persecutory if committed with discriminatory intent Kvo ka et al Trial Judgement para 186 See also Tadić Trial Judgement para 710 218 Bla kić Appeal Judgement para 139 219 Kupre kić et al Trial Judgement para 618 Kordić and Čerkez Trial Judgement para 194 211 Case No IT-95-11-T 40 12 June 2007 customary international law 220 Furthermore not every act which constitutes a denial or infringement of a fundamental right is serious enough to constitute persecution Acts of persecution must be of equal gravity to the acts enumerated under Article 5 221 117 A single act or omission may be sufficient to constitute persecution “as long as this act or omission discriminates in fact and was carried out deliberately with the intention to discriminate on one of the listed grounds ” 222 Therefore the act or omission itself must have discriminatory consequences and not just be carried out with discriminatory intent 223 118 It has been held that an act is discriminatory when a victim is targeted because of membership of a “group defined by the perpetrator on a political racial or religious basis” 224 However it is not necessary that a victim actually be a member of the targeted group Thus a Serb mistaken for a Muslim may still be the victim of the crime of persecution 225 119 The jurisprudence holds that the following acts which the Prosecution has charged under Count 1 of the Indictment may constitute the underlying acts of the crime of persecution extermination and murder imprisonment inhumane living conditions torture beatings sexual assault unlawful attacks on civilians restrictive and discriminatory measures robbery deportation or forcible transfer destruction of homes other public and private property cultural institutions historic monuments and sacred sites 226 220 Kordić Appeal Judgement para 103 Bla kić Appeal Judgement para 139 Bla kić Appeal Judgement para 160 Kupre kić et al Trial Judgement para 619 222 Vasiljević Appeal Judgement para 113 See also Kordić and Čerkez Appeal Judgement para 102 223 Bla kić Appeal Judgement para 135 See also Blagojevi and Joki Trial Judgement para 583 Stakić Trial Judgement para 733 224 Blagojevi and Joki Trial Judgement para 583 225 Krnojelac Appeal Judgement para 185 226 Bla kić Appeal Judgement paras 143 153 155 159 Kordić and Čerkez Appeal Judgement paras 104-106 108 672 Krnojelac Appeal Judgement paras 221-222 Brđanin Trial Judgement paras 999 1029 et seq Krnojelac Trial Judgement paras 438-443 Kupre kić et al Trial Judgement para 615 Stakić Trial Judgement para 757 holding that “not only rape but also any other sexual assault falling short of actual penetration is punishable as persecution ” Tadić Trial Judgement para 717 While robbery has not previously been expressly considered as a crime which may constitute an underlying act of persecutions the Trial Chamber notes that the fundamental right to property is recognised in the Tribunal’s jurisprudence see e g Bla kiæ Appeal Judgement para 145 Blagojeviæ Trial Judgement paras 593-594 Naleteliæ and Martinoviæ Trial Judgement para 699 and authorities cited therein Kordiæ and erkez Appeal Judgement para 81 The Trial Chamber further notes that destruction of property may constitute an underlying act of the crime of persecutions see e g Bla kiæ Appeal Judgement para 146 and authorities cited therein Kordiæ and erkez Appeal Judgement para 108 Aggravated forms of crimes against property in the context of plunder under Article 3 of the Statute have been recognised as acts of persecutions see e g Kupre kić et al Trial Judgement para 631 Kordiæ and Èerkez Trial Judgement para 205 Moreover theft and robbery have been considered in the context of a persecutory campaign see e g Kvoèka et al Trial Judgement para 496 in which the Trial Chamber held “ 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” See also Kvočka et al Trial Judgement para 731 Kordiæ and Èerkez Trial Judgement paras 514-520 The Trial Chamber is therefore satisfied that the appropriation of property with violence in the form of robbery may constitute an underlying act of the crime of persecution if perpetrated with the requisite intent In relation to destruction the Trial Chamber in Kupre kić et al found that the comprehensive destruction of homes and property 221 Case No IT-95-11-T 41 12 June 2007 120 The crime of persecution requires evidence of a specific intent to discriminate on political racial or religious grounds 227 This intent must be aimed at a group rather than an individual thus the mens rea “is the specific intent to cause injury to a human being because he belongs to a particular community or group ” 228 121 Discriminatory intent may be inferred for example from the discriminatory nature of an attack characterised as a crime against humanity provided that the circumstances surrounding the commission of the alleged acts substantiate the existence of such intent 229 However discriminatory intent may not be inferred directly from the general discriminatory nature of such an attack that is such a context may not in and of itself amount to evidence of discriminatory intent 230 122 Circumstances which may be taken into consideration when inferring discriminatory intent include “the systematic nature of the crimes committed against a racial or religious group and the general attitude of the alleged perpetrator as demonstrated by his behaviour” 231 Generally such specific intent can only be inferred from “objective facts and the general conduct of an accused seen in its entirety ” 232 O The Defence’s challenge to the concept of JCE 123 In its closing arguments the Defence submitted that JCE is not envisaged in the Statute as a mode of liability and that its existence and applicability can only be established by the United Nations Security Council 233 The Defence therefore submits that the application of JCE in the instant case is beyond the competence of the Trial Chamber 234 This conclusion in the Defence’s view is not affected by the consideration that JCE has been applied in previous cases 235 which constituted the destruction of the livelihood of a certain population may constitute a gross or blatant denial of fundamental rights and if committed on discriminatory grounds could amount to persecutions Kupre kić et al Trial Judgement para 631 The Trial Chamber in Kordić and Čerkez held that the destruction and damage of religious or educational institutions may constitute persecution Kordić and Čerkez Trial Judgement para 207 In relation to plunder the Appeals Chamber in Kordić and Čerkez held that it must be considered whether an act of plunder committed separately or cumulatively with discriminatory intent in concreto amounts to persecutions being of an equal gravity as the other crimes against humanity listed in Article 5 of the Statute Kordić and Čerkez Appeal Judgement para 109 See also Bla kić Trial Judgement para 227 Kordić and Čerkez Trial Judgement para 205 Kupre kić et al Trial Judgement para 631 Tadić Trial Judgement paras 707 710 227 Kvočka et al Appeal Judgement para 460 Bla kić Appeal Judgement para 165 228 Kordić and Čerkez Appeal Judgement para 111 229 Bla kić Appeal Judgement para 164 citing Krnojelac Appeal Judgement 184 See also Kordić and Čerkez Appeal Judgement paras 110 950 Kvočka et al Appeal Judgement para 366 Naleteli and Martinovi Appeal Judgement paras 131 146 572 230 Kvo ka et al Appeal Judgement para 460 emphasis added 231 Kvo ka et al Appeal Judgement para 460 232 Kordi and erkez Appeal Judgement para 715 233 Defence Closing Argument 11 Jan 2007 T 11325-11327 234 Ibid 235 Ibid Case No IT-95-11-T 42 12 June 2007 124 The Trial Chamber will discuss JCE as a mode of liability later in the judgement 236 However as the Defence has effectively raised a jurisdictional challenge in relation to the application of JCE to the instant case the Trial Chamber considers it necessary to deal with the Defence submission in the present section 125 The principle of individual criminal responsibility is laid down in Article 7 1 of the Statute which provides as follows A person who planned instigated ordered committed or otherwise aided and abetted in the planning preparation or execution of a crime referred to in articles 2 to 5 of the present Statute shall be individually responsible for the crime 126 The Appeals Chamber found that the Statute does not confine itself to providing for jurisdiction over those persons who plan instigate order physically perpetrate a crime or otherwise aid and abet in its planning preparation or execution 237 This is established jurisprudence In other words the Statute does not exclude other modes of liability such as JCE which are based in customary international law After reviewing relevant treaties and national legislation as well as several post-World War II war-crimes cases the Appeals Chamber held that JCE existed as a mode of individual criminal responsibility in customary international law at the time of the events in the former Yugoslavia 238 The Appeals Chamber therefore found that JCE is a form of “commission” under Article 7 1 of the Statute for which the Tribunal has jurisdiction ratione personae The Defence argument is therefore dismissed III FACTUAL FINDINGS A Background 127 In April and May 1990 multi-party elections were held in the Socialist Republic of Croatia 239 The Croatian Democratic Union “HDZ” won 41 5% of the votes and two-thirds of the seats in the Parliament 240 On 30 May 1990 the HDZ candidate Franjo Tu man was elected President of the Presidency of the Socialist Republic of Croatia 241 As a result of the elections the 236 See infra Section IV B 1 Tadić Appeal Judgement para 190 238 Tadić Appeal Judgement para 226 See also Br anin Appeal Judgement paras 363-365 239 Ex 820 Agreed Facts para 3 See also Veljko D‘akula 16 Jan 2006 T 344 Milan Babi 3 Mar 2006 T 1852 Vlado Vukovi 27 Mar 2006 T 2681 Witness MM-036 4 Apr 2006 T 3198 Ratko Ličina 14 Aug 2006 T 6370 240 Ex 820 Agreed Facts para 3 See also Milan Babi 15 Feb 2006 T 1358 21 Feb 2006 T 1720 Witness MM022 20 Mar 2006 T 2321 Vlado Vukovi 27 Mar 2006 T 2681 Witness MM-078 25 May 2006 T 4481 Witness MM-096 18 Aug 2006 T 6728 241 Ex 820 Agreed Facts para 3 See also Veljko D‘akula 17 Jan 2006 T 453-454 Milan Babi 21 Feb 2006 T 1720 237 Case No IT-95-11-T 43 12 June 2007 Serbian Democratic Party “SDS” gained power in the municipalities of Benkovac Donji Lapac Gračac Glina Korenica Knin Obrovac and Vojnić 242 128 On 25 July 1990 a Serbian Assembly was established in Srb north of Knin as the political representation of the Serbian people in Croatia 243 The Serbian Assembly declared sovereignty and autonomy of the Serb people in Croatia 244 On 31 July 1990 Milan Babi became president of the Serbian National Council “SNC” the executive body of the Serbian Assembly 245 On 16 August 1990 the SNC called for a referendum on the autonomy of Serbs in Croatia to be held between 19 August and 2 September 1990 246 The following day 17 August 1990 the Government of Croatia declared the referendum illegal The Croatian police moved towards several Serb-majority towns in the Krajina region and removed weaponry from the SJBs 247 Serbs responded by putting up barricades in Knin and surroundings 248 The referendum was held between 19 August and 2 September 1990 97 7% voted in favour of autonomy 249 B The SAO Krajina 1 Development of the SAO Krajina 129 On 21 December 1990 the SAO Krajina was proclaimed by the municipalities of the regions of Northern Dalmatia and Lika in south-western Croatia 250 Article 1 of the Statute of the SAO Krajina defined the SAO Krajina as “a form of territorial autonomy within the Republic of Croatia” on which the Constitution of the Republic of Croatia state laws and the Statute of the SAO Krajina were applied 251 242 Veljko D‘akula 16 Jan 2006 T 344 Milan Babić 15 Feb 2006 T 1359 Witness MM-037 28 Mar 2006 T 27672668 Ratko Ličina 14 Aug 2006 T 6381-6382 6403-6404 Branko Popovi 8 Sep 2006 T 7996-7997 The SDS’ aims and goals included “creating conditions for the full self-confirmation of the spiritual and cultural identity of each Yugoslav people by itself independently of which federal unit it belonged to ensuring constitutional possibility for establishing territorial autonomies inside the federal units if the population on the territories with a special ethnic composition or cultural and historical identity decides so on a referendum” Ex 138 See also Veljko D‘akula 16 Jan 2006 T 344 Ratko Ličina 14 Aug 2006 T 6371 Ex 23 pp 20 24-25 243 Ex 820 Agreed Facts para 4 See also Ex 23 p 25 244 Ex 820 Agreed Facts para 4 See also Veljko D‘akula 16 Jan 2006 T 385 18 Jan 2006 T 507 Milan Babi 21 Feb 2006 T 1743-1744 Ratko Ličina 15 Aug 2006 T 6497 17 Aug 2006 T 6693-6696 Lazar Macura 13 Sep 2006 T 8272 Ex 141 245 Milan Babić 15 Feb 2006 T 1327 246 Ex 820 Agreed Facts para 5 See also Ex 179 247 Witness MM-096 18 Aug 2006 T 6755 6761-6762 6769 See also Ex 22 Ex 23 248 This is also referred to as the “Log Revolution” Ex 820 Agreed Facts para 6 See also Ex 496 p 6 Ex 497 Witness MM-003 8 Mar 2006 T 1968-1969 Witness MM-078 25 May 2006 T 4475 Ratko Ličina 14 Aug 2006 T 6397 6400 Witness MM-096 18 Aug 2006 T 6777-6778 249 Ex 820 Agreed Facts para 7 See also Veljko D‘akula 18 Jan 2006 T 508 Milan Babi 21 Feb 2006 T 17461747 2 Mar 2006 T 1771 Ex 142 250 Ex 820 Agreed Facts para 9 See also Milan Babić 21 Feb 2006 T 1747 Ex 143 251 Ex 820 Agreed Facts para 9 See also Milan Babić 21 Feb 2006 T 1747-1748 Art 4 of the Statute provided that “ t he Serbian Autonomous District of Krajina shall have territory that is comprised of territories of the present Union of Municipalities of Northern Dalamatia and Lika territories of municipalities with majority Serbian populations which Case No IT-95-11-T 44 12 June 2007 130 On 22 December 1990 the Parliament of Croatia adopted a new constitution wherein Croatia was defined as “the national state of the Croatian nation and a state of members of other nations and minorities who are citizens Serbs … who are guaranteed equality with citizens of Croatian nationality … ” 252 The Serb population in the Krajina region considered that by the adoption of the new constitution they had been deprived of the right to be a constituent nation in Croatia which would include the right of self-determination 253 131 On 4 January 1991 the Executive Council of the SAO Krajina established the Regional Secretariat for Internal Affairs “SUP” in Knin 254 On the same date Milan Marti was appointed the Secretary for Internal Affairs of the SAO Krajina 255 On 5 January 1991 the Executive Council informed the MUP of Croatia that the establishment of the SUP revoked the authority of the MUP of Croatia in the SAO Krajina territory 256 132 In March 1991 there were armed clashes in Pakrac in Western Slavonia and in Plitvice between Titova Korenica and Saborsko between Croatian MUP special police forces and the police of the SAO Krajina In both of these clashes the JNA intervened to separate the two sides 257 133 On 1 April 1991 Milan Babi as President of the Executive Council of the SAO Krajina ordered mobilisation of the TO and volunteer units of the SAO Krajina 258 However the evidence shows that between January and August 1991 the municipal TO staffs and units only existed on paper 259 In the same order Milan Babić requested the MUP of Serbia to provide technical and adopt decisions to joint the Serbian Autonomous District of Krajina and settlements in which Serbian people comprise the majority of the population and which have voted at a referendum in favour of joining one of the existing or newly established municipalities with a majority Serbian population” Ex 143 252 Ex 910 p 9 Veljko D‘akula 18 Jan 2006 T 513 253 Ratko Ličina 14 Aug 2006 T 6386 16 Aug 2006 T 6542-6543 Witness MM-090 1 Sep 2006 T 7563-7573 254 Ex 183 The SUP in Knin included SJBs of Obrovac Benkovac Knin Gračac Titova Korenica Donji Lapac Dvor na Uni Glina Kostajnica Vojni ibid Witness MM-096 21 Aug 2006 T 6829 6831-6832 See also Ex 182 Ex 181 Reynaud Theunens 26 Jan 2006 T 686-687 Ex 1042 Tab 2 Ex 1043 Tab 2 DVD 3 pp 10-16 Ex 1044 255 Ex 820 Agreed Facts para 10 See also Milan Babi 15 Feb 2006 T 1397-1398 1406 2 Mar 2006 T 1800 Reynaud Theunens 3 Feb 2006 T 1013 Ex 33 256 Ex 183 See also Ex 485 Decree on Internal Organisation and Operation of the Ministry of the Interior providing that there were two services within the MUP the Public Security Service and the State Security Service Art 7 and that in the event of a state of war or imminent threat of war “special police units” would be formed Art 6a 257 Veljko Džakula 18 Jan 2006 T 516-517 Milan Babić 17 Feb 2006 T 1506-1507 1510-1513 also testifying that a Croat and a Serb policeman were killed 20 Feb 2006 T 1600 Marko Vuković 24 Mar 2006 T 2571 Vlado Vuković 27 Mar 2006 T 2651 2686-2688 28 Mar 2006 T 2722 2729 Witness MM-037 28 Mar 2006 T 2758 Ex 268 T 11621 Slobodan Peri 7 Sep 2006 T 7908-7910 Lazar Macura 12 Sep 2006 T 8208 Stevo Plejo 20 Sep 2006 T 8676-8677 Nikola Medaković 9 Oct 2006 T 8957-8958 Ex 476 p 251 258 Ex 29 In the SFRY the TO was organised funded and equipped on the level of the Republics of the SFRY Reynaud Theunens 26 Jan 2006 T 656 Ex 6 p 6 See also Ex 147 259 Milan Babić 15 Feb 2006 T 1393-1395 testifying that the only armed units of the SAO Krajina during this time period were the Milicija Krajine and volunteer units see also Radoslav Maksi 6 Feb 2006 T 1154-1155 1171 Ex 30 providing p 1 that the Benkovac municipality TO staff following a decision by the SAO Krajina Government of 15 July 1991 began “forming and arming the TO units of Benkovac Municipality on 17 July 1991” It is also stated p 1 that “the most difficult problem during the beginning of the formation of TO units was that there was a very small quantity of weapons available ” Case No IT-95-11-T 45 12 June 2007 personnel support to the SUP of the SAO Krajina 260 Also on 1 April 1991 the Executive Council of the SAO Krajina passed a decision joining the SAO Krajina to Serbia wherein it was stipulated that the constitution and laws of Serbia as well as the constitutional-legal system of the SFRY were to apply in the SAO Krajina 261 It was also decided that a referendum was to be held on the question “ a re you in favour of the annexation of the SAO Krajina to the Republic of Serbia on the 30th of April ” 262 The President of Serbia Slobodan Milo evi publicly opposed the referendum on joining the SAO Krajina with Serbia stating that the ballot would have to read instead “in favour of remaining in Yugoslavia” moreover he asked that the decision on the annexation of the SAO Krajina to Serbia be withdrawn 263 134 On 12 May 1991 after the intervention of Slobodan Milošević the referendum was held on the following question “ a re you in favour of the SAO Krajina joining the Republic of Serbia and staying in Yugoslavia with Serbia Montenegro and others who wish to preserve Yugoslavia ” with 99 8% voting in favour 264 On 16 May 1991 the Assembly of the SAO Krajina approved the outcome of the referendum and stated that “the territory of the SAO Krajina is a constitutive part of the unified state territory of the Republic of Serbia” 265 Both Milan Babi and Milan Martić publicly expressed views that SAO Krajina belonged with Serbia 266 On 19 May 1991 a referendum was held in Croatia except in predominantly Serb areas concerning independence of Croatia from Yugoslavia 94 1% of those voting came out in favour of independence 267 135 On 29 May 1991 the SAO Krajina government was established with Milan Babić as President 268 Milan Babić appointed Milan Martić as Minister of Defence 269 On the same day the Assembly of the SAO Krajina established “special purpose police units” named Milicija Krajine in addition to the previously established Public Security Service police and State Security Service police 270 The Milicija Krajine was established within the MUP but was put under the authority of 260 Ex 29 Ex 820 Agreed Facts para 11 See also Milan Babi 16 Feb 2006 T 1511 Ex 144 Ex 145 262 Milan Babi 2 Mar 2006 T 1824 1830-1832 Ex 148 263 Ex 235 See also Ex 201 p 3 Mile Dakić 25 Oct 2006 T 10025-10026 Milan Babić 16 Feb 2006 T 1476-1477 2 Mar 2006 T 1830-1831 Lazar Macura 14 Sep 2006 T 8326 264 Ex 820 Agreed Facts para 13 See also Milan Babi 2 Mar 2006 T 1830 Ex 146 Ex 148 Ex 234 265 Ex 613 Art 3 p 45 See also Ex 149 Following this decision an SAO Krajina delegation went to Belgrade to present the results of the referendum as well as the request on the annexation of the SAO Krajina to Serbia however the delegation was not received by the Serbian Assembly Lazar Macura 12 Sep 2006 T 8201-8203 See also Ljubica Vujanić 15 Sep 2006 T 8479-8480 18 Sep 2006 T 8535-8538 Ex 956 266 Ex 973 Ex 955 pp 3-4 See also Witness MM-105 1 Nov 2006 T 10496-10497 On 29 May 1991 the Assembly of the SAO Krajina passed the Constitutional Law of the SAO Krajina which defined the SAO Krajina as part of the federative Yugoslavia Ex 820 Agreed Facts para 13 267 Ex 820 Agreed Facts para 14 See also Ex 1019 p 5 268 Milan Babi 15 Feb 2006 T 1328 269 Milan Babi 15 Feb 2006 T 1405-1407 See also Ex 154 270 Ex 820 Agreed Facts para 15 See also Ex 485 The Public Security Service was responsible for maintaining law and order The SDB handled political crime terrorism extremism and intelligence work The Milicija Krajine units 261 Case No IT-95-11-T 46 12 June 2007 the Ministry of Defence 271 The Milicija Krajine units wore patches on the sleeves of their uniforms reading in Cyrillic “Milicija Krajine” 272 On 27 June 1991 Milan Martić was appointed Minister of Interior 273 According to Milan Babi on this day Milan Martić withdrew from his position as Minister of Defence 274 136 On 25 June 1991 Croatia and Slovenia declared independence from Yugoslavia 275 However on 8 July 1991 an international agreement was reached that Croatia and Slovenia would suspend implementation of their independence until 8 October 1991 276 137 On 1 August 1991 the SAO Krajina government decided to apply the Law on Defence of Serbia in the SAO Krajina Accordingly the Milicija Krajine units together with the TO made up the armed forces of the SAO Krajina 277 The evidence shows that the TO used JNA solid-colour uniforms with patches reading “SAO Krajina” in Cyrillic on the sleeve 278 Milan Babić as President was the Commander of the TO of the SAO Krajina 279 On 8 August 1991 Milan Martić was appointed Deputy Commander of the TO of the SAO Krajina in which position he remained defended the territorial integrity of the SAO Krajina secured vital facilities infiltrated sabotage groups and could also be used in military operations Radoslav Maksi 6 Feb 2006 T 1169-1170 Witness MM-079 31 Mar 2006 T 3030-3031 Nikola Medakovi 10 Oct 2006 T 9054 Witness MM-117 18 Oct 2006 T 9674 Ex 32 271 Ex 820 Agreed Facts para 15 The Trial Chamber notes the evidence that a clash occurred between Milan Babić and Milan Martić as a result of the former’s decision to appoint Dušan Vještika as Minister of Interior and that according to Milan Babić Milan Martić only accepted the appointment as Minister of Defence on condition that he “could still maintain his control over the special police units which were being trained at Golubi ” Milan Babić 15 Feb 2006 T 1406 1408 Ex 44 Ex 544 Ex 1028 Group 2 p 13 See also Ex 485 Art 6b according to which the “leader” of the future Milicija Krajine Service would be accountable to the Minister of the Interior 272 Vlado Vukovi 27 Mar 2006 T 2701-2703 Nikola Medakovi 10 Oct 2006 T 9052 Ex 266 273 Ex 820 Agreed Facts para 16 See also Milan Babi 15 Feb 2006 T 1408 2 Mar 2006 T 1803-1804 Ex 34 With the establishment of the government in May 1991 the SUP of the SAO Krajina was changed into the MUP of the SAO Krajina Milan Babi 15 Feb 2006 T 1406-1407 Ex 44 On 1 August 1991 a decision was reached about the application of the law on internal affairs of the Republic of Serbia on the territory of Krajina Milan Babi 15 Feb 2006 T 1403-1404 274 Milan Babi 15 Feb 2006 T 1407 The Trial Chamber notes that while Ex 582 dated 23 July 1991 and Ex 215 dated 19 August 1991 refer to Milan Marti as Minister of Defence it however accepts the evidence of Milan Babić 275 Ex 820 Agreed Facts para 14 276 Ex 820 Agreed Facts para 17 See also Milan Babi 2 Mar 2006 T 1836 3 March 2006 T 1882 1887 1923 277 Ex 31 Art 5 278 Witness MM-037 28 Mar 2006 T 2787-2788 29 Mar 2006 T 2813 Ex 188 Regarding JNA uniforms see infra fn 283 279 Ex 31 Art 6 The Trial Chamber notes that the Milicija Krajine is not mentioned in this provision Milan Babić 16 Feb 2006 T 1422-1424 See also Ex 189 Radoslav Maksić 6 Feb 2006 T 1154 Case No IT-95-11-T 47 12 June 2007 until 30 September 1991 280 He continued to hold the position of Minister of the Interior while he was Deputy Commander of the TO 281 138 As will be discussed below there were several ongoing clashes between Croatian armed forces and formations and the forces of the SAO Krajina from the spring of 1991 including in Kijevo Drniš Hrvatska Dubica Saborsko and Škabrnja 282 During the second half of 1991 there were numerous cease-fire agreements and agreements on the withdrawal of the JNA from Croatia 283 On 23 November the Vance Plan was signed by the President of Croatia Franjo Tu man the President of Serbia Slobodan Milo evi and the SFRY Federal Secretary for Defence General Veljko Kadijevi 284 The Vance Plan made provision for the deployment of a United Nations Protection Force “UNPROFOR” in the Krajina Western Slavonia and Eastern Slavonia for demilitarisation and eventual return of refugees and displaced persons 285 Importantly the Vance Plan stated that “ t he role of the United Nations troops would be to ensure that the areas remained demilitarised and that all persons residing in them were protected from fear of armed attack ” 286 139 On 30 November 1991 the SAO Krajina adopted its own Law on Defence whereby the Law on Defence of Serbia ceased to apply in the SAO Krajina 287 According to the new law the TO 280 Ex 820 Agreed Facts para 19 See also Milan Babić 15 Feb 2006 T 1395-1396 16 Feb 2006 T 1435-1437 testifying that in early August 1991 Slobodan Milošević requested him to appoint Milan Martić as Commander of the TO however he refused to do this because Milan Martić “was not qualified to hold that position that this was something that a general of the army should do” and that Milan Martić was instead appointed Deputy Commander of the TO to prevent him from becoming “independent of the government” Radoslav Maksi an officer in the SAO Krajina TO and subsequently TO Commander testifying that he had numerous meetings with Milan Babi as Supreme Commander and only rarely with Milan Marti Radoslav Maksi 7 Feb 2006 T 1230-1231 Reynaud Theunens 6 Feb 2006 T 1128-1129 Ex 37 281 Milan Babi 15 Feb 2006 T 1395-1396 16 Feb 2006 T 1436 See also Ex 121 Reynaud Theunens 6 Feb 2006 T 1128-1129 282 See infra paras 161-171 173-175 220-224 236-243 283 These cease-fire agreements included the Brioni Moratorium Ex 820 Agreed Facts para 17 See also Veljko Džakula 18 Jan 2006 T 527-528 Milan Babi 2 Mar 2006 T 1834-1835 3 Mar 2006 T 1871-1872 the Carrington Plan Milan Babi 20 Feb 2006 T 1614-1615 1634-1635 Lazar Macura 14 Sep 2006 T 8328 On 8 October 1991 the JNA and the Croatian armed forces signed an agreement under the auspices of the European Community concerning the withdrawal of JNA units from Croatia Ex 240 Milan Babi 3 March 2006 T 1922-1923 In the SFRY JNA was a federal institution Reynaud Theunens 26 Jan 2006 T 656 Ex 6 p 6 The evidence shows that JNA soldiers wore solid-colour uniforms which witnesses described as olive-grey or olive-green in colour The evidence also shows that from 1992 or 1993 camouflage uniforms were introduced for JNA units The caps had a fivepointed star and the officers had shoulder patches to denote rank Vlado Vukovi 27 Mar 2006 T 2706 Lazar Macura 15 Sep 2006 T 8401 8405 284 Ex 820 Agreed Facts para 22 See also Milan Babi 20 Feb 2006 T 1639 3 March 2006 T 1914 1923-1924 Lazar Macura 14 Sep 2006 T 8329 Ex 948 285 Veljko D‘akula 16 Jan 2006 T 406-407 Milan Babi 20 Feb 2006 T 1635 Charles Kirudja 30 May 2006 T 4787-4788 1 Jun 2006 T 4901-4902 Lazar Macura 13 Sep 2006 T 8225-8231 14 Sep 2006 T 8337 Ex 115 Ex 478 p 1 A cease-fire agreement was subsequently signed on 2 January 1992 Ex 820 Agreed Facts para 24 See also Veljko D‘akula 18 Jan 2006 T 559 Charles Kirudja 31 May 2006 T 4888 Slobodan Jar evi 13 Jul 2006 T 61966197 Ex 766 286 Ex 115 paras 7 10-11 287 Ex 36 Case No IT-95-11-T 48 12 June 2007 was “part of the unified armed forces of the SFRY ” and the President of the SAO Krajina led “the armed forces in times of peace and in times of war ” 288 2 Support provided to the SAO Krajina 140 As early as August 1990 and through the summer of 1991 officials of the MUP of Serbia including the Chief of the SDB Jovica Stani i and an official thereof Franko “Frenki” Simatović met with the SAO Krajina leadership in particular with Milan Martić concerning the provision of financial logistical and military assistance 289 From January 1991 Milan Martić went on occasion to Belgrade to meet with these officials and with Radmilo Bogdanović the Minister of the Interior of Serbia concerning the provision of support to the SAO Krajina 290 141 The SAO Krajina budget was very small as a result of Croatia having ceased to provide budget allocations to Serb municipalities in May 1991 291 The SAO Krajina government including Milan Marti sent requests to the government of Serbia for military assistance and the evidence shows that these requests were frequently met 292 The police of the SAO Krajina were mainly 288 Ex 36 Articles 6 and 31 Milan Babić 17 Feb 2006 T 1524-1526 Witness MM-003 8 Mar 2006 T 1987-1988 1991-1992 See also Radoslav Maksi 6 Feb 2006 T 1179-1180 290 Milan Babić 17 Feb 2006 T 1525 Witness MM-003 8 Mar 2006 T 1994-1995 10 Mar 2006 T 2134 See also Milan Babi 15 Feb 2006 T 1392 16 Feb 2006 T 1426-1427 Witness MM-079 3 Apr 2006 T 3061 Rade Rašeta 2 May 2006 T 3921-3924 Witness MM-018 9 Jun 2006 T 5354 Ex 460 Ex 619 Milan Babi testified that on Slobodan Milo evi ’s recommendation he met the Ministry of Defence of Serbia to discuss the need to finance and equip the TO “a couple of times” in September of 1991 and in November 1991 in Belgrade Milan Babić 16 Feb 2006 T 1461-1462 1464 On 1 August 1991 Milan Babi as President of the SAO Krajina abolished the SDB of the SAO Krajina and thereby the SDB of Serbia on the territory of the SAO Krajina Milan Babić testified that this was done in order to establish government control over Ministry of Defence of the SAO Krajina However the decision was ultimately unsuccessful which Milan Babić claimed was due to the close ties between the SDB of Serbia and the MUP of the SAO Krajina Ex 187 Milan Babi 16 Feb 2006 T 1417 1420 onwards 2 Mar 2006 T 1802 Ex 523 confirming that the SDB of Serbia was still active and operating in the SAO Krajina in November 1991 See also Witness MM-079 3 Apr 2006 T 3078-3079 Milan Babi also testified that he asked Slobodan Milo evi to remove Franko Simatović from the SAO Krajina which eventually happened however by the time of the attack on Lovinac Franko Simatović had returned Milan Babić 16 Feb 2006 T 1431 Furthermore Milan Babić testified that Milan Martić was controlled by the SDB of Serbia and by Slobodan Milo evi to such an extent that a “parallel structure” was created to the SAO Krajina government and authorities According to Milan Babić this parallel structure included the Minister of the Interior of Serbia Radmilo Bogdanovi officials of the SDB of Serbia in particular Jovica Stani i Franko Simatovi and Captain Dragan Vasiljkovi and some representatives of the SDS and of the police in the Serb municipalities in the Krajina Milan Babi 15 Feb 2006 T 1390-1393 20 Feb 2006 T 1601-1602 The Trial Chamber notes that Milan Babić characterised Milan Martić as “the most powerful man within the parallel structure in the SAO Krajina” and that he was unable to give orders to Milan Martić Milan Babi 15 Feb 2006 T 1390-1392 Ex 1037 Group 11 pp 4-6 where Milan Babi defines himself as a “spokesman” of the people in Krajina who was incapable of ordering Milan Marti Contrary to this Mile Daki testified that Milan Martić “was a clerk an administrator in the SAO government who was far below Milan Babi ” Mile Dakić recognised that Milan Marti “may have out-topped Babi in terms of popularity the press coverage he received and so on and so forth However Milan Babi was the political figure at the head of the SAO Krajina leadership” Mile Daki 25 Oct 2006 T 10021-10022 291 Milan Babić 16 Feb 2006 T 1454-1455 testifying that also the SAO Krajina ceased payments to Croatia T 14581459 Witness MM-003 9 Mar 2006 T 2086-2087 292 Milan Babi 16 Feb 2006 T 1460 Radoslav Maksi 7 Feb 2006 T 1243-1244 Ex 41 Ex 129 Ex 190 Ex 193 See also Ex 204 Milan Dragi i 19 Sep 2006 T 8644 testifying that Milan Babić desired to create a Serb army of the SAO Krajina something which Milan Martić opposed instead advocating cooperation with the JNA 289 Case No IT-95-11-T 49 12 June 2007 financed with funds and material from the MUP and SDB of Serbia 293 Moreover there is evidence that weapons were sent from Serbia by Radmilo Bogdanović via Bosanski Novi BiH to the SAO Krajina 294 Beginning at the end of April 1991 Dušan Smiljani Chief of Security of the JNA 10th Zagreb Corps made contact with leading figures in the SDS in the SAO Krajina and provided large amounts of infantry and artillery weapons to Serbs in Krajina from JNA depots 295 142 The SFRY Federal Secretariat of National Defence of the JNA “SSNO” made unit and personnel changes within the SAO Krajina armed forces 296 There is evidence that beginning after the summer of 1991 the SAO Krajina TO was subordinate to the JNA 297 There is also evidence of operational cooperation between the JNA and the armed forces of the SAO Krajina Any resubordination of MUP units to the JNA for temporary assignment required prior approval of the Minister of Interior of the SAO Krajina 298 When resubordinated the MUP unit would be under the command of the JNA unit commander However if the MUP unit was merely acting in cooperation or concert with the JNA unit it would remain under the command of the MUP commander 299 After 293 Milan Babić 16 Feb 2006 T 1458-1460 Radoslav Maksić 6 Feb 2006 T 1179-1180 Witness MM-003 8 Mar 2006 T 1982-1984 1987-1988 9 Mar 2006 T 2086-2087 Lazar Macura 14 Sep 2006 T 8339 Ex 213 The Krajina was a poor area with few indigenous resources and it was dependent on the life-line that came through BiH from Serbia Peter Galbraith 25 Apr 2006 T 3756 See also Ex 498 294 Milan Babić 17 Feb 2006 T 1527 1575 See also Milan Babić 17 Feb 2006 T 1544-1545 20 Feb 2006 T 1603 Ex 476 p 283 wherein Borisav Jović a member of the SFRY Presidency describes a meeting with Slobodan Milošević Veljko Kadijević and Blagoje Adžić on 5 April 1991 and stating that the “Serb nation in Croatia” had not armed itself but was counting on protection by the JNA 295 Ex 206 Milan Babić testified to meeting with Dušan Smiljanić during the summer of 1991 Milan Babić 17 Feb 2006 T 1531-1532 See also Ex 24 p 77 wherein Veljko Kadijevi stated that “the future army of the Serbian Krajina was actually built up in the course of fighting and equipped by the JNA with corresponding arms and material” Ex 857 p 5 wherein Željko “Arkan” Raznjatović stated that he provided weapons and money to “Knin” 296 Witness MM-037 28 Mar 2006 T 2782-2783 29 Mar 2006 T 2823-2825 Ex 268 T 11579-11580 Ex 120 Ex 122 Ex 124 297 Nikola Medakovi 9 Oct 2006 T 8991 Borislav Ðukic 19 Oct 2006 T 9771-9772 Ex 26 Milan Babić encountered resistance from the JNA concerning the appointments to TO positions which he made during the spring and summer of 1991 However the resistance ceased in September 1991 when Milan Babić began signing appointments of officers who had been sent from Belgrade In this respect the Trial Chamber notes that on 28 November 1991 Radoslav Maksić succeded Ilija Ðujić as TO Commander and that Radoslav Maksić testified that only the SSNO could appoint him as TO commander Milan Babi 16 Feb 2006 T 1445-1447 17 Feb 2006 T 1568 20 Feb 2006 T 15881590 Radoslav Maksi 6 Feb 2006 T 1153-1155 1186 7 Feb 2006 T 1197 Ex 121 Ex 128 Ex 219 The SAO Krajina TO Staff in Knin was subordinated to the 9th Corps of the JNA headquartered in Knin The 9th Corps was subordinated to the JNA Naval Military District headquartered in Split The 9th Corps was composed inter alia of the 221st Motorised Brigade commanded by Borislav Ðukić until April 1992 the 180th Motorised Brigade headquartered at the barracks in Benkovac the 2nd TO Brigade 1st TO Partisan Brigade and a military police battalion Milan Babi 16 Feb 2006 T 1448-1449 17 Feb 2006 T 1568 20 Feb 2006 T 1583 1593 Radoslav Maksi 6 Feb 2006 T 11531155 1160-1161 7 Feb 2006 T 1254-1255 Witness MM-080 8 Jun 2006 T 5245-5246 5279-5280 Borislav Ðukić 18 Oct 2006 T 9684-9686 Ex 49 298 Radoslav Maksi 6 Feb 2006 T 1166-1167 The Minister of the Interior and the MUP would be copied on the resulting order or at least the parts relating to the MUP units participating in the operation When resubordinated regular police units would normally be employed to secure the implementation of the operation by securing roads buildings or areas from ambushes and sabotage actions They could also provide personal security However in view of their strength and level of training for combat activities these units could not really participate in combat operations If regular police units of a company or higher strength were involved they could however take part in combat activities but this happened rarely Radoslav Maksi 6 Feb 2006 T 1166-1167 1171-1174 In this respect the Trial Chamber recalls the evidence that in August and September 1991 Milan Martić cooperated with the 9th JNA Corps concerning coordination between JNA and MUP units Milan Babić 16 Feb 2006 T 1445-1446 299 Radoslav Maksi 6 Feb 2006 T 1173-1174 Case No IT-95-11-T 50 12 June 2007 the completion of a mission where it had been resubordinated the MUP unit would return into the structure of the MUP 300 For the purpose of combat operations TO units could also be resubordinated to JNA units 301 When resubordinating the largest unit of either the TO or the JNA would command which would normally be the JNA unit in a given area Such resubordination of TO units would be carried out by the JNA 302 143 In early September 1991 Milan Marti was arrested and detained for one to two days by the police in Otoka close to Bosanska Krupa in BiH which was a mostly Muslim area 303 The evidence shows that there was strong coordination between the leaderships of the SAO Krajina Serbia and BiH through Milan Babić Slobodan Milošević Radovan Karad i and Jovica Stanišić in securing Milan Martić’s release 304 3 Training camp in Golubić and “Martić’s Police” 144 In early 1991 the SUP in Knin established a training camp in Golubić a small village located approximately 9 kilometres north of Knin because Milan Marti wanted properly trained police officers 305 There is evidence that this training camp still existed in 1993 306 The training camp was run and funded by the MUP of the SAO Krajina and by the MUP and SDB of Serbia 307 Furthermore there is evidence that Milan Martić visited the camp 308 Captain Dragan Vasiljković 300 Radoslav Maksi 7 Feb 2006 T 1188 Witness MM-080 8 Jun 2006 T 5303 302 Radoslav Maksi 6 Feb 2006 T 1160-1161 1167 7 Feb 2006 T 1262 also testifying that if a MUP unit was the largest unit in an operation then any participating TO units would be resubordinated to the MUP unit Ex 47 gives an example of a JNA platoon of T-34 tanks which was resubordinated to the 1st TO Brigade p 2 See also Reynaud Theunens 26 Jan 2006 T 718 Ex 130 303 Milan Babi 16 Feb 2006 T 1441-1442 20 Feb 2006 T 1616-1618 Ex 206 304 Ex 223 Ex 224 Ex 225 Ex 226 Ex 227 305 Milan Babi 16 Feb 2006 T 1426-1427 17 Feb 2006 T 1539-1541 1543-1544 Witness MM-003 8 Mar 2006 T 1999-2000 2002 10 Mar 2006 T 2149-2150 2195-2196 Ex 268 T 11569-11570 11572 Witness MM-078 24 May 2006 T 4435-4437 25 May 2006 T 4538-4539 Witness MM-096 22 Aug 2006 T 6948 23 Aug 2006 T 6955 25 Aug 2006 T 7194 Witness MM-090 4 Sep 2006 T 7636 Lazar Macura 14 Sep 2006 T 8318 Stevo Plejo 20 Sep 2006 T 8692-8694 8705 Nikola Medakovi 9 Oct 2006 T 8965-8966 10 Oct 2006 T 9051 9054 Borislav Ðuki 20 Oct 2006 T 9815-9816 23 Oct 2006 T 9946 9949 Dragan Kneževi 3 Nov 2006 T 10698-10699 Ex 244 Ex 464 Ex 619 Ex 623 Ex 627 Ex 674 Ex 675 See also Witness MM-037 28 Mar 2006 T 2804 Ex 1042 Tab 2 Ex 1043 Tab 2 DVD 4 pp 19-27 Ex 1044 306 Dragan Kneževi 3 Nov 2006 T 10723 Ex 674 Ex 675 There is also evidence that training camps were established in amarica Bru ka and Korenica and that the SDB of Serbia was involved in the training in Bruška and Korenica Milan Babi 17 Feb 2006 T 1541-1542 1546-1547 Witness MM-003 8 Mar 2006 T 2002-2003 10 Mar 2006 T 2205 Ante Marinovi 23 Mar 2006 T 2510 Rade Ra eta 2 May 2006 T 3922 Witness MM-078 24 May 2006 T 4435-4436 Ex 565 Ex 567 Ex 568 Ex 613 p 25 ERN 02011443 307 Milan Babi 16 Feb 2006 T 1459 17 Feb 2006 T 1539-1543 testifying that Milan Martić’s assistant “was in charge of the administration of the camp” and “was overseeing the whole camp” 2 Mar 2006 T 1822 Witness MM003 8 Mar 2006 T 1999 2001-2004 9 Mar 2006 T 2086 Witness MM-079 31 Mar 2006 T 3050 Witness MM078 24 May 2006 T 4436-4438 Lazar Macura 14 Sep 2006 T 8327-8328 Borislav Ðuki 23 Oct 2006 T 99499950 See also Witness MM-078 25 May 2006 T 4539 4547-4548 Ex 244 Ex 620 Ex 621 Ex 622 Ex 623 Ex 624 Ex 677 308 Witness MM-078 24 May 2006 T 4436-4437 25 May 2006 T 4547-4548 301 Case No IT-95-11-T 51 12 June 2007 from the SDB of Serbia trained special purpose units at the Golubić camp and was paid for this service by the SDB of Serbia 309 145 The training in Golubić included drill practice ambush training ideological training geared towards loyalty to the state not political parties weapons training including artillery training mining training sniper shooting and target practice physical exercise training in the securing of persons self-protection and abseiling 310 On average the training lasted for approximately 20 days 311 Some witnesses testified that the training was classical police training 312 whereas other witnesses testified that the training was of a military nature 313 Based on the elements of the training described above the Trial Chamber finds that the training in Golubić was predominantly military in character 146 The trainees wore blue camouflage uniforms which were different from ordinary police uniforms 314 There is evidence that some trainees wore a patch on their sleeve which was semicircular with the words Milicija Krajine and the Serbian tricolour 315 The training groups consisted of between 40 and 100 trainees per group 316 The men who had trained at Golubi set up further units and trained people in their municipalities 317 147 There is evidence of groups referred to as “Martić’s Police” and “Martić’s Men Martićevci ” who were active in the territory of the SAO Krajina and the RSK during the Indictment period Some witnesses testified that the term Marti ’s Police or Marti ’s men Marti evci referred to all those who had completed the training at the Golubi camp and were 309 Witness MM-003 10 Mar 2006 T 2209-2210 Milan Babić 16 Feb 2006 T 1427 1429-1430 17 Feb 2006 T 1543 Ex 478 p 2 Ex 626 310 Milan Babi 17 Feb 2006 T 1541-1544 2 Mar 2006 T 1822 Witness MM-003 8 Mar 2006 T 2002-2005 Witness MM-078 24 May 2006 T 4412 25 May 2006 T 4539 Stevo Plejo 20 Sep 2006 T 8693-8695 21 Sep 2006 T 8782 Nikola Medakovi 9 Oct 2006 T 8968-8969 10 Oct 2006 T 9074-9075 12 Oct 2006 T 9281 9284 9286 Borislav Ðuki 20 Oct 2006 T 9815-9816 Dragan Kneževi 03 Nov 2006 T 10699-10700 Ex 622 311 Stevo Plejo 20 Sep 2006 T 8693-8695 Nikola Medakovi 9 Oct 2006 T 8968 Borislav Ðuki 23 Oct 2006 T 9946 Dragan Kneževi 3 Nov 2006 T 10698 Ex 620 312 Stevo Plejo 20 Sep 2006 T 8694 See also Witness MM-078 25 May 2006 T 4506 Dragan Kneževi 3 Nov 2006 T 10703 313 Witness MM-003 9 Mar 2006 T 2100 Witness MM-096 25 Aug 2006 T 7196 See also Milan Babi 15 Feb 2006 T 1382 2 Mar 2006 T 1769-1770 314 Dragan Kneževi 3 Nov 2006 T 10723-10724 315 Nikola Medakovi 9 Oct 2006 T 8969 10 Oct 2006 T 9052-9053 12 Oct 2006 T 9289 Ex 266 Milicija Krajine patch Dragan Kneževi testified that the only emblems the trainees had was the Yugoslav tricolour on the beret Dragan Kneževi 3 Nov 2006 T 10724 316 Borislav Ðuki 20 Oct 2006 T 9817 See also Witness MM-003 10 Mar 2006 T 2195 Stevo Plejo 20 Sep 2006 T 8694 8696-8697 Ex 625 selection of JNA operative intelligence reports p 1 mentioning that 150 people were being trained at Golubi before 12 May 1991 Ex 464 List of persons from Knin municipality region who finished training in Golubi settlement listing 190 people who finished training at Golubi Ex 625 selection of JNA operative intelligence reports p 1 317 Milan Babi 17 Feb 2006 T 1542-1543 Witness MM-003 8 Mar 2006 T 2006 Stevo Plejo 20 Sep 2006 T 8696-8697 9704-9705 21 Sep 2006 T 8793-8794 Nikola Medakovi 10 Oct 2006 T 9051 Dragan Kneževi 3 Nov 2006 T 10698-10699 10722 Ex 568 Ex 600 Ex 620 Ex 1028 L0079797 See also Ex 471 Case No IT-95-11-T 52 12 June 2007 employed in the SJBs 318 One witness testified that the reason for that name was that Milan Marti established the Golubi training camp 319 Other witnesses testified that these terms referred generally to the police force of the SAO Krajina and the RSK 320 Nikola Medaković who was the commander of the Milicija Krajine unit in Plaški in 1991 testified that the members of that unit were trained at the Golubi training camp and that they were referred to as “Martić’s men” 321 Witness MM-037 called all of those who were led by Nikola Medakovi “Marti ’s police” 322 148 The evidence shows that groups trained in Golubić were in some instances referred to as Martić’s Men or Martić’s Police Martićevci However the evidence is insufficient to conclude that all groups that were referred to by these names or referred to themselves by these names were trained in Golubić The evidence also shows that members of the Milicija Krajine were trained in Golubić The evidence is insufficient to conclude that all members of the police of the SAO Krajina were referred to as Martić’s Men or Martić’s Police Martićevci C The RSK 1 Development of the RSK 149 On 19 December 1991 the RSK was proclaimed by the Assembly of the SAO Krajina with Milan Babi as its President and the RSK Constitution was passed 323 The TO constituted the 318 Witness MM-078 24 May 2006 T 4439 According Witness MM-078 these policemen were called Martić’s Men or the Martićevci and considered by the citizens to be specialists or an elite more capable trained “and even more loyal to the system” as compared to the other policemen in the SJBs The reason for the name was that “Martić set up the whole thing and … it was after him that … they were named” Witness MM-078 24 May 2006 T 4439 Hamdija Krupi testified that there were also policemen in the municipality Bosanski Novi BiH who had undergone the training in Golubić “to carry out special tasks” and were called “Martić’s Police” These men were from the Bosnian Krajina Hamdija Krupi 30 Mar 2006 T 2958-2960 According to Witness MM-037 younger policemen at the Pla ki SJB were sent to Golubi for training and when they returned they started to call themselves “Marti ’s police” Witness MM-037 28 Mar 2006 T 2749 2804 Ex 268 T 11569-11570 The Trial Chamber notes that the units that had been trained at Golubić were also called the Special Police Specials Specialists or Special Purpose Units of the Krajina police Witness MM-003 8 Mar 2006 T 2006-2007 10 Mar 2006 T 2195-2196 Milan Babi 17 Feb 2006 T 1539-1541 Ex 1028 L0079768 319 Witness MM-078 24 May 2006 T 4439 320 Radoslav Maksić testified that the term Martićevci or Martić’s Men was a colloquial term which referred “to the police force of the SAO Krajina MUP ” Radoslav Maksi 7 Feb 2006 T 1191 Witness MM-096 also testified that the term was used to refer to the entire police force in the SAO Krajina and the RSK “or even something much broader sometimes even all the citizens who were wearing uniforms” Witness MM-096 25 Aug 2006 T 7194 Witness MM003 testified that the term Marti ’s police the abbreviated name of which was Martićevci and Martić’s Men “applied to the overall police” of the SAO Krajina Witness MM-003 10 Mar 2006 T 2194 -2195 321 Nikola Medaković 9 Oct 2006 T 8965-8966 8999 10 Oct 2006 T 9051 9056 also testifying that in May 1991 he met with Milan Martić in Knin to request weapons to reinforce the Plaški municipality police and that Milan Martić replied that long-barrelled weapons could only be given to persons who had been trained in Golubić See also Ex 507 p 2 providing that Nikola Medakovi was commander of the Marti evci or “Marti ’s men” and that this unit was part of the regular police commanded by Du an Latas 322 Witness MM-037 28 Mar 2006 T 2795 323 Ex 820 Agreed Facts para 23 See also Reynaud Theunens 27 Jan 2006 T 759 Witness MM-090 29 Aug 2006 T 7373 Witness MM-090 5 Sep 2006 T 7777-7779 The RSK was defined as a national state of the Serbian people and of all the citizens residing therein Ex 820 Agreed Facts para 23 Case No IT-95-11-T 53 12 June 2007 armed forces of the RSK 324 On 16 February 1992 the government fell as Milan Babi was removed from the office of President of the RSK by the RSK Assembly due to his opposition to Slobodan Milo evi in respect of the Vance Plan 325 Milan Marti who had previously opposed the Vance Plan now publicly supported the adoption of the Vance Plan 326 After Milan Babi was removed from office the Vance plan was adopted by the Assembly of the RSK 327 150 On 21 February 1992 the UN Security Council adopted Resolution 743 implementing the Vance Plan and establishing UNPROFOR in certain areas of Croatia designated as “United Nations Protected Areas” “UNPAs” 328 The UNPAs were areas where Serbs constituted the majority or a substantial minority of the population and where inter-communal tensions had previously led to armed conflict 329 The Vance Plan defined three UNPAs which covered four sectors UNPA Krajina covering Sector South Lika and Dalmatia and Sector North Banija and Kordun UNPA Western Slavonia covering Sector West and UNPA Eastern Slavonia covering Sector East 330 The UNPAs were to be demilitarised with all armed forces to be either withdrawn or disbanded 331 However the plan foresaw maintaining the local police who could carry weapons and wear uniforms 332 UN police monitors UNCIVPOL were to ensure that the local police carried out their duties without discriminating or violating human rights 333 UNCIVPOL reported any incidents both 324 Ex 166 Art 102 See also Ex 6 p 123 Milan Babi 20 Feb 2006 T 1639-1642 1644 testifying that he wanted a change in the Vance Plan to the effect that the JNA would remain in the Krajina as a military force that would protect the Krajina until a political solution was found for the status Lazar Macura 12 Sep 2006 T 8206 See also Ex 657 Charles Kirudja 31 May 2006 T 4888 Slobodan Jar evi 13 Jul 2006 T 6196-6197 Lazar Macura 13 Sep 2006 T 8226-8231 14 Sep 2006 T 8337 8396-8397 326 Milan Babi 20 Feb 2006 T 1644-1645 Mile Daki 25 Oct 2006 T 10044 Ex 230 See also Lazar Macura 14 Sep 2006 T 8347 327 Veljko D‘akula 16 Jan 2006 T 405-406 Borislav Ðuki 23 Oct 2006 T 9936 328 Ex 820 Agreed Facts para 25 See also Veljko D‘akula 18 Jan 2006 T 559 Peter Galbraith 25 Apr 2006 T 3744 John McElligott 26 May 2006 T 4553-4554 Charles Kirudja 30 May 2006 T 4785-4786 1 Jun 2006 T 4901-4905 Ratko Li ina 15 Aug 2006 T 6435 17 Aug 2006 T 6629-6630 Lazar Macura 14 Sep 2006 T 8332 Borislav Ðuki 23 Oct 2006 T 9903-9904 Ex 115 329 Ex 820 Agreed Facts para 25 See also Veljko D‘akula 18 Jan 2006 T 559 Ex 864 330 Veljko D‘akula 18 January 2006 T 559 19 Jan 2006 T 610 Ex 115 Ex 61 Ex 724 Charles Kirudja 31 May 2006 T 4805 The Croats and the Serbs differed in their interpretation of the borders of the UNPAs with the Croats seeing the borders of municipalities as borders of the UNPAs and the Serbs seeing the confrontation line as the border of the UNPAs Charles Kirudja 31 May 2006 T 4805-4809 Ex 746 331 Ex 820 Agreed Facts para 25 providing that as UNPROFOR assumed its responsibilities all JNA forces deployed in Croatia would be relocated outside Croatia See also Veljko D‘akula 16 Jan 2006 T 407 John McElligott 26 May 2006 T 4553 Charles Kirudja 30 May 2006 T 4788 31 May 2006 T 4810 1 Jun 2006 T 4902-4903 Slobodan Jar evi 13 Jul 2006 T 6197-6198 6245 Slobodan Peri 6 Sep 2006 T 7837-7838 Witness MM-117 13 Oct 2006 T 9353 Borislav Ðuki 19 Oct 2006 T 9721-9722 23 Oct 2006 T 9904 Ex 115 332 Borislav Ðuki 19 Oct 2006 T 9723 The weapons were to be placed under a double-key system one key for UNPROFOR and one key for the RSK authorities Charles Kirudja 31 May 2006 T 4818-4819 4821-4822 Slobodan Jar evi 13 Jul 2006 T 6198-6199 6244 Ratko Li ina 15 Aug 2006 T 6436-6437 Witness MM-096 22 Aug 2006 T 6879 Slobodan Peri 6 Sep 2006 T 7838 Borislav Ðuki 23 Oct 2006 T 9904 Ex 748 333 Ex 115 John McElligott 26 May 2006 T 4553 4555-4557 29 May 2006 T 4660-4662 4669-4673 30 May 2006 T 4770-4771 Witness MM-096 22 Aug 2006 T 6880-6882 Ex 721 Ex 722 Ex 723 Ex 725 Milan Marti issued instructions regulating in detail the mode of cooperation with UNPROFOR and UNCIVPOL Witness MM-117 18 Oct 2006 T 9648-9649 325 Case No IT-95-11-T 54 12 June 2007 within its own chain of command as well as to the relevant Croatian or RSK local police however in serious cases reports were also sent directly to the relevant government 334 151 On 26 February 1992 the SAO Western Slavonia and the SAO Eastern Slavonia Baranja and Western Šrem joined the RSK 335 In the new RSK government Zdravko Zečevi became Prime Minister Goran Had‘ić was elected President and Milan Marti was re-elected Minister of the Interior 336 In April 1992 UNPROFOR troops started arriving in the UNPAs 337 In addition UNPROFOR was also mandated to patrol the so-called “pink zones” outside the UNPAs which were areas under JNA control in many instances with a significant Serb presence 338 152 The evidence shows that the RSK was not demilitarised in its entirety in accordance with the Vance Plan 339 On 28 April 1992 Special Police “PJM” Brigades and a PJM Administration were established within the RSK Ministry of Defence by the SSNO of Serbia 340 General Borislav Ðukić a JNA officer was appointed Chief of the PJM Administration 341 The PJM Brigades were connected both to the Ministry of Defence and to the MUP of the RSK 342 The members of PJM units wore blue uniforms and used the side arms and the equipment of the TO 343 There is also evidence that TO vehicles were repainted in blue and used by the PJM 344 On 18 May 1992 the 334 John McElligott 26 May 2006 T 4565-4567 29 May 2006 T 4669-4671 4676-4679 30 May 2006 T 4731 4733 Witness MM-096 22 Aug 2006 T 6881-6882 6929-6931 24 Aug 2006 T 7106 335 Ex 820 Agreed Facts para 26 See also Veljko Džakula 16 Jan 2006 T 347-348 testifying that the SAO Western Slavonia had been declared on 12 August 1991 358 Ratko Ličina 15 Aug 2006 T 6493 336 Ex 820 Agreed Facts para 26 Slobodan Jarčevi was Minister of Foreign Affairs of the RSK from October 1992 to April 1994 when he was replaced by Milan Babi Slobodan Jarčević 12 Jul 2006 T 6133 T 6169 Ex 191 See also Veljko Džakula 16 Jan 2006 T 358 19 Jan 2006 T 621 337 Charles Kirudja 30 May 2006 T 4781 4789 31 May 2006 T 4804-4805 Witness MM-096 22 Aug 2006 T 6873 338 Veljko D‘akula 19 Jan 2006 T 610-611 John McElligott 26 May 2006 T 4569 29 May 2006 T 4629-4630 See also Charles Kirudja 31 May 2006 T 4805-4809 339 Veljko D‘akula 16 Jan 2006 T 406-407 Milan Babi 20 Feb 2006 T 1645 Slobodan Jar evi 13 Jul 2006 T 6245 6248 Ex 75 pp 2-4 See also Borislav Ðuki 19 Oct 2006 T 9722 340 Ex 978 The PJM brigades were subordinated to the PJM Administration in both peacetime and wartime Ex 978 p 2 item 10 Borislav Ðuki 19 Oct 2006 T 9723-9724 9730 341 Ex 71 Borislav Ðukic 19 Oct 2006 T 9740-9741 Ex 633 See also Ex 978 Witness MM-117 18 Oct 2006 T 9676-9677 342 Borislav Ðukić 19 Oct 2006 T 9793-9794 also testifying that “ t he professional part of the execution of the task was connected to the MUP ” that the PJM Brigades “carried out tasks from within the police force and were linked to the Minister of the Interior” 23 Oct 2006 T 9911-9913 Ex 72 343 Charles Kirudja 31 May 2006 T 4816 Ex 747 Slobodan Peri 7 Sep 2006 T 7942-7943 344 Slobodan Peri 7 Sep 2006 T 7942-7943 See also Ex 68 Ex 696 In Ex 747 p 4 Charles Kirudja wrote The recent emergence of a newly fortified militia is hard not to notice Former military vehicles have been repainted from green to blue – the colors of the present police force Many of the militiamen have begun to sport new blue uniforms and appear to be deployed along the front line See further Ex 73 Ex 74 Ex 75 Ex 730 Ex 864 Ex 985 Case No IT-95-11-T 55 12 June 2007 SVK was established 345 In peacetime the SVK was to consist of TO units however in the event of imminent threat of war and during wartime the PJM units would join the SVK 346 153 The RSK leadership was against the demilitarisation of the RSK asserting it would be unable to defend itself in the event of Croatian attacks 347 Thus the Vance Plan was interpreted by the RSK authorities to mean that UNPROFOR was to protect the population in the areas of deployment 348 In this context the Trial Chamber notes that Croatian forces carried out several armed incursions into the UNPAs between 1992 and 1995 including on the Miljevac plateau on 21 June 1992 Maslenica on 22 January 1993 Medak pocket on 9 and 12 September 1993 and Operation Flash from 1 May 1995 349 154 During the spring of 1992 the road which went through the so-called Posavina Corridor a predominantly Bosnian Croat strip of land in north-eastern BiH had been blocked in the region of Doboj by Croatian forces in alliance with the forces of BiH 350 The area was of strategic importance as it linked the Croatian and Bosnian Krajina regions with Serbia 351 In two phases during the summer and late autumn of 1992 a military operation known as “Koridor 92” was carried out in the Posavina Corridor While there is evidence that the objective of the operation was to resolve a humanitarian situation which had arisen as a result of the blocking of the road near Doboj there is significant evidence that the main objective was to link Serb lands 352 As part of the operation the 345 Ex 6 p 141 citing Constitutional Amendment No VIII Law on Defence as amended cited in Ex 6 p 142 347 Veljko D‘akula 16 Jan 2006 T 405-406 Milan Babi 20 Feb 2006 T 1644 John McElligott 29 May 2006 T 4631 Slobodan Jar evi 13 Jul 2006 T 6199-6200 Ratko Li ina 15 Aug 2006 T 6439-6440 Ex 574 p 1 Ex 750 See also Charles Kirudja 31 May 2006 T 4837-4838 1 Jun 2006 T 4981-4982 Borislav Ðuki 19 Oct 2006 T 9721-9722 348 Ratko Li ina 15 Aug 2006 T 6439 Witness MM-096 22 Aug 2006 T 6880 Witness MM-090 31 Aug 2006 T 7484-7485 349 John McElligott 29 May 2006 T 4631-4632 4641 4648-4649 Charles Kirudja 1 Jun 2006 T 4921-4922 4928 4942-4943 Ratko Li ina 15 Aug 2006 T 6450-6453 6462-6464 Witness MM-096 22 Aug 2006 T 6880 Witness MM-090 4 Sep 2006 T 7706-7707 Slobodan Peri 6 Sep 2006 T 7841 Witness MM-117 13 Oct 2006 T 93839384 9388 Patrick Barriot 9 Nov 2006 T 10764 Ex 75 pp 1-2 Ex 885 After the incursions on Maslenica and Medak pocket the RSK removed weapons from storage depots Charles Kirudja 31 May 2006 T 4819-4822 1 Jun 2006 T 4981-4982 Ratko Li ina 17 Aug 2006 T 6635 See also Peter Galbraith 25 Apr 2006 T 3795-3796 Slobodan Peri 7 Sep 2006 T 7945-7946 350 Veljko Džakula 17 Jan 2006 T 432 19 Jan 2006 T 588 Charles Kirudja 1 Jun 2006 T 4966 Slobodan Jar evi 13 Jul 2006 T 6192 Borislav Ðuki 19 Oct 2006 T 9778-9779 9788-9789 23 Oct 2006 T 9918 testifying that as a result of the blocking of the road a difficult humanitarian situation arose in Krajina and Bosanska Krajina Witness MM-105 2 Nov 2006 T 10610 Ex 6 p 169 Ex 103 See also Reynaud Theunens 27 Jan 2006 T 796-797 351 The importance of this area was stated by Milan Martić in an article in Vojska Krajine 3 Jun 1993 p 3 see Ex 6 p 169 See also Reynaud Theunens 27 Jan 2006 T 797 Moreover on 12 May 1992 at a session of the Assembly of the Serbian People in BiH the President of the RS Radovan Karad i announced as a strategic goal of the Serb people to establish a corridor between the Krajina region and Semberija in Serbia in order to “ integrate the Serbian lands” Ex 45 pp 13-14 Veljko Džakula 19 Jan 2006 T 589 Slobodan Jar evi 13 Jul 2006 T 6192 352 Regarding the humanitarian situation see Borislav Ðuki 19 Oct 2006 T 9779 9788-9789 Witness MM-105 2 Nov 2006 T 10609 see also Veljko Džakula 17 Jan 2006 T 589 Ex 6 p 169 Reynaud Theunens 27 Jan 2006 T 813 The Trial Chamber notes that of these witnesses only Borislav Ðukić testified to the existence of a grave humanitarian situation Regarding the linking of Serb lands see Ex 944 Lazar Macura 15 Sep 2006 T 8412-8413 Ex 45 pp 13-14 Slobodan Jar evi 13 Jul 2006 T 6192 see also Witness MM-003 9 Mar 2006 T 2040-2041 346 Case No IT-95-11-T 56 12 June 2007 whole of the Posavina area was devastated many houses were torched and many civilians including Croats were killed 353 155 On 20 April 1993 the RSK Supreme Defence Council was established which was composed of the President of the RSK the Prime Minister the Minister of Defence the Minister of the Interior and the Commander of the SVK 354 The President of the RSK “ led the SVK in times of peace and war in accordance with the RSK Constitution and decisions adopted by the Supreme Defence Council and presided over the Supreme Defence Council” 355 The Supreme Defence Council was mandated to “adopt decisions on the readiness mobilisation and deployment of the SVK and on other matters in accordance with the Constitution and the law ” 356 156 Babić On 25 January 1994 Milan Martić was elected President of the RSK defeating Milan 357 On 21 April 1994 a new government was formed under Milan Martić inter alia with Borislav Mikeli as Prime Minister and Milan Babić as Foreign Minister 358 The new government’s aim was to achieve “sovereignty of the RSK and the right of the Serb people to self-determination and unification with other parts of the Serb people ” 359 157 Following on from the Zagreb Agreement which had been signed on 29 March 1994 360 in January 1995 the Z-4 Plan was presented envisaging a high degree of autonomy within Croatia for the Krajina region and that Eastern Slavonia Baranja and Šrem and Western Slavonia would be 353 Veljko Džakula 19 Jan 2006 T 590-592 613 also stating that he heard that “there was damage inflicted and destruction wrought in places where there was no direct fighting or combat” and that the Posavina Corridor was “razed to the ground devastated and laid to waste” 354 Ex 78 p 3 355 Ex 78 p 3 See also Ex 79 Art 40 p 1 356 Ex 78 p 4 357 Ex 820 Agreed Facts para 29 358 The government also comprised Ilija Prijić as Minister of Interior and Rade Tanja as Minister of Defence Milan Babić 15 Feb 2006 T 1328-1329 Witness MM-117 18 Oct 2006 T 9646 Ex 970 p 2 Milan Babi remained as Foreign Minister until 27 July 1995 when he became Prime Minister Milan Babić 15 Feb 2006 T 1328-1329 Nikola Dobrijevi 10 Nov 2006 T 10855 10902 359 Ex 970 p 2 quoting Borislav Mikelić as saying that “our negotiating position is and will be territorial integrity and sovereignty of the Republic of Serb Krajina The RSK will sooner or later unite with the Serb republic and Montenegro into a unified state” See also Witness MM-117 16 Oct 2006 T 9494-9495 9483-9484 360 The Zagreb Agreement foresaw the creation of two cantons within Croatia and also regulated the withdrawal of all indirect weaponry and artillery from the border between Croatia and the RSK Moreover all weapons were to be under UN control Slobodan Jar evi 12 Jul 2006 T 6167-6168 Charles Kirudja 1 Jun 2006 T 4935-4936 Ex 929 Two economic agreements ensued signed in November and early December 1994 and the RSK government undertook measures to abide by these agreements Milan Babi 21 Feb 2006 T 1660 Peter Galbraith 25 Apr 2006 T 37433745 3794 3815 3796-3797 Charles Kirudja 1 Jun 2006 T 4935-4936 Slobodan Jar evi 12 Jul 2006 T 6169 6175 Ratko Li ina 15 Aug 2006 T 6451-6452 Slobodan Peri 6 Sep 2006 T 7841 Previously during 1993 several unsuccessful attempts had been made at concluding agreements between Croatia and the RSK the Daruvar Agreement on 18 February 1993 Veljko D‘akula 16 Jan 2006 T 359-362 Milan Babi 20 Feb 2006 T 1653-1654 Witness MM-105 1 Nov 2006 T 10534-10535 10573-10574 in April 1993 an agreement was negotiated in Geneva Slobodan Jar evi 14 Jul 2006 T 6281-6282 the Erdut Agreement in July 1993 Slobodan Jar evi 12 Jul 2006 T 6151-6153 T 6162-6163 Ex 876 the Oslo agreement on 4 November 1993 Slobodan Jar evi 12 Jul 2006 T 6157-6160 the Dobanovci Negotiations in December 1993 Peter Galbraith 25 Apr 2006 T 3741 Slobodan Jar evi 12 Jul 2006 T 6163-6165 Case No IT-95-11-T 57 12 June 2007 reincorporated into Croatia with lesser forms of autonomy 361 The Z-4 Plan provided for a five-year transition period for the restoration of full sovereignty for Croatia 362 On 30 January 1995 Milan Marti as President of the RSK refused to accept the Z-4 Plan as Croatia had announced that it would not accept an extension of UNPROFOR’s mandate 363 The mandate was eventually extended in March 1995 and focused on reconstruction and cooperation however Milan Marti continued to refuse to negotiate the Z-4 Plan because the reshaped UNPROFOR now called UNCRO was not a protection force 364 There is evidence that Milan Martić acted under the instruction of Slobodan Milo evi to reject the Z-4 Plan 365 The negotiations between the RSK and Croatia continued through the first half of 1995 with the RSK government appearing seemingly more amenable to the Z-4 plan 366 158 On 2 August 1995 Milan Babić as Prime Minister of the RSK accepted the Z-4 Plan “in substance” 367 On 4 August 1995 the Croatian Army and police forces launched a military operation called Operation Storm on the RSK and the UNPAs which eventually resulted in them taking control of the territory of the RSK 368 2 Cooperation with and assistance from Serbia 159 Throughout 1992 1993 and 1994 the RSK leadership including Milan Martić requested financial logistical and military support from Serbia on numerous occasions including directly from Slobodan Milošević 369 Most of these requests were fulfilled and support was given to the RSK MUP 370 and to the TO and the SVK 371 In January 1992 Milan Marti stated that cooperation 361 Veljko D‘akula 17 Jan 2006 T 440-441 19 Jan 2006 T 596-597 Milan Babi 20 Feb 2006 T 1654 Peter Galbraith 25 Apr 2006 T 3742-3743 3754-3755 testifying that the Krajina area was to have the right to its own flag and language and competence to decide on legislature housing education culture public services energy business and many other aspects of its society Slobodan Jar evi 12 Jul 2006 T 6177-6178 Slobodan Peri 7 Sep 2006 T 7944-7945 Lazar Macura 13 Sep 2006 T 8232 Ex 381 362 Veljko D‘akula 19 Jan 2006 T 597 Peter Galbraith 25 Apr 2006 T 3803 363 Milan Babi 20 Feb 2006 T 1654-1655 Peter Galbraith 25 Apr 2006 T 3749-3751 3801-3802 Slobodan Jar evi 14 Jul 2006 T 6299-6300 Lazar Macura 13 Sep 2006 T 8233 14 Sep 2006 T 8349 364 Peter Galbraith 25 Apr 2006 T 3750 3801-3802 Slobodan Jar evi 12 Jul 2006 T 6181-6183 See also Lazar Macura 14 Sep 2006 T 8350 365 Rade Ra eta 2 May 2006 T 3918-3919 testifying that Slobodan Milošević told Milan Martić to reject the Z-4 Plan a priori Mile Dakić 25 Oct 2006 T 10055-10056 testifying that the RSK leadership was “awaiting a response from Belgrade which was a higher level that was deciding about whether the Z-4 Plan would be accepted or not” See also Peter Galbraith 25 Apr 2006 T 3751-3753 Charles Kirudja 1 Jun 2006 T 4957 Ex 769 p 2 366 Peter Galbraith 25 Apr 2006 T 3793 Witness MM-117 16 Oct 2006 T 9450-9451 17 Oct 2006 T 9596 Ex 391 367 Milan Babi 20 Feb 2006 T 1656-1657 Peter Galbraith 25 Apr 2006 T 3747-3749 See also Witness MM-117 18 Oct 2006 T 9623-9625 368 Ex 820 Agreed Facts para 32 369 Ex 11 identical to Ex 659 Ex 12 Ex 68 Ex 69 Ex 194 Ex 707 Ex 840 Peter Galbraith 25 Apr 2006 T 3756-3757 370 The RSK MUP received support from Serbia and the JNA VJ in many cases pursuant to a standing SSNO order of 20 April 1992 concerning supply of ammunition to the RSK MUP Ex 67 Ex 692 Ex 694 Ex 695 Ex 697 Ex 698 Ex 699 Ex 700 Ex 701 Ex 702 Ex 703 and Ex 704 Milan Babić testified that in 1992 the RSK police was financed in the same way as in 1991 with the SAO Krajina Milan Babić 16 Feb 2006 T 1465 Case No IT-95-11-T 58 12 June 2007 with Serbia never ceased and was good 372 There is evidence describing the relationship between the RSK and Serbia as one “between two states” although the RSK listened to “the opinions of our ally ” 373 There was a representation office in Belgrade of the RSK Foreign Minister’s office 374 The RSK Minister of Foreign Affairs was paid by Serbia as a result of being employed by the Ministry of Foreign Affairs of Serbia 375 As President of the RSK Milan Marti enjoyed the full support of the VJ 376 160 In respect of the cooperation between the RSK and the RS the Trial Chamber notes the evidence regarding operation Koridor 92 377 Both phases of the operation included units of the RSK police PJM and TO and the operation was led by the VRS and RS police 378 Milan Martić visited the Posavina Corridor on several occasions during the first phase of the operation in June and July 1992 379 During the second phase of Operation Corridor two RSK PJM brigades participated 380 Milan Martić and Borislav Ðukić commanded a “strong” RSK police detachment during this phase of operation Koridor 92 381 The evidence shows that following operation Koridor 92 Milan Martić’s popularity in the RSK increased significantly 382 371 Milan Babi 16 Feb 2006 T 1466-1467 The support from Serbia to the SVK covered all aspects of its functioning including personnel operational and logistical support Rade Rašeta 2 May 2006 T 3894-3896 between 150-200 VJ officers were seconded to the SVK to leading positions T 3903 testifying that the SVK and the VJ “were actually one and the same organisation but positioned at two different locations” T 3907-3910 3953-3954 Rade Rašeta 3 May 2006 T 3978 Slobodan Peri 7 Sep 2006 T 7933 Lazar Macura 14 Sep 2006 T 8338-8339 Borislav Ðukic 23 Oct 2006 T 9927-9928 Ex 63 p 2 Ex 64 Ex 65 Ex 456 The SSNO continued to order organisational changes in the SAO Krajina TO Ex 62 Ex 71 Ex 978 See also Ex 6 pp 161-68 Reynaud Theunens 27 Jan 2006 T 806 372 Ex 951 p 1 373 Slobodan Jarčević 13 Jul 2006 T 6254 374 Slobodan Jarčević 12 Jul 2006 T 6139 13 Jul 2006 T 6253-6254 375 Slobodan Jarčević 12 Jul 2006 T 6139 13 Jul 2006 T 6170 6253-6254 14 Jul 2006 T 6322-6323 376 Rade Rašeta 2 May 2006 T 3907-3908 The JNA became the VJ when the SFRY ceased to exist and Serbia and the Republic of Montenegro made up the Federal Republic of Yugoslavia Lazar Macura 15 Sep 2006 T 8428 377 See supra para 154 378 On 5 June 1992 Milan Martić ordered the SUPs and MUP Brigades in the RSK to form “volunteer police companies” of 120 men each and armed with automatic weapons and wearing Krajina police insignia “in order to carry out tasks of interest for the RSK and the Serbian people as a whole” Ex 635 On 10 June 1992 Milan Martić ordered these units to march along certain axes into BiH Ex 461 The RSK MUP forces formed part of TG-2 commanded by Colonel Mile Novaković and were deployed in BiH at least as of 24 June 1992 Ex 634 pp 4 9 On 19 June 1992 the Ministers’ Cabinet of the RSK MUP announced that RSK MUP units were participating in Operation Corridor Reynaud Theunens 27 Jan 2006 T 813 Ex 646 See also Ex 6 p 170 Ex 568 379 Ex 634 pp 14 48 63 93 123 380 Ex 87 Order dated 13 November 1992 for the two PJM brigades to participate “with the aim of expanding the corridor and liberating all Serbian Territories” 381 Veljko Džakula 17 Jan 2006 T 432-433 See also Witness MM-003 9 Mar 2006 T 2041 10 Mar 2006 T 2211 There is also evidence that on 22 November 1992 Milan Martić Borislav Ðukić and General Momir Talić of the VRS held a meeting to assess “the situation regarding the forthcoming combat operations” in the area of Gradačac and Orašje see Ex 6 p 173 382 Veljko Džakula 16 Jan 2006 T 404 Case No IT-95-11-T 59 12 June 2007 D Armed clashes between Serb and Croatian forces 1 During spring and summer of 1991 161 Several armed clashes occurred between Croatian and SAO Krajina armed forces in several locations during the spring and summer of 1991 383 162 As noted above in March 1991 there were armed clashes in Pakrac and in Plitvice between Croatian MUP special police forces and the police of the SAO Krajina On both occasions the JNA intervened after these clashes to separate the two sides 384 163 In June 1991 there was a Croatian SJB in Lovinac in Gračac municipality north-west of Knin and as a consequence the village was attacked by the police of the SAO Krajina 385 Witness MM-003 testified that Milan Martić was in command of this attack The Trial Chamber recalls its finding that the evidence of Witness MM-003 requires corroboration and notes that this piece of evidence is uncorroborated However the Trial Chamber notes Milan Babić’s testimony that Milan Martić “participated” in the attack together with Franko Simatović 386 While the evidence does not support a finding that Milan Martić commanded the attack on Lovinac the Trial Chamber finds it established beyond reasonable doubt that Milan Martić participated in the attack 387 164 On 2 July 1991 the village of Ljubovo south-west of Titova Korenica was attacked by the Milicija Krajine because members of the Croatian MUP had stationed themselves there following the conflict in Plitvice In public statements Milan Martić said that this attack was carried out because an ultimatum of the SAO Krajina government had expired which required that all members and units of the Croatian MUP withdraw from the SAO Krajina territory and because of arrests and mistreatment by Croats of Serbs in the area of Lika 388 383 There is also evidence that there were several similar armed clashes and attacks in other villages during the spring and summer of 1991 including in Potkonje Vrpolje and Lički Osik Potkonje and Vrpolje Sometime before June 1991 about 60 members of the SAO Krajina police raided the small Croat villages of Potkonje and Vrpolje located in the municipality of Knin allegedly to locate a radio transmitter Nobody was killed in this action however the incident caused the civilian population to leave the area Witness MM-078 24 May 2006 T 4453 25 May 2006 T 4520-4521 Witness MM-096 21 Aug 2006 T 6846-6849 testifying that 60 automatic rifles and ammunition were found with some persons that criminal charges were brought against them but that they were eventually released 24 Aug 2006 T 7067-7068 7072-7073 Ex 1037 L0092049 Lički Osik On 2 July 1991 Croatian police in the town of Lički Osik were attacked by “Krajina forces” Ex 214 p 3 wherein Milan Martić described this as “our first offensive action” 384 See supra para 132 385 Milan Babi 16 Feb 2006 T 1432-1433 Witness MM-003 8 Mar 2006 T 2010-2011 Ratko Ličina 14 Aug 2006 T 6408 386 Witness MM-003 8 Mar 2006 T 2010-2011 Milan Babi 16 Feb 2006 T 1432-1433 387 The Trial Chamber recalls its findings that Milan Babić’s evidence as well as that of Witness MM-003 requires corroboration see supra section I D 2 The Trial Chamber considers however that where the evidence of one of these witnesses corroborates the evidence of the other such corroboration is sufficient 388 Ex 211 Ex 973 Ex 975 See also MM-003 8 Mar 2006 T 2005-2006 Ratko Ličina testified that the SAO Krajina police only reacted to the establishment of Croatian SJBs in municipalities where the Serbs were in majority as Case No IT-95-11-T 60 12 June 2007 165 In mid-July 1991 the town of Glina located in the Banija area north-west of Dvor was attacked by a unit under the command of Captain Dragan Vasiljković 389 The JNA intervened after the attack by creating a buffer zone 390 On 25 July 1991 the village of Struga a few kilometres north of Dvor along the Una river was attacked by units under the command of Captain Dragan Vasiljković and the Glina War Staff 50 members of a “special forces” unit 50 policemen and 700 civilians participated in the operation 391 Following the attack the JNA intervened and created a buffer zone 392 166 On 26 August 1991 the Croat village of Kijevo situated 15 kilometres east of Knin was attacked because the MUP of Croatia had established an SJB in the village 393 The decision to attack Kijevo was taken by Milan Martić in coordination with the JNA and followed an ultimatum issued by him to the Croatian SJB in which he stated that “ y ou and your leadership have brought relations between the Serbian and Croatian populations to such a state that further co-existence in our Serbian territories of the SAO Krajina is impossible” 394 In relation to the civilian population in Kijevo the ultimatum provided that We also want to advise the population of Kijevo to find safe shelters on time so that there should be no casualties among them We would like to stress that we want co-existence and understanding between the residents of the Serbian villages and the Croatian population in Kijevo and we guarantee civil and human rights to everyone 395 167 Units of the JNA 9th Corps in Knin the Milicija Krajine and the local TO participated in the attack 396 The evidence establishes that there was coordination between the JNA and the MUP and that the JNA was in command of the participating forces 397 The evidence is inconsistent as to the strength of the Croatian forces present in Kijevo 398 Prior to the attack between 23 and 25 August was the case in Plitvice Titova Korenica municipality in Lovinac Gračac municipality in Kijevo Knin municipality in Kruševo Obrovac municipality in Škabrnja Benkovac municipality in Vidusevac Glina municipality Ratko Ličina 14 Aug 2006 T 6428 15 Aug 2006 T 6507-6508 389 Aernout van Lynden 2 Jun 2006 T 5002 5012-5014 390 Aernout van Lynden 2 Jun 2006 T 4996-4999 5007 391 Ex 587 See also Ex 582 stating that Milan Martić Captain Dragan Vasiljković and Bogdan Vajagić met on 23 July 1991 to discuss the situation in the Banija area 392 Aernout van Lynden 2 Jun 2006 T 5008 See also Ex 587 p 1 393 Milan Babi 17 Feb 2006 T 1553-1556 Ex 1037 L0079681 394 Ex 820 Agreed Facts para 20 See also Milan Babi 16 Feb 2006 T 1438-1439 17 Feb 2006 T 1555 Ex 1037 Group 11 L0079292-3 L0079682 Ex 212 395 Ex 212 Milan Babi 17 Feb 2006 T 1555 See also Ex 496 p 11 Ex 1037 L0079294 L0079682 396 Milan Babi 17 Feb 2006 T 1558-1559 Milan Dragi i 19 Sep 2006 T 8655-8656 397 Ex 45 p 48 Ex 496 p 11 See also Witness MM-003 09 Mar 2006 T 2035 398 Witness MM-078 24 May 2006 T 4443 members of the Croatian MUP were billeted in the culture hall in Kijevo Milan Dragi i 19 Sep 2006 T 8655-8656 there were at least 300 armed men in Kijevo including ZNG Borislav Ðuki 20 Oct 2006 T 9875 there was a gradual reinforcement of the Croatian forces in Kijevo which eventually numbered 1 000 men Case No IT-95-11-T 61 12 June 2007 1991 the commander of the Croatian SJB evacuated almost the entire civilian population of Kijevo 399 168 The attack on Kijevo on 26 August 1991 only lasted a few hours 400 There is differing evidence as to the purpose of the attack Witnesses testified that the purpose was “to cleanse Kijevo of its Croatian population” to link up the two Serb villages of Polace and Civljani on either side of Kijevo to “liberate the area” and to provide for further advancement of the JNA 401 Borislav Ðukić who at the time was commander of Tactical Group 1 “TG-1” of the JNA 9th Corps in Knin testified that the attack had not been planned beforehand but was provoked by a Croatian attack on 25 August 1991 on buffer zones previously established by TG-1 According to Borislav Ðukić the purpose of the attack was to lift the blockade along the Kijevo road set up by the Croatian SJB in Kijevo 402 169 The Catholic church in Kijevo was damaged during the attack and was later destroyed 403 The evidence also shows that private houses were looted and torched 404 170 On 28 August 1991 TG-1 of the JNA 9th Corps also attacked the mixed Croat and Serb village of Vrlika located south of Knin near Kijevo 405 After the attack an SJB of the SAO Krajina MUP was established in Vrlika 406 Subsequently members of this SJB indirectly participated in the widespread looting by allowing lorries carrying looted goods to proceed towards Knin 407 171 On 16 September 1991 Drniš which is located near Knin and at the time was 75% Croat was attacked by forces and artillery of TG-1 of the JNA 9th Corps 408 During the attack and the following days the centre of Drniš was almost completely destroyed 409 Widespread looting was 399 Borislav Ðuki 20 Oct 2006 T 9872 Borislav Ðuki 20 Oct 2006 T 9880 401 Witness MM-003 9 Mar 2006 T 2030 2032-2035 Witness MM-078 24 May 2006 T 4443 402 Borislav Ðuki 20 Oct 2006 T 9871-9873 9875-9876 Milan Dragi i 19 Sep 2006 T 8655-8656 Milan Babić testified that the residents of Kijevo had blocked the road Milan Babić 17 Feb 2006 T 1551-1552 See also Ex 105 403 Milan Babi 3 Mar 2006 T 1931 Witness MM-078 24 May 2006 T 4444 Borislav Ðukić 19 Oct 2006 T 9767 20 Oct 2006 T 9886 Ex 106 reporting that ZNG was deployed in the church 404 Witness MM-078 24 May 2006 T 4434-4435 Borislav Ðuki 20 Oct 2006 T 9885-9886 See also Ex 496 405 Milan Babi 17 Feb 2006 T 1567 Witness MM-078 24 May 2006 T 4444 Borislav Ðuki 20 Oct 2006 T 9887 406 Witness MM-078 24 May 2006 T 4445 407 Witness MM-078 24 May 2006 T 4445 Borislav Ðuki 20 Oct 2006 T 9887-9888 testifying that the JNA lifted the Croatian siege of Vrlika and that the JNA did not participate in looting Ex 221 408 Witness MM-078 24 May 2006 T 4446 4450-4451 Borislav Ðukić 20 Oct 2006 T 9888 9894-9895 Ex 984 pp 7-12 Two JNA military facilities were located outside of Drniš and were blocked by the Croatian forces Borislav Ðukić 20 Oct 2006 T 9888-9889 There was no Croatian SJB in Drniš Witness MM-078 24 May 2006 T 4452 409 Witness MM-078 24 May 2006 T 4450 25 May 2006 T 4542 400 Case No IT-95-11-T 62 12 June 2007 committed by members of the JNA and the MUP and by local citizens 410 Approximately 10-15 days after the attack an SJB of the SAO Krajina MUP was set up in Drniš 411 172 Following these attacks several larger clashes and attacks occurred in predominantly Croat areas of the SAO Krajina These will be more fully described below 2 Hrvatska Dubica Cerovljani and Ba in a Take-over of Hrvatska Kostajnica and Hrvatska Dubica 173 In 1990 Hrvatska Dubica Cerovljani and Ba in were mixed or predominantly Croat villages in the Hrvatska Kostajnica municipality situated in north-eastern Croatia 412 In 1990 Hrvatska Dubica had around 2 000 to 2 500 inhabitants 413 Cerovljani is situated about three to six kilometres north of Hrvatska Dubica and in 1990 its population was some 500 people 414 Ba in is situated about three to five kilometres west of Hrvatska Dubica and in 1990 it had 200 to 500 inhabitants 415 174 In the area of Hrvatska Kostajnica there was intensive fighting during August and September 1991 which lasted until the beginning of October 416 In September 1991 Milan Marti went together with Colonel Dušan Smiljani Chief of Security of the JNA 10th Zagreb Corps to coordinate combat activities in relation to the “liberation of Kostajnica” 417 175 On 12 or 13 September 1991 Serb forces including the SAO Krajina TO took control over Hrvatska Kostajnica 418 The special police unit of the SAO Krajina police at Dvor na Uni participated and cooperated with the TO 419 Following the takeover of Hrvatska Kostajnica the 410 Witness MM-078 24 May 2006 T 4450 Borislav Ðuki 20 Oct 2006 T 9889-9890 Witness MM-078 24 May 2006 T 4452 412 Villages surrounding Hrvatska Dubica are Ba in Cerovljani Predore about eight kilometres from Hrvatska Dubica Slabinja @ivaja Directly adjacent to Hrvatska Dubica across the river Una on the side of BiH is Bosanska Dubica which in 1990 had approximately 10 000 inhabitants about 40% Serbs 45% Muslims and 500 Croats @ivaja situated slightly north of Cerovljani and about eight to fifteen kilometres from Hrvatska Dubica and Slabinja ten to fifteen kilometres west of Hrvatska Dubica were predominantly Serb villages Witness MM-022 20 Mar 2006 T 2278 2361 Witness MM-025 12 Jun 2006 T 5410 5422-5424 Ex 265 pp 2-3 Nikola Dobrijević 10 Nov 2006 T 10883-10884 Mijo Ciprić Ex 274 p 2 Ex 23 Atlas p 21 See also Ex 301 p 3 Ex 1042 Tab 2 Ex 1043 Tab 2 DVD 1 pp 42-59 and DVD 2 pp 1-7 Ex 1044 413 Ex 265 p 2 Ex 301 p 2 in 1991 the population was 50% Croat and 38% Serb 414 Ex 265 p 2 In 1991 52 9% were Croats and 39 5% were Serbs Ex 301 p 3 415 Witness MM-022 20 Mar 2006 T 2278 Ex 265 p 3 Mijo Ciprić Ex 274 p 2 Ex 301 p 1 also stating that 94 9% were Croat and 1 5% were Serb 416 Milan Babić 20 Feb 2006 T 1597-98 Ex 1034 L0092283 Ex 1042 Tab 2 Ex 1043 Tab 2 DVD 2 pp 7-8 Ex 1044 417 Milan Babi 16 Feb 2006 T 1441-1442 See also Ex 206 Milan Babi 17 Feb 2006 T 1532-1533 418 Nikola Dobrijević 10 Nov 2006 T 10873 10878 10882-10883 Nikola Dobrijević testified that among 500 or 600 members of the TO there were 111 Croats and a few percent of Muslims Nikola Dobrijević 10 Nov 2006 T 1088110882 13 Nov 2006 T 10980-10981 Antun Blažević Ex 273 p 2 419 Ex 568 p 3 Nikola Dobrijević 13 Nov 2006 T 10955 See also Ex 957 p 2 stating that as of 2 September 1991 “ t here are strong MUP forces in Dubica and ita” 411 Case No IT-95-11-T 63 12 June 2007 operation continued in order to take over the rest of the villages along the axis between Kostajnica and Novska including the villages of Hrvatska Dubica Cerovljani and Ba in 420 A front line between the SAO Krajina and Croatian forces was established from Sunja to Hrvatska Dubica and further towards Novska 421 Following this operation there were daily conflicts on the front line 422 b Hrvatska Dubica 176 In 1991 the Croatian MUP took over the SJB in Hrvatska Dubica 423 From mid-1991 ZNG units were formed in Hrvatska Dubica 424 Around the same time the Serb inhabitants started to move out of Hrvatska Dubica 425 177 After the occupation of Hrvatska Kostajnica around 12 or 13 September Hrvatska Dubica was shelled from Hrvatska Kostajnica and from Bosanska Dubica BiH 426 Subsequently the ZNG and Croatian MUP withdrew from Hrvatska Dubica and the surrounding villages and the civilian inhabitants started to leave 427 After 13 September 1991 only about 60 Croats mainly elderly and women remained in Hrvatska Dubica 428 178 An SAO Krajina TO force and a police force including a unit of the Milicija Krajine consisting of 30 policemen from the area were set up in Hrvatska Dubica 429 Veljko “Velja” Rađunovi his son Stevo Rađunovi and Momčilo Kovačević were in charge of the Milicija Krajine unit which had a command post at the old school building in Hrvatska Dubica 430 There 420 Nikola Dobrijević 10 Nov 2006 T 10883-10884 Antun Blažević Ex 273 pp 2-3 Mijo Ciprić Ex 274 pp 3-4 Ex 568 p 4 Ex 599 p 5 421 Nikola Dobrijević 10 Nov 2006 T 10884-10886 According to Witness MM-022 the front line was between Jasenovac and Sunja along the Sava River Witness MM-022 20 Mar 2006 T 2350-2351 422 Nikola Dobrijević 10 Nov 2006 T 10886 423 Josip Josipović 6 Apr 2006 T 3338 424 Witness MM-022 20 Mar 2006 T 2281-2283 2324 There were about four units each made up of four to five men who did not have uniforms The units had one firearm between them and some carried personal hunting rifles The headquarters was in Hrvatska Dubica close to the bridge between Hrvatska Dubica and Bosanska Dubica Ex 265 p 5 Josip Josipović 6 Apr 2006 T 3297-3298 3348 425 Witness MM-022 20 Mar 2006 T 2284 2325 2330 Ana Kesić 21 Mar 2006 T 2385 Josip Josipović 6 Apr 2006 T 3304-3305 3333-3334 Witness MM-025 12 Jun 2006 T 5421 426 Tomislav Kozarčanin Ex 828 p 2 See also Antun Blažević Ex 273 p 2 427 Witness MM-022 20 Mar 2006 T 2281 2286-2287 2289 Josip Josipović 6 Apr 2006 T 3298 3346-3347 Witness MM-025 12 Jun 2006 T 5414 5421 Ex 265 p 4 Tomislav Kozarčanin Ex 828 p 2 428 Witness MM-022 20 Mar 2006 T 2292-2293 Ana Kesić 21 Mar 2006 T 2385-2386 Witness MM-025 12 Jun 2006 T 5421-5422 Ex 265 p 4 429 Witness MM-022 20 Mar 2006 T 2289-2290 2293 2316 2336 2350 Josip Josipović 6 Apr 2006 T 3297-3298 430 Witness MM-022 20 Mar 2006 T 2291 2297-2298 2308 Josip Josipović 6 Apr 2006 T 3309-3310 3314 Other Milicija Krajine members were Mirko Sarac Milan Petrović Ðorđe Ratković Ðuro Jerinić Marjan Prvalo Mladen Pozar Rajko Pauković Dubravko Pauković Mico Tepić and Branko Kotur Josip Josipović 6 Apr 2006 T 3309 3318 Case No IT-95-11-T 64 12 June 2007 were “reservists” in @ivaja under the command of Stevo Borojević 431 The reservists wore old military olive-green-grey uniforms 432 179 On 15 September 1991 the JNA the TO and the police surrounded Predore approximately 8 kilometres from Hrvatska Dubica and proceeded to search houses 433 They rounded up people and took six or seven including Josip Josipović a ZNG member to the Sava river to reconnoitre the area using them as a live shield and then returned them to the village 434 Josip Josipovi and his cousin Mi o ori were then taken to Dubička Brda where they were detained for one month 435 Thereafter they were transferred to the school building in Hrvatska Dubica which was used as a command post by Serb forces including the TO and the police 436 Present at the school building were Momčilo Kovačevi and Veljko Radjunovi who issued orders and participated in the beatings of detainees at the school building 437 Josip Josipovi identified Mom ilo Kovačevi Stevo Radjunovi Mirko Šarac Milan Petrovi Djordje Ratkovi Djuro Jerini Marjan Prvalo and Miša Pozar as the soldiers guarding them 438 Josip Josipovi testified that he overheard the soldiers discussing amongst themselves and understood them as saying that they were receiving orders from Milan Marti 439 180 After the take-over of Hrvatska Dubica until mid-October 1991 some houses were torched in Hrvatska Dubica approximately eight belonged to Croats two belonged to couples of mixed marriages and one belonged to a Serb 440 There was also widespread looting committed by the JNA the TO the Milicija Krajine and local Serbs 441 Detained Croats were also forced to loot 442 All the houses of people who had fled both Croats and Serbs were looted and cars tractors tools 431 Witness MM-022 20 Mar 2006 T 2289 2293 Witness MM-022 20 Mar 2006 T 2293 The Serb forces in the area at the time wore a variety of insignia including the five-pointed star and emblems with the inscription “SAO Krajina” with “Milicija Krajine” with a double-headed eagle and crossed swords with four Cyrillic “S” It was not possible to tell to which unit soldiers belonged There is also evidence of soldiers with patches reading “Special Police Units” “Blue” and “Ugljevik” worn by Serbs who came from BiH Josip Josipović 6 Apr 2006 T 3299-3300 3300-3303 3353 7 Apr 2006 T 3382-3383 Ex 266 Ex 288 433 Josip Josipović 6 Apr 2006 T 3294 3309 3349-3350 434 Josip Josipović 6 Apr 2006 T 3310 3350 435 Josip Josipovi 6 Apr 2006 T 3310-3311 The Trial Chamber considers that the Defence has not been put on notice regarding a detention facility in Dubička Brda and will not consider this evidence for a conviction see supra section I C 436 Josip Josipovi 6 Apr 2006 T 3311 3314 437 Josip Josipovi 6 Apr 2006 T 3314 438 Josip Josipovi 6 Apr 2006 T 3318 7 Apr 2006 T 3375 439 Josip Josipović 6 Apr 2006 T 3356 440 Witness MM-022 20 Mar 2006 T 2295-2296 441 Witness MM-022 20 Mar 2006 T 2293-2295 2336 442 Josip Josipović 6 Apr 2006 T 3312-3313 432 Case No IT-95-11-T 65 12 June 2007 machinery furniture and cattle were stolen 443 Serbs who had withdrawn from the areas of Pakrac and Lipik moved into the houses of the people who had fled 444 181 In the morning on 20 October 1991 a truck bearing the insignia “Milicija SAO Krajina” with Veljko Rađunovi Radovan o a and a man nicknamed “Janjeta” came to Ana Kesi ’s house and told her and her sister-in-law Katarina to come with them and attend a meeting 445 Thereafter the truck picked up several other civilians and brought them to the fire station in Hrvatska Dubica 446 On the same date Tomislav Kozarčanin was told by Branko Majstorović who was wearing a JNA uniform to go to the fire station to attend a meeting which he did 447 A second bus arrived at the fire station after ten minutes bringing another 20 people 448 In total there were then more than 40 people in the fire station but more people arrived later 449 They were mostly Croats although there were also Serbs and Muslims 450 182 The people in the fire station were guarded by Katarina “Kaća” Pekić and Stevo Rađunovic who were armed and wore JNA uniforms and a man with the last name Kovačević 451 The detainees were not free to leave 452 Every two or three hours there was a change of guard and the detainees’ names would be read out from a list to check no one was missing 453 Over the course of the day eleven of the detainees were released or managed to escape including Tomislav Kozarčanin 454 183 Several witnesses testified to having heard including from Serb soldiers in Hrvatska Dubica that the people detained in the fire station on 20 October 1991 were taken the following day 443 Witness MM-022 20 Mar 2006 T 2294-2296 Ana Kesi 21 Mar 2006 T 2383 See also Josip Josipovi 6 Apr 2006 T 3313 444 Witness MM-022 20 Mar 2006 T 2296 445 Witness MM-022 20 Mar 2006 T 2298-2301 Ana Kesić 21 Mar 2006 T 2388-2390 Ex 258 p 2 446 Those who were picked up included Vera Franković Veronika Stanković Pavle Kropf Bara Kropf and her daughter an 80-year old man nicknamed “Brico” Danica Krizmanović Ruza Dikulić Sofija Dikulić and Nikola Lončar Witness MM-022 20 Mar 2006 T 2299-2301 Ana Kesić 21 Mar 2006 T 2388-2389 Ex 258 p 2 The Trial Chamber considers that Vera Stanković born 1915 is Veronika Stanković in Annex I to the Indictment that Pavle Kropf aged 60 is Pavao Kropf in Annex I that Bara Kropf aged 60 is Barbara Kropf in Annex I and that Nikola Lončar is Nikola Lončarević in Annex I See also Josip Josipović 6 Apr 2006 T 3324 Ex 1042 Tab 2 Ex 1043 Tab 2 DVD 1 pp 49-53 447 Tomislav Kozarčanin Ex 828 p 2 448 Witness MM-022 20 Mar 2006 T 2301 449 Witness MM-022 20 Mar 2006 T 2301-2302 See also Ex 380 pp 10 12 450 Witness MM-022 20 Mar 2006 T 2303 451 Witness MM-022 20 Mar 2006 T 2343-2344 Tomislav Kozarčanin Ex 828 p 3 Ex 380 pp 11-12 452 Tomislav Kozarčanin Ex 828 p 3 453 Witness MM-022 20 Mar 2006 T 2302 2343-2344 Two Serbs Mićo Kesonja and Ðuro Kesonja made a list of all the people who remained in Hrvatska Dubica during the period of their occupation Tomislav Kozarčanin Ex 828 pp 3-4 454 Those released were three Serbs one Muslim and seven Croats whose Serb neighbours or friends contacted the guards Witness MM-022 20 Mar 2006 T 2304-2306 2360 Ana Kesić 21 Mar 2006 T 2390 2393-2394 Ex 258 pp 2-3 Tomislav Kozarčanin Ex 828 p 3 Ex 380 pp 11-12 Case No IT-95-11-T 66 12 June 2007 to a place called Kre ane near Ba in where they were killed 455 The bodies of the following 32 civilians who the evidence shows had been detained in the fire station on 20 October 1991 were subsequently exhumed from several graves including one at Kre ane near Ba in 456 Katarina Alavan i Terezija Alavan i Josip Antolovi 457 Marija Batinovi 458 Mara ori 459 Mijo ovi 460 Marija Deli Ana Dikuli Ru a Dikuli Sofija Dikuli Antun uki Marija “Maca” uki 461 Ana Feri Juraj Feri Kata Feri Filip Juki Marija Juki Antun Krivaji Barbara Kropf Pavao Kropf Ivan Kuli i 462 Nikola Lon ari Antun Mucavac 463 Ivo Pezo Sofija Pezo Anka Piktaja 464 tjepan Sabljar Veronika Stankovi Antun vra i Marija vra i Ana Tepi 465 and Katarina Vladić 466 Moreover the evidence shows that the following 9 civilians whose bodies have not been recovered were detained in the fire station on 20 October 1991 and killed the following day at Krečane near Baćin tjepan Dikuli Antun urinovi Jozo Karanovi Reza Krivaji Du an Tepi Ivan Trnini Ivo Trnini Kata Trnini and Terezija Trnini 467 Although their bodies have not been recovered in light of the fact that they were detained in the fire station at the same time as the above-mentioned 32 persons who were subsequently killed the Trial Chamber considers that it has been established beyond reasonable doubt that they were killed 468 All of the above victims were Croats except for Ana Tepi and Du an Tepi who were Serbs 469 184 After Tomislav Kozar anin fled from the fire station he hid for seven or eight days When he returned to his house he was picked up by Ðuro Majstorović and two others with the same surname They wore JNA uniforms and carried automatic rifles He was handcuffed blindfolded 455 Witness MM-022 20 Mar 2006 T 2310-2311 Josip Josipović 6 Apr 2006 T 3324-3325 3354 Ana Kesić 21 Mar 2006 T 2381-2382 Ex 258 p 3 Tomislav Kozarčanin Ex 828 p 3 See also Ex 265 p 6 Ex 257 456 In 1997 56 bodies were exhumed from a mass grave in Krečane near Ba in Davor Strinović 12 Apr 2006 T 3669 Ana Kesi Ex 258 p 3 Tomislav Kozarčanin Ex 828 p 3 Antun Blažević Ex 273 p 4 Mijo Ciprić Ex 274 p 4 Ex 301 p 1 Ex 380 Ex 1042 Tab 2 Ex 1043 Tab 2 DVD 2 pp 5-7 Ex 1044 457 Ex 315 458 Ex 316 459 Ex 310 Josip Josipovi 6 Apr 2006 T 3324-3325 460 Ex 317 461 Ex 308 462 There is evidence that an individual called “Ivo Kuliša” remained in Hrvatska Dubica Tomislav Kozarčanin Ex 828 p 2 However the Trial Chamber cannot conclude that this person is the same person as Ivan Kuli i 463 Ex 307 464 Ex 314 465 Ex 306 466 With respect to these 32 individuals see Ex 257 listing all of them except for Marija Batinovi Witness MM-022 20 Mar 2006 T 2312-2313 Ex 302 Ex 323 Ex 302 indicates that all of them except for Marija Deli and Ivo Pezo were exhumed from a mass grave in Kre ane near Ba in Ex 323 identifies their causes of death as either gunshot wounds trauma wounds or blast wounds except for Ivan Kuli i for whom Ex 323 states the cause of death as unknown Ex 257 also lists FNU Juki FNU Krni and FNU esti as having been detained in the fire station There is no further evidence concerning these persons and in view of this lack of evidence the Trial Chamber is unable to identify them Having regard to the Trial Chamber’s finding as to the interpretation of the Indictment see supra section I C the Trial Chamber will not make any further finding regarding these persons 467 Ex 257 Ex 302 Ex 323 468 In this respect the Trial Chamber notes the evidence of Mijo Ciprić that there is a possibility that bodies were washed away from the mass grave at Krečane near Baćin as that grave is on the bank of the river Una Mijo Cipri Ex 274 7-8 Nov 2000 p 4 See also Ex 1042 Ex 1043 DVD 2 pp 5-7 Case No IT-95-11-T 67 12 June 2007 and beaten after which he was taken in their car to an abandoned house He was beaten throughout the journey which resulted in broken ribs and his legs were cut with a knife They then drove him to another location removed his handcuffs and abandoned him A Serb later took him to the SJB in Hrvatska Dubica where he described what had happened to him 470 185 After Ana Kesi and her sister-in-law Katarina were released from the fire station they heard from one of their relatives Milan esti that three neighbours had been killed and that he dug graves for them 471 There is no other evidence as to these three persons 472 The Trial Chamber finds that the evidence is insufficient to establish beyond reasonable doubt that these three persons were killed 473 c Cerovljani 186 Following the advice of the Croatian police and ZNG most of the residents of Cerovljani left the village in August and early September 1991 after which only elderly people remained 474 187 On 13 and 21 September 1991 Serbs came to Cerovljani and burnt Croat houses 475 The Serbs who came on 21 September were armed and about fifty in number the majority wearing civilian clothes although a few wore military uniforms 476 The commander was Nikola Begović from Babin Rijeka near Hrvatska Kostajnica and most of the members were from Živaja Šaš and the surroundings of Hrvatska Dubica 477 On 24 September the armed Serbs came again in the afternoon and shooting could be heard that night three dead bodies were found 478 On the same date the houses of uro Petrovi Nikola Dragocaja Anka Bari i and @eljko Blinja were torched 469 Witness MM-022 20 Mar 2006 T 2313 Tomislav Kozarčanin Ex 828 p 3 471 Ana Kesi Ex 258 p 3 472 These three were Luka Krni tef Uska and FNU Batinovi Ana Kesić 21 Mar 2006 T 2381 Ex 258 p 3 Annex I to the Indictment contains two individuals with the last name Batinovi however the Trial Chamber cannot find that this individual is the same person as either of those mentioned in Annex I 473 There is evidence that Milan esti disappeared from Hrvatska Dubica Ana Kesić 21 Mar 2006 T 2381 Ex 258 p 3 See also Ex 302 p 4 Documentary evidence also shows that Mijo Mi i disappeared from Hrvatska Dubica Ex 302 p 4 Milan esti and Mijo Mi i are mentioned in Annex I to the Indictment as victims killed in Ba in and surroundings However in view of the evidence regarding these persons provided to the Trial Chamber Ex 302 Ex 323 the Trial Chamber cannot conclude that these individuals are dead or were killed Maca Dikuli age 86 is listed in Annex I to the Indictment There is evidence that she remained in Hrvatska Dubica after the occupation Ana Kesi Ex 258 p 3 Tomislav Kozarčanin Ex 828 p 2 However no other information is provided to the Trial Chamber in relation to this person Ex 302 Ex 303 The Trial Chamber cannot conclude that this individual is dead or was killed 474 Antun Blažević Ex 273 p 3 475 Antun Blažević Ex 273 p 3 On 13 September 1991 “the Serbs” burnt three Croatian houses which were on the @ivaja side of Cerovljani On 21 September they burnt three more Antun Blaževi Ex 273 p 3 476 Antun Blažević Ex 273 p 3 477 Antun Blažević Ex 273 p 3 478 The victims were Barbara Blinja Nikola Likić and Ðuro Petrović Antun Blažević Ex 273 pp 3-4 The Trial Chamber finds that these victims were killed by armed Serbs from Živaja under the command of Nikola Begović The Trial Chamber notes that Barbara Blinja Nikola Likić and Ðuro Petrović are not listed in Annex I to the Indictment The Trial Chamber considers that the Defence has not been on notice regarding these killings and will therefore not enter a conviction based on them See supra section I C 470 Case No IT-95-11-T 68 12 June 2007 by the Serbs and rocket launchers were fired at the Catholic church which damaged the bell tower 479 Some of the armed Serbs also stole the car of Antun Bla evi 480 188 The evidence shows that some time in October 1991 unidentified armed Serbs gathered the remaining civilians in Cerovljani into the local community centre under the pretext of having a meeting following which they were detained for the night The next morning they were taken away 481 The bodies of Marija Antolović 482 Ana Blinja 483 Josip Blinja 484 Katarina Blinja 485 Andrija Likić 486 Ana Lončar 487 and Kata Lončar born 1906 488 were subsequently discovered in the mass grave in Krečane near Baćin 489 Another woman also by the name of Kata Lončar who was a Croat remained in the village throughout the occupation because she had “connections with the Serbs” 490 The bodies of Nikola Blinja Antun Lončar and Nikola Zaočević who were also rounded up have not been recovered 491 In relation to Nikola Zaočević the Trial Chamber notes that he is not mentioned in Annex I to the Indictment and recalls its interpretation of the Indictment in this respect 492 Moreover the Trial Chamber considers that the Defence has not been on notice concerning this victim and the Trial Chamber is therefore unable to consider this victim further With regard to Nikola Blinja and Antun Lončar in light of the evidence that they were detained with the other persons named above all of whom were subsequently killed the Trial Chamber finds it established beyond reasonable doubt that also they were killed at the same time d Ba in and surroundings 189 Following the take-over of Baćin all the inhabitants left with the exception of around thirty mostly elderly civilians among whom were the following 22 persons @eljko Abaza Matija Barunovi Antun Bunjevac Tomo Bunjevac Antun ori Barica ori Josip ori 30 years old another man by the name of Josip ori 60 years old Vera ori Nikola Felbabi Grga Glavini Anka Josipovi Ankica Josipovi Ivan Josipovi Josip Karagi Kata Lon ar born 1931 tjepan Lon ar Antun Ordani Luka Ordani Antun Pavi Matija Pavi and Nikola 479 Antun Blaževi Ex 273 p 3 Antun Blaževi Ex 273 p 3 481 Antun Blažević Ex 273 p 4 482 Antun Blažević Ex 273 p 4 Ex 302 Ex 311 Ex 323 p 4 483 Antun Blažević Ex 273 23 Jun 2003 p 1 Ex 302 Ex 323 p 4 484 Antun Blažević Ex 273 p 4 Ex 302 Ex 323 p 4 485 Antun Blažević Ex 273 23 Jun 2003 p 1 Ex 302 Ex 323 p 4 486 Antun Blažević Ex 273 p 4 Ex 302 Ex 309 Ex 323 p 5 487 Antun Blažević Ex 273 p 4 Ex 302 Ex 323 p 5 488 Antun Blažević Ex 273 p 4 Ex 302 Ex 313 Ex 323 p 5 489 Antun Blažević Ex 273 p 4 23 Jun 2003 p 1 Ex 302 490 Antun Blažević Ex 273 p 4 491 Antun Blažević Ex 273 p 4 Ex 302 regarding Nikola Blinja and Antun Lončar 492 See supra section I C 480 Case No IT-95-11-T 69 12 June 2007 Vrpoljac 493 The evidence shows that @eljko Abaza was detained in mid-October in a toilet in the old school building in Hrvatska Dubica that he was later killed by members of the Milicija Krajine and that his body was thrown into the Una river by those members 494 The evidence further shows that the bodies of Antun Bunjevac and Tomo Bunjevac were exhumed from individual graves in Hrvatska Dubica 495 There is no exhumation evidence concerning the other persons listed above The Trial Chamber notes the evidence that in October 1991 all of the people who remained in the village were taken to Kre ane near Baćin where they were killed along with a number of others who were brought from Cerovljani and Hrvatska Dubica 496 190 In light of the evidence that Željko Abaza was killed in Hrvatska Dubica and not buried but thrown into the Una river and that Antun Bunjevac and Tomo Bunjevac were buried in Hrvatska Dubica the Trial Chamber cannot conclude that the above-named persons were killed as one group However the Trial Chamber takes particular note of the situation in the area in October 1991 and that there is no evidence of fighting going on in Baćin proper at this time The Trial Chamber further recalls the evidence that numerous killings of persons from Hrvatska Dubica Cerovljani and Baćin were committed in Kre ane near Baćin around 21 October 1991 In this connection the Trial Chamber recalls that it visited Baćin and Kre ane during the site visit to Croatia and notes that Kre ane is on the outskirts of Baćin and less than a ten-minute walk from the Catholic church in Baćin 497 In light of the above and the totality of the evidence the Trial Chamber therefore considers that the evidence proves beyond reasonable doubt that the above-named persons were killed around October 1991 albeit not necessarily on one occasion or at one and the same location 191 Annex I to the Indictment lists Ivo Barunović Nikola Barunović Kata Bunjevac Vera Jukić Terezija Kramarić Mijo Krnić Marija Mila inović Marija estić and Soka Volarević as having been killed in or around Baćin The evidence shows that Vera Jukić Terezija Kramarić Mijo Krnić Marija Mila inović Marija estić and Soka Volarević were exhumed from the mass 493 Mijo Ciprić Ex 274 p 3 Josip Josipović was detained together with Željko Abaza Antun Kne‘evi and Idriz Čauševi Idriz Čauševi was killed by persons under Veljko Rađunović’s and Momčilo Kovačević’s command at the old school building in Hrvatska Dubica Three days later Željko Abaza and Ante Kne‘evi had their throats slit and Josip Josipovi and Mićo Ćorić were forced by Stevo Rađunović Momčilo Kovačević Mirko Sarac Milan Petrović Ðorđe Ratković Ðuro Jerinić Marjan Prvalo and Mladen Pozar to load the dead bodies of Željko Abaza and Antun Kne‘evi onto a truck Subsequently the truck drove the three of them and the two bodies to the river and the bodies were thrown into the water by the same Serbs Josip Josipovi 6 Apr 2006 T 3315-3320 7 Apr 2006 T 3375-3377 The Trial Chamber finds that these three individuals were killed However none of these victims are mentioned in Annex I to the Indictment The Trial Chamber considers that the Defence has not been on notice with regard to these killings and will not consider this evidence for a conviction In this regard the Trial Chamber recalls its findings on the interpretation of the indictment see supra section I C See also Mijo Ciprić Ex 274 p 3 Ex 1042 Tab 2 Ex 1043 Tab 2 DVD 1 pp 46-48 495 Ex 302 Ex 323 496 Mijo Ciprić Ex 274 p 3 497 See Ex 1043 DVD 2 pp 5-6 Ex 1044 pp 5 8-9 494 Case No IT-95-11-T 70 12 June 2007 grave in Krečane near Baćin 498 Moreover the evidence shows that Nikola Barunović was exhumed from the mass grave at Višnjevački Bok where Ivo Pezo who had previously been detained at the fire station in Hrvatska Dubica was also exhumed 499 Furthermore Ivo Barunović was exhumed from an individual grave in Baćin 500 With regard to Kata Bunjevac the evidence shows that she went missing from Kostrićima however there is no further evidence in relation to her 501 The Trial Chamber concludes that the above-mentioned victims were killed except for Ivo Barunović and Kata Bunjevac in relation to whom the Trial Chamber finds that the evidence is insufficient to establish beyond reasonable doubt that they were killed 192 With respect to the following 22 individuals listed in Annex I to the Indictment no evidence has been provided to the Trial Chamber Sofija Bari Marija Barunovi Anka Batinovi Danica Ðuki Kata Ðuki Liza Ðuki Iva Juki Marija Juratovi Janja Juri Marija Krni tefo Krni Ivica Kuli i Mijo Lazi Anka Liki Antun Liki Jelka Liki Antun Lon arevi Janja Luji Dragica Matijevi Mara Mucavac Jula esti and Pero Vukovi 502 The Trial Chamber therefore finds that there is insufficient evidence to establish beyond reasonable doubt that these individuals were killed With regard to Nevenka Perkovi Vlado Perkovi and Zoran Perkovi who are also listed in Annex I to the Indictment the evidence shows that they were found alive 503 e Destruction in Cerovljani Hrvatska Dubica and Baćin after December 1991 504 193 Prior to August 1993 a Catholic church in Hrvatska Dubica was razed to the ground and its foundations were removed 505 The Orthodox church remained intact and was still standing in 1995 506 Towards the end of 1992 and beginning of 1993 looting and torching of houses was carried out by local Serbs 507 By 1995 many houses in Hrvatska Dubica belonging to Croats had been destroyed 508 The part of the village which contained both Serb and Croat houses remained intact 509 By 1995 most houses had been looted 510 498 Ex 302 Regarding Soka Volarević see also Ex 312 Ex 323 Ex 302 Ex 323 indicates that the cause of death of Nikola Barunovi was a blast wound and that the cause of death of the other victims was gunshot wounds 500 Ex 302 Ex 323 providing that the cause of death is unknown 501 Ex 302 Ex 323 502 Ex 302 pp 2-4 indicating that there is no information on these individuals 503 Ex 302 p 4 Ivan Gruji 10 Apr 2006 T 3476 504 The Trial Chamber recalls that the period governing the Indictment as to Counts 12 to 14 is 1 August 1991-31 December 1992 Indictment para 47 505 Witness MM-022 20 Mar 2006 T 2365 Ana Kesi 21 Mar 2006 T 2383 See also Mijo Cipri Ex 274 p 3 Ex 1042 Tab 2 Ex 1043 Tab 2 DVD 1 pp 53-54 Ex 1044 506 Ana Kesi 21 Mar 2006 T 2383 See also Ex 1042 Tab 2 Ex 1043 Tab 2 DVD 1 pp 54-59 Ex 1044 507 Tomislav Kozar anin Ex 828 p 4 508 Ana Kesi 21 Mar 2006 T 2383 Ex 258 p 3 Witness MM-022 20 Mar 2006 T 2361 Mijo Cipri Ex 274 p 3 509 Mijo Cipri Ex 274 pp 3-4 510 Witness MM-022 20 Mar 2006 T 2318 Tomislav Kozar anin Ex 828 p 4 499 Case No IT-95-11-T 71 12 June 2007 194 There is evidence that by 1995 Croat houses in Cerovljani had been burnt or blown up and that the Catholic church had been destroyed 511 195 There is evidence that by 1995 half of the houses in Ba in were destroyed or torched 512 The Catholic church in Ba in had been completely destroyed 513 Many houses in the surrounding villages suffered damage and the village of Predore was razed to the ground 514 3 Saborsko area 196 Saborsko is located in north-western Croatia and stretches seven kilometres along the Korenica-Ogulin road which goes through Plitvice Poljanak Saborsko Li ka Jasenica Pla ki and Josipdol before reaching Ogulin 515 Purely or predominantly Croat villages were located south of Saborsko near the Plitvice Lakes 516 whereas Serb villages such as Plaški and Lička Jasenica were located to the north of Saborsko 517 a Municipality of Plaški 197 In 1990 Pla ki was within the municipality of Ogulin 518 Following a referendum Pla ki formed its own municipality and joined the SAO Krajina Nikola Medakovi became the first president of the new municipality 519 Plaški municipality comprised inter alia the Serb villages of Vojnovac Plaški Blata and Lička Jasenica and was surrounded by Croat villages 520 198 Following the armed clash in Plitvice in March 1991 a split occurred in the Plaški SJB whereby policemen of Croat origin left the SJB and were replaced with Serb policemen from the 511 Witness MM-022 20 Mar 2006 T 2362-2363 Antun Blaževi Ex 273 p 4 Mijo Cipri Ex 274 p 3 See also Ex 1042 Tab 2 Ex 1043 Tab 2 DVD 2 pp 1-2 Ex 1044 512 Witness MM-022 20 Mar 2006 T 2362 Mijo Cipri Ex 274 p 3 513 Mijo Cipri Ex 274 p 3 514 Witness MM-022 20 Mar 2006 T 2362 515 Ex 22 Map 8 Ex 23 p 19 Marko Vuković 24 Mar 2006 T 2610 Vlado Vuković 27 Mar 2006 T 2655 2710 Witness MM-037 28 Mar 2006 T 2797 Nikola Medaković 9 Oct 2006 T 8961 Ana Bi ani Ex 276 p 2 See also Ex 1042 Tab 2 Ex 1043 Tab 2 DVD 2 pp 30-41 and DVD 3 pp 1-10 Ex 1044 516 Such as Sertić Poljana and Poljanak Marko Vuković 24 Mar 2006 T 2568 517 Other Serb villages in this area were Blata Plavca Draga Haski Latin and Vojnovac Marko Vuković 24 Mar 2006 T 2568 Witness MM-037 28 Mar 2006 T 2747 Nikola Medaković 9 Oct 2006 T 8946 There were JNA barracks and a large fuel depot in Lička Jasenica Vlado Vuković 27 Mar 2006 T 2655 Marko Vuković 24 Mar 2006 T 2574 2605 Witness MM-037 28 Mar 2006 T 2751-2752 Nikola Medaković 9 Oct 2006 T 8972 518 Witness MM-037 28 Mar 2006 T 2746-2747 Nikola Medaković 9 Oct 2006 T 8945-8947 10 Oct 2006 T 9086 519 Witness MM-037 28 Mar 2006 T 2747-2748 Ex 268 T 11570 11572 Nikola Medaković 9 Oct 2006 T 8948 10 Oct 2006 T 9055 520 The Croat villages included Slunj Ogulin the area of Stajnica Lipice and Saborsko Witness MM-037 28 Mar 2006 T 2746-2748 2770-2771 Nikola Medaković 9 Oct 2006 T 8975-8976 10 Oct 2006 T 9046 Case No IT-95-11-T 72 12 June 2007 area 521 After this the SJB consisted of 10 to 15 employees and the Chief of the SJB was Du an Lataš 522 199 During the spring and early summer of 1991 a unit of the Milicija Krajine was set up in Plaški following training at Golubić Nikola Medaković who had also undergone the training commanded the unit which at its fullest capacity consisted of 50 policemen 523 The members of the unit called themselves “Martić’s Police” 524 In September 1991 a TO Brigade was established in Plaški into which members of the Milicija Krajine unit were transferred 525 200 Following the armed clash in Plitvice and through the summer of 1991 both Serb and Croat forces set up roadblocks on the road from Saborsko through Li ka Jasenica to Ogulin 526 After the summer 1991 the road was closed by the Croatian MUP which set up barriers in Josipdol to the north of Plaški and Saborsko to the south which resulted in a blockade of Plaški as well as the JNA training grounds in Slunj 527 There were neither telephone lines nor electricity nor basic necessities such as food or medicine 528 b Lipovača 201 Lipova a was in the municipality of Slunj approximately 25 kilometres from Saborsko and 18 kilometres from the town of Slunj and the former training ground of the JNA 5th Military District 521 The reason for the split was that the policemen of Croat ethnicity refused to sign a pledge of allegiance to the SAO Krajina Marko Vuković 24 Mar 2006 T 2570-2571 Vlado Vuković 27 Mar 2006 T 2653 Nikola Medaković 10 Oct 2006 T 9094 Witness MM-037 Ex 268 T 11569 11616 Regarding the clash in Plitvice see supra para 132 522 Witness MM-037 28 Mar 2006 T 2749 2751 29 Mar 2006 T 2821 Ex 268 T 11568-11569 Nikola Medaković 9 Oct 2006 T 8959 8971 8973 523 Nikola Medaković 9 Oct 2006 T 8965-8966 8970 10 Oct 2006 T 9051 9054 Witness MM-037 28 Mar 2006 T 2748 2804 Ex 268 T 11569-11570 11572 524 Witness MM-037 28 Mar 2006 T 2749 Ex 268 T 11570 Ex 507 p 2 525 Nikola Medaković 10 Oct 2006 T 9054 The evidence is unclear as to whether all members of the Milicija Krajine unit became part of the TO Brigade at this point in time Nikola Medaković testified that 15-20 Milicija Krajine members refused to join the TO Brigade and established a group of their own under the command of Rade Milanović Eventually though it is unclear when this group was subsumed “in other units” Nikola Medaković 10 Oct 2006 T 9054 9058-9070 The TO had semi-automatic rifles machine-guns and olive-drab uniforms Nikola Medaković 10 Oct 2006 T 9112-9113 Witness MM-037 28 Mar 2006 T 2787-2788 Ex 268 T 11577-11579 Ana Bi ani Ex 276 p 2 By the summer of 1991 there were Serb forces including police TO and JNA in both Pla ki and in Plitvice on both sides of the villages of Saborsko Vukovi i and Poljanak Nikola Medaković 10 Oct 2006 T 9047 526 Vehicles and passengers were searched and communications in the area were affected Marko Vuković 24 Mar 2006 T 2569 2571 2630 Vlado Vuković 27 Mar 2006 T 2656 28 Mar 2006 T 2722 Witness MM-037 28 Mar 2006 T 2758-2759 Ex 268 T 11567-11568 11588 11617 Nikola Medaković 9 Oct 2006 T 8974 10 Oct 2006 T 9044 9120 Ana Bi ani Ex 276 p 2 527 Vlado Vuković 27 Mar 2006 T 2694 Nikola Medaković 9 Oct 2006 T 8961 8975-8977 10 Oct 2006 T 90979098 testifying that after August the JNA could not pass the road between Slunj and Plitvice because the town of Slunj was under control of the Croatian MUP 12 Oct 2006 T 9273-9275 Witness MM-037 Ex 268 T 11567 11588 11633-11636 The JNA training grounds in Slunj stretched from Slunj towards Saborsko and Plaški Marko Vuković 24 Mar 2006 T 2574 2604-2605 Vlado Vuković 27 Mar 2006 T 2710-2711 Nikola Medaković 10 Oct 2006 T 9096 Witness MM-037 Ex 268 T 11585 See also Reynaud Theunens 3 Feb 2006 T 1051 Ex 1042 Tab 2 Ex 1043 Tab 2 DVD 2 pp 11-15 528 Nikola Medaković 9 Oct 2006 T 8976 Case No IT-95-11-T 73 12 June 2007 in Slunj 529 In 1991 Lipova a was a predominantly Croat village with a total of 267 inhabitants 530 The Croat inhabitants of Lipova a had guards with a few rifles mounted along the road that passed through the village in case the JNA troops would arrive 531 There were a few ZNG forces in the nearby Dre‘nik Grad Rakovica and Slunj 532 In 1991 helicopters were used by the JNA to carry weapons and ammunition which were distributed to local Serbs 533 202 At the end of September or in early October 1991 the JNA entered Lipovača and almost all civilian inhabitants fled with the exception of about 20-50 people 534 The JNA stayed for seven to eight days and fired from tanks at the Croatian police in Dre nik Grad and Rakovica and a Catholic church in Dre nik Grad 535 During this stay some JNA soldiers warned a witness that “ w hen we leave beware of the reserve forces of those paramilitary units “who would” beat the people set houses on fire loot “and who would kill” regardless of age ” 536 When the JNA troops left several of the people who remained in the village fled to the forest and spent the night there 537 203 Sometime in October 1991 after the JNA had left armed units including “Serb paramilitary units” from the region and outside of the region arrived in Lipova a 538 These forces were called “reserve forces Marti ’s troops or Marti ’s army” and that they wore uniforms “like the ones that the army had” 539 204 On 27 October 1991 a JNA Miltary Police unit led by Milan Popovi together with members of the TO and uniformed local Serbs arrived in the village of Nova Kršlja adjacent to Lipovača 540 The JNA soldiers wore JNA uniforms whereas the TO soldiers wore black uniforms 541 They arrested all of the young Croat men including Ivan Marjanovi ’s son Marijan 542 529 Witness MM-036 4 Apr 2006 T 3183-3184 3201 Nikola Medakovi 10 Oct 2006 T 9096 Ex 1042 Tab 2 Ex 1043 Tab 2 DVD 2 pp 21-24 Ex 1044 530 Ivan Gruji 12 Apr 2006 T 3629 Ex 301 p 9 About 60 houses belonged to Croats and about 15 houses belonged to Serbs Witness MM-036 4 Apr 2006 T 3183-3184 Ex 301 p 9 states that 83 15% were Croats and 16 48% were Serbs It is near the Croat villages of Dre nik Rakovica Selište Čatrinja Smaljanac and Nova Kr lja and the Serb villages of Stara Kr lja Jamari Mucila Witness MM-036 4 Apr 2006 T 3184 Ivan Marjanovi Ex 426 T 25005 25013 Ex 23 p 19 Ex 1044 531 Witness MM-036 4 Apr 2006 T 3200-3201 532 Witness MM-036 4 Apr 2006 T 3204 533 Witness MM-036 4 Apr 2006 T 3186-3187 T 3189 3206-3207 534 Witness MM-036 4 Apr 2006 T 3190 535 Witness MM-036 4 Apr 2006 T 3205 3210 536 Witness MM-036 4 Apr 2006 T 3191-3192 3208 537 Witness MM-036 4 Apr 2006 T 3207 538 Witness MM-036 4 Apr 2006 T 3190-3191 539 Witness MM-036 4 Apr 2006 T 3207 T 3191 The Trial Chamber notes that Witness MM-036 testified that to him a paramilitary unit is the same thing as a reserve force or the TO Witness MM-036 4 Apr 2006 T 3207 540 Ivan Marjanovi Ex 426 T 25005-25006 25035 Milan Popovi wore a standard JNA uniform and a cap with the five pointed star Ivan Marjanovi Ex 427 p 2 541 Ivan Marjanovi Ex 427 p 2 542 Ivan Marjanovi ’s son was released after 15 days with bruises all over his body Ivan Marjanovi Ex 426 T 25006 25032 upon his return the JNA gave him the choice of joining the army or of performing forced labour Case No IT-95-11-T 74 12 June 2007 and searched Ivan Marjanovi ’s house for weapons 543 On the next day the soldiers returned to Ivan Marjanovi ’s house and demanded that he surrender his rifle to them even though he did not have one 544 The soldiers then beat him severely kicked him in the groin and broke his wrist 545 They again returned the next day and told him he was not allowed to leave his house or its immediate surroundings 546 205 At the end of October 1991 some time after the arrival of the paramilitary units the bodies of Franjo Brozin evi Marija Brozin evi Mira Brozin evi and Katarina Cindri were found in Franjo Brozin evi ’s house in Lipovača 547 All four victims were dressed in civilian clothes and had been killed by gunshots 548 206 Between 29 and 31 October 1991 Ne o Kotur a local Serb commander 549 came to the house of Ivan Marjanovi and told him that “the Serbs” had killed some Croats and told Ivan Marjanovi to go with him to Lipova a to bury the victims 550 Ne o Kotur Ivan Marjanovi and three other Croat villagers drove to Lipova a and passed a checkpoint manned by “Marti ’s men” 551 207 The group of men arrived in Lipova a at 0900 hours and went to the house of Mate Brozin evi where they found his body in the kitchen with several bullet holes in the stomach 552 Mate’s wife Ro a had also been shot and the body of their son Mirko was lying at the entrance to the bedroom with a bullet hole in the neck 553 All victims wore civilian clothing 554 543 Ivan Marjanovi Ex 426 T 25006 25035 Ivan Marjanovi Ex 426 T 25007 545 Ivan Marjanovi Ex 426 T 25007 Ex 427 p 3 546 Ivan Marjanovi Ex 426 T 25007 547 Witness MM-036 4 Apr 2006 T 3192 Ex 1042 Tab 2 Ex 1043 Tab 2 DVD 2 pp 21-23 548 Witness MM-036 4 Apr 2006 T 3193-3194 Ivan Marjanovi Ex 426 T 25007 25009 Ex 427 p 4 Ex 304 pp 8-12 Ex 323 p 2 See also Ex 375 pp 5-8 indicating that the deaths of these four victims were violent 549 The Trial Chamber notes that Ivan Marjanović’s evidence is contradictory as to the uniform that Ne o Kotur was wearing In his testimony in the Milošević trial he testified that Neđo Kotur was dressed in the JNA uniform of a reserve officer and a JNA hat with a red star Ivan Marjanovi Ex 426 T 25007 25023-25037 In a statement given in 2001 Ivan Marjanovi stated that Ne o Kotur was wearing a black police uniform with a patch of the SAO Krajina on it and a knit cap with a cockade Ivan Marjanovi Ex 427 p 3 The Trial Chamber cannot draw any conclusions on the basis of this evidence 550 Ivan Marjanovi Ex 426 T 25007 Ex 427 p 3 551 Ivan Marjanovi Ex 426 T 25007 Ex 427 p 3 552 Ivan Marjanovi Ex 426 T 25007 Ex 323 p 2 See also Ex 304 pp 6-7 Ex 375 pp 3-4 Ex 1042 Tab 2 Ex 1043 Tab 2 DVD 2 pp 23-24 553 Ivan Marjanovi Ex 426 T 25007 Ex 323 p 2 See also Ex 304 pp 4-6 Ex 375 pp 2-3 Witness MM-036 4 Apr 2006 T 3194 554 Ex 304 pp 4-7 Ex 375 pp 2-4 Ivan Marjanovi Ex 426 T 25007 25009 25022 Ex 427 p 4 Ex 375 pp 2-4 544 Case No IT-95-11-T 75 12 June 2007 208 In June 1996 the above-mentioned seven individuals who are listed in the Indictment were exhumed from mass graves in Lipovača Drežnička 555 209 Milan Babi travelled to Lipova a and villages in the surrounding area in 1993 and testified that he saw “villages which used to be populated by Croats and Croat houses were devastated and there were no Croat residents any more ” 556 Upon returning to Lipova a in 1995 Witness MM-036 found Lipovača and other villages in the municipality looted and burnt 557 c Poljanak and Vukovići 210 Poljanak is located about 14 kilometres south-east of Saborsko and 8 km north-west of Plitvice 558 In 1991 there were around 30-50 predominantly Croat households in Poljanak 559 The Croat hamlet of Vukovići which is less than one kilometre away from Poljanak consisted of about six or seven houses 560 211 Poljanak was shelled for the first time on 28 August 1991 and was shelled daily after that 561 A few families initially left but returned two to three days later 562 212 On 5 September 1991 women with small children and minors in Poljanak and the surrounding villages left for Kraljevica south-east of the city of Rijeka on the Adriatic coast 563 Vukovići was shelled at around noon on 8 October 1991 after which there was shooting in the village by unidentified armed Serbs 564 The next morning Tomo Vuković was found dead in front of his burnt down house and at least two more houses had burnt down 565 Around 14 October 1991 Mile Lončar an invalid man and his father Ivan Lončar were found hanged in their house 566 555 Ex 302 The Trial Chamber notes that also the following persons were killed in Lipovača Ana Pemper Barbara Vukovi Juraj ebalj Juraj Conjar and Milan Smol i Ex 304 pp 13-15 Ex 375 pp 9-10 These victims are not listed in the Indictment The Trial Chamber recalls its findings regarding the interpretation of the Indictment and concludes that the Defence has not been on notice regarding these victims see supra paras section I C 556 Milan Babi 20 Feb 2006 T 1600-1601 557 Witness MM-036 4 April 2006 T 3195 See also id at T 3211 558 Marica Vuković 22 Mar 2006 T 2403-2404 Ex 1042 Tab 2 Ex 1043 Tab 2 DVD 2 pp 24-26 Ex 1044 559 Marica Vuković 22 Mar 2006 T 2403 2438 2451 Witness MM-038 24 Mar 2006 T 2563 560 Witness MM-038 24 Mar 2006 T 2451 2457 2561 Ex 1042 Tab 2 Ex 1043 Tab 2 DVD 2 pp 26-29 Ex 1044 561 Marica Vuković 22 Mar 2006 T 2411 562 Marica Vuković 22 Mar 2006 T 2414 The shelling usually came from Bigina Poljana a Serb village Plitvice and Rastovača a Croat village that had been burnt down and occupied by Serbs Marica Vuković 22 Mar 2006 T 24152416 These villages were about a kilometre away from Poljanak Marica Vuković 22 Mar 2006 T 2442 Marica Vuković did not know which units were stationed in these villages ibid 563 Marica Vuković 22 Mar 2006 T 2408 2414-2415 564 Marica Vuković 22 Mar 2006 T 2417 565 Marica Vuković 22 Mar 2006 T 2404 2416-2417 testifying that the houses were “Pero’s house and Aunt Lucilja’s house” Ex 261 p 2 Ex 376 pp 6-7 concluding that Tomo Vuković was killed by a gunshot to the thorax Witness MM-038 24 Mar 2006 T 2561-2562 The Trial Chamber notes that although paragraph 27 of the Indictment refers to Poljanak paragraph 29 refers to the hamlet of Vukovići near Poljanak Moreover the Rule 65 ter summaries of Marica Vuković and Witness MM-038 contain references to the killing of Tomo Vuković The Trial Chamber considers Case No IT-95-11-T 76 12 June 2007 213 There were no Croatian military units in Poljanak in the summer and autumn of 1991 567 However there was a civilian protection force that would keep watch but the members were either unarmed or had two to three hunting rifles at their disposal 568 214 On 7 November 1991 there was a large group of soldiers present in Vukovići The soldiers were dressed in green camouflage uniforms and their commanders wore JNA caps with a red star 569 There were local people among these troops and there was also a JNA special unit present from Niš Serbia who wore darker camouflage uniforms 570 The soldiers came to Nikola “Šojka” Vuković’s house in Vukovići and lined up and killed Dane Vuković son of Poldin Dane Vuković son of Mate 571 Lucija Vuković Milka Vuković Vjekoslav Vuković Joso Matovina and Nikola Matovina 572 Nikola “Šojka” Vuković born 1926 was too sick to leave the house and was shot from the window while lying in his bed 573 All killed individuals were Croat civilians 574 The evidence shows that one or two houses were burnt in Vukovi i on 7 November 1991 by members of these units 575 215 The Defence pointed out certain discrepancies in the evidence concerning how the killings in Vukovići on 7 November 1991 were carried out 576 However the Trial Chamber considers that these discrepancies are not material and therefore do not affect its finding that these killings were committed 216 Also on 7 November 1991 20 armed soldiers dressed in camouflage and olive-drab uniforms surrounded the house of Marica Vuković a Croat in Poljanak 577 Marica Vuković did not know where the soldiers were from but concluded that some must be locals because they appeared well informed about Marica Vuković and her family 578 As soon as they arrived the soldiers that the reference in paragraph 27 to Poljanak includes the hamlet of Vukovići and that the Defence has therefore been on notice in relation to the killing of Tomo Vuković 566 Marica Vuković 22 Mar 2006 T 2419-2420 2445 It is not clear from the evidence whether these men committed suicide or were killed see also Ex 261 p 3 567 Marica Vuković 22 Mar 2006 T 2412-2413 568 Marica Vuković 22 Mar 2006 T 2414 2423 Ex 261 p 3 Witness MM-038 23 Mar 2006 T 2555 569 Ex 261 p 5 It is not clear how many soldiers there actually were in Vukovići on that day One witness stated that there were between 90-100 soldiers Witness MM-038 23 Mar 2006 T 2549-2551 570 Witness MM-038 23 Mar 2006 T 2551-2552 2560 2563-2564 also testifying that the local people wore the same uniforms and served as guides Milan Babić 20 Feb 2006 T 1599-1600 Radoslav Maksić 7 Feb 2006 T 1253 Ex 261 p 5 571 Ex 262 Ex 302 p 6 572 Ex 261 p 4 Witness MM-038 23 Mar 2006 T 2535-2542 See also Marica Vuković 22 Mar 2006 T 2432 Ex 376 Ex 302 p 6 Ex 323 Ex 715 Ex 1042 Tab 2 Ex 1043 Tab 2 DVD 2 pp 26-29 573 Ex 261 p 4 Ex 376 p 5 Ex 302 Ex 323 574 Witness MM-038 23 Mar 2006 T 2519 575 Witness MM-038 23 Mar 2006 T 2551 24 Mar 2006 T 2562 Ex 261 p 5 576 Witness MM-038 23 Mar 2006 T 2535-2542 Ex 262 Ex 263 Ex 264 577 Marica Vuković 22 Mar 2006 T 2443-2444 2455 See also id at T 2424 2450 Ex 1042 Tab 2 Ex 1043 Tab 2 DVD 2 pp 24-26 578 Marica Vuković 22 Mar 2006 T 2424 2426 2446-2447 Case No IT-95-11-T 77 12 June 2007 “captured” Marica Vuković and the others present in the house 579 The soldiers tied the arms of Marica Vuković’s husband Nikola Vuković born 1938 and her father Ivan Vuković 580 Marica Vuković her daughter Mira Vuković her mother-in-law Jelena Vuković and her neighbour Marija Vuković were put under a plum tree where they were slapped insulted and interrogated 581 One of the soldiers threatened Marica Vuković and also put a knife at her throat 582 The soldier wore a glove and said that it was “so that I won't get my hand bloody when I slit the throats of Ustashas ” 583 217 The women were separated from Ivan Vuković and Nikola Vuković born 1938 and taken to a nearby maize field whereupon two or three other soldiers came from the direction of Vukovići together with a boy The boy was put with the women 584 Subsequently shooting was heard from the house where Ivan Vuković and Nikola Vuković had been left 585 218 Soon thereafter a soldier came to the women and told them to flee The women and the boy hid in the woods for a few hours 586 After having seen some cars move away from the village Marica Vuković returned to her house and then came across the bodies of her father and husband in the maize field 587 She saw that her husband’s “brains were shattered” and that her father’s “skull wasn’t in place any more” 588 On that day neither her husband nor her father was armed or wearing a uniform nor were they members of a military force or the police 589 219 The evidence shows that several houses sheds and cars were burnt in Poljanak on 7 November 1991 by the soldiers present in the village The evidence also shows that before the houses were burnt private property was looted or destroyed 590 When torching the houses some soldiers made comments such as “Milo evi built the house and Milo evi is going to destroy it” and “what’s Tu man done for you All you are going to get from him is a bullet in your head” 591 579 Marica Vuković 22 Mar 2006 T 2424-2425 The Trial Chamber notes that both Marica Vuković’s husband and her uncle were named Nikola Vuković that her husband was born 1938 and that her uncle was nicknamed “Šojka” born 1926 Marica Vuković 22 Mar 2006 T 2424-2425 Both Nikola Vuković and Ivan Vuković were Croat Marica Vuković 22 Mar 2006 T 2405 581 Marica Vuković 22 Mar 2006 T 2425 2454 582 Marica Vuković 22 Mar 2006 T 2426 583 Marica Vuković 22 Mar 2006 T 2426-2427 584 Marica Vuković 22 Mar 2006 T 2425-2426 585 Ex 261 p 5 586 Marica Vuković 22 Mar 2006 T 2427-2429 587 Marica Vuković 22 Mar 2006 T 2429 588 Marica Vuković 22 Mar 2006 T 2430 also testifying that she wrapped the bodies in blankets which were later found during the exhumation Ex 376 pp 2-5 See also Ex 323 Ex 302 589 Marica Vuković 22 Mar 2006 T 2430 590 Marica Vuković 22 Mar 2006 T 2428-2429 2457 also testifying that the soldiers took people out of houses and cars and then set fire to them Ex 259 11 photographs of houses and places described by Marica Vuković See also Milan Babi 20 Feb 2006 T 1600-1601 testifying that in 1993 he found Poljanak devastated and there were no Croat residents there anymore 591 Marica Vuković 22 Mar 2006 T 2428 580 Case No IT-95-11-T 78 12 June 2007 d Saborsko 220 In early 1991 there were 600 to 850 people mostly Croats living in the 300 households of Saborsko 592 In the centre of Saborsko there was a large church called the church of St John Slightly outside the centre there was a smaller church the church of the Mother of God 593 221 On 2 April 1991 the Croat members of the Ogulin SJB established an outpost in Saborsko 594 There were around 30 policemen armed with automatic rifles and pistols who engaged in regular police work but also manned check-points in case of an attack on Saborsko 595 Between April and August 1991 JNA armoured vehicles were allowed to pass through roadblocks and patrolled daily through Saborsko going between Plitvice and Li ka Jasenica 596 From around June 1991 about 20 or 30 local men were organised in Saborsko and patrolled the village at night carrying “hunting guns or some military rifles ” 597 Between June and August 1991 Saborsko was fired upon with rifle and artillery fire It was mostly one of the churches and the school that were shot at and the fire came from Li ka Jasenica and from Pi tenik hill 598 222 In the early morning of 5 August 1991 Saborsko was shelled by mortars from the direction of the Lička Jasenica JNA barracks 599 Shells fell on the cemetery and central parts of the village 600 At the time of the shelling a Croatian special police unit from Duga Resa numbering 20-30 policemen had taken up a defence line at the primary school in the centre of the village 601 On the 592 Vlado Vuković 27 Mar 2006 T 2648-2649 2679 28 Mar 2006 T 2730 Marko Vuković 24 Mar 2006 T 25672568 Ana Bi ani Ex 276 p 2 Milan Babić 20 Feb 2006 T 1600 In 1991 Saborsko had 852 inhabitants 93 9% were Croat and 3 3% were Serbs Ex 301 p 7 593 Nikola Medaković 9 Oct 2006 T 9014 Ana Bi ani Ex 276 p 5 See also Ex 1042 Tab 2 Ex 1043 Tab 2 DVD 2 pp 30-35 38-39 594 Vlado Vuković 27 Mar 2006 T 2651-2652 Marko Vuković 24 Mar 2006 T 2572-2573 2598 Lazar Macura 14 Sep 2006 T 8321 Nikola Medaković 9 Oct 2006 T 8960 595 Marko Vuković 24 Mar 2006 T 2572-2573 2602-2603 Vlado Vuković 27 Mar 2006 T 2654 2686 2689 Nikola Medakovi 9 Oct 2006 T 8962-8963 also testifying that the outpost in Saborsko consisted of about 60 men id at T 8960 596 Marko Vuković 24 Mar 2006 T 2574 Vlado Vuković 27 Mar 2006 T 2655 Nikola Medaković 10 Oct 2006 T 9095 Ana Bi ani Ex 276 p 3 597 Ana Bi ani Ex 276 p 3 598 Ana Bi ani Ex 276 p 2 In July 1991 Croatian social workers evacuated several elderly persons younger women and children ibid p 3 As a result of the attacks in June and July 1991 10 people were killed including Ivica Krizmani Marko Krizmani Tomo Matovina Ante Kova i Pere Matovina and Joso Matovina and there was a large number of wounded id at p 3 599 Marica Vuković 22 Mar 2006 T 2412 2441 Marko Vuković 24 Mar 2006 T 2574-2576 2608 Vlado Vuković 27 Mar 2006 T 2657-2659 28 Mar 2006 T 2724 Nikola Medaković 10 Oct 2006 T 9122 Ana Bi ani Ex 276 p 3 See also Marko Vuković 24 Mar 2006 T 2577-2578 Ex 38 Ex 1042 Tab 2 Ex 1043 Tab 2 DVD 3 pp 5-8 Vlado Vuković also testified in relation to who fired upon Saborsko that “it’s well-known who it is it’s the JNA and the local leaders so-called Martić's men” Vlado Vuković 27 Mar 2006 T 2658 Based solely on this evidence the Trial Chamber is unable to draw a conclusion as to who was responsible for this shelling 600 Vlado Vukovi 27 Mar 2006 T 2659 2692 601 Marko Vuković 24 Mar 2006 T 2576 also testifying that this unit fled towards Slunj at 2200 or 2300 hours in the evening 2606-2607 Vlado Vuković 27 Mar 2006 T 2658 2690-2692 also testifying that the unit arrived in late July 1991 and that it was armed with side arms and long-barrelled weapons 28 Mar 2006 2732 Nikola Medaković 9 Oct 2006 T 8963 Nikola Medaković testified that less than 50 metres from the church of the Mother of God there were fortified Croat positions which constituted a line of defence Nikola Medaković 9 Oct 2006 T 9015-9016 Case No IT-95-11-T 79 12 June 2007 night of 5 August 1991 most of the civilian population of Saborsko fled through Rakovica to Grabovac where the Red Cross had arrived with three buses About 100 to 150 civilians were evacuated to areas under Croatian control whereas around 400 persons returned to Saborsko in the following days 602 223 After 5 August 1991 Saborsko was shelled almost every day from various directions including from the direction of the barracks at Lička Jasenica 603 After this date the policemen stationed at the Saborsko outpost were no longer engaged in regular police work but were deployed in combat positions 604 On 6 August 1991 15-20 policemen armed with rifles and pistols came from Slunj to support the Saborsko police 605 When the unit from Slunj had left further reinforcements arrived from Drežnik Grad 606 The church of St John was the most hit during the shelling though many other buildings in Saborsko were also damaged 607 Around this time there was also an attempt by the Serb side to take Kušelj a hamlet of Saborsko in which some members of the Croatian forces were wounded and killed 608 224 Around 25 September 1991 a unit of the Croatian MUP reserve was deployed from Zagreb to support the defence of Saborsko The unit consisted of between 100 and 200 persons who were armed with automatic rifles sub-machine guns two mortars and an anti-aircraft gun 609 The unit took up positions around Saborsko in the hamlets of Sivnik Alan Kušelj Borik and Strk and remained until Saborsko fell on 12 November 1991 610 There is evidence that the Croatian MUP reserve unit was partly deployed in the church of St John which was used as an observation point machinegun nest and ammunition store 611 In early October there was an armed clash in the area of Sertic Poljana 612 In October 1991 a convoy carrying food and weapons arrived in Saborsko escorted by between 20 and 50 reserve policemen armed with automatic and semi-automatic rifles These policemen remained in Saborsko 613 Beginning on 4 November 1991 Croatian MUP and ZNG forces including from Saborsko launched an attack on the barracks at Li ka Jasenica and an 602 Marica Vuković 22 Mar 2006 T 2412 Marko Vuković 24 Mar 2006 T 2578-2579 2607-2608 2629 Vlado Vuković 27 Mar 2006 T 2659 2693 Nikola Medaković 10 Oct 2006 T 9048 Ana Bi ani Ex 276 p 3 603 Marko Vuković 24 Mar 2006 T 2584-2586 also testifying about aerial attacks Vlado Vuković 27 Mar 2006 T 2659 Ana Bi ani Ex 276 p 3 Jure Vuković Ex 277 p 2 604 Vlado Vuković 27 Mar 2006 T 2696-2697 605 This unit took up positions in some of the hamlets of Saborsko and stayed at least for 12 days Marko Vuković 24 Mar 2006 T 2579-2580 2608-2611 Vlado Vuković 27 Mar 2006 T 2692 2694 testifying that this reinforcement remained in Saborsko for “two or three days” 606 Marko Vuković 24 Mar 2006 T 2609 607 Vlado Vukovi 27 Mar 2006 T 2659-2660 608 Marko Vuković 24 Mar 2006 T 2585 609 Marko Vuković 24 Mar 2006 T 2580 2588 2597-2598 2614-2615 2620 Vlado Vuković 27 Mar 2006 T 26602662 testifying at T 2661 that the members of this unit wore green uniforms 2695-2696 Nikola Medaković 9 Oct 2006 T 8964 8981 8983 11 Oct 2006 T 9134 610 Marko Vuković 24 Mar 2006 T 2584 2618 See also Nikola Medaković 9 Oct 2006 T 8984 611 Nikola Medakovi 9 Oct 2006 T 9028-9029 612 Marko Vuković 24 Mar 2006 T 2619-2620 Case No IT-95-11-T 80 12 June 2007 area called Glibodolski Kri nearby 614 During the attack Serb civilians were killed by the Croatian forces 615 The Croatian attack was eventually repelled on 8 November 1991 616 i Attack on Saborsko on 12 November 1991 225 Saborsko was attacked mid-morning on 12 November 1991 by Tactical Group 2 “TG-2” under the command of Colonel edomir Bulat and the 5th Partisan Brigade both of which were within the structure of the JNA 13th Corps 617 A unit of the Pla ki SDB 618 the Plaški TO Brigade 619 and Milicija Krajine units participated in the attack 620 Within the Plaški TO Brigade a battalion consisting of three companies under the command of Bogdan Grba participated 621 226 The attack commenced with aerial bombing followed by an artillery attack 622 Afterwards ground units including tanks moved in on Saborsko from three axes 623 During the attack the church of St John was hit by a tank shell but the tower remained standing 624 The church of the 613 Marko Vuković 24 Mar 2006 T 2586 2621-2622 Ana Bićanić Ex 276 p 3 Nikola Medaković 9 Oct 2006 T 8984-8987 9003-9004 11 Oct 2006 T 9173-9174 Ex 108 items 3-9 Ex 962 Fire was guided in from Saborsko because it was at a higher elevation than Lička Jasenica ibid The presence in Saborsko between September and November 1991 of a small number of ZNG members is confirmed by Marko Vuković 24 Mar 2006 T 2612-2614 2628 Ex 52 615 Witness MM-037 28 Mar 2006 T 2754-2755 2781-2783 Ex 268 T 11625-16266 Nikola Medaković 9 Oct 2006 T 8985-8987 8993-8995 11 Oct 2006 T 9167 9174-9177 12 Oct 2006 9268-9269 Ex 108 item 13 Ex 605 pp 1-2 616 Witness MM-037 28 Mar 2006 T 2752 2780-2781 Nikola Medaković 11 Oct 2006 T 9180 617 Radoslav Maksić 7 Feb 2006 T 1235 also testifying that the 13th Corps had a forward command post in the village of Mukinje in the vicinity of Saborsko Milan Babić 20 Feb 2006 T 1599-1600 Witness MM-037 28 Mar 2006 T 2789-2790 2798 Ex 268 T 11591 Nikola Medaković 9 Oct 2006 T 8988-8989 8998-8999 9009 12 Oct 2006 T 9225-9226 Imra Agotić Ex 398 T 23315 23402 Ex 51 pp 2-3 Ex 52 p 3 Ex 108 item 18 Ex 422 Ex 507 p 4 Ex 603 Ex 605 p 2 TG-2 was established on 23 October 1991 by the 5th Army District Ex 960 Ex 507 p 4 618 Ex 603 Ex 605 p 1 619 The Plaški TO Brigade was subordinated to TG-2 Witness MM-037 28 Mar 2006 T 2751 2789-2790 Ex 51 pp 2-3 Ex 52 p 3 620 Ex 605 p 1 621 These companies were of an ad hoc nature and were extracted from the TO Brigade and the police in Plaški Nikola Medaković 10 Oct 2006 T 9104 Ex 607 Nikola Medaković testified that his company consisted of about 60 men including former members of the Milicija Krajine unit in Plaški who had been transferred to the Plaški TO Brigade in September 1991 Nikola Medaković 9 Oct 2006 T 8988 8990-8992 8998-8999 10 Oct 2006 T 9055 12 Oct 2006 T 9287 Witness MM-037 28 Mar 2006 T 2751 2794-2795 29 Mar 2006 T 2821 Ex 607 p 2 Ex 507 p 4 The company in the middle was commanded by Ðuro Ogrizović Nikola Medaković 9 Oct 2006 T 9018 10 Oct 2006 T 9103 Ex 607 p 3 Ex 608 p 3 Witness MM-037 28 March 2006 T 2803-2804 An armoured company with about ten tanks advanced in the centre of the three companies along the asphalt road Nikola Medaković 9 Oct 2006 T 9014 9018 Jure Vuković Ex 277 p 2 622 Witness MM-037 28 Mar 2006 T 2798 stating that the attack started just after 0900 hours See also Ex 268 T 11593-11594 11627 stating that the artillery consisted of mortars and tanks positioned on elevations surrounding Saborsko and in Slunj Nikola Medaković 9 Oct 2006 T 9010-9011 11 Oct 2006 T 9160 Ana Bi ani Ex 276 p 3 Jure Vuković Ex 277 p 2 Imra Agoti Ex 398 T 23314-23315 Ex 422 Ex 507 p 4 Ex 608 p 2 One of the bombs from the airplanes fell on the house of a neighbour of Jure Vuković and three floors of the house collapsed Jure Vuković Ex 277 p 2 623 Nikola Medaković 9 Oct 2006 T 9009 testifying that his company started in the village of Momčilovići went towards Vukelić Poljana and Borik 9017-9019 at T 9018 testifying that one company went towards Sivnik that Ðuro Ogrizović led the company in the centre including ten tanks going towards Saborsko itself along the road See also Witness MM-037 28 Mar 2006 T 2798 29 Mar 2006 T 2798 2803 Ex 268 T 11595 Nikola Medaković 12 Oct 2006 T 9238 Jure Vuković Ex 277 p 2 Ex 607 p 3 Ex 608 p 3 624 Witness MM-037 28 Mar 2006 T 2753 Jure Vukovi Ex 277 p 2 614 Case No IT-95-11-T 81 12 June 2007 Mother of God was also shelled and damaged during the attack 625 That church was used as an observation post because there was a clear view of the Lička Jasenica barracks from it 626 The fighting went on until some point between 1400 hours and 1700 hours the tanks withdrew around 1800 hours 627 There were no casualties on the Serb side whereas “ o n the Croatian MUP side” there were 50 dead 628 227 After the attack there were many Serb soldiers and policemen in the centre of Saborsko 629 The evidence shows that a shop was looted by Zdravko Pejić and individuals with the last names Cekić or Cvekić and Momčilović both of whom were members of Ðuro “Snjaka” Ogrizović’s company 630 An individual identified as “Peić” together with Željko “Buba” Mudrić and Nedeljko “Kiča” Trbojević as well as “other Martić’s men” drove away in private cars they found in Saborsko 631 Moreover all the tractors in Saborsko were driven away subsequently to be put up for auction and household goods were stolen by plunderers 632 There is also evidence that more than 50 cattle from Saborsko were brought to Pla ki and that 17 sheep were taken to Kunić 633 Many houses in Saborsko were set alight and burnt after the attack 634 The evidence shows that the perpetrators who were engaged in the burning of the houses included Nedeljko “Kiča” Trbojević “Peić” Željko “Buba” Mudrić as well as “other Martić’s men” 635 Houses in the hamlets of Tuk and Dumenčići and in the Serb hamlet of Solaje were also set alight 636 In Borik both Croat and Serb houses were burned 637 By mid-December 1991 both the church of St John and the church of the Mother of God had been destroyed 638 By 1995 the whole of Saborsko including the school 625 Nikola Medaković 9 Oct 2006 T 9015-9016 Nikola Medaković 9 Oct 2006 T 9016 testifying that there was a clear line of sight between the church of the Mother of God and the Lička Jasenica barracks 627 Nikola Medaković 9 Oct 2006 T 9017-9019 Ex 108 item 18 628 Ex 605 p 3 See also Witness MM-037 29 Mar 2006 2812 Ex 268 T 11596 629 Witness MM-037 Ex 268 T 11599-11601 Nikola Medaković 11 Oct 2006 T 9188 12 Oct 2006 T 9236-9237 Ex 507 p 4 630 Witness MM-037 28 Mar 2006 T 2803 29 Mar 2006 2808-2810 Ex 268 T 11597-11600 631 Ex 507 p 4-5 on p 4 Nedeljko Trbojević’s nickname is listed as “Kičin” providing inter alia that Mate Matovina’s car was taken by Željko “Buba” Mudrić and that Jura Matovina’s lorry was torched in Saborsko Ex 606 lists Miloš Momčilović and Željko Mudrić as members of the “Reconnaissance-sabotage squad Special forces in Plaški” within the DB Nikola Medaković testified that both these individuals went to the training ground in Slunj and were mobilised in the JNA after the Milicija Krajine unit was merged into the TO Brigade Nikola Medaković 10 Oct 2006 T 9106 632 Ex 507 p 4 also providing that nearly every household in Saborsko had a tractor 633 Nikola Medaković 9 Oct 2006 T 9025 Ex 507 p 4 Ex 963 p 2 providing that Slavko Dumen i saw a man in military uniform recognised as Milan Grkovi move 25 sheep 634 Milan Babić testified that by 1993 Saborsko Poljanak and Lipovača contained no Croat residents and that Croat houses were devastated Milan Babi 20 Feb 2006 T 1600-1601 635 Ex 507 p 5 also provides that “Nedeljko Trbojević … went from house to house … hurled grenades into cellars and set hay stacks on fire burning around 20 houses” 636 Vlado Vukovi 27 Mar 2006 T 2714 Witness MM-037 28 Mar 2006 T 2803 Ex 268 T 11597-11598 Imra Agoti Ex 398 T 23315-23316 Ex 507 pp 4-5 637 Vlado Vukovi 28 Mar 2006 T 2730 2733 Ex 1042 Tab 2 Ex 1043 Tab 2 DVD 3 pp 3-4 638 Witness MM-037 28 Mar 2006 T 2753 Nikola Medakovi 12 Oct 2006 T 9245 626 Case No IT-95-11-T 82 12 June 2007 had been destroyed 639 The only houses left standing were two Serb houses which had been very badly damaged 640 228 Following the attack most of the inhabitants of Saborsko fled to Karlovac Zagreb and Ogulin 641 However about 30 to 60 elderly villagers remained in the village and were brought to the Li ka Jasenica barracks by the Plaški TO After spending the night at the barracks they were taken by bus towards Ogulin and released in territory controlled by the Croatian side 642 ii Killings in Saborsko on 12 November 1991 229 During the aerial bombing of 12 November 1991 Ana Bi ani and her husband Milan Bi ani took shelter in the basement of Petar “Krtan” Bi ani ’s house where around 20 people had gathered including the young boy Jure Vuković 643 Once it became quiet outside in the afternoon Milan Bićani heard someone say “give me the matches” which led him to believe that soldiers who had entered the village were burning houses and that they were going to be burned inside 644 In order to prevent this they waved a white undershirt tied to a piece of wood through the basement door shouting that they were civilians 645 There were soldiers outside wearing camouflage and olive-grey uniforms as well as two soldiers dressed in “Serbian dark grey uniforms and wearing helmets with a five pointed red star” 646 The soldiers told all of the villagers to come out of the basement 647 The soldiers were armed and spoke in a Serbian dialect 648 Some of the soldiers swore at them saying “fuck your Ustaša mother” and that all of them should be slaughtered 649 230 One of the soldiers threw a hand grenade into the empty basement 650 The soldiers separated the men from the women and lined them up opposite each other 651 The soldiers searched the men 639 Marko Vukovi 24 Mar 2006 T 2590 2631 Ana Bićani Ex 276 p 4 Vlado Vukovi 27 Mar 2006 T 26742675 640 Witness MM-039 Ex 277 p 4 641 Vlado Vuković 28 Mar 2006 T 2727 See also Imra Agoti Ex 398 T 23315-23316 testifying that in more or less all Croat villages in the area including Vagnac Drežnik Grad and Rakovica civilians were displaced after which the houses and all facilities were devastated 642 Witness MM-037 28 Mar 2006 T 2801-2803 Ex 268 T 11603-11604 11612-11613 11637 Nikola Medaković 9 Oct 2006 T 9019-9020 See also Ex 963 pp 2-3 643 Ana Bi ani Ex 276 p 3 The persons in the basement were Petar Bi ani and his wife Kate Bi ani Ana Bi ani and her husband Ivan Vukovi Nikola Bi ani Pero Bi ani Jure trk and his wife Kate trk Jure Vukovi and his half brother whose name was also Jure Vukovi nicknamed Jura Zenkov Kate Vukovi and her son Jure Vukovi who was 8-10 years old a second woman named Ana Bi ani Bara Bi ani Ana Vukovi Jeka Vukovi a third woman named Ana Bi ani born 1924 Marija Hodak Jeka Duman i and Marija trk Ana Bi ani Ex 276 p 3 Jure Vuković Ex 277 p 2 See also Ex 1042 Tab 2 Ex 1043 Tab 2 DVD 3 pp 1-2 644 Ana Bi ani Ex 276 p 3 Jure Vuković Ex 277 pp 2-3 645 Ana Bi ani Ex 276 p 3 Jure Vuković Ex 277 p 3 646 Ana Bi ani Ex 276 p 4 647 Ana Bi ani Ex 276 p 4 Jure Vuković Ex 277 p 3 648 Ana Bi ani Ex 276 p 4 Jure Vuković Ex 277 p 3 649 Ana Bi ani Ex 276 p 4 Jure Vuković Ex 277 p 3 650 Ana Bi ani Ex 276 p 4 Jure Vuković Ex 277 p 3 651 Ana Bi ani Ex 276 p 4 Jure Vuković Ex 277 p 3 Marko Vuković 24 Mar 2006 T 2588 Case No IT-95-11-T 83 12 June 2007 and took their money and valuables 652 While the men were being searched one soldier hit Jure trk and Milan Bi ani 653 After about 15 minutes the men were taken around a corner of Ivan Bi ani ’s house 654 Two soldiers wearing Serbian dark grey uniforms shot and killed the men with automatic rifle fire 655 The following seven men were killed Milan Bi ani Nikola Bi ani Petar Bi ani Jure trk 656 Ivan Vukovi Jure Vukovi and his half brother also named Jure Vukovi 657 231 After the killings the two soldiers returned to the rest of the group 658 One of the two soldiers pointed the gun at Ana Bi ani and told them that they had an hour to leave or they would be killed 659 As they ran away the soldiers shot at them 660 Jeka Vukovi fell and that was the last time that Jure Vukovi saw her 661 They fled towards Borik and after three days on 15 November 1991 they came to the HVO barracks in Lipice east of Saborsko 662 232 After the attack on Saborsko Nikola Medakovi in his capacity as president of the municipality of Plaški issued an order to bury human corpses after which he received a report that the bodies of more than 20 people had been buried including civilian women and elderly men 663 652 Ana Bi ani Ex 276 p 4 Ana Bi ani Ex 276 p 4 654 Ana Bi ani Ex 276 p 4 Jure Vuković Ex 277 p 3 655 Ana Bi ani Ex 276 p 4 Jure Vuković Ex 277 p 3 See also Marko Vuković 24 Mar 2006 T 2588-2589 656 Jure Vuković Ex 277 p 3 Ana Bi anić Ex 276 p 4 mentioning him as “Juraj” The Trial Chamber notes that Annex I to the Indictment lists a Josip Štrk but cannot conclude that this is the same individual However the Trial Chamber recalls its interpretation of the Indictment in this respect and will consider the killing of Jure Štrk for a conviction see supra section I C 657 Ana Bi ani Ex 276 p 4 Jure Vuković Ex 277 p 3 Witness MM-037 was told in the evening on 12 November 1991 by a Serb soldier that five or six soldiers had killed Petar “Krtan” Bićanić and two more men Witness MM-037 believed that perpetrators were a group of “renegades” members of Martić’s Police who thought Petar Bićanić was carrying a lot of money on him Witness MM-037 28 Mar 2006 T 2800-2801 Witness MM-037 further named Ðuro “Snjaka” Ogrizović and individuals called Lecin Cvekić and Pejić Witness MM-037 29 Mar 2006 T 2814-2815 Ex 268 T 11602 11608-11609 11613-11614 11638-11639 The Trial Chamber notes the evidence that a Peić or Pejić was “the worst of all Martić’s men” and that he together with Željko “Buba” Mudrić boasted about having “shot dead eight people in front of the Centre in Saborsko” Ex 507 p 4 However the Trial Chamber cannot conclude beyond reasonable doubt that this reference to killings in the centre of Saborsko refers to the killings at Petar “Krtan” Bi ani ’s house Vlado Vukovi knows of one family that was killed as well as his aunt and uncle who had gone to their Serb neighbours’ house seeking protection but were nonetheless killed Vlado Vuković 28 Mar 2006 T 2730 2733 The Trial Chamber notes that victims with the last name “Bi ani ” are listed as “Bi ani ” in Annex I to the Indictment See also Marko Vuković 24 Mar 2006 T 2588-2589 The Trial Chamber has also been furnished with evidence that during the attack on Saborsko Kata Dumani i and Nikola “Dika” Dumani i were killed in front of their house Ex 963 p 2 The Trial Chamber considers that similar names Kata Dumeni i and Nikola Dumeni i listed in Annex I to the Indictment refer to these victims and will consider these persons for a conviction 658 Ana Bi ani Ex 276 p 4 659 Ana Bi ani Ex 276 p 4 Jure Vuković Ex 277 pp 3-4 Marko Vuković 24 Mar 2006 T 2588 660 Jure Vuković Ex 277 p 4 661 Jure Vuković Ex 277 p 4 Annex I to the Indictment lists a Jela Vuković and the Trial Chamber considers this to refer to Jeka Vuković 662 Ana Bi ani Ex 276 p 4 Jure Vuković Ex 277 p 4 663 Nikola Medaković 9 Oct 2006 T 9021-9022 9027-9028 10 Oct 2006 T 9250 Nikola Medaković testified that the victims were to be buried as close as possible to where they had been killed and with everything found on them including identification Nikola Medaković 9 Oct 2006 T 9027 653 Case No IT-95-11-T 84 12 June 2007 233 Beginning in October 1995 several grave sites were exhumed in Saborsko 664 The biggest site was at Popov Šanac located close to the church of St John where the following 14 victims were found Ana Bi ani Milan Bi ani Nikola Bi ani Petar Bi ani Kata Dumen i Nikola Dumen i Mate Matovina born 1895 Milan Matovina Mate pehar Ivan Vukovi Jeka Vukovi Jure Vukovi born 1929 Jure Vukovi born 1930 and Petar Vukovi 665 In the grave site at Borik the following three victims were found Darko Dumen i Ivica Dumen i and Josip trk 666 The following ten victims were found in individual graves in Saborsko Leopold Conjar Ante Dumen i Ivan Matovina Kata Matovina born 1920 Kata Matovina born 1918 Lucija Matovina Marija Matovina Marta Matovina Slavica Matovina and Slavko Serti 667 234 Considering in particular that there is direct evidence regarding the killing of eight of the victims exhumed from the mass grave in Popov Šanac the Trial Chamber finds that all 14 victims exhumed from that mass grave were killed in Saborsko on 12 November 1991 Moreover based on evidence indicating their causes of death the Trial Chamber considers it established beyond reasonable doubt that also Ivica Dumen i Kata Matovina born 1920 and Slavko Serti were killed in Saborsko on 12 November 1991 Furthermore considering that Darko Dumen i and Josip trk were found in the same mass grave as Ivica Dumen i who was killed on 12 November 1991 the Trial Chamber considers it established beyond reasonable doubt that these two persons were killed on the same date Lastly while the body of Jure Juraj Štrk has not been recovered the direct evidence establishes that he was killed on 12 November 1991 The Trial Chamber therefore finds beyond reasonable doubt that 20 persons were killed on 12 November 1991 For the remaining victims Leopold Conjar Ante Dumenčić Ivan Matovina Kata Matovina born 1918 Lucija Matovina Marija Matovina Marta Matovina and Slavica Matovina the evidence is insufficient to establish when where and by whom they were killed 664 Marko Vuković 24 Mar 2006 T 2590-2591 Vlado Vuković 27 Mar 2006 T 2676 Davor Strinović 12 Apr 2006 T 3667 See also Ex 302 665 Vlado Vuković 27 Mar 2006 T 2676 Marko Vuković 24 Mar 2006 T 2591 Ivan Grujić 10 Apr 2006 T 3477 Ex 302 Ex 323 providing that the cause of death was gunshot wounds for Mate Matovina born 1895 Mate Špehar Ivan Vuković Jela Vuković Jure Vuković born 1929 Jure Vuković born 1930 and Petar Vuković Ex 963 regarding Kata Dumenčić and Nikola Dumenčić See also Nikola Medaković 12 Oct 2006 T 9244-9245 The Trial Chamber visited Popov Šanac during the site visit Ex 1042 Tab 2 Ex 1043 Tab 2 DVD 2 pp 36-38 666 Ex 302 Ex 323 providing that the cause of death for Ivica Dumenčić was “probably trauma wounds” See also Ex 1042 Tab 2 Ex 1043 Tab 2 DVD 2 pp 40-41 667 Ex 323 providing that the cause of death of Slavko Sertić and Kata Matovina born 1920 were gunshot wounds Mate Matovina in Annex I to the Indictment listed with birth date unknown is listed as killed in the list of victims which was created by the Office for Detainees and Missing Persons of the Government of Croatia Davor Strinović 12 Apr 2006 T 3667-3668 His body was not exhumed from any of the graves and there is no other evidence concerning his alleged death Based on the evidence therefore the Trial Chamber is unable to find that this Mate Matovina is dead See also Ex 302 Case No IT-95-11-T 85 12 June 2007 4 a 235 kabrnja and Nadin kabrnja Nadin and surrounding villages Škabrnja is located in south-western Croatia and in 1991 formed part of the municipality of Zadar which bordered the Benkovac municipality to the south-east 668 Škabrnja had about 2 000 inhabitants and was almost exclusively Croat 669 There were three churches in and around kabrnja the church of the Assumption of the Virgin in the centre of Škabrnja St Mary’s Church in the hamlet of Ambar and St Luke’s Church to the west of the centre of kabrnja 670 In 1991 Nadin was located in the Benkovac municipality and was approximately three kilometres south-east of kabrnja 671 Nadin which was also almost exclusively Croat had between 300 and 660 inhabitants living in approximately 120 to 150 houses 672 Croat villages were located to the south of Škabrnja whereas predominantly Serb villages were located to the north and north-east of Škabrnja towards Benkovac municipality 673 b Situation in Škabrnja Nadin and surroundings prior to 18 November 1991 236 In August 1991 running water and electricity to Nadin had been switched off from Benkovac 674 Around September 1991 approximately 240 Croatian reserve police members and local volunteers were present in kabrnja 675 In September 1991 kabrnja and Nadin were shelled and subjected to aerial bombings including by cluster bombs 676 On 2 October 1991 three villagers 668 Marko Miljanić 30 Mar 2006 T 2915 Zoran Lakić 26 Oct 2006 T 10151 Ex 22 Map 8 Ex 23 pp 24-25 Ex 1042 Tab 2 Ex 1043 Tab 2 DVD 4 pp 31-50 and DVD 5 pp 1-12 669 Marko Miljanić 29 Mar 2006 T 2862 Zoran Lakić 26 Oct 2006 T 10164 Ex 301 p 4 Marko Miljanić 29 Mar 2006 T 2862 Jasna Denona 9 Feb 2006 T 1280 Tomislav egari Ex 826 p 2 Ex 301 p 4 providing that 1991 97 59% were Croats and 2 15% were Serbs 670 Neven Šegarić 29 Mar 2006 T 2848 referring to Ex 271 ERN 0468-7818 Luka Brkić 7 Apr 2006 T 33933394 Ex 109 p 1 Ex 1042 Tab 2 Ex 1043 Tab 2 DVD 4 pp 42-50 and DVD 5 pp 8-12 Ex 1044 671 Witness MM-083 16 Jun 2006 T 5730 Zoran Laki 26 Oct 2006 T 10151 Nada Pupovac 31 Oct 2006 T 10366 Ex 1042 Tab 2 Ex 1043 Tab 2 DVD 5 pp 12-20 Ex 1044 672 Witness MM-083 16 Jun 2006 T 5730-5731 Marko Miljanić 29 Mar 2006 T 2862 Ex 301 97 6% were Croats and 1 95% were Serbs 673 Marko Miljanić 29 Mar 2006 T 2862 testifying that Biljane was an exclusively Serb village and that some Croat villages surrounding Škabrnja including Donji Zemunik had some Serb population Zoran Lakić 27 Oct 2006 T 10229-10230 674 Witness MM-083 16 Jun 2006 T 5731 675 Marko Miljanić 29 Mar 2006 T 2862-2864 testifying that following an order from the Chief of the Zadar police administration Marko Miljanić a Croatian MUP member placed road check-points near Biljane and Zemunik and erected two barricades in Škabrnja there was also a manned check-point in the hamlet of Ambar Luka Brkić 7 Apr 2006 T 3391-3392 2864-2865 testifying that they were armed with six light machine-guns two hand-held launchers automatic and semi-automatic rifles and pistols Marko Miljanić 30 Mar 2006 T 2890-2891 Luka Brkić 5 Apr 2006 T 3224-3226 testifying that the village guards wore second-hand uniforms from East Germany and that he was issued with a an automatic rifle three to five days prior to 18 November 1991 There were also mortars in kabrnja Witness MM-080 8 Jun 2006 T 5254-5255 Ex 116 p 2 In Nadin at this time the only weapons were hunting rifles Witness MM-083 16 Jun 2006 T 5731 676 Marko Miljanić 29 Mar 2006 T 2863 2871 Tomislav egari Ex 826 p 2 There is also evidence of snipers shooting at Škabrnja Neven Šegarić Ex 251 p 2 Nadin was shelled on 18 September 1991 from the direction of the Case No IT-95-11-T 86 12 June 2007 were killed and it was decided to evacuate the civilian population following which only members of the reserve police force and the volunteers remained in kabrnja to guard the village 677 Around 2 October 1991 Nadin was attacked by the JNA whereupon two men were killed 678 This attack was conducted in order to deblockade the road from Benkovac to the airport in Zemunik 679 On 9 October 1991 an agreement was concluded between inter alia the 9th Corps command located in Knin and representatives of the Zadar municipality on cessation of combat operations raising of the blockade of Zadar and a pull-out of JNA from the Zadar garrison and the Zemunik airport to Benkovac 680 237 On 10 October 1991 Marko Miljani was appointed commander for the defence of kabrnja Nadin Gornji Zemunik Donji Zemunik Prkos Gorica Galovac and Glavica 681 This defence force was called the Škabrnja Independent Battalion and consisted of some 730 reserve police and volunteers from the local area 682 The Škabrnja Independent Battalion placed minefields in and around Škabrnja 683 On 6 November 1991 the villagers who had been evacuated on 2 October returned to Škabrnja 684 238 In 1991 units of the JNA 9th Corps of the Benkovac TO and of the SAO Krajina police were active in the area of Northern Dalmatia including in the areas around kabrnja Nadin and Bru ka 685 The 180th Motorised Brigade was located in Benkovac and was within the structure of Serb villages of either Biljane or Lišane following which women and children went to the Croat village of Polača Witness MM-083 16 Jun 2006 T 5732 677 Marko Miljanić 29 Mar 2006 T 2863 2865 Tomislav egari Ex 826 p 2 Neven Šegarić Ex 251 p 2 678 Witness MM-083 16 Jun 2006 T 5732-5733 679 Nada Pupovac 30 Oct 2006 T 10342-10344 testifying that the attack was ultimately unsuccessful due to minefields on the Benkovac side of Nadin 10421-10422 Zoran Lakić 27 Oct 2006 T 10214-10216 According to Witness MM-080 from the direction of kabrnja some of the Croat forces opened fire on JNA vehicles that moved along the Benkovac-Zemunik road to Zemunik airport where the JNA was based According to information available to the JNA an independent battalion located in kabrnja and consisting of 250 to 300 men opened fire upon the JNA vehicles Witness MM-080 8 Jun 2006 T 5250 5254-5255 5260 See also Ex 40 a report of the SAO Krajina TO indicates that on 16 September 1991 Milan Marti ordered the Benkovac TO Staff to “provide as many men as possible for Lieutenant Colonel @ivanovi who would command the operation to lift the blockade of Zemunik” 680 Milan Babić 20 Feb 2006 T 1604-1605 Ex 1030 The Trial Chamber is unable to conclude on the basis of the evidence whether this agreement was complied with see Zoran Lakić 26 Oct 2006 T 10148-10152 testifying that the pull-out of the JNA was obstructed by the ZNG and Croatian police 27 Oct 2006 T 10221-10222 Ex 991 providing that by 14 October 1991 there had been no major difficulties during the evacuation of the Zadar garrison Witness MM-080 testified that during November 1991 the JNA convoys from Zadar garrison and Zemunik airport were shot at by Croatian forces before they reached Biljane Donje Witness MM-080 8 Jun 2006 T 5251 5253 5260 See also Ex 784 Nada Pupovac 31 Oct 2006 T 10443 681 Marko Miljanić 29 Mar 2006 T 2885 30 Mar 2006 T 2895-2897 Luka Brkić 7 Apr 2006 T 3388 682 Marko Miljanić 29 Mar 2006 T 2885 30 Mar 2006 T 2890-2891 2908 Luka Brkić 5 Apr 2006 T 3227 7 Apr 2006 T 3388-3389 Witness MM-080 8 Jun 2006 T 5254-5255 See also Zoran Lakić 26 Oct 2006 T 10166 27 Oct 2006 T 10173 683 Marko Miljanić 30 Mar 2006 T 2895 Luka Brkić 7 Apr 2006 T 3411-3412 Nada Pupovac 30 Oct 2006 T 10342-10343 10349 10368 31 Oct 2006 T 10368 10448-10449 Zoran Laki 27 Oct 2006 T 10173-10174 684 Marko Miljanić 29 Mar 2006 T 2868 testifying that this happened following the signature in The Hague of a truce Tomislav egari Ex 826 p 2 Neven Šegarić Ex 251 p 2 685 Milan Babić 20 Feb 2006 T 1601 Ex 1036 Case No IT-95-11-T 87 12 June 2007 the 9th Corps in Knin 686 In the autumn of 1991 the commander of the TO in Benkovac was Zoran Laki 687 The Chief of the SJB in Benkovac was Bo ko Dra i 688 c Attack on kabrnja and Nadin on 18 and 19 November 1991 239 Between 0600 and 0700 hours in the morning of 18 November 1991 a JNA mechanised infantry unit of between 80 to 200 men with eight to nine APCs and three tanks advanced from the Serb village of Smil i towards kabrnja 689 The TO including members of the Benkovac TO also participated in this operation and were resubordinated to the JNA 690 This JNA force was under the command of Lieutenant-Colonel Mom ilo Bogunovi of the JNA 180th Motorised Brigade 691 There is evidence that both the Croatian and the Serb sides had mortars and artillery 692 From around 0700 hours Nadin was shelled from the direction of the Serb villages of Biljane or Lišane and the shelling continued throughout the day 693 Most of the women and children left Nadin and went to Polaca Zaton and Zadar while only men and a few women remained in the village 694 At around 0730 hours Škabrnja was subjected to intensive shelling also from the direction of Biljane or Lišane which lasted until 1230 hours 695 686 Witness MM-080 8 Jun 2006 T 5246 See also Nada Pupovac 30 Oct 2006 T 10339 Zoran Lakić 26 Oct 2006 T 10128-10130 688 Witness MM-080 8 Jun 2006 T 5246 See also Ex 959 689 Luka Brkić 5 Apr 2006 T 3225-3227 testifying that the Škabrnja village guard was deployed during the night between 17 and 18 November 1991 see also Luka Brki 5 Apr 2006 T 3256 7 Apr 2006 T 3395 3434-3435 Zoran Lakić 26 Oct 2006 T 10155-10156 10159-10160 10166 testifying that about 110 men took part Nada Pupovac 30 Oct 2006 T 10349 testifying that “some 200 soldiers on the part of the JNA” participated Neven Šegarić Ex 251 p 4 Command posts were established in Gornji Biljani and in the hamlet of Trljuge Luka Brkić 5 Apr 2006 T 3255 See also Ex 285 which makes reference to tanks and APCs called “BOVs” in the areas of Ambar west of Škabrnja and in Biljane Donje There is also evidence that some of the column went through Gornji Zemunik and that before reaching Ambar some of the vehicles turned to the church of St Luke Luka Brkić 7 Apr 2006 T 3434 Ex 285 Ex 107 p 1 Luka Brkić testified that Captain Dragan’s White Eagles “Beli Orlovi” participated in the attack on Škabrnja however the Trial Chamber notes that it has not been furnished with any evidence that Captain Dragan commanded a unit by this name Luka Brkić 7 Apr 2006 T 3427 690 Nada Pupovac 30 Oct 2006 T 10345 31 Oct 2006 T 10399 10425 Ex 107 pp 1 3-4 indicating that the TO was to seal off the area and prevent intervention and that coordination between the TO and the JNA was initially poor but improved Zoran Lakić testified that the Benkovac TO participated with a unit of 25-30 men who were deployed in the hamlet Skorić in the Biljani Donji area and that 12 of these TO members relocated wounded civilians and soldiers to Biljani Donji using two minibuses and an ambulance Zoran Lakić 26 Oct 2006 T 10158-10159 10163 10168 27 Oct 2006 T 10178 10248 30 Oct 2006 T 10278 Nada Pupovac 30 Oct 2006 T 10345 10347 10356-10358 31 Oct 2006 T 10445 Some of the JNA tank crews were manned to full strength by TO members from other locations Zoran Lakić 26 Oct 2006 T 10156 see also Marko Miljanić 30 Mar 2006 T 2929 testifying that he was told that some tank crews included volunteers from Serbia Ex 616 regarding volunteers from Serbia and BiH who were joined with the Benkovac TO The Trial Chamber notes that Ex 116 Ex 117 Ex 118 Ex 411 and Ex 614 provide that members of TO were present in Škabrnja and Nadin on 18 and 19 November 1991 The Trial Chamber notes Zoran Lakić’s testimony that no other units from the Benkovac TO than those listed above participated in the attack Zoran Lakić 27 Oct 2006 T 10190-10192 30 Oct 2006 T 10277 On the participation of the TO in the attack see also Veljko Džakula 17 Jan 2006 T 417-418 691 Witness MM-080 8 Jun 2006 T 5262 Ex 107 See also Zoran Lakić 26 Oct 2006 T 10154 692 Luka Brkić 5 Apr 2006 T 3256 Zoran Lakić 26 Oct 2006 T 10166 Ex 285 Nada Pupovac 30 Oct 2006 T 10354-10355 31 Oct 2006 T 10369 693 Witness MM-083 16 Jun 2006 T 5732 5735 5737 694 Witness MM-083 16 Jun 2006 T 5734-5735 695 Marko Miljanić 29 Mar 2006 T 2869 Neven Šegarić Ex 251 p 4 Tomislav Šegarić Ex 826 pp 2-3 687 Case No IT-95-11-T 88 12 June 2007 240 When the column reached the junction of the roads leading to Biljani Donji and Zadar Lieutenant Miodrag Stevanovi and a soldier were killed after having left their APC 696 The evidence is conflicting as to the reason for their leaving the APC 697 Thereafter intensive fire commenced 698 Croatian forces shot at the JNA tanks and soldiers including from some of the houses 699 A ZNG unit fired rockets at the JNA column from the elevation Ražovljeva Glavica 700 Helicopters were also used by the JNA to deploy ground troops in the vicinity of Škabrnja 701 Cluster bombs dropped from JNA aircraft were also used in the attack 702 241 tank The church of the Assumption of the Virgin in the centre of Škabrnja was shot at by a JNA 703 At one point tanks attempted to enter the church of the Assumption of the Virgin but were stopped by Captain Janković a member of the JNA 704 Following this and without authorisation by Captain Janković several soldiers entered the church and fired their weapons 705 A tank opened fire in the direction of the school in Škabrnja 706 There is evidence that fire was opened on private houses by tanks and using hand-held rocket launchers 707 696 Nada Pupovac 30 Oct 2006 T 10345-10346 Zoran Lakić 26 Oct 2006 T 1016 27 Oct 2006 T 10232-10233 Neven Šegarić 29 Mar 2006 T 2835 testifying that no warning was given Nada Pupovac 30 Oct 2006 T 1035110353 Zoran Lakić 26 Oct 2006 T 10161 both testifying that a warning was given by Lieutenant Stevanović using a megaphone after they left the APC 698 Marko Miljanić 29 Mar 2006 T 2869 testifying that fire was opened first by the JNA column and artillery at around 0730 hours Luka Brkić 5 Apr 2006 T 3229-3231 testifying that shells hit his brother’s house 3255 testifying that the map in Ex 285 accurately describes that fire was first opened on Škabrnja at 0730 hours from the direction of Ambar 7 Apr 2006 T 3397 3417 Zoran Lakić 26 Oct 2006 T 10161-10162 27 Oct 2006 T 10174 10233-10234 Nada Pupovac 30 Oct 2006 T 10347 10354 Tomislav egari Ex 826 p 2 Ex 984 Annex 9 699 Marko Miljanić 29 Mar 2006 T 2876 testifying that around 1400 hours he and Luka Škara were by the church of the Assumption of the Virgin and tried to hit the tanks which had entered the village centre using a hand-held rocket launcher but they stopped because civilians including women children and old men were around the tanks with their hands on their necks Luka Brkić 5 Apr 2006 T 3232-3233 3246 3248 Nada Pupovac 30 Oct 2006 T 10356 10358 31 Oct 2006 T 10392 Zoran Lakić 27 Oct 2006 T 10173-10174 See also Ex 109 700 Nada Pupovac 30 Oct 2006 T 10354-10355 31 Oct 2006 T 10369 See also Marko Miljanić 30 Mar 2006 T 2901-2902 confirming that a ZNG unit was present at this elevation 701 Marko Miljanić 29 Mar 2006 T 2870 2075 testifying that helicopters arrived at a meadow called Jabuka three or four times and deployed troops about 30 troops each time who wore “dark uniforms” The Trial Chamber notes that Zoran Lakić testified 27 Oct 2006 T 10239-10240 that he heard neither helicopters nor airplanes during the attack However the Trial Chamber does not find this evidence credible in light of the direct evidence Marko Miljanić 29 Mar 2006 T 2870 Luka Brkić 5 Apr 2006 T 3230 Neven Šegarić Ex 251 p 4 702 Marko Miljanić 29 Mar 2006 T 2870 30 Mar 2006 T 2925 Luka Brkić 5 Apr 2006 T 3230 7 Apr 2006 T 3393-3394 703 Luka Brkić 7 Apr 2006 T 3393 3417 Ex 984 Annex 9 Ex 922 p 7 Nada Pupovac testified that the bell tower was shot at by the tank because there was a Croatian machine-gun nest there Nada Pupovac 30 Oct 2006 T 1035510356 31 Oct 2006 T 10431-10433 1 Nov 2006 T 10458 The Trial Chamber does not find this evidence convincing in light of the contrary evidence 704 Luka Brkić 5 Apr 2006 T 3242-3243 705 Luka Brkić 5 Apr 2006 T 3242-3243 706 Luka Brkić 5 Apr 2006 T 3239 707 Luka Brkić 5 Apr 2006 T 3239 3246 testifying that sniper fire was opened from a private house which was subsequently targeted by a tank Zoran Lakić 27 Oct 2006 T 10175 Ex 117 p 3 Ex 984 Annex 9 Statement of Svetka Miljani Statement of Snježana Ferica 697 Case No IT-95-11-T 89 12 June 2007 242 During the fighting civilians fled south 708 Civilians were also taken out of Škabrnja by JNA and TO forces and transported to territory under the control of Croatian forces 709 Village guards Luka Brkić Ante “Neno” Gurlica and Marin Gurlica were taken by bus to Benkovac where they stayed overnight after which they were taken to Knin 710 About half of Škabrnja was controlled by the Serb forces by 1400 hours 711 The fighting in Škabrnja lasted until dusk 712 There were two dead and several wounded on the Serb side whereas the Croatian side suffered about 15 killed 713 243 At 0500 hours in the morning of 19 November 1991 the Croatian forces withdrew from Škabrnja 714 Around 0700 hours the JNA convoy left Škabrnja and advanced along the road towards Nadin which was subsequently shelled 715 The convoy passed through Nadin around 1400 hours after which it withdrew to the Benkovac barracks 716 During the night of 19 September 1991 “everything was burning” in Nadin 717 d Evidence of units present in Škabrnja 244 The Trial Chamber has been furnished with evidence describing the units present in Škabrnja on 18 November 1991 The evidence shows that the JNA units were composed of soldiers of different ethnicities 718 The JNA units were composed of regular soldiers and reservists from 708 Marko Miljanić 29 Mar 2006 T 2880 Zoran Lakić 30 Oct 2006 T 10311 testifying that more than 1 500 civilians of kabrnja withdrew in the direction of Zadar Bo ko Brki Ex 275 p 2 stating that around 100 villagers fled to a quarry in the forest a pre-arranged meeting point should the village come under attack after which they went by foot to Prkos where buses eventually picked them up 709 Luka Brkić 5 Apr 2006 T 3251-3252 Nada Pupovac testified that over 150 uninjured civilians were taken by the TO first to Benkovac and then to a junction near the Croat village of Pristeg and the Serb village of Ceranje Gornje where they crossed over to “Croatian territory” Nada Pupovac 31 Oct 2006 T 10364 10370 Zoran Lakić testified that when he arrived in Škabrnja at 1700 hours on 18 November 1991 he saw 120 or 130 civilians put up at the primary school and a nursery school and that later that evening they were transported to “Croatian forces” using buses of the “transport company of Benkovac” Zoran Lakić 26 Oct 2006 T 10164 710 Luka Brkić 5 Apr 2006 T 3233 testifying that these three were members of the village guard but that they had removed their camouflage uniforms by the time they were captured 3250-3253 also testifying that Ante “Neno” Gurlica was beaten by a soldier before being transported away and that the three of them were beaten as they entered the bus taking them to Benkovac 3264-3265 See infra paras 278 281 711 Marko Miljanić 29 Mar 2006 T 2880 712 Marko Miljanić 29 Mar 2006 T 2869-2870 also testifying that civilians were killed in the shelling Luka Brkić 7 Apr 2006 T 3417 Zoran Lakić 26 Oct 2006 T 10162-10163 Neven Šegarić Ex 251 p 5 Ivica Bilaver Ex 821 p 2 Tomislav egari Ex 826 p 2 Ex 984 Annex 9 See also Nada Pupovac 30 Oct 2006 T 10354-10355 At one point the Croatian side blew up the reserve ammunition of the JNA Marko Miljanić 29 Mar 2006 T 2870-2871 30 Mar 2006 T 2902 713 Marko Miljanić 29 Mar 2006 T 2878 Zoran Lakić 26 Oct 2006 T 10170 Ex 377 714 Marko Miljanić 30 Mar 2006 T 2904-2905 Witness MM-083 16 Jun 2006 T 5736-5737 Nada Pupovac 31 Oct 2006 T 10365 See also Zoran Lakić 26 Oct 2006 T 10165 After the hostilities had ended the JNA found automatic rifles pistols sniper rifles mortars anti-aircraft guns and handheld rocket launchers which were brought to the Benkovac barracks Zoran Lakić 26 Oct 2006 T 10166-10167 27 Oct 2006 T 10173 Nada Pupovac 31 Oct 2006 T 10369 Luka Brkić testified that when he was taken from Škabrnja to Benkovac he saw a large pile of weapons which he believed were confiscated in Škabrnja Luka Brkić 7 Apr 2006 T 3406-3407 715 Nada Pupovac 31 Oct 2006 T 10366-10367 Witness MM-083 16 Jun 2006 T 5738 716 Nada Pupovac 31 Oct 2006 T 10366-10367 10369-10370 717 Witness MM-083 16 Jun 2006 T 5745-5746 718 Luka Brkić 5 Apr 2006 T 3243-3245 7 Apr 2006 3405-3406 3420 3441-3442 stating that he believed Captain Janković was a Serb Case No IT-95-11-T 90 12 June 2007 neighbouring Serb villages 719 In addition to the uniforms ordinarily worn by members of the JNA officers of the JNA present in Škabrnja wore a mix of camouflage uniforms and ceremonial uniforms 720 245 The TO present in Škabrnja wore the same uniforms caps and helmets as the JNA 721 However the TO also wore the Serbian flag on their uniforms and some members had a white band on the left shoulder 722 There is evidence that some TO soldiers wore SAO Krajina patches on their uniforms 723 246 Paramilitary units in the evidence often referred to simply as “Chetniks” were present in Škabrnja and wore various kinds of JNA uniforms some with an insignia with four Cyrillic “S” and different kinds of hats including berets fur hats with cockades and hats 724 Their faces were painted however the evidence shows that at least some of them appeared to be local 725 247 The evidence is insufficient to conclude whether members of the SAO Krajina MUP participated in the attack on Škabrnja on 18 and 19 November 1991 726 The Prosecution alleges that Goran Opačić was a member of the police and present in Škabrnja at the time of the operation in Škabrnja 727 The Defence denies both allegations 728 The Trial Chamber finds that the evidence establishes beyond reasonable doubt that Goran Opačić was a member of the Benkovac SJB special unit on 18 and 19 November 1991 However while the evidence establishes beyond reasonable doubt that Goran Opačić was present in Škabrnja at some point on 18 November 1991 it is 719 Luka Brkić 7 Apr 2006 T 3419 3421 listing the villages of Zemunik Gornje Veljane Biljane Gornje Biljane Djevrske Kistanje Lišane and Rastević 3429-3430 3440-3441 720 Luka Brkić 5 Apr 2006 T 3236-3237 Nada Pupovac 31 Oct 2006 T 10452-10453 For a description of the JNA uniforms see supra fn 283 721 Nada Pupovac 31 Oct 2006 T 10452-10453 See also Ex 117 722 Nada Pupovac 31 Oct 2006 T 10453 Ex 117 p 3 723 Luka Brkić 5 Apr 2006 T 3237 7 Apr 2006 T 3426-3427 724 Marko Miljanić 30 Mar 2006 T 2918-2919 Tomislav egari Ex 826 pp 3 5-6 Ex 118 p 1 725 Tomislav egari Ex 826 pp 3-4 726 Zoran Lakić 27 Oct 2006 T 10258 Nada Pupovac 31 Oct 2006 T 10396 10428 Milan Babić 20 Feb 2006 T 1607 Ex 1036 L0092006 Ex 116 Ex 614 See also Ex 411 727 Prosecution Final Trial Brief paras 189-190 The Prosecution relies upon Witness MM-003 8 Mar 2006 T 2024 testifying that Goran Opačić was a member of the “Benkovac special police” at the time of the operation in kabrnja Milan Babić 20 Feb 2006 T 1607 testifying that he had heard “that it wasn’t true that Goran Opačić … had been involved in the fighting all the time but that he had been there at the outset but later left” see also Ex 1036 Ex 411 identifying Goran Opačić as a member of the Benkovac police special unit and that he gives information that killings were committed in Škabrnja Ex 511 p 18 an undated typed list which provides that Goran Opačić was a member of the Benkovac police until 31 Oct 1991 728 Defence Final Trial Brief para 19 The Defence relies upon Zoran Lakić 27 Oct 2006 T 10258 10263-10264 30 Oct 2006 T 10272 testifying that Goran Opačić was not a member of the Benkovac SJB and that he did not take part in the fighting see also Nada Pupovac 31 Oct 2006 T 10396 10428 Ex 116 providing that “according to unconfirmed data” members of “Opačić’s group” carried out killings in Nadin Ex 511 p 18 Case No IT-95-11-T 91 12 June 2007 insufficient to establish beyond reasonable doubt that he participated in events or crimes in Škabrnja or Nadin on 18 or 19 November 1991 729 e Killings in Škabrnja and Nadin i Killings at Slavko Šegarić’s house in Ambar on 18 November 1991 248 In the morning of 18 November 1991 Neven egari Ivica Bilaver Lucia Šegarić Krsto Šegarić Maja Grgica Šegarić Željko Šegarić Josip Miljanić and Stana Vicković were hiding in the cellar of Slavko Šegarić’s house in Ambar 730 Shortly after the first shelling there was banging on the door and they heard a voice outside asking who was in the cellar 731 They heard someone outside say “Come out you Ustase we are going to slaughter you all” 732 When the people in the cellar opened the door about ten JNA soldiers entered 733 The soldiers’ faces were painted and they wore plain olive green uniforms with a red star on the buttons and on the epaulets 734 After having taken a rifle and a pistol which were elsewhere in the house some of the soldiers left 735 Shortly thereafter five or six “Serb volunteers who were from the neighbouring villages” arrived 736 They threatened the people in the cellar and forced them out everyone left the cellar except Lucia Šegarić 737 Just as the people exited the cellar Neven Šegarić saw a ”Chetnik” fire a burst of gunfire into the cellar 738 About five minutes later when Neven Šegarić and Željko Šegarić were forced to enter the cellar to look for weapons Neven Šegarić saw that Lucia Šegarić was lying dead 729 Regarding membership in the Benkovac SJB “special unit” the Trial Chamber notes Ex 411 Ex 511 and Milan Babić 20 Feb 2006 T 1601 1607 see also Ex 1036 The Trial Chamber notes that in this respect Witness MM-003’s testimony is corroborated Witness MM-003 8 Mar 2006 T 2024 Regarding his presence in Škabrnja and Nadin the Trial Chamber notes Milan Babić’s hearsay evidence that Goran Opačić was only present at the “outset” in Škabrnja on 18 November 1991 that Nada Pupovac who was present in Škabrnja 18 November 1991 denies Goran Opačić’s presence and that Ex 116 only refers to “unconfirmed data” that “Opačić’s group” killed members of a family in Nadin and three unidentified captives from Škabrnja The Trial Chamber considers that the contrary evidence of Witness MM003 is not sufficiently credible in this respect The Trial Chamber notes the hearsay evidence Marko Miljanić 29 Mar 2006 T 2879-2880 that Goran Opačić nicknamed “Klempa” was heard over the radio in Škabrnja on 18 November 1991 but cannot make any finding based on this evidence see also Milan Babić 20 Feb 2006 T 1607 Ex 1036 730 Neven Šegarić stated that he was in the cellar with his grandmother Lucia Šegarić age 62 his grandfather Krsto Šegarić age 60 or 61 his cousin Željko Šegarić age 14 or 15 his great grandmother Maja Grgica Šegarić age 94 Ivo Bilaver age 14 or 15 and Josip Joso Miljanić However right before the attack Maja Grgica Šegarić was brought back to Neven Šegarić’s father Mile Šegarić’s house Neven Šegarić 29 Mar 2006 T 2836 2841-2842 Ex 251 pp 3 5 Ivica Bilaver Ex 821 p 2 also stating that the house was close to St Mary’s church in Ambar Ex 270 F-2 Ivica Bilaver was 14 or 15 years old Neven Šegarić 29 Mar 2006 T 2836 Ivica Bilaver Ex 821 p 2 See also Ex 1042 Tab 2 Ex 1043 Tab 2 DVD 4 pp 32-38 731 Neven Šegarić Ex 251 p 3 732 Neven Šegarić Ex 251 p 3 There is also evidence that women and children were being called “Usta as” and were insulted Ex 984 Annex 9 Statement of Svotka Miljani Statement of Snježana Ferica 733 Neven Šegarić 29 Mar 2006 T 2855-2856 Ex 251 p 3 734 Neven Šegarić Ex 251 p 3 735 Ivica Bilaver Ex 821 p 2 Neven Šegarić 29 Mar 2006 T 2834-2835 2855-2856 Ex 251 p 3 736 Neven Šegarić Ex 251 p 3 Neven Šegarić 29 Mar 2006 T 2856 Ivica Bilaver Ex 821 p 2 737 Neven Šegarić Ex 251 p 3 738 Neven Šegarić Ex 251 p 3 Case No IT-95-11-T 92 12 June 2007 a few metres from the door 739 As Neven Šegarić again left the cellar he saw Stana Vickovi and Josip Miljani being forced to kneel after which a soldier wearing a camouflage uniform with a patch on his sleeve reading “SAO Krajina” shot them in the head 740 After this Krsto Šegarić was beaten by five or six soldiers wearing green camouflage uniforms with SAO Krajina patches on their sleeves and red stars on the buttons including Ðuro Kosović whom Neven Šegarić recognised 741 Ðuro Kosović then shot Krsto Šegarić in the back of the head 742 The soldiers standing around outside at this point in time were a mix of JNA soldiers and soldiers with SAO Krajina patches on their camouflage uniforms 743 249 After this Ðuro Kosović using a list of inhabitants in the village questioned Neven egarić about where some of the inhabitants lived and if they had weapons 744 When Neven Šegarić said that he did not know Ðuro Kosović left 745 Subsequently the soldier who had killed Stana Vicković and Josip Miljanić forced Neven Šegarić and Željko Šegarić against the wall of the house however a “JNA officer” intervened and prevented their killing 746 The soldiers then took Ivica Bilaver Neven egari and Željko egari to Smil i 747 ii Killings at Petar Pavi i ’s house in Škabrnja on 18 November 1991 748 250 When the attack on kabrnja started Tomislav egari hid in the cellar of Petar “Pe o” Pavi i ’s house in Škabrnja together with about 25 to 30 civilians including women children and 739 Neven Šegarić Ex 251 p 3 The Trial Chamber notes that Ex 305 autopsy report p 22 list a Luca Šegarić born 1920 who was identified by inter alia her two sons Slavko Šegarić and Mile Šegarić see also Ex 323 p 10 Ex 302 The autopsy report indicates that she was shot multiple times but that she died from a shot at close range to the head Ex 377 p 12 lists a Luca Šegarić born 1922 who was killed by gunshot to the head The Trial Chamber finds that this evidence refers to Lucia Šegarić In this context the Trial Chamber notes Ex 270 F-14 which lists a Lucka Šegarić however due to the discrepancies between Ex 305 and Ex 270 F-14 the Trial Chamber cannot conclude that Ex 270 F-14 refers to Lucia Šegarić Neven Šegarić testified that Ex 270 F-14 does not show Lucia Šegarić Neven Šegarić 29 Mar 2006 T 2840 740 Neven Šegarić Ex 251 p 3 Regarding Stana Vickovi Ex 344 Ex 825 ERN 0469-0704 Ex 377 p 13 listing him as a “Croat civilian” Ex 323 p 9 Ex 302 Regarding Josip Miljani Ex 360 Ex 825 ERN 0469-0706 Ex 377 p 9 listing him as a “Croat civilian” Ex 323 p 9 Ex 302 The Trial Chamber notes that Ivica Bilaver’s statement Ex 821 p 2 is less detailed than that of Neven Šegarić but does not find that the discrepancy between their evidence gives rise to reasonable doubt as to the killing of Stana Vicković and Josip Miljanić At one point either when Lucia Šegarić or the group of adults was shot Ivica Bilaver was wounded in the leg by a ricochet Ivica Bilaver Ex 821 p 2 Neven Šegarić Ex 251 p 3 Ex 270 F-2 Neven Šegarić 29 Mar 2006 T 2841-2842 correcting the identities of the bodies in this photo 741 Neven Šegarić 29 Mar 2006 T 2857 Ex 251 p 3 also stating that Ðuro Kosović was from Smoković 742 Neven Šegarić Ex 251 p 3 Ex 270 F-4 and F-5 see also Neven Šegarić 29 Mar 2006 T 2841-2842 Ex 350 Ex 825 ERN 0469-0704 Ex 377 p 12 listing him as a “Croat civilian” Ex 323 p 9 Ex 302 743 Neven Šegarić Ex 251 p 3 Neven Šegarić testified that a few of them were from a neighbouring village Neven Šegarić 29 Mar 2006 T 2856-2857 744 The list included the names of Mile Šegarić Slavko Miljanić see infra para 255 Branko Šegarić Marko Bilaver Marko Miljanić and Stipe Miljanić Neven egari Ex 251 pp 3-4 745 Neven Šegarić 29 Mar 2006 T 2834 Ex 251 p 4 746 Neven Šegarić 29 Mar 2006 T 2832 2834 Ex 251 p 4 747 Neven Šegarić Ex 251 p 4 Ivica Bilaver Ex 821 pp 2-3 also stating that he saw that the house of Stana Vickovi was burning Ivica Bilaver was taken to the hospital in Benkovac Ivica Bilaver Ex 821 p 3 748 The Trial Chamber notes that Ivan Jelić stated that Pešo was the nickname of Petar Pavičić Ivan Jelić Ex 825 p 3 Case No IT-95-11-T 93 12 June 2007 elderly people 749 Around 1230 hours the shelling ceased and there was silence for around 20 minutes whereupon Eva egari went outside the cellar 750 Shortly thereafter Tomislav egarić heard men shouting that everyone should come out of the cellar or they would throw in hand grenades 751 The people in the cellar started to leave with their hands up Outside near the entrance to the cellar there was a group of more than ten armed “Chetniks” from the local area who wore camouflage uniforms and a variety of headgear 752 251 As they left the cellar people were pulled to the side and killed by the “Chetniks” Some of these people were first beaten with rifle butts and then killed 753 The following persons were killed outside Petar Pavičić’s house 754 Jozo Brki 755 Jozo Miljani 756 Slavka Miljani 757 Mile Pavi i 758 Petar Pavi i 759 Ilija Ražov 760 Kata “Soka” Rogi 761 Ivica egari 762 Rade egari 763 749 Tomislav egari Ex 826 p 3 at p 4 explaining that the house was located in the centre of Škabrnja Ex 270 Photo F-9 depicts the basement of Petar “Pešo” Pavi i ’s house Neven Šegarić 29 Mar 2006 T 2845 See also Ex 1042 Tab 2 Ex 1043 Tab 2 DVD 4 pp 39-42 750 Tomislav egari Ex 826 p 3 751 Tomislav egari Ex 826 p 3 752 Tomislav egari Ex 826 pp 3-4 stating that he particularly remembers one called “Kosović” but stated that that was a common surname of people coming from the village of Zemunik 753 Tomislav egari Ex 826 p 3 Ex 984 Annex 9 statement of Svetka Miljani 754 Ex 984 Annex 9 Statement of Svetka Miljani The Trial Chamber notes that Ex 984 Annex 9 statement of Snježana Ferica lists an “Iviša Ražov” and concludes that this refers to Ive Ražov There is no further evidence regarding this person and the Trial Chamber cannot conclude beyond reasonable doubt that Ive Ražov was among those killed outside Petar Pavičić’s house In relation to this victim the Trial Chamber recalls its findings on the interpretation of the Indictment see supra paras section I C 755 Ex 354 Autopsy report Ex 984 Annex 9 Statement of Svetka Miljani Ex 270 F-6 Neven Šegarić 29 Mar 2006 T 2844 Ex 825 ERN 0469-0706 Ex 323 p 9 Ex 302 Ex 377 p 6 listing him as a “Croat civilian” The Trial Chamber notes that Annex I to the Indictment lists a Joso Brkić as killed in Škabrnja and finds that this refers to the same victim 756 Ex 984 Annex 9 Statement of Svetka Miljani The Trial Chamber notes that Annex I to the Indictment lists a Josip Miljanić and recalls its finding that this person was killed at Slavko Šegarić’s house in Ambar The Trial Chamber recalls that Petar Pavi i ’s house was located in the centre of Škabrnja and not in the hamlet of Ambar Tomislav egari Ex 826 p 4 The Trial Chamber therefore considers that Jozo Miljanić who was killed at Petar Pavi i ’s house is a different person from Josip Miljani who is listed in Annex I to the Indictment 757 Ex 984 Annex 9 Statement of Svetka Miljani stating that her husband Jozo Miljanić and her mother-in-law Slavka Miljanić were killed at this house The Trial Chamber notes that Annex I to the Indictment lists a Slavko Miljanić but considers in light of the information in this statement that this is a different person In relation to this victim the Trial Chamber recalls its findings on the interpretation of the Indictment see supra section I C 758 Ex 362 Autopsy report Ex 984 Annex 9 Statement of Svetka Miljani Ex 270 F-10 and F-11 Neven Šegarić 29 Mar 2006 T 2846 Ex 825 ERN 0469-0708 Ex 323 p 9 Ex 302 Ex 377 p 3 listing him as a “Croat defender” See also Ex 377 pp 3-4 759 Tomislav egari Ex 826 p 3 stating that he saw the dead body of Petar “Pešo” Pavičić outside the house Ex 365 Autopsy report Ex 984 Annex 9 Statement of Svetka Miljani Ex 825 ERN 0469-0708 Ex 323 p 9 Ex 302 Ex 377 p 10 listing him as a “Croat civilian” 759 Ex 362 Autopsy report Ex 984 Annex 9 Statement of Svetka Miljani Ex 270 F-10 and F-11 Neven Šegarić 29 Mar 2006 T 2846 Ex 825 ERN 0469-0708 Ex 323 p 9 Ex 302 Ex 377 p 3 listing him as a “Croat defender” 760 Neven Šegarić 29 Mar 2006 T 2844 testifying that the person in Ex 270 F-5 is Ilija Ražov In relation to this victim the Trial Chamber recalls its findings on the interpretation of the Indictment see supra section I C 761 Neven Šegarić 29 Mar 2006 T 2841-2843 Tomislav egari Ex 826 p 4 Ex 270 F-3 Neven egari 29 Mar 2006 T 2841-2843 Ex 338 Autopsy report Ex 984 Annex 9 Statement of Svetka Miljani and statement of Snježana Ferica Ex 825 ERN 0469-0702 Ex 323 p 9 Ex 302 Ex 377 p 11 listing her as a “Croat civilian” 762 Ex 363 Autopsy report Ex 984 Annex 9 Statement of Svetka Miljani Ex 825 ERN 0469-0708 Ex 323 p 9 Ex 302 Ex 377 p 4 listing him as a “Croat defender” See also Ex 377 pp 3-4 Case No IT-95-11-T 94 12 June 2007 and Vice Šegarić 764 After this women and children were lined up and insulted and asked where their men were 765 Subsequently they were made to walk towards Ambar while being threatened by the “Chetniks” 766 There were many JNA officers and soldiers in the area and the JNA officers prevented the “Chetniks” from further killings 767 iii Killings at Pere Sopić’s house in Nadin on 19 November 1991 252 On 19 November 1991 soldiers wearing JNA uniforms came to the house of Pere Sopić in Nadin where they found Novica Atelj Stoja Brkić Danka Brzoja Ika Čirjak Maša Čirjak Jakov Šestan and Marija Šestan After having taken Novica Atelj and killed him outside the house the soldiers returned to the house and killed the remaining civilians 768 763 Ex 358 Autopsy report Ex 984 Annex 9 Statement of Svetka Miljanić and statement of Snježana Ferica Ex 270 F-8 Neven Šegarić 29 Mar 2006 T 2845 Ex 825 ERN 0469-0706 Ex 323 p 9 Ex 302 Ex 377 p 12 listing him as a “Croat civilian” 764 Tomislav egari Ex 826 p 3 stating that he saw the dead body of Vice Šegarić outside the house Ex 359 Autopsy report Ex 984 Annex 9 Statement of Svetka Miljani Ex 825 ERN 0469-0706 Ex 323 p 9 Ex 302 Ex 377 p 12 listing him as a “Croat civilian” 765 Ex 984 Annex 9 Statement of Svetka Miljani Annex 9 Statement of Snježana Ferica 766 Tomislav egari Ex 826 p 4 767 Tomislav egari Ex 826 p 4 768 Witness MM-083 16 Jun 2006 T 5736-5745 Ex 109 p 3 Ex 302 Ex 323 p 7 Ex 324 to Ex 330 these autopsy reports show that each victim was shot in the head at point-blank range as well as between five and eleven times from a distance of more than one metre Ex 825 ERN 0469-0710 0469-0712 0469-0714 indicating that all victims wore civilian clothes See also Ex 1042 Tab 2 Ex 1043 Tab 2 DVD 5 pp 12-20 Case No IT-95-11-T 95 12 June 2007 iv Other killings in Škabrnja and Nadin 253 Grgica “Maja” Šegarić who was between 80 and 96 years old and infirm as a result of a stroke was killed in Mile Šegarić’s house in Ambar on 18 November 1991 769 254 Ante Ra ov was killed on 18 November 1991 in Škabrnja The evidence shows that Ante Ražov was beaten and had one of his ears cut off before being shot in the head in front of his mother 770 Ante Ražov is listed in Annex I to the Indictment as a civilian victim However the evidence shows that he was a member of the Croatian defence force in Škabrnja Nevertheless it is established beyond reasonable doubt that he was not taking an active part in the hostilities when he was killed In this respect the Trial Chamber considers that the Defence has been put on notice of this victim by virtue of Annex I to the Indictment The evidence is insufficient to conclude who perpetrated this killing 255 Slavko Miljanić was killed in Škabrnja on 18 November 1991 Slavko Miljanić is listed in Annex I to the Indictment as a civilian victim however the evidence shows that he was a member of the Croatian defence force in Škabrnja 771 The Trial Chamber finds that it has not been established beyond reasonable doubt that Slavko Miljanić was taking no active part in the hostilities at the time of his death 256 On 18 November 1991 several “Chetniks” beat on the road from the centre of Škabrnja towards Ambar Thereafter the “Chetniks” put Šime Šegarić and Bude Šegarić in a JNA APC which drove away in the direction of Biljani Subsequently their bodies were handed over to their relatives The evidence shows that ime egari and Bude egari were members of the Croatian defence force in Škabrnja 772 The evidence further shows that they were taken to Knin where they were killed 773 257 There is also evidence that the following persons were killed in Škabrnja and Nadin on 18 or 19 November 1991 Ivan Babić Luka Bilaver Marija Brki born 1943 Marko Brki Željko 769 Marko Miljanić 30 Mar 2006 T 2920 Neven Šegarić Ex 251 p 5 Ex 356 Autopsy report Ex 377 p 12 listing her as a “Croat civilian” Ex 825 ERN 0469-0706 See also Ex 323 p 9 Ex 302 770 Marko Miljanić 29 Mar 2006 T 2871 Ex 270 F-1 Neven egari 29 Mar 2006 T 2841 Ex 364 Autopsy report Ex 825 ERN 0469-0708 Ex 377 p 3 listing him as a “Croat defender” Ex 323 p 9 Ex 302 See also Nada Pupovac 31 Oct 2006 T 10414 testifying that she heard that there had been a man without an ear Ex 117 p 4 a member of the military police battalion stated that a ZNG member had been shot behind a house and that members of the TO had cut off his ear Ex 411 Report on the murder of civilians in kabrnja 771 Slavko Miljanić is listed as a civilian in Annex I to the Indictment Ex 357 Autopsy report Ex 825 ERN 04690706 Ex 377 p 3 listing him as a “Croat defender” Ex 323 p 9 Ex 302 See also Tomislav egari Ex 826 p 5 772 Tomislav egari Ex 826 p 4 The Trial Chamber notes that each is listed as a “Croat defender” in Ex 377 p 4 773 Ex 825 ERN 0469-0702 ERN 0469-0722 0469-0727 Regarding the injuries on Šime Šegarić Ex 333 Autopsy report and Ex 825 ERN 0469-0702 See also Ex 323 p 9 Ex 302 The Trial Chamber notes that Bude Šegarić is not listed in Annex I of the Indictment and refers to the section on the interpretation of the Indictment see supra section I C The Trial Chamber has not been provided with an autopsy report concerning Bude Šegarić Case No IT-95-11-T 96 12 June 2007 Ćurković Marija Dra ina Ana Juri Grgo Juri Petar Juri Niko Pavi i i Josip Perica Ljubo Perica Ivan Ražov Jela Ra ov Branko Rogić Nikola Rogi Kljajo Šegarić Lucka Luca Šegarić Mara @ili Pavica @ili Roko @ili Tadija @ili and Marko @upan 774 258 There is evidence that Petar Rogić and Miljenko Šegarić from Škabrnja were killed in Benkovac on 18 November 1991 775 There is also evidence that Milka Žilić from Škabrnja was wounded by a shell and died in Zadar on 18 November 1991 776 774 The Trial Chamber notes that Kljajo Šegarić Lucka Luca Šegarić Luka Bilaver and Branko Rogić are not listed as civilian victims in Annex I to the Indictment but recalls its findings regarding the interpretation of the Indictment para 13 Regarding Ivan Babić Ex 305 Autopsy report pp 24-25 killed by shrapnel Ex 377 p 5 listing him as a “Croat civilian” Ex 323 p 10 Ex 302 Regarding Luka Bilaver Ex 270 F-15 on which photograph the victim is wearing civilian clothes The Trial Chamber notes that Ex 377 p 5 and Ex 825 ERN 0469-0718 contain a person with the same name who died of hypothermia on 1 December 1991 However the Trial Chamber cannot conclude that this is the same person as Luka Bilaver in Ex 270 F-15 Regarding Marija Brki Ex 334 Autopsy report killed by gunshot to the head inflicted from close range Ex 825 ERN 0469-0702 Ex 377 p 6 listing her as a “Croat civilian” Ex 323 p 9 Ex 302 Regarding Marko Brki Ex 361 Autopsy report killed by gunshots to the head inflicted at point-blank range Ex 825 ERN 0469-0708 Ex 377 p 7 listing him as a “Croat civilian” Ex 323 p 9 Ex 302 Regarding Željko Ćurković Ex 335 Autopsy report Ex 825 ERN 0469-0702 killed by several gunshots including one inflicted at point-blank range to the head The Trial Chamber notes that Ex 270 F-17 contains a “Zoran Ćurković In light of the details provided in the autopsy report and visible on F-17 the Trial Chamber concludes beyond reasonable doubt that this is Željko Ćurković The Trial Chamber notes that on the photograph F-17 the victim is dressed in civilian clothes Regarding Marija Dra ina Ex 367 Autopsy report killed by gunshot to the head inflicted at point-blank range Ex 825 ERN 0469-0710 Ex 377 p 7 listing her as a “Croat civilian” Ex 302 Ex 323 p 9 Regarding Ana Juri Ex 332 Autopsy report killed by blunt trauma to the head Ex 377 p 8 listing “Anica Juri ” as a “Croat civilian” Ex 323 p 9 Ex 302 Regarding Grgo Juri Ex 355 Autopsy report killed by multiple gunshot wounds to the head inflicted at a distance of a maximum of one metre Ex 825 ERN 0469-0706 Ex 377 p 8 listing him as a “Croat civilian” Ex 323 p 9 Ex 302 Regarding Petar Juri Ex 346 Autopsy report killed by gunshots to the head inflicted from a point-blank to close range Ex 825 ERN 0469-0704 Ex 377 p 9 listing him as a “Croat civilian” Ex 323 p 9 Ex 302 Regarding Niko Pavi i i Autopsy report Ex 343 killed by gunshots to the head and thorax inflicted from close range Ex 825 ERN 0469-0704 Ex 377 p 9 listing him as a “Croat civilian” Ex 323 p 9 Ex 302 Regarding Josip Perica Ex 331 Autopsy report killed by gunshots including to the head at point-blank range Ex 825 ERN 0469-0702 Ex 377 p 10 listing him as a “Croat civilian” Ex 323 p 9 Ex 302 listed as “Joso” Regarding Ljubo Perica Ex 347 Autopsy report killed by several gunshot wounds including to the head at pointblank range Ex 825 ERN 0469-0704 Ex 377 p 10 listing him as a “Croat civilian” Ex 323 p 9 Ex 302 Regarding Ivan Ra ov Ex 345 Autopsy report killed by gunshots including two shots to the neck inflicted from a relatively close range Ex 825 ERN 0469-0704 Ex 377 p 11 listing him as a “Croat civilian” Ex 323 p 9 Ex 302 Regarding Jela Ra ov Ex 368 Autopsy report killed by two gunshots to the head inflicted at point-blank range Ex 825 ERN 0469-0718 Ex 377 p 11 listing her as a “Croat civilian” Ex 323 p 9 Ex 302 Regarding Branko Rogić Ex 270 F-16 There is no further evidence of this victim Regarding Nikola Rogi Ex 339 Autopsy report killed by several gunshots including one to the head inflicted at point-blank range Ex 825 ERN 0469-0702 Ex 377 p 11 listing him as a “Croat civilian” Ex 323 p 9 Ex 302 Regarding Kljajo Šegarić Ex 270 F-4 on which photograph the victim is wearing civilian clothes Neven Šegarić 29 Mar 2006 T 2840 2843 Regarding Lucka Luca Šegarić Ex 270 F- 14 on which photograph the victim is wearing civilian clothes There is no further evidence of this victim Regarding Mara @ili Ex 353 Autopsy report killed by several gunshots inflicted from a distance of more than one metre Ex 825 ERN 0469-0706 Ex 377 p 13 listing her as a “Croat civilian” Ex 323 p 9 Ex 302 Regarding Pavica @ili Ex 352 Autopsy report killed by blast wounds Ex 825 ERN 0469-0706 Ex 377 p 13 listing her as a “Croat civilian” Ex 323 p 9 Ex 302 Regarding Roko @ili Ex 342 Autopsy report killed by gunshots including two inflicted to the head at point-blank range Ex 825 ERN 0469-0704 Ex 377 p 14 listing him as a “Croat civilian” Ex 323 p 9 Ex 302 Regarding Tadija @ili Ex 351 Autopsy report killed by several gunshots including to the head inflicted at point-blank range Ex 825 ERN 0469-0706 Ex 377 p 14 listing him as a “Croat civilian” Ex 323 p 9 Ex 302 Regarding Marko @upan Ex 366 Autopsy report killed by two gunshots including to the head inflicted at point-blank range Ex 825 ERN 0469-0710 Ex 377 p 14 listing him as a “Croat civilian” Ex 323 p 9 Ex 302 There is also evidence of killings of unidentified victims in Škabrnja and Nadin on 18 and 19 November 1991 Marko Miljanić 29 Mar 2006 T 2877-2878 30 Mar 2006 T 2914 2920 Bo ko Brki Ex 275 p 2 Ex 109 Ex 116 Ex 117 Ex 614 The Trial Chamber is unable to make any further findings on the basis of this evidence in particular whether it concerns any of the proven killings Case No IT-95-11-T 97 12 June 2007 259 Annex I to the Indictment lists the following persons as civilian victims killed in Škabrnja on 18 November 1991 however the evidence shows that they were “Croat defenders” Vladimir Horvat Nediljko Juri Ga par Perica Marko Rogi Nediljko kara and Stanko Vickovi 777 260 Following the attack on Škabrnja some civilians remained in the village 778 In December 1991 there were JNA soldiers in the village and machine-gun nests in the houses along the roads 779 The evidence shows that a TO brigade under JNA command was stationed in the village 780 Bo ko Brki returned numerous times in secret to Škabrnja to visit his parents Mate Brki and Josipa Brki who had remained in the village 781 Kata Perica Marija Bilaver Anica Pavi ic and Eva Pavi i would come to his parents’ house every evening to sleep 782 At some point after December 1991 Boško Brkić was unable to see his parents due to the situation in the village 783 His parents told him that every day “Chetniks” would come to them and both threaten and pretend to protect them 784 The “Chetniks” had long beards and wore uniforms with “Chetnik insignia” 785 By mid-January 1992 there were only a few JNA soldiers in the village however about 50 to 70 soldiers with “SAO Krajina” and White Eagle insignia on their camouflage uniforms were guarding and patrolling the village 786 On 11 March 1992 Anica Pavi ić and Eva Pavi ić 775 Neither of these persons is listed in Annex I to the Indictment The Trial Chamber recalls its findings regarding the interpretation of the Indictment see supra section I C and that it will consequently consider these victims for a conviction Regarding Petar Rogić Ex 825 ERN 0469-0722 listed as killed Ex 377 p 12 listed as tortured and beaten to death on 18 November 1991 in Benkovac Regarding Miljenko Šegarić Ex 377 p 4 listed as a “Croat defender” and captured tortured and beaten to death in Benkovac 776 Milka Žilić is not listed in Annex I to the Indictment The Trial Chamber recalls its findings regarding the interpretation of the Indictment para 13 Ex 825 ERN 0469-0722 Ex 377 p 13 listing her as “Croat civilian” 777 Regarding Vladimir Horvat Ex 336 Autopsy report killed by gunshots including by a shot to the head inflicted at point-blank range Ex 825 ERN 0469-0702 Ex 377 p 2 listing him as a “Croat defender” Ex 323 p 9 Ex 323 p 9 Ex 302 Regarding Nediljko Juri Ex 349 Autopsy report killed by several gunshots from a distance of more than one metre Ex 825 ERN 0469-0704 Ex 377 pp 2-3 listing him as a “Croat defender” Ex 323 p 9 Ex 302 Regarding Ga par Perica Ex 348 Autopsy report killed by several gunshot wounds including two shots to the head inflicted from a close range Ex 825 ERN 0469-0704 Ex 377 p 3 listing him as a “Croat defender” Ex 302 Regarding Marko Rogi Ex 340 Autopsy report killed by several gunshots including one to the head inflicted at point-blank range Ex 825 ERN 0469-0702 Ex 377 p 4 listing him as a “Croat defender” Ex 323 p 9 Ex 302 Regarding Nediljko kara Ex 341 Autopsy report killed by several gunshots from a distance of more than one metre and by blast wounds Ex 825 ERN 0469-0704 Ex 377 p 5 listing him as a “Croat defender” Ex 323 p 9 Ex 302 Regarding Stanko Vickovi Ex 337 Autopsy report killed by several gunshot wounds from a distance of more than one metre including by a shot to the head which was the fatal wound Ex 825 ERN 0469-0702 Ex 377 p 5 listing him as a “Croat defender” Ex 323 p 9 Ex 302 778 Marko Miljanić 29 Mar 2006 T 2877 Bo ko Brki Ex 275 p 2 779 Bo ko Brki Ex 275 p 3 780 Zoran Lakić 30 Oct 2006 T 10289 781 Mate Brkić was confined to a wheelchair as the result of a stroke Bo ko Brki Ex 275 pp 2-3 782 Bo ko Brki Ex 275 p 3 783 Bo ko Brki Ex 275 p 3 784 Bo ko Brki Ex 275 p 3 also stating that his parents told him that the JNA soldiers had told them that they should be careful as “the Chetniks” would kill them 785 Bo ko Brki Ex 275 p 3 also stating that his parents recognised two local Serbs among them 786 Bo ko Brki Ex 275 p 3 Case No IT-95-11-T 98 12 June 2007 came to the house and found Marija Bilaver Mate Brki Josipa Brki and Kata Perica dead on the floor 787 261 The evidence shows that killings occurred from 18 November 1991 until 11 March 1992 788 In 1996 26 bodies were exhumed from a mass grave site near the school in Škabrnja 789 In addition to the four victims just mentioned the exhumed bodies were identified as Grgo Bilaver Peka Bilaver Šime Bilaver Ana Brkić Kata Brkić born 1935 Kata Brkić born 1939 Marija Brkić born 1906 Mijat Brkić Luka Čičak Jure Erlić Dumica Gospić Ljubomir Ivković Neđelko Ivković Tereza Ivković Jela Jurić Simica Jurjević Mirko Kardum Grgica Ražov Marko Ražov Simo Ražov Pera Škara Božo Stura and Draginja Stura 790 787 Bo ko Brki Ex 275 pp 2-3 also stating that Anica Pavi ić and Eva Pavi ić immediately fled to Prkos where they told Bo ko Brki what had happened The Trial Chamber notes that the period listed in the Indictment for the killings in kabrnja after 18 November 1991 is until and including February 1992 and that these killings took place in March 1992 However the Trial Chamber finds that the Defence was put on notice through the inclusion of these names in Annex I to the Indictment and the summary of Boško Brkić’s evidence in the Prosecution’s 65 ter submission of 7 May 2004 which specifically describes this incident and connects it with Count 1 Persecutions Count 2 Extermination and Counts 3 and 4 Murder The Trial Chamber notes that Mate Brkić is listed as Mato Brkić in Annex I to the Indictment The autopsy report of the victims provide that they wore civilian clothes at the time of their death Mate Brki Ex 373 body no 6 Josipa Brki Ex 374 body no 7 Kata Perica Ex 374 body no 9 Marija Bilaver Ex 373 body no 8 Moreover Ex 377 also lists all four victims as civilians See also Ex 302 Ex 323 788 Ex 305 Ex 377 The Trial Chamber also notes that Ex 107 p 7 16 provides for 10 December 1991 “in kabrnja TO members kill one elderly person each day” and for 15 February 1992 “ a nother dead body in the village of kabrnja” 789 Ivan Gruji 10 Apr 2006 T 3477-3479 Davor Strinović 12 Apr 2006 T 3670-3671 Ex 305 Ex 373 Ex 374 Ex 1042 Tab 2 Ex 1043 Tab 2 DVD 5 p 1 790 Grgo Bilaver Ex 305 pp 15-16 killed by a gunshot to the chest See also Ex 302 Ex 323 p 10 Ex 377 p 5 Peka Bilaver Ex 305 pp 19-20 killed by gunshot See also Ex 302 Ex 323 p 10 Ex 377 p 6 Ana Brkić Ex 305 pp 21-22 killed by an explosion See also Ex 302 Ex 323 p 10 Ex 377 p 6 Kata Brkić born 1935 Ex 374 pp 34 killed by gunshot See also Ex 302 Ex 323 p 10 Kata Brkić born 1939 Ex 374 p 6 killed by gunshot to the head See also Ex 302 Ex 323 p 10 Ex 377 p 6 Marija Brkić Ex 373 p 2 killed by gunshot to the thorax and blunt trauma to the head See also Ex 302 Ex 323 p 10 Mijat Brkić Ex 305 pp 6-7 killed by gunshot See also Ex 302 Ex 323 p 10 Ex 377 p 7 Jure Erlić Ex 305 pp 8-9 killed by shrapnel but Ex 377 p 7 provides that he was shot See also Ex 302 Ex 323 p 10 Dumica Gospić Ex 305 pp 18-19 killed by explosion but Ex 377 p 7 provides that she was shot See also Ex 302 Ex 323 p 10 Ljubomir Ivković Ex 374 pp 12-13 killed by shrapnel See also Ex 302 Ex 323 p 10 Ex 377 p 8 Neđelko Ivković Ex 305 pp 11-12 killed by gunshot wounds to the chest The Trial Chamber notes that this victim is listed as a “Croat defender” in Ex 377 p 2 however his body when exhumed was dressed in civilian clothing See also Ex 302 Ex 323 p 10 Tereza Ivković Ex 373 pp 5-6 killed by a blow to the head with a sharp instrument See also Ex 302 Ex 323 p 10 Ex 377 p 8 Simica Jurjević Ex 305 p 9 compression of the head and thorax The Trial Chamber notes that Ex 377 p 9 provides that this victim was run over by a heavy vehicle See also Ex 302 Ex 323 p 10 Mirko Kardum Ex 305 pp 2-3 killed by shrapnel See also Ex 302 Ex 323 p 10 Ex 377 p 9 Simo Ražov Ex 305 pp 17-18 killed by gunshot to the head The Trial Chamber notes that Ex 377 p 11 lists a victim called Šime Ražov born 1938 which is the same birth year as listed in Ex 305 for Simo Ražov The Trial Chamber notes that Annex I to the Indictment lists a Šime Ražov born 1938 and concludes that this is the same person as listed in Ex 305 and Ex 377 See also Ex 302 Ex 323 p 10 Grgica Ražov Ex 305 pp 12-14 killed by gunshot to the head See also Ex 302 Ex 323 p 10 Ex 377 p 10 Marko Ražov Ex 305 pp 14-15 killed by gunshot to the head See also Ex 302 Ex 323 pp 10 Ex 377 p 11 Pera Škara Ex 374 pp 10-11 killed by shrapnel See also Ex 302 Ex 323 p 10 Ex 377 p 13 Božo Stura Ex 374 pp 6-7 killed by blows to the head with a sharp instrument See also Ex 302 Ex 323 p 10 Draginja Stura Ex 373 p 3 killed by multiple gunshot wounds See also Ex 302 Ex 323 p 10 Regarding Šime Bilaver Luka Čičak and Jela Jurić The Trial Chamber notes that Šime Bilaver and Luka Čičak are recorded as having died of natural causes Ex 373 p 5 and Ex 305 pp 5-6 respectively This evidence is therefore not relevant and will not be considered for a conviction Jela Jurić is recorded as having been killed by shrapnel Ex 305 pp 4-5 Ex 825 ERN 0469-0702 The Trial Chamber notes that this victim is not listed in Annex I to the Indictment and recalls its findings regarding the interpretation of the Indictment see supra section I C The Trial Chamber concludes that the Defence has not been on sufficient notice regarding this victim Case No IT-95-11-T 99 12 June 2007 f Investigations into the events in Škabrnja and Nadin on 18 and 19 November 1991 262 On 20 November 1991 the JNA Naval Military District in Split on the request of the European Community Monitoring Mission asked the JNA 9th Corps command to provide a report by the following day on the killings in Škabrnja and Nadin on 18 and 19 November 1991 791 There is evidence that an on-site investigation was carried out in cooperation with the Benkovac SJB 792 The 180th Motorised Brigade conducted interviews although not pursuant to superior orders 793 Following the interviews reports were sent to the JNA 9th Corps command 794 g Destruction in kabrnja and Nadin 263 As noted above during the attack on 18 and 19 November 1991 cluster bombs were dropped on Škabrnja with resulting damage to buildings Moreover private houses and the school were shot at by tanks and with hand-held rockets and the church of the Assumption of the Virgin was also shot at by a tank 795 Marko Miljanić testified that by 19 November 1991 30 to 40% of the houses in Škabrnja had been “destroyed” and that also the church of the Assumption of the Virgin and the school had been “destroyed” 796 The Trial Chamber notes that the only evidence of destruction of this church on 18 or 19 November 1991 is that a tank fired at the bell tower 797 As noted above “soldiers” entered this church and fired their weapons 798 Furthermore looting was committed by local Serbs and Serb paramilitaries 799 There is also evidence that volunteers from Serbia and BiH who were joined to the Benkovac TO participated during the attack on Škabrnja and that they looted and robbed 800 264 After the attack on Škabrnja and until February 1992 Serb paramilitary forces and local Serbs looted and burnt houses in Škabrnja 801 The evidence is inconclusive as to when Škabrnja was destroyed 802 However by 1994 about 90 to 95% of Škabrnja was destroyed and the church of St 791 Ex 60 On 23 November 1991 the JNA handed over 35 bodies from kabrnja to the Civilian Protection of the Zadar Biograd Benkovac and Obrovac municipalities By 5 December 1991 a further 13 bodies from Škabrnja and Nadin had been received from the JNA Ivan Jeli Ex 825 pp 2-3 and attached documents 792 Zoran Lakić 27 Oct 2006 T 10254 Marko Miljanić 29 Mar 2006 T 2881 30 Mar 2006 T 2914 2927 Ex 270 793 Ex 109 Ex 116 Ex 117 Ex 118 Ex 411 Ex 615 The Trial Chamber notes that Ex 116 Ex 117 Ex 118 Ex 411 Ex 614 and Ex 615 contain the names of alleged perpetrators of killings However the Trial Chamber finds that the evidence is insufficient to link any of the named persons to the above-mentioned killings in Škabrnja and Nadin on 18 and 19 November 1991 794 Witness MM-080 8 Jun 2006 T 5270-5271 5279-5280 795 See supra paras 236 241 796 Marko Miljanić 30 Mar 2006 T 2925 Neven Šegarić 29 Mar 2006 T 2848 describing the school as ”blown up” and ”torched” The Trial Chamber recalls that a JNA tank fired in the direction of the school see supra para 241 797 See infra para 395 798 See supra para 241 799 Ex 107 p 3 Ex 922 p 7 Bo ko Brki Ex 275 p 3 800 Ex 616 pp 2 13-14 It is also alleged that these persons committed killings of unidentified individuals id at p 2 801 Bo ko Brki Ex 275 p 3 Ex 107 p 3 Ex 984 Annex 9 802 Zoran Laki 30 Oct 2006 T 10294-10295 10303 testifying that in November 1992 Škabrnja was no more damaged than it had been one year earlier and that the damage was not as shown in Ex 271 and Ex 272 but that there Case No IT-95-11-T 100 12 June 2007 Mary in Ambar and the church of St Luke near the centre of Škabrnja were badly damaged 803 By October or November 1995 all the houses in Škabrnja and the church of the Assumption of the Virgin had been destroyed 804 By 1996 the church as well as the houses in Nadin had been looted destroyed and burnt down 805 5 Bru ka 265 Bru ka is located about 15 kilometres east of Benkovac 806 In 1991 about 400 people lived there and the village was predominantly Croat 807 Marinovi i is a hamlet in Bru ka comprising of eight houses which in 1991 was inhabited by Croats 808 266 From the spring of 1991 there was a Croatian reserve police force in Bru ka however they did not have regular shifts uniforms or weapons 809 The “Militia Krajina Martic’s police” set up barricades which cut off the bus line between Zadar and Benkovac 810 Armed men identifying themselves as “Martic’s men” or “Martic’s Militia” came to Bru ka almost every day to scare the inhabitants 811 The armed men called the villagers Ustašas and said that Bru ka would be a part of a Greater Serbia and that the people of Bru ka should leave 812 However as of December 1991 almost all of the inhabitants of Bru ka were still living there 813 267 On the evening of 21 December 1991 Ante Marinovi was at home playing cards with his brother Du an Marinovi his father Roko Marinovi his uncle Petar Marinovi and Sveto Drača 814 Ante Marinovi ’s grandfather and Ljilja Marinovi the wife of Du an Marinovi were upstairs with two children of theirs Jure and Donja and with the children of Sveto Drača and Soka was damage to roofs of houses from mortar shells and holes in the walls of buildings made by artillery and tank fire ibid Zoran Laki testified that the kind of extensive damage to buildings in Škabrnja shown in the photographs may have occurred in 1993 or 1994 following Croatian attacks on the municipalities of Benkovac Obrovac Gracac and partly Knin ibid Boško Brkić stated that by December 1992 Škabrnja had been completely destroyed Boško Brkić Ex 275 p 4 803 Marko Miljani 30 Mar 2006 T 2925 testifying that houses had been blown up with explosives and razed to the ground rather than having been hit by shells 2926 804 Neven Šegarić 29 Mar 2006 T 2848 2851 Luka Brki 5 Apr 2006 T 3290 805 Witness MM-083 16 Jun 2006 T 5747 testifying to the taking of a tractor and furniture and appliances 806 Jasna Denona 9 Feb 2006 T 1293 Ex 23 p 25 See also Ex 1042 Tab 2 Ex 1043 Tab 2 DVD 5 pp 22-41 Ex 1044 807 Ex 301 p 6 states that there were 474 inhabitants in Bru ka and that 89 54% were Croats and 10 46% were Serbs Jasna Denona 9 Feb 2006 T 1269 Ante Marinović 23 Mar 2006 T 2472 808 Jasna Denona 9 Feb 2006 T 1269 The villages surrounding Bru ka are Medviđa Zelengrad Karin Brgud Bjeline and Kalanja Draga Zelengrad Karin Brgud and Kalanja Draga were Serb Medviđa was half-Serb and halfCroat and Bjeline was 20% Croat and 80% Serb Ante Marinović 23 Mar 2006 T 2472-2473 809 Ante Marinović 23 Mar 2006 T 2471 2492 810 Jasna Denona 9 Feb 2006 T 1270 1305 811 Ante Marinović 23 Mar 2006 T 2493 T 2479-2480 2498 also testifying that these men mostly came from Medviđa Ante Marinović further testified that they would say “You have no business here This is Serb You can go away ” and would call the people Ustašas telling them that Bru ka would be a part of a Greater Serbia ibid 812 Ante Marinović 23 Mar 2006 T 2480 testifying that the villagers of Bru ka were not armed and thus could not protect themselves 813 Ante Marinović 23 Mar 2006 T 2480 Case No IT-95-11-T 101 12 June 2007 Drača 815 The men were not armed and were dressed in civilian clothes except Sveto Drača who was a Serb member of the JNA and who was wearing an olive-drab uniform 816 Although Ante Marinovi was a reserve police officer at the time he was not on active duty that night 817 268 At around 2000 or 2030 hours three members of the Milicija Krajine barged into the house took the men outside lined them up against a wall and started shooting 818 Du an Marinovi and Roko Marinovi were killed and Ante Marinovi was wounded 819 Sveto Drača and Petar Marinovi ran away but were chased and killed near the gate 820 269 The same evening Jasna Denona was in her family home which was close to Roko Marinović’s house with her mother and her neighbours Soka and Dragan Marinovi 821 Jasna Denona her mother and Dragan Marinovi were Croats and Soka was a Serb 822 At about the same time as the Milicija Krajine came to Roko Marinović’s house men identifying themselves as the Milicija Krajine and as “Marti ’s men” came to the door 823 Dragan Marinovi went to answer the door 824 The women fled out into the garden and across a wall 825 As they were running Jasna Denona heard one of the men shout “they got away” after which the men started shooting at them and Jasna Denona was hit 826 Her mother came back and helped her move behind a wall in the vineyard where they hid together with Jeka and Soka for about two hours 827 Jeka then went to check what was happening in the house closest to them which was the house of Roko Marinovi 828 They followed her and saw that at the gate of the yard she had found the dead body of her husband 814 Ante Marinović 23 Mar 2006 T 2481-2483 2498 Ex 1042 Tab 2 Ex 1043 Tab 2 DVD 5 pp 32-41 Ante Marinović 23 Mar 2006 T 2481 Jasna Denona 9 Feb 2006 T 1291 816 Ante Marinović 23 Mar 2006 T 2481-2482 Jasna Denona 9 Feb 2006 T 1290 817 Ante Marinović 23 Mar 2006 T 2481-2482 818 Ante Marinović 23 Mar 2006 T 2482-2484 at T 2483 testifying that they had “Milicija Krajine” on the sleeves of their uniforms 819 Ante Marinović 23 Mar 2006 T 2484 Ante Marinovi was shot seven times twice in the left thigh or above the left thigh twice in the arm twice above the right hip and once in the hand Ante Marinović 23 Mar 2006 T 2484 See also Ex 370 p 2 Jasna Denona 9 Feb 2006 T 1274-1275 With respect to Du an Marinovi and Roko Marinovi see Ex 370 also indicating that they wore civilian clothes Ex 323 p 8 indicating that they were killed by gunshot See also Ex 302 Ex 378 820 Ante Marinović 23 Mar 2006 T 2484 821 Jasna Denona 9 Feb 2006 T 1270-1271 Ex 1042 Tab 2 Ex 1043 Tab 2 DVD 5 pp 22-31 822 Jasna Denona 9 Feb 2006 T 1271 823 Jasna Denona 9 Feb 2006 T 1271-1272 1281 824 Jasna Denona 9 Feb 2006 T 1272 1286 testifying that he was 23 years old 825 Jasna Denona 9 Feb 2006 T 1272 826 Jasna Denona 9 Feb 2006 T 1272-1273 1276-1277 Today she has 50% disability with her right arm being much weaker than her left arm as well as being disfigured id at T 1279 827 Jasna Denona 9 Feb 2006 T 1273 828 Jasna Denona 9 Feb 2006 T 1273-1274 815 Case No IT-95-11-T 102 12 June 2007 Petar Marinovi and of her neighbour Sveto Drača 829 In the front yard she had found the dead bodies of Roko Marinovi and his son Du an Marinovi 830 270 Joso Marinovi came to the house and told them that both his son Dragan Marinovi and his wife Ika Marinovi had been killed 831 Later that night Dusan Drača the father of Sveto Drača came and told them that there were four more dead bodies in Marinovići 832 The following morning they discovered that the dead bodies belonged to Krsto Marinovi Draginja Marinovi his wife Stana Marinovi and her mother-in-law Manda Marinovi 833 Jasna Denona’s mother and neighbour Kata saw their bodies and told her that they had been shot and that their bodies were “bullet riddled” 834 271 The next day at 1800 hours an ambulance arrived with a policewoman from Benkovac who interviewed Jasna Denona about what had happened 835 272 There were investigations into the killings in Bru ka A JNA report from 11 March 1992 and one on 4 April 1992 confirmed that there were killings in Bru ka on 21 December 1991 and indicate that the killings may have been motivated by revenge by a named individual 836 There was also an on-site investigation team from Benkovac an investigative judge and people from the SJB involved in the investigation at Bru ka 837 273 By 1995 most of Bruška had been destroyed 838 829 Jasna Denona 9 Feb 2006 T 1274 With respect to Petar Marinovi Ex 369 which also provides that he wore civilian clothes Ex 323 p 8 providing that he was killed by gunshots See also Ex 302 Ex 378 As regards Sveto Drača Ex 302 The Trial Chamber notes that no autopsy report has been provided concerning Sveto Drača 830 Jasna Denona 9 Feb 2006 T 1274 831 Jasna Denona 9 Feb 2006 T 1275 Ex 372 also stating that they wore civilian clothes Ex 323 p 8 stating that they were killed by gunshot See also Ex 302 Ex 378 832 Jasna Denona 9 Feb 2006 T 1275 833 Jasna Denona 9 Feb 2006 T 1275 834 Jasna Denona 9 Feb 2006 T 1275 Ex 369 regarding Krsto Marinovi Draginja Marinovi Ex 371 regarding Stana Marinovi and Manda Marinovi Ex 323 p 8 providing that they were killed by gunshot Ex 369 and Ex 371 also indicate that all the four victims wore civilian clothes See also Ex 302 Ex 378 835 Jasna Denona 9 Feb 2006 T 1277-1278 836 Ex 403 dated 11 March 1992 pp 2-3 see also Imra Agoti Ex 398 T 23277-23278 MM-096 22 Aug 2006 T 6901 Ex 404 p 2 in the report the author states that he believed this information to be true and that it was from a reliable source ibid 837 MM-080 8 Jun 2006 T 5281-5282 5318 See also Ex 617 Ex 618 Jasna Denona was interviewed by Benkovac police Ex 134 Jasna Denona 9 Feb 2006 T 1281-1284 Witness MM-096 testified that there was information that the perpetrators were Serbs but “Nobody said specifically the SAO Krajina Police ” Witness MM-096 24 Aug 2006 T 7092 7095-7096 See also MM-080 8 Jun 2006 T 5318 Neither MM-080 nor Jasna Denona ever heard of anyone having been punished for the killings in Bru ka on 21 December 1991 Jasna Denona 9 Feb 2006 T 1281 MM-080 8 Jun 2006 T 5318 838 Ante Marinović 23 Mar 2006 T 2509 Jasna Denona 9 Feb 2006 T 1279-1280 1307 Case No IT-95-11-T 103 12 June 2007 E Detention-related crimes 1 SJB in Titova Korenica 274 The SJB in Titova Korenica which was subordinated to the SUP in Knin was used as a detention facility 839 The facility consisted of three cells 840 At the facility there were Milicija Krajine as well as persons in camouflage uniforms and JNA uniforms 841 275 Vlado Vukovi a Croatian policeman was detained at the SJB for approximately ten days together with Ignjac Ivanus an SJB commander from Zagorje and Nikola Pemper 842 He was never informed why he was arrested and detained rather his captors “would just say vulgar words and that the Republic of Croatia would cost us dearly” 843 On several occasions while detained at the SJB Vlado Vukovi was beaten by people who referred to themselves as “Marti ’s men” and by people wearing camouflage uniforms and by “the JNA in olive-drab uniforms” 844 During the beatings members of the Milicija Krajine were present but did nothing to stop the beatings 845 On one occasion Vlado Vukovi was cut on the face 846 276 The Trial Chamber has also received evidence of the detention of a Croat civilian named Milan Pavli for about 15 days and of Perica Bićani and Ivica Bićani both members of the Poljanak civilian protection force for nine months and one month respectively All three were severely mistreated at the SJB 847 839 Vlado Vukovi 27 Mar 2006 T 2669 MM-096 21 Aug 2006 T 6829 6831-6832 The Trial Chamber notes that prior to his detention in Titova Korenica Vlado Vuković had been detained in the Pla ki SJB where he was mistreated and beaten by men who referred to themselves as “Marti ’s men” see Vlado Vuković 27 Mar 2006 T 2665-2667 However the Trial Chamber notes that as the detention facility in Pla ki SJB is not listed in paragraph 39 of the Indictment it considers that the Defence was not put on notice of this detention In this regard the Trial Chamber recalls its finding regarding the interpretation of the Indictment See supra section I C See also Ex 1042 Tab 2 Ex 1043 Tab 2 DVD 2 pp 15-16 Ex 1044 Map of Titova Korenica area 840 Vlado Vukovi 27 Mar 2006 T 2669-2670 Vlado Vukovi was however not able to see whether there were other people detained in the other cells of the SJB ibid 841 Vlado Vukovi 27 Mar 2006 T 2669 2712 842 Vlado Vukovi 27 Mar 2006 T 2679 2674 The Trial Chamber notes that there is no evidence that Nikola Pemper was mistreated at the Titova Korenica SJB 843 Vlado Vukovi 27 Mar 2006 T 2669 T 2672 2674 844 Vlado Vukovi 27 Mar 2006 T 2712-2713 845 Vlado Vukovi 27 Mar 2006 T 2671-2672 846 Vlado Vukovi 27 Mar 2006 T 2671-2672 Vlado Vukovi was subsequently transferred to the Željeva military airport in Biha where he was beaten by people wearing the uniforms of the Military Police On 28 October 1991 Vlado Vukovi was transferred to a hangar at the military training ground in Manja a BiH On 9 November 1991 he was exchanged in Slavonski and Bosanski Samac Vlado Vukovi 27 Mar 2006 T 2672-2674 847 Marica Vukovi 22 Mar 2006 T 2418-2419 2422-2423 also testifying that Milan Pavlić sustained a broken nose and “a broken head” and that Perica Bićanić lost approximately half his body weight and was very traumatised The Trial Chamber notes the evidence of Ivan Grujić that between 1991 and 1995 there were 22 prisoners detained in “Plaški-Korenica” and 5 persons detained at “Korenica” Ex 300 p 10 The Trial Chamber is unable to draw any conclusions based on Ivan Grujić’s evidence in this respect Case No IT-95-11-T 104 12 June 2007 2 Detention facilities in Benkovac 848 277 On 14 October 1991 Ivan Atelj and ime a i were arrested in Zagrad by a member of the “Marti ’s police” and taken to the SJB in Benkovac 849 While being questioned they were threatened and beaten After 19 days of detention Ivan Atelj and ime a i were moved to the old hospital in Knin in the latter’s case on the order of Milan Martić 850 278 Following the attack on Škabrnja on 18 November 1991 around 40 inhabitants including the village guard Luka Brkić the three children Tomislav egari Tomislav Gurlica and Marin Juri were taken to a kindergarten in Benkovac across the street from the JNA barracks 851 During the night more people were brought there 852 They were interrogated by JNA soldiers 853 The next morning Tomislav egari Tomislav Gurlica and Marin Juri were taken to the “communal store” in Biljani northwest of Benkovac where they were subjected to insults and threats all day by “Chetniks” 854 Toward the evening they were driven back to the kindergarten at that time the other detainees were gone 855 On 20 November 1991 they were released a short distance from the Croat village of Pristeg 856 3 Detention facilities in Knin 279 There were two detention facilities in Knin one at the barracks of the JNA 9th Corps and one at the old hospital 857 The evidence shows that between 1991 and 1995 between 650 and 700 were detained in Knin 858 848 The Indictment does not refer to detention facilities in Benkovac specifically However the Trial Chamber notes that the Prosecution Pre-Trial Brief para 50 contains a reference to detention of the non-Serb male population in Benkovac and Knin Moreover the Trial Chamber notes that the 65 ter summaries of Neven Šegarić Tomislav Šegarić and Luka Brkić refer to detention in Benkovac Lastly the Trial Chamber notes that the Defence called Witness MM096 who testified inter alia about detention in the Benkovac SJB 849 Ex 959 pp 1-4 Witness MM-090 testified that Šime Čačić was “taken prisoner as a prisoner of war” Witness MM090 4 Sep 2006 T 7667 Immediately after their arrest Ivan Atelj and ime a i were beaten and a third person was shot in the leg At the Benkovac SJB ime a i and Ivan Atelj were tied to a bench They were questioned by Bo ko Dra i the Chief of the Benkovac SJB about Croatian army positions in Nadin and other places near Zadar as well as weapons used by the Croatian army Ivan Atelj was beaten after every question and he was also threatened with a knife to his throat The detainees were beaten and kicked with boots fists and wooden sticks in the face and other parts of the body They were not allowed to wash despite their being covered in blood Ivan Atelj named several persons as being involved in the beatings and interrogations including Bo ko Dra i 850 Ex 959 p 4 Ex 529 851 Luka Brki 5 Apr 2006 T 3225-3226 3252 7 Apr 2006 T 3390 Tomislav egari Ex 826 p 4 The Trial Chamber notes that it heard hearsay evidence that a man named Davor Luki was detained at the barracks in Benkovac or at the Benkovac SJB Witness MM-096 25 Aug 2006 T 7179-7180 852 Tomislav egari Ex 826 p 4 853 Tomislav egari Ex 826 p 4 Apart from the JNA soldiers there were Serbs paramilitaries wearing different kinds of uniforms including some with an insignia with four Cyrillic “S” Tomislav egari believes that most of them were local Serbs Tomislav egari Ex 826 pp 4-6 854 One person held a knife to Tomislav egari ’s neck Tomislav egari Ex 826 pp 4-5 855 Tomislav egari Ex 826 p 5 856 Tomislav egari Ex 826 p 5 857 Milan Babi 20 Feb 2006 T 1616 Ex 8 p 3 Mladen Lon ar 12 Jun 2006 T 5435 Case No IT-95-11-T 105 12 June 2007 a Detention at the JNA 9th Corps barracks 280 The barracks of the JNA 9th Corps is a large complex which includes several buildings a heliport and some warehouses 859 281 On 19 November 1991 Luka Brki Ante “Neno” Gurlica and Marin Gurlica were brought by truck to the JNA barracks in Knin by men wearing JNA uniforms 860 While they were taken to the barracks they were beaten and verbally abused 861 282 Luka Brki was detained at various locations at the JNA barracks with between 8 and 17 people ranging from 30 to 80 years old 862 The detainees were severely beaten for at least twenty days 863 The detainees did not receive medical treatment 864 there was insufficient food and water 865 and there were no sanitary facilities 866 283 Luka Brki was also detained at the sports hall of the barracks with between 75 and 200 people mostly Croats 867 The detainees were occasionally severely beaten 868 There were limited sanitary facilities and a 200-litre barrel next to the door that was used to urinate in 869 Ratko Mladić the then-Commander of the 9th Corps twice visited the detainees at the sports hall 870 Ratko Mladić taunted them saying “if you don't do what you are told … your fate will be the same as the fate of the inhabitants from Škabrnja ” 871 The detainees were “displayed as Ustashas” and made to “take an oath for the King and the fatherland the Serbian fatherland” 872 858 Ex 300 p 10 Ex 008 p 3 See also Mladen Lon ar 12 Jun 2006 T 5435 Ex 841 pp 92-93 Ex 922 p 15 Luka Brki 5 Apr 2006 T 3266-3267 See also Ex 1042 Tab 2 Ex 1043 Tab 2 DVD 4 pp 3-17 860 Luka Brki 5 Apr 2006 T 3264-3266 861 Luka Brki 5 Apr 2006 T 3264 862 Luka Brki 5 Apr 2006 T 3251 3264 3268-3269 3289 7 Apr 2006 T 3407 Ex 286 Ex 287 The Trial Chamber notes among others Ante “Neno” Gurlica Marin Gurlica a civilian named Petar Gurlica and a man named Jero Jere Miskovi who was born 1912 863 Luka Brki 5 Apr 2006 T 3271-3272 “In those rooms they beat us severely I couldn't stand up So somebody could help me stand up If I was lying down I couldn't stand up If I was sitting I couldn't get up from the chair There was a vet who was there for 15 days He couldn’t sleep so he helped me For 20 days I slept standing up If I lied down I couldn't stand up Everything was wet on the ground It would freeze So it was very difficult” Then they were taken to another location on the premises of the barracks where they were beaten Luka Brki 5 Apr 2006 T 3267 864 Luka Brki 5 Apr 2006 T 3269 3272 testifying also that Jere Misković had a bad leg “His leg was falling apart He had thrombosis ” 865 Luka Brki 5 Apr 2006 T 3270-3271 testifying that during the first three days they did not receive any water that the amount of drinking water they later received was limited and that they did not have any water to wash themselves 866 Luka Brki 5 Apr 2006 T 3270 testifying that they tore up a coat that belonged to Petar Gurlica and used it as toilet paper that the detainees used a 30-litre bucket instead of a bathroom and that some persons who were in a state of delirium defecated next to the door and other detainees had to clean up after them The detained were provided with one blanket each and had to sleep on the concrete floor ibid 867 Luka Brki 5 Apr 2006 T 3272 3274 7 Apr 2006 T 3430-3431 868 Luka Brki 5 Apr 2006 T 3272 3274-3275 869 Luka Brki 5 Apr 2006 T 3274-3275 870 Luka Brki 5 Apr 2006 T 3274-3275 871 Luka Brki 5 Apr 2006 T 3275 872 Luka Brki 5 Apr 2006 T 3264 3267-3268 859 Case No IT-95-11-T 106 12 June 2007 284 While being detained in the JNA barracks in addition to JNA soldiers Luka Brkić saw soldiers wearing SAO Krajina insignia and the White Eagles “Beli Orlovi” insignia 873 b Detention facility at the old hospital in Knin 285 In early 1991 a detention facility was established on the premises of the old hospital in the centre of Knin 874 This facility was sometimes referred to as “Marti ’s prison” and the “District Prison” 875 A section of the hospital was used as a dormitory by “Captain Dragan’s men and members of the JNA reserve force” 876 From the summer of 1991 the Ministry of Justice of the SAO Krajina took over control of the old hospital from the TO and hired professional guards 877 On 28 September 1992 the Assembly of the RSK formally established the District Prison in Knin 878 286 On 2 October 1991 Stanko Ersti was arrested in Medviđa near Bruška by the Milicija Krajine and brought to the old hospital in Knin 879 He was detained with another 120 prisoners all non-Serbs from Croat or mixed villages in the Krajina region 880 Except for 20 members of the ZNG who had been captured during the fighting in Kijevo all detainees were Croat civilians 881 He was detained in a room with approximately 12 people 882 In his view “all the guards were paramilitary and part of ‘Marti ’s militia’” 883 He testified to haing seen Ratko Mladi at the old hospital 884 On 2 November Stanko Erstić and approximately 100 non-Serb prisoners were exchanged for approximately 60 Serb prisoners 885 Twenty Croats from Lika remained in the prison 886 Members of “Special Military Police Unit” dressed in JNA uniforms took them to the 873 Luka Brki 5 Apr 2006 T 3243-3244 3273 7 Apr 2006 T 3407 Later on Luka Brkić heard that “there were all sorts of people there Martić's men and others” id at T 3407 874 Witness MM-090 29 Aug 2006 T 7382-7383 30 Aug 2006 T 7428-7429 Luka Brki 5 Apr 2006 T 3277 3283 The establishment took several months Witness MM-090 29 Aug 2006 T 7381 See also Ex 1042 Tab 2 Ex 1043 Tab 2 DVD 3 pp 20-67 and DVD 4 pp 1-3 875 Luka Brki 5 Apr 2006 T 3276-3277 7 Apr 2006 T 3408 Witness MM-90 30 Aug 2006 T 7428 Stevo Plejo 20 Sep 2006 T 8724 876 Stanko Ersti Ex 392 T 24972 Stevo Plejo 22 Sep 2006 T 8900 877 Stevo Plejo 20 Sep 2006 T 8725 Witness MM-090 4 Sep 2006 T 7658-7659 Milan Babi 20 Feb 2006 T 1612-1613 See also Ex 906 As of 17 August 1991 a total of 15 people were employed at the old hospital Ex 906 pp 10-19 By October 1992 approximately 30 people were listed as employees of the prison Ex 903 The 15 people who started work on 17 August 1991 were all still employed at that time Ex 923 pp 1-2 7 878 Ex 906 pp 10-19 Ex 923 pp 1-2 879 Stanko Ersti 26 Apr 2006 T 3873 3875-3877 Ex 396 p 3 880 Stanko Ersti 26 Apr 2006 T 3874 Stanko Ersti Ex 396 p 4 Stanko Ersti Ex 392 T 24996-24997 881 Stanko Ersti Ex 396 p 4 Stanko Ersti Ex 392 T 24996 After the establishment of the Prisoner Exchange Commission the JNA would bring prisoners of war to be temporarily held at the old hospital until the time of their exchange Witness MM-090 4 Sep 2006 T 7674-7675 Ivan Atelj shared his cell with Denis Dr a a Serb who was beaten and accused of being a “Serbian traitor” Ex 959 p 5 882 Stanko Ersti Ex 392 T 24980 883 Stanko Ersti Ex 396 p 3 884 Stanko Ersti Ex 396 p 3 Stanko Ersti Ex 392 T 24972 885 Stanko Ersti 26 Apr 2006 T 3874-3875 Ex 392 T 24973 Ex 959 pp 4-5 The Trial Chamber notes that Stevo Plejo has disputed the veracity of this document Stevo Plejo 22 Sep 2006 T 8884 The Trial Chamber notes that this document contains an Official Note which was written on 3 May 1992 and that much of the information therein is corroborated by other evidence 886 Stanko Ersti Ex 392 T 24982 Case No IT-95-11-T 107 12 June 2007 JNA barracks in Knin where they were loaded onto buses Afterwards they were driven to Pakovo Selo where buses from the Croatian side picked them up 887 287 Luka Brki was brought to the old hospital from the JNA barracks in Knin 888 In his opinion “it was the police or the army who operated there ” 889 He also saw another 30 prisoners brought to the old hospital the day he arrived 890 Luka Brkić was detained in a small room together with nine people 891 After approximately 12 days he was transferred to the ground floor of another wing of the old hospital which was under the control of the JNA There he joined the people who had initially been detained with him at the JNA 9th Corps barracks 892 288 The detainees were threatened and beaten every day for long periods often by several guards at a time using rifle butts truncheons and wooden staves 893 The detainees were interrogated and also beaten by shift commanders 894 The detainees also had cocked revolvers pressed against their temples were beaten on their kidneys until they were swollen and were denied the use of toilet facilities 895 They were forced to drink urine and to clean toilets with their bare hands 896 They had their heads forced into toilets 897 They also had their personal belongings stolen 898 There is evidence of sexual abuse of some detainees 899 and that detainees were subjected to sleep deprivation 900 There was insufficient food 901 The detainees were verbally abused by the guards who said things like “the Croatian nation has to be destroyed” “all Croats have to be killed Split and Zadar are burning Šibenik will burn as well” 902 On one occasion Vojislav Šešelj visited the old hospital and insulted the detainees asking them “how many Serbian children they slaughtered how many mothers” 903 887 Stanko Erstić Ex 392 T 24972-24973 26 Apr 2006 T 3874-3875 Luka Brki 5 Apr 2006 T 3252 3266 3276-3277 7 Apr 2006 T 3390 3408 889 Luka Brki 7 Apr 2006 T 3439 890 Luka Brki 5 Apr 2006 T 3279-3280 3285 See also Ex 518 p 4 Ex 286 891 Luka Brkić 5 Apr 2006 T 3279 7 Apr 2006 T 3438 892 Luka Brki 5 Apr 2006 T 3282-3283 893 Stanko Ersti Ex 392 T 24971 24980 24983 Ex 959 p 5 Luka Brki 5 Apr 2006 T 3280-3281 testifying that he was dragged into the hallway several times where he was beaten by four or five men and that the beatings became more frequent as it became known that the detainees were going to be exchanged 894 Ex 959 p 5 See also Ex 919 under number 209 H Ex 286 p 1 Ex 287 p 1 895 Ex 984 pp 23-24 896 Ex 984 pp 23-24 897 Ex 984 pp 23-24 898 Ex 984 pp 23-24 899 Former detainees reported that detainees were sexually abused through forced mutual oral sex or oral sex with prison guards and mutual masturbation Ex 984 p 24 See also Luka Brki 5 Apr 2006 T 3283 testifying that he heard that there had been attempts to rape men in the room next to his 900 Ex 392 T 24980 24983 Ex 959 p 5 Ex 984 pp 23-24 901 Stanko Ersti Ex 392 T 24980 24983 Ex 959 p 5 Ex 984 p 23-24 reporting that detainees had inadequate food being fed only three eggs a day and that one former detainee lost over twenty kilograms during his detention 902 Stanko Erstić Ex 396 p 4 903 Ex 959 p 7 888 Case No IT-95-11-T 108 12 June 2007 289 “Marti ’s police” wearing blue uniforms carried out beatings together with people in camouflage uniforms 904 Ivan Atelj who was also detained and beaten at the old hospital stated that while Stevo Plejo and Jovica Novakovi were in charge of the old hospital prison they “allowed beatings of prisoners by civilians Serbian prisoners ‘Marti ’s Special Forces members’ and all others who wanted to beat them ” 905 290 From his mistreatment in detention Luka Brki sustained permanent injuries to his stomach and contracted Hepatitis B He is still receiving medical treatment 906 Stanko Ersti sustained two broken ribs and one cracked rib while Ivan Atelj sustained three broken ribs and injuries to his spine 907 291 On at least one occasion the leadership of the prison was informed that detainees had been mistreated by guards Disciplinary measures were taken against the responsible guards 908 However the guards were not removed from the prison but were only suspended and reinstated later 909 292 The International Committee of the Red Cross “ICRC” was allowed to visit the detainees at the old hospital 910 During the visits some prisoners did not dare to tell the ICRC representatives that they were being beaten for fear of being “really beaten up” The detainees who had been badly beaten and seriously injured were transferred to other rooms where the ICRC representatives could not visit them 911 293 As of August 1991 any detainee held at the old hospital was supposed to be detained on the basis of a decision by a judge 912 There is no evidence that Luka Brki or Stanko Ersti were ever charged with any crime or that they were brought before a judge or military panel to assess the legality of their detention However Ivan Atelj stated that he was charged and that the indictment 904 Luka Brki 5 Apr 2006 T 3280-3283 also testifying that a member of the “Marti ’s police” was the most violent during the beatings Luka Brki knew some of the members of the “Marti ’s police” He specifically mentions the “Grahovac brothers from Smilj i i” Djuro from Plavno and Momir Čupa ibid The Trial Chamber further notes that a Kazimir Graovac from Smilj i i is listed on Ex 906 Employee list old hospital May 1993 p 13 The Trial Chamber notes that Momo Čupa and Kazimir Grahovac are mentioned as guards at the prison by Ivan Atelj Ex 959 p 6 905 Ex 959 p 5 Although Stevo Plejo testified that as soon as professional guards started working in the old hospital they were able to prevent anyone entering the prison Stevo Plejo 21 Sep 2006 T 8811 The Trial Chamber does not find this piece of testimony credible in light of the surrounding evidence See also Luka Brkić 5 Apr 2006 T 32803281 testifying that people came from outside of the old hospital to beat detainees 906 Luka Brki 5 Apr 2006 T 3291 907 Stanko Ersti Ex 392 T 24971 Ex 959 p 5 908 Witness MM-090 29 Aug 2006 T 7386-7387 30 Aug 2006 T 7432 Stevo Plejo 20 Sep 2006 T 8735-8737 909 Stevo Plejo 22 Sep 2006 T 8849-8850 Stevo Plejo testified that he had asked Risto Matkovi the then-Minister of Justice to replace Jovica Novakovi because Novakovi had been present when guards were “slapping prisoners about in his presence” and had done nothing about that Jovica Novakovi was suspended and later reinstated in a lower position Stevo Plejo 20 Sep 2006 T 8730-8733 8742 Ex 905 Ex 923 910 Stanko Ersti Ex 392 T 24981 Stevo Plejo 20 Sep 2006 T 8737-8738 Witness MM-090 29 Aug 2006 T 73867387 911 Stanko Ersti Ex 392 T 24981 25000 912 Witness MM-090 4 Sep 2006 T 7674-7675 Case No IT-95-11-T 109 12 June 2007 was presented to him verbally but he was not brought before a judge 913 Denis Dr a the Serb cellmate of Ivan Atelj was released on 11 February 1992 by a decision of the Knin District Court 914 Out of approximately 300 detainees at the old hospital between mid-1991 and mid-1992 only 13 people were released upon the decision of a court 915 294 In October 1991 Milan Marti was seen in the prison wearing a camouflage uniform with the insignia of the Milicija Krajine 916 F Crimes of deportation and forcible transfer 295 In addition to evidence of displacement of the Croat population in the SAO Krajina and RSK discussed above the Trial Chamber notes the following evidence concerning deportation and forcible transfer 917 296 Beginning in 1990 Croat businesses and properties were blown up in Knin and there was constant pressure on the local Croat population 918 From around April 1991 discriminatory policies were applied against Croats and Croat houses in the Knin area were searched for weapons 919 Following the fighting in the Hrvatska Kostajnica Knin and Glina areas in August 1991 Croat civilians began to leave their homes to go to Zagreb Sisak and other places 920 297 Due to the situation prevailing in the Knin area the Croat population began to fear for their safety and began requesting authorisation from the RSK authorities to leave the RSK territory 921 The insecurity of the Croats was also aggravated by speeches of Milan Martić on the radio that he could not guarantee their safety particularly in the area of Knin 922 As a result in the period between 1992 and 1993 the RSK police directed the Croat population towards Croat settlements 913 Ex 959 p 7 Ex 919 under no 240 S 915 Ex 919 also providing that one detainee was handed over to the Military Police on orders of the Public Prosecutor ibid under nr 202 S See also Ex 895 pp 10-11 a Human Rights Watch Report according to which in August 1991 the Knin prison held 51 prisoners to be exchanged and none of whom had been charged or provided with a defence attorney 916 Stanko Ersti 26 Apr 2006 T 3869-3870 In this respect the Trial Chamber recalls the evidence that on 12 December 1991 a meeting was held between Milan Martić and chiefs of SJBs during which it was mentioned that in “Krajina prisons in Korenica Glina Vrgin Most Slunj and Knin” there were 128 persons detained mostly members of the ZNG and the Croatian MUP Ex 518 p 4 report signed by Milan Martić 917 See supra paras 167 177 180 186 189 202 209 212 222 228 236-237 239 242 918 Witness MM-078 24 May 2006 T 4461-4462 919 Milan Babi 16 Feb 2006 T 1418 Witness MM-078 24 May 2006 T 4461-4462 25 May 2006 T 4521 See also Witness MM-096 24 Aug 2006 T 7067 7072-7073 920 Nikola Dobrijević 13 Nov 2006 T 10977 Ex 1017 providing that in August 1991 there were 650 displaced people in Zagreb who were mostly from Glina and Knin that most people from Glina had gone to Velica Gorica that all of Kostajnica had been “evacuated” and some 2 500 had fled to Bosanski Novi and to Zagreb See also Milan Babi 17 Feb 2006 T 1572-1574 20 Feb 2006 T 1598 921 Witness MM-117 13 Oct 2006 T 9399 922 Witness MM-078 25 May 2006 T 4518 914 Case No IT-95-11-T 110 12 June 2007 near Knin such as Vrpolje and Kninsko Polje 923 In Vrpolje which was five kilometres north of Knin a cultural centre was used as a gathering point for Croats who had requested authorisation to leave the RSK 924 The Knin police secured the area at the cultural centre 925 The conditions there were poor and the Croats were not free to leave but had to wait for an agreement to be reached between the RSK Government international organisations and the Croatian authorities before they could be transferred 926 The police from Knin organised and escorted bus convoys from Vrpolje to Šibenik and across Lika to Karlobag 927 298 A decision on the conditions upon which Croats and other nationalities could return to the RSK was adopted by the RSK government on 21 April 1992 928 However in September 1992 UNPROFOR reported that “it might be unrealistic to carry out any return of displaced persons in the forthcoming future” due to the likelihood of hostile acts being carried out against returning Croats 929 299 There is considerable evidence that similar displacement of the Croat population as a result of harassment and intimidation occurred elsewhere in the SAO Krajina and subsequently RSK territory and continued until the end of 1994 930 The evidence shows that harrassment and 923 Milan Babi 20 Feb 2006 T 1646-1647 Ex 897 providing that “local Milicija” guarded residents of the village of Vrpolje who had been forced to leave their homes and that the Milicija had three buses to transport the Croats to territories under Croatian control but that this had not been done as confirmation had not been received that the Croatian side was ready to receive them See also Witness MM-096 25 Aug 2006 T 7153 924 Milan Babi 20 Feb 2006 T 1647 MM-078 24 May 2006 T 4460-4461 Croats would travel to Vrpolje in their own vehicles and were accommodated at the cultural centre for up to three days Witness MM-078 24 May 2006 T 4460-4461 25 May 2006 T 4545-4546 4468 Ex 729 providing that Vrpolje was a “safe haven” for the Croats See also Ex 1042 Tab 2 Ex 1043 Tab 2 DVD 4 pp 27-31 Ex 1044 925 Witness MM-078 25 May 2006 T 4465 4519-4520 also testifying that the police assisted the Croats in leaving the RSK ibid T 4465 See also Witness MM-117 13 Oct 2006 T 9399 926 Witness MM-078 25 May 2006 T 4468 testifying that the Croats were provided with blankets and only small quantities of food 927 Witness MM-078 25 May 2006 T 4468 928 Ex 758 Charles Kirudja 31 May 2006 T 4872-4873 929 Ex 731 p 3 930 Witness MM-078 24 May 2006 T 4460-4461 25 May 2006 T 4466 Witness MM-096 22 Aug 2006 T 69146917 testifying that Croats who were afraid for their lives were put up in schools and other public buildings in Benkovac by the municipality Crisis Staff which organised a convoy that was escorted by the RSK police until the confrontation line in Zemunik Milan Babi 20 Feb 2006 T 1598 Ex 551 p 1 providing that by April 1992 there were almost no Croats left in Glina Ex 726 listing in summary form 497 crimes committed against the Croat population in Sector South and reporting on five instances of forced evictions of Croats and subsequent transfer to Croatia of one of the victims Ex 729 p 1 providing that over 100 Croats had left their homes in the Medvida area and were living in caves fields and forests that around 50 Croats had filed requests with the civil police in Drniš to leave Ex 736 providing that 10 Croats were transferred from Medvida to the Croat side on 2 October 1992 that 16 Croats were transferred to the Croat side on 16 October 1992 from Medviđa Kruševo and Obrovac and that during one month 155 applications to leave the RSK territory had been received in Benkovac Ex 761 reporting on the expulsion of 5 Croats from Ličko Petrovo Selo dated 16 July 1992 see also Charles Kirudja 31 May 2006 T 4879-4880 Ex 762 p 3 reporting the expulsion by “a group of uniformed persons” of 12 Croats from the village Korana in the municipality of Korenica see also Charles Kirudja 31 May 2006 T 4882-4883 Ex 865 p 25 reporting that before being granted permission to leave Sector South the Croats were forced to sign a statement that their departure was voluntary Ex 971 p 3 providing that 16 persons from Podlapac had expressed a wish to be transferred to Croatia Ex 985 pp 4-5 reporting that Croat families were gathered from their houses and transported by bus to areas outside the UNPAs See also Ex 75 p 5 reporting that the non-Serb population in Sector North was “very small” Case No IT-95-11-T 111 12 June 2007 intimidation of the Croat population was carried out on a large scale by the police and by local Serbs in the territory 931 On 14 June 1993 Milan Martić met with Cedric Thornberry the UNPROFOR Director of Civil Affairs concerning inter alia the issue of Croats who wanted to leave the RSK During the meeting Milan Martić requested that Croats who wished to leave the RSK sign statements that no one had put pressure on them to leave and that these statements bear the signature of either Cedric Thornberry or another United Nations representative Cedric Thornberry agreed to these requests 932 300 The RSK authorities cooperated with the authorities in Bosanski Novi BiH regarding the displacement of the non-Serb population from that municipality 933 There is evidence that the RSK MUP was to be involved in providing security for an organised “safe departure” of Muslims and other non-Serbs in the direction of Croatia Slovenia Austria and Germany in July 1992 934 301 In June 1993 the RSK population was 433 595 citizens the ethnic break-down of which was 92% Serbs 7% Croats and 2% others 935 The Prosecution expert Ivan Grujić testified that 220 338 persons of non-Serb ethnicity were forcibly expelled “in the aggression against the Republic of Croatia” 936 Ivan Grujić was unable to explain with certainty how many of these persons were expelled from the territories which comprised the SAO Krajina and later the RSK 937 The Trial Chamber therefore finds that it cannot rely on the evidence of Ivan Grujić to determine 931 Witness MM-079 3 Apr 2006 T 3111 testifying that “ s everal people said that Marti 's policemen went door-todoor telling people to leave Knin that is the SAO Krajina” John McElligott 26 May 2006 T 4581 4614-4615 Ex 728 p 3 providing also that in the month of October 1992 five Croats were murdered and that houses vacated by Croats have been burned down Ex 731 reporting that “the Serb side” is building up a climate of threat and fear of aggression out of ongoing incidents that the “ Militia is expanding ethnic cleansing systematically” and that the “Serb side” warned against returning Croats without RSK consent because “the recent acts against Croatians here can be considered as indication of what would happen on larger scale” Ex 732 listing incidents of murder destruction and intimidation of Croats in the Benkovac Borovac and Knin areas by the local police Ex 734 letter reporting on beating and robbing of elderly and helpless people in the Vrlika area by members of the “Militia” Ex 736 listing a number of incidents of violence including murders theft and destruction aimed at Croats in Korenica Zaluznica Knin Vrlika Benkovac Ex 738 providing that many Croats wanted to leave the UNPA due to not feeling safe Ex 757 p 3 providing that in Sector North by July 1992 about 22 000 Croats were listed as “Missing Displaced” See also Ex 75 Ex 866 Ex 985 932 Ex 965 p 8 933 Ex 752 Ex 753 Ex 754 Ex 755 Ex 756 Ex 757 p 7 Charles Kirudja testified that during the first organised convoy directed to Croatia up to 8 000 Bosnian Muslims were expelled He explained that the Muslims were not leaving voluntarily Charles Kirudja 31 May 2006 T 4849 4857-4863 4871 934 Ex 754 935 Ex 178 ERN 0113-2359 This is further broken down by area Eastern Slavonia Western Srem and Baranja 95% Serbs 4% Croats 1% others Banija 97% Serbs 2% Croats 1% others Kordun 98% Serbs 2% Croats Lika 93% Serbs 5% Croats 2% others Northern Dalmatia 90% Serbs 10% Croats and Western Slavonia 73% Serbs 25% Croats 2% others see ERN 0113-2360 Witness MM-096 testified that by 1994 “quite a lot of inhabitants had left the territory of the RSK” 25 Aug 2006 T 7139 See also Witness MM-090 4 Sep 2006 T 7703-7704 936 Ex 291 pp 18-19 937 Ivan Grujić 12 Apr 2006 T 3597 testifying that he provided the Trial Chamber “with numbers that apply to the existing current division into counties in Croatia ” and “basically it covers the SAO Krajina municipalities as well Counties were partly occupied and the people recorded as expelled were expelled solely from these occupied territories ” Case No IT-95-11-T 112 12 June 2007 the exact number of persons of Croat and other non-Serb ethnicities who left the territory of the SAO Krajina and RSK during the period of the Indictment G Attacks on Zagreb on 2 and 3 May 1995 1 “Operation Flash” 302 In the early morning hours of 1 May 1995 armed forces of Croatia launched a military offensive known as Operation Flash 938 The Trial Chamber has been provided conflicting evidence as to the purpose of this operation There is evidence that the purpose was to take control over Western Slavonia Sector West 939 There is evidence that the operation was Croatia’s response to Milan Martić’s decision to close the Zagreb-Belgrade motorway 940 There is also evidence that Croatia planned its attack long before the closure 941 Two Croatian guard brigades one regular HV brigade and special police forces were involved in the operation 942 Negotiations to find a peaceful settlement took place during the operation 943 and agreements were reached on 3 May 1995 944 Operation Flash ended around 4 May 1995 with the RSK losing control over Western Slavonia 945 A large part of the Serb population fled the area of Western Slavonia 946 938 Veljko Džakula 16 Jan 2006 T 381 Milan Babi 21 Feb 2006 T 1659 Peter Galbraith 25 Apr 2006 T 38053806 Mile Dakić 26 Oct 2006 T 10082 939 Peter Galbraith 25 Apr 2006 T 3805-3806 Mile Daki 25 Oct 2006 T 10058 See also Ex 99 p 6 940 Milan Babi 21 Feb 2006 T 1660-1661 Peter Galbraith 25 Apr 2006 T 3805-3806 Ex 933 p 5 On 28 April 1995 a Serb was killed at one of the rest areas on the motorway just outside Sector West and in retaliation local Serbs fired on motorists inside that Sector and Milan Marti decided to close down the motorway Peter Galbraith 25 Apr 2006 T 3805-3806 Mile Daki 25 Oct 2006 T 10058 Ex 933 p 2 Ex 99 p 4 Milan Babi stated that during negotiations it was already agreed that the motorway would be reopened but Milan Marti discarded that possibility and said he would not allow that to happen Milan Babi 21 Feb 2006 T 1667 Documentary evidence presented to the Trial Chamber corroborated Milan Marti ’s refusal to open the motorway even though it was ready to be reopened Ex 789 p 5 Ex 233 intercepted telephone conversation p 5 Ex 789 and Ex 233 are the same intercepted conversation Ex 99 p 5 941 In his book titled “All My Battles” Janko Bobetko Chief of the Main Staff of the Croatian Army during Operation Flash wrote that the initial operation was planned on 5 December 1994 and completed on 4 May 1995 as part of the overall plan of preparations for the final operations by the Croatian Army of what would later become “Operation Storm” Ex 931 pp 8 9-12 17 Slobodan Peri 6 Sep 2006 T 7846-7847 7849 See also Ex 933 p 27 Ex 934 pp 1-3 The Croatian military command warned UNPROFOR in advance about the Operation during the morning of 1 May 1995 Reynaud Theunens 3 Feb 2006 T 1087 Slobodan Peri 6 Sep 2006 T 7845 Ex 930 942 Reynaud Theunens 3 Feb 2006 T 1081 943 Witness MM-117 13 Oct 2006 T 9402-9403 The Serb delegation asked for a cessation of hostilities to become effective immediately at midnight on 1 May 1995 but this was rejected by the Croatian side Witness MM-117 13 Oct 2006 T 9406 944 On 3 May 1995 members of the international community met in Knin to agree on the text of the agreement which was accepted by both the Serbs and the Croats that same day Witness MM-117 13 Oct 2006 T 9408-9409 It was agreed that military activities would cease and thereafter UNPROFOR forces would be in a position to act in the area Witness MM-117 17 Oct 2006 T 9596 On 3 May the Serbian delegation in Geneva accepted the entire offer of the international community for the resolution of the crisis in the relations between the Republic of the Serbian Krajina and Croatia Witness MM-117 18 Oct 2006 T 9650-9651 See also Ex 112 Ex 935 945 Milan Babi 21 Feb 2006 T 1660-1661 Veljko Džakula 18 Jan 2006 T 568 Peter Galbraith 25 Apr 2006 T 3820 Slobodan Peri 6 Sep 2006 T 7848 See also Ex 99 p 14 Ex 112 946 Witness MM-117 13 Oct 2006 T 9401-9402 Reynaud Theunens 3 Feb 2006 T 1097 Ex 99 p 14 According to Witness MM-003 the entire Serb population was expelled from Western Slavonia Witness MM-003 10 Mar 2006 T 2170-2171 Slobodan Peri stated that 20 000 people left the area Slobodan Peri 6 Sep 2006 T 7866 See also Veljko Case No IT-95-11-T 113 12 June 2007 2 Shelling of Zagreb a 1 May 1995 – Preparation for attack 303 On 1 May 1995 a meeting was held between inter alia Milan Marti the Chief of the SVK Main Staff General Milan eleketi the Prime Minister and ministers of the RSK government The meeting concerned the proposal of the Supreme Defence Council to deal with the situation which had arisen in Western Slavonia resulting from Operation Flash during the morning that day The evidence shows that both peaceful solutions involving negotiations and a surrender of parts of Western Slavonia and non-peaceful solutions were discussed and that Milan Marti Milan eleketi and the most senior officers of the SVK Main Staff were in favour of the latter 947 At 1300 hours on 1 May 1995 Milan Čeleketić in the presence of inter alia Milan Marti ordered artillery fire on Sisak south-east of Zagreb 948 The evidence shows that the reason for the attack was “to retaliate against the HV who had carried out an aggression on the Western Slavonia ” 949 Artillery fire was opened at 1700 on 1 May 1995 950 304 On 1 May 1995 Milan Čeleketić ordered the M-87 Orkan unit of the SVK to “be alert and ready for engagement on his order” and directed them to march from the Knin area to take up positions in Vojnić 50 kilometres south of Zagreb by 1400 hours that day 951 b 2 May 1995 305 In the mid-morning on 2 May 1995 952 without warning 953 Orkan rockets hit Zagreb 954 Rockets struck the centre of the city including Strossmayer Square Matica Hrvatska Street Džakula 18 Jan 2006 T 571-572 testifying that there were about 1 250 victims Ivan Gruji 12 Apr 2006 T 3633 that 168 persons were killed during Operation Flash Rade Ra eta 3 May 2006 T 3970-3971 testifying that there were about 100 victims Slobodan Peri 6 Sep 2006 T 7866 7 Sep 2006 T 7947-7948 testifying that the number of identified victims was 284 including 77 elderly 30 women and 10 children but that the total number of killed during Operation Flash was 1 200 947 Rade Rašeta 2 May 2006 T 3932-3933 3940 Ex 95 948 Rade Ra eta 2 May 2006 T 3930-3931 Ex 93 provides that “members of the Supreme Defence Council” were present when the order was given However Rade Ra eta who was present testified that it was a meeting of Milan Čeleketić and his closest associates his “collegium” Rade Ra eta 2 May 2006 T 3930 Milan Čeleketić was appointed Commander of the Main Staff of the SVK by Milan Martić on 22 February 1994 Ex 80 Ex 83 949 Ex 93 950 Ex 93 951 Ex 92 The M-87 Orkan is a self-propelled long-range multiple rocket launching system Ex 7 p 38 Jo ef Poje 6 Jun 2006 T 5123 See infra section IV B 4 b In 1995 the Orkan rocket launchers were subordinated to Commander Lieutenant General Čeleketi as Chief of the Main Staff of the SVK Rade Ra eta 2 May 2006 T 3935 Jo ef Poje 6 Jun 2006 T 5110-5111 The evidence also shows that the use of the Orkan was subject to the approval of the commander of the Main Staff of the SVK Jo ef Poje 6 Jun 2006 T 5112-5113 Ex 781 p 11 p 25 Ex 780 p 13 Ex 7 pp 62-63 952 Peter Galbraith 25 Apr 2006 T 3769 Branko Lazarevi 14 Jun 2006 T 5624 Aleksandra Szekely Ex 824 p 2 953 Branko Lazarevi 14 Jun 2006 T 5623 15 Jun 2006 T 5715 Peter Galbraith 25 Apr 2006 T 3762 Sanja Risovi 14 Jun 2006 T 5577 Ra eljka Grmoja 19 Jun 2006 T 5784 Mina @unac 20 Jun 2006 T 5810-5811 954 Ex 95 p 3 wherein on 2 May 1995 Rade Ra eta informed his counterparts in the VJ that the SVK fired eight rockets from “an Orkan multiple rocket launcher on the Banski Dvori Presidential Palace the Ministry of Defence and Case No IT-95-11-T 114 12 June 2007 Petrinjska Street Boskovi eva Street and Mrazovi eva Street as well as Dra kovi eva Street the intersection of Vla ka and Dra kovi eva Streets and a school building in Kri ani eva Street the village of Ple o near Zagreb Ple o airport 955 and the airport itself 956 306 Five persons were killed during these rocket attacks The body of Damir Dra i was found lying on the sidewalk at Vla ka Street 957 Ana Muteveli was killed when a tram was hit at the intersection of Dra kovi eva and Vla ka Streets 958 The body of Stjepan Krhen was found in the courtyard of No 41 Vla ka Street 959 Ivanka Kova died at the trauma clinic in Dra koviceva Street from the injuries she sustained some 700 metres from the hospital 960 Ivan Brodar was injured on Dra kovi eva Street and died as a result of his injuries on 3 May 1995 961 307 A number of witnesses who were injured during the shelling of Zagreb on 2 May 1995 testified before the Trial Chamber many of whom still suffer from the injuries sustained on that day Sanja Buntić was injured in Strossmayer Square 962 She received injuries to her head and legs 963 Aleksandra Szekely was injured while waiting at the intersection of Bo kovićeva- Pleso airport” Ex 303 Ex 94 p 2 indicating that on 2 May 1995 UNPROFOR heard 5 rockets being fired from Glina and it was assessed that these were the Orkans which impacted in Zagreb 955 Branko Lazarevi 15 Jun 2006 T 5656-5657 14 Jun 2006 T 5629 Ivan Mikul i 14 Jun 2006 T 5598 56175618 Ex 805 Ex 1043 T 3-11 Ple o village is around 500 meters from Zagreb Ple o Airport Ivan Mikul i 14 Jun 2006 T 5597 5608 See also Ex 1042 Tab 2 Ex 1043 Tab 2 DVD 1 pp 3-11 pp 12-16 pp 18-31 956 Branko Lazarevi 14 Jun 2006 T 5629 The Trial Chamber heard testimony that while the official name of the airport was “Zagreb” it was locally referred to as “Ple o” Ivan Mikul i 14 Jun 2006 T 5607 Ex 810 shows the damage inside the perimeter of Zagreb Ple o Airport See also Ex 1042 Tab 2 Ex 1043 Tab 2 DVD 1 pp 1-2 957 Ex 805 Plan 2 No 2 See also Ex 799 p 46 p 81 Branko Lazarevi 14 Jun 2006 T 5634 15 Jun 2006 T 5700 His injuries were sustained while he was in his car Ex 805 Plan 2 marked with a number 3 Branko Lazarevi 15 Jun 2006 T 5666-5667 An exhibit shows the body of Damir Dra i Ex 386 F-53 and F-54 Branko Lazarevi 15 Jun 2006 T 5673-5674 See also Ex 383 at 8 min 8 sec Branko Lazarevi 14 Jun 2006 T 5627 958 Branko Lazarevi 15 Jun 2006 T 5658 Ana Muteveli was killed while on a tram Branko Lazarevi 14 Jun 2006 T 5634 See also Ex 799 p 81 Branko Lazarevi 15 Jun 2006 T 5700 Ex 805 Plan 2 marked with a number 1 indicates the location where the body of Ana Muteveli was found Branko Lazarević 15 Jun 2006 T 5666 Ex 386 F-35 and F-36 show her body Branko Lazarevi 14 Jun 2006 T 5626 15 Jun 2006 T 5671 See also Ex 383 at 7 min 41 sec Ex 804 at the location marked in the map as number 1 Branko Lazarevi 15 Jun 2006 T 5658 Ex 386 F-1 shows Dra kovićeva St Mina @unac 20 Jun 2006 T 5825 Ex 386 F-30 shows the intersection of Vla ka and Dra kovi eva streets Mina @unac 20 Jun 2006 T 5825 959 Ex 805 Plan 2 No 3 marks the site where Stjepan Krhen was found during the on-site investigation Branko Lazarevi 15 Jun 2006 T 5667 See also Ex 799 p 81 Branko Lazarević 15 Jun 2006 T 5700 Stjepan Krhen had sustained several injuries on his body on his chest and on his legs and had succumbed to his wounds “immediately” Branko Lazarevi 14 Jun 2006 T 5634-5635 Ex 799 p 47 Ex 386 F-98 and F-99 show Stjepan Krhen Branko Lazarevi 15 Jun 2006 T 5674 960 Branko Lazarevi 14 Jun 2006 T 5635 See also Ex 799 p 81 Branko Lazarevi 15 Jun 2006 T 5700 The cause of her death is indicated as e xplosive wounds of the head of the body and the extremities” Ex 800 Branko Lazarević 14 Jun 2006 T 5639-5640 961 Branko Lazarevi 14 Jun 2006 T 5638-5639 5641 He was aged 77 at the time of the shelling and suffered multiple traumas of the head chest and lower extremities Branko Lazarevi 14 Jun 2006 T 5638-5639 See also Ex 799 p 71 Branko Lazarevi 14 Jun 2006 T 5640-5641 Ex 801 962 Sanja Bunti 19 Jun 2006 T 5761-5763 963 She received injuries to the upper part of both her legs from shrapnel and pellets as well as two pellets which lodged in her head one hitting the bone causing a splinter fracture Sanja Bunti 19 Jun 2006 T 5776-5777 She still has pieces of shrapnel in her liver which require considerable follow-ups she also has constant headaches caused by the shrapnel in her head Sanja Bunti 19 Jun 2006 T 5768-5769 5777 Case No IT-95-11-T 115 12 June 2007 Petrinjska and received injuries to the left side of her body and her left leg 964 Mina @unac was injured in Vla ka Street 965 She received injuries to her leg hip hand and head 966 Ra eljka Grmoja was 17 years old at the time of the rocket attack on Zagreb and was in her school in Kri ani eva Street 967 when she was injured in her shoulder and eye 968 Ivan Mikul i was injured at his house in Ple o village near Zagreb on 2 May 1995 969 and received injuries in his back 970 There is evidence that in total 160 people were injured during the attack on 2 May 1995 971 308 The Trial Chamber finds that as a result of the shelling on 2 May 1995 Ana Muteveli Damir Dra i Stjepan Krhen Ivanka Kova and Ivan Brodar were killed and at least 160 people were injured c 3 May 1995 309 At midday on 3 May 1995 972 Zagreb was again shelled by Orkan rockets 973 on the following locations Ma urani eva Square Marshall Tito Square where the Croatian National Theatre was located and Klaićeva Street Children’s Hospital 974 964 She had received approximately twelve pieces of shrapnel six of which still remain in her body Aleksandra Szekely Ex 824 p 3 965 Mina @unac 20 Jun 2006 T 5811-5812 T 5826 Ex 819 Ex 386 F-50 F-52 966 Mina @unac 20 Jun 2006 T 5819 She sustained serious injuries to her right leg and one part of her foot was amputated Mina @unac 20 Jun 2006 T 5822 She also sustained injuries to her right hand hip and head She spent “all in all” about a year in the hospital Mina @unac 20 Jun 2006 T 5823-5824 Ex 818 photographs showing injuries caused to Mina @unac She still has over 45 pieces of shrapnel in her leg and had seven surgeries during the first couple of months and after that three more Mina @unac 20 Jun 2006 T 5824 She still suffers constant pain and has trouble walking as well as problems with her hand and with writing Mina @unac 20 Jun 2006 T 5827-5830 967 Kri ani eva St School is a ten-minute walk from Ban Jelači square Ra eljka Grmoja 19 Jun 2006 T 5780-5781 968 Ra eljka Grmoja 19 Jun 2006 T 5781-5782 She received shrapnel in her left shoulder and glass in her left eye Ra eljka Grmoja 19 Jun 2006 T 5781-5782 T 5793 Ex 813 Photograph of Kri ani eva Street School marked by Ra eljka Grmoja showing the window where she was injured See also her explanation of this photo Ra eljka Grmoja 19 Jun 2006 T 5785-5787 It took her a month to go back to school and she suffered psychological trauma for a year or two after the event Ra eljka Grmoja 19 Jun 2006 T 5794-5795 969 Ivan Mikul i 14 Jun 2006 T 5598-5599 970 He was injured in his spine and some of the shrapnel remains to this day Ivan Mikul i 14 Jun 2006 T 5600 See also Ex 796 medical report Ex 797 granting him the status of civilian war invalid of group X with 20% permanent disability Ivan Mikul i 14 Jun 2006 T 5601 Ex 798 map on which Ivan Mikul i indicated his house and where cluster bombs had fallen Ex 809 indicates damage caused in Ple o village 971 Ex 799 pp 63-80 Branko Lazarević 15 Jun 2006 T 5700 Of the 146 victims listed as injured in the Indictment for 2 May 1995 Ex 799 contains the names of 144 victims Ex 799 pp 63-80 The Trial Chamber does not find any reason to doubt that 160 people were injured Two persons listed as injured Ines Mali and Stipe Mili evi in Annex II to the Indictment are found neither in this exhibit nor in other evidence See also Ex 303 listing 203 persons wounded and 5 persons killed on 2 and 3 May 1995 of which 7 wounded and 1 killed were “MUP HV” The document states that all of these “MUP HV” were “out of service” the Trial Chamber interprets this in light of the principle of in dubio pro reo as meaning that they were off-duty and not that they were no longer enlisted in the army or police 972 Božica Lisak Ex 822 p 2 Sanja Risović 14 Jun 2006 T 5580 973 Ex 303 Ex 94 p 4 indicating that on 3 May 1995 UNMO heard the firing of rockets approximately from 5 kilometres northeast of Vrginmost and afterwards observed the movement of an M-87 “Orkan” rocket launcher during the same time as the attack against Zagreb 974 Branko Lazarević 15 Jun 2006 T 5648-5649 5659-5660 Ex 805 Rockets also landed in the suburbs Novi Zagreb Čehi and Žitnjak but caused no damage Branko Lazarevi 15 Jun 2006 T 5649 Ex 811 See also Ex 1042 Tab 2 Ex 1043 Tab 2 DVD 1 pp 32-36 Case No IT-95-11-T 116 12 June 2007 310 Two people were killed in this attack Luka Skra i was injured on 3 May 1995 and died in hospital on 6 June 1995 975 Ivan Markulin a bomb disposal technician and police officer died when the bomblet he was trying to deactivate exploded outside Klai eva Street Children’s Hospital 976 311 The Trial Chamber heard evidence from some of those who were injured on 3 May 1995 Sanja Risovi was at Klai eva Street Children’s Hospital with her 4 month-old daughter when she was injured to her shoulders stomach right leg foot and back 977 Shortly after midday 18 people including Božica Lisak were injured when bombs fell through the glass roof of the Croatian National Theatre 978 Božica Lisak was severely injured by 27 pieces of shrapnel 979 Milan Smoljan was injured in his knee by bomblets when he was at Mažurani eva Square near the Croatian National Theatre 980 312 In total 54 persons were injured as a result of the shelling on Zagreb on 3 May 1995 981 313 The Trial Chamber finds that Luka Skra i and Ivan Markulin were killed and that 54 people were injured as a result of the shelling on 3 May 1995 3 Involvement of the RSK leadership in the shelling of Zagreb 314 There is evidence that Milan Martić had considered shelling of Zagreb prior to 2 May 1995 Already in 1992 and 1993 Milan Marti as Minister of the Interior considered attacking Zagreb as 975 Branko Lazarevi 15 Jun 2006 T 5652-5653 5723 Ex 803 containing the autopsy report for Ivan Brodar shows that Luka Skra i had died a violent death as a result of a pneumonia which had developed after having suffered explosive wounds The Exhibit establishes that there was a cause-effect relation between the injuries which Luka Skra i sustained on 3 May 1995 and his subsequent death Branko Lazarevi 15 Jun 2006 T 5653 Ex 802 p 53 indicates that Luka Skra i suffered a blast wound to the head with an alien object lodged in his brain and was in a coma on 3 May 1995 See also Sanja Risovi 14 Jun 2006 T 5595 976 Branko Lazarevi 15 Jun 2006 T 5650-5651 Ex 802 pp 40-41 Ex 387 F-26 is the site where the bomblet exploded in the hands of Ivan Markulin Branko Lazarevi 15 Jun 2006 T 5687 977 Sanja Risović 14 Jun 2006 T 5580-5584 She was wounded in her right shoulder blade and one part of her back muscle had to be removed as well as her shoulder blade Her ribs were fractured and her lungs injured She had shrapnel wedged in her stomach muscle She was also injured in her right leg and left foot Sanja Risović 14 Jun 2006 T 5585 Ex 794 Ex 795 Sanja Risović was in hospital until 16 June 1995 and then at a rehabilitation centre until 10 August 1995 She has had a total of eleven surgical procedures because of her injuries She still spends three weeks of every year in rehabilitation and suffers from rheumatoid arthritis which is aggravated by stress and shock Sanja Risović 14 Jun 2006 T 5586-5588 Sanja Risović also testified that she saw three other injured persons at Klai eva Street Hospital Mirna Kostović Zvonko Bakula and a pregnant lady Sanja Risović 14 Jun 2006 T 5584 5594-5595 Ex 802 pp 57-58 978 Božica Lisak Ex 822 pp 2-3 stating that Božica Lisak Matea Pučko Dubravko Kol ek Barbara Novković and Kri tof Pastor were injured 979 Božica Lisak Ex 822 p 3 Božica Lisak was injured by 27 pieces of shrapnel in her body mostly in her legs and feet and one in her neck She spent four weeks in Vinogradska Hospital in Zagreb and had the casts removed in July and then spent a month in rehabilitation As a result of her injuries Božica Lisak has 50% invalidity ibid 980 Milan Smoljan Ex 823 28 Apr 2004 p 2 He also saw other persons injured and bleeding Milan Smoljan Ex 823 28 Apr 2004 pp 2-3 981 Ex 802 pp 50-57 contains the names of all 48 victims listed in Annex II to the Indictment See also Ex 303 see supra fn 971 Case No IT-95-11-T 117 12 June 2007 a response to Croatian attacks on RSK cities 982 On 9 June 1993 Milan Martić as Minister of the Interior informed Slobodan Milo evi that the P-65 LUNA rocket system had been moved to the area of Banija and Kordun in order to prevent aggression or to carry out possible attacks on Zagreb should RSK towns come under attack 983 315 On 5 September 1994 Ratko Mladi the Commander of the Main Staff of the VRS requested Milan Marti to approve the loan of 15 Orkan rockets in order to manufacture such rockets for the VRS 984 316 In a meeting on 24 October 1994 with Peter Galbraith the United States Ambassador to Croatia Milan Martić threatened to shell Zagreb 985 Milan Marti stated “in effect that attacking civilian targets in Zagreb attacking the city itself was an option a way in which the RSK could respond to … a Croatian attack on the RSK” 986 Peter Galbraith warned Milan Marti that a rocket attack on Zagreb would be a crime 987 317 On 10 February 1995 Milan Martić in a speech to the commanding officers of the SVK stated emphatically that “ n o one can stop us to fire at Zagreb Osijek Vinkovci Zadar Karlovac Split” 988 318 In a newspaper article published in Serbia on 24 March 1995 Milan Čeleketić is reported as stating In the case of the Ustasha aggression we will certainly not miss the opportunity to hit them where it hurts the most We know their weak spots and where it hurts the most Weak points are city squares and we know who goes there – civilians I have already said this and was criticised a little Well now they may ask which squares and in which cities I shall reply that that’s a military secret We shall make a decision about it and I think we will be precise It is hard to say these words because there are as I said civilians in the squares innocent people However if we are in war and we are waging a filthy war for which they are first and foremost to blame then there will be no mercy Not only will we be merciless but as a commander I shall decided sic where 989 we will direct our attacks when and where it hurts the most The Trial Chamber also notes Milan Marti ’s statement on 18 July 1992 that “ i t would be better … for Tu man and his soldiers not to touch us again because that would compel us to head forcefully for Zagreb and to turn it into Vukovar ” Ex 119 p 2 983 Ex 12 p 2 See also Reynaud Theunens 27 Jan 2006 T 808 Further evidence that shelling of Zagreb was considered in 1993 can be seen from a report from the 51st Infantry Brigade Command which states “ u nless Croatia withdraws from occupied territories the following operations will continue hits on Zagreb with large missiles which have not been used yet and which the world does not know of” Ex 89 p 2 984 Ex 475 985 Peter Galbraith 25 Apr 2006 T 3757-3759 986 Peter Galbraith 25 Apr 2006 T 3778 Peter Galbraith also testified that he warned Milan Marti that the RSK would not be able to survive Croatian military action to which Milan Marti responded that the RSK had the ability to defend itself and to attack Zagreb Peter Galbraith 25 Apr 2006 T 3814-3815 987 Peter Galbraith 25 Apr 2006 T 3759 988 Ex 90 p 6 989 Ex 91 p 6 Reynaud Theunens 27 Jan 2006 T 827 In this article Milan Čeleketi refers to Milan Marti as “my supreme commander” Ex 91 p 4 982 Case No IT-95-11-T 118 12 June 2007 319 On 3 May 1995 Milan Marti stated As a counter measure to what Tudjman did to you here we have shelled all their cities Sisak several times and Karlovac Zagreb yesterday and today This was done for you … Today an ultimatum followed if they continue to attack our besieged forces we will continue to attack 990 Zagreb and destroy their cities In a conversation on 3 May 1995 between Slobodan Milo evi and Borisav Mikeli the Prime Minister of the RSK Slobodan Milo evi said that Milan Marti was “boasting about having shelled Zagreb ” 991 320 In a radio interview on 5 May 1995 Milan Martić stated That order was given by me personally as a retaliation to Franjo Tuđman and his staff for the order he had given to commit aggression against the Western Slavonia … 992 At a meeting in Knin on 5 May 1995 with UN Special Envoy Yasushi Akashi Milan Marti stated in response to Yasushi Akashi’s condemnation of the rocket attacks on Zagreb that “ h ad I not ordered the rocket attacks … they would have continued to bomb our cities” 993 Milan Martić threatened to resume the shelling of Zagreb if their conditions were not met and spoke of “massive rocket attacks on Zagreb which would leave 100 000 people dead” 994 In an interview published on 16 May 1995 Milan Martić is reported as saying that he felt justified in ordering the rocket attacks because he was aiming at military installations 995 Milan Martić also appeared on television admitting to having ordered the shelling 996 321 The RSK Commission charged with determining responsibility for the fall of Western Slavonia found that t he course of events in Western Slavonia required of the SVK Main Staff to intervene in order to provide assistance to the 18th Corps … however no opinions were sought from the commanding officers of the SVK Main Staff Decisions were made by the Commander and the President and stances and orders were given on the telephone there are no written orders 997 990 Ex 388 See also Branko Lazarevi 15 Jun 2006 T 5692-5693 Ex 233 p 6 Transcript of intercepted telephone conversation between Slobodan Milo evi and Borisav Mikeli See also Milan Babi 21 Feb 2006 T 1666-1668 992 Ex 389 In an article in Agence France Presse published on 6 May 1995 Milan Martić is reported as saying “I personally gave the order to bombard Zagreb as a response to Croatian President Franjo Tuđman and the Croatian leadership behind the aggression on Western Slavonia and crimes on civilians” Ex 1001 See also Ex 98 993 Ex 97 para 13 As regards the Defence’s argument concerning reprisals see infra section IV B 4 c 994 Ex 97 paras 4 15 995 Ex 390 See infra section IV B 4 c concerning the Defence’s argument on reprisals See also Patrick Barriot 9 Nov 2006 T 10780-10785 Witness MM-117 17 Oct 2006 T 9599-9600 See however Peter Galbraith 25 Apr 2006 T 3778 996 Branko Lazarevi 15 Jun 2006 T 5690-5691 Milan Babi 21 Feb 2006 T 1661 Peter Galbraith testified that in media statements Milan Martić “took credit” for this first day of attacks Peter Galbraith 25 Apr 2006 T 3774 997 Ex 100 para 9 991 Case No IT-95-11-T 119 12 June 2007 Rade Ra eta Chief of Security of the SVK Main Staff confirmed that members of the Main Staff were not consulted about the decision to shell Zagreb 998 The RSK Fact-Finding Commission on the Causes and Manner of the Fall of Western Slavonia found that among those responsible for the fall of Western Slavonia was “President of the RSK Milan Martić for exceeding his authority as set by the constitution by blocking and preventing the work of the Supreme Defence Council” 999 322 Milan eleketi resigned on 15 May 1995 giving as a reason having failed to keep his promise “that not one milimetre of the territory of the RSK ” would be lost 1000 Peter Galbraith testified that following the shelling there was a change in the SVK and that Milan eleketi was replaced He believed that this was as a result of Slobodan Milo evi ’s instructions 1001 H Acts of persecution carried out against non-Serbs in the SAO Krajina and the RSK 323 The Trial Chamber has been presented with considerable evidence that acts of discrimination and intimidation were carried out against the non-Serb population in the SAO Krajina and the RSK during the Indictment period Count 1 of the Indictment charges Milan Martić with a wide range of acts of persecution Many of these are also charged as separate counts in the Indictment and have been dealt with above In addition however the Trial Chamber notes below the following additional evidence 1 1991 324 There is evidence of Croats being killed in 1991 1002 having their property stolen 1003 having their houses burned 1004 that Croat villages and towns were destroyed including churches and religious buildings 1005 and that Croats were arbitrarily dismissed from their jobs 1006 998 Rade Ra eta 2 May 2006 T 3943-3944 commenting on Ex 100 General Čeleketić tried to transfer the order over the phone however the decision “should have been collectively taken We should all have been familiar with the order In this case this went through the closest associates of the commander ” Ibid 999 Ex 99 p 21 1000 Ex 101 The Trial Chamber notes that in his letter of resignation General Čeleketić specifically refers to “our doctrine of reprisal at the chosen vital targets of the combatant” Rade Ra eta 2 May 2006 T 3944-3945 Rade Ra eta was present at a meeting of the Supreme Defence Council when General Milan eleketi informed of his resignation and confirmed the reason for the resignation Rade Ra eta 2 May 2006 T 3930 3 May 2006 T 3973 1001 Peter Galbraith 25 Apr 2006 T 3757 1002 Ex 922 reporting inter alia that between 5 and 14 August 1991 “Serbian paramilitary groups” reportedly killed five Croats from the village of Lovinac Gracac p 3 and on 16 August 1991 four Croatian men were reported to have been killed when they returned to the village of Pečki Vrginmost to feed their livestock the village had been occupied by “Serbian forces” On 13 October 1991 13 people were reported to have been killed in iroka Kula Gospi by a mob led by a “Serbian police officer” and that the “Serbian leader of the local police” ordered the remaining Croats to assemble for evacuation when they assembled “Serbian paramilitary groups” began looting the homes and shot at the villagers The bodies of those who were killed were thrown into their homes which had been set on fire p 4-5 On 16 and 17 December 1991 five civilians were reportedly killed in the village of Jasenice Obrovac pp 10-11 Ex 922 Helsinki Watch Report sent to Slobodan Milo evi and General Blagoje Adži dated 21 January 1992 Marica Vukovi 22 Mar 2006 T 2452-2453 testifying that around a hundred people were killed in the 10 or 15 villages around Vukovi i See also Ex 133 an order from the Glina TO Staff dated 4 October 1991 ordering TO units “when Case No IT-95-11-T 120 12 June 2007 325 A MUP report of 12 December 1991 signed by Milan Martić reported on the collection of trucks passenger vehicles and household items “as war booty from citizens in the war zones and stored in collection centres” 1007 326 Following the fall of Slunj in November 1991 Marinko Mudri reported seeing many burned houses particularly in Rakovica and Slunj including a department store restaurants an SJB and a hotel as well as many private houses He saw “uniformed men and members of the Krajina police in Slunj” as well as “Peić and Željko ‘Buba’ Mudrić ” stealing cars 1008 Police as well as Serb civilians were engaged in looting in the villages of Rakovica Slunj Saborsko and Poljanak 1009 Attacks on Modru ki Sabljaki and Medvedi and Plivelići were led by “Peji and Zelko ‘Buba’ Mudrić accompanied by some 30 of Marti ’s men” who stole tractors and plundered houses before setting them on fire 1010 On 21 November 1991 in Dabar a uniformed group led by Predrag Baklaji killed Stipe Brajkovi raided Croat houses and stole property 1011 2 1992 327 During 1992 on the territory of the RSK there was a continuation of incidents of killings 1012 harassment 1013 robbery beatings burning of houses 1014 theft 1015 and destruction of churches 1016 carried out against the non-Serb population 1017 mopping up the terrain in Glina to spare Pajo Buba and his wife who is a Serb and their house t hey have been verified as loyal people ” 1003 Ex 984 p 19 reports that there was widespread looting around Drni by ‘reservists in JNA uniforms’ Borislav Ðuki testified to requesting measures from the 9th Corps command in Knin to be taken against the looters and that seized looted property was sent to the JNA Knin logistics base Borislav Ðuki 20 Oct 2006 T 9890 Witness MM078 testified that both the army and the police were involved in the looting and that the police would let the trucks with looted goods through check-points Witness MM-078 25 May 2006 T 4533 1004 Marica Vukovi 22 Mar 2006 T 2411 2442 testifying that on 28 August 1991 the village of Rastovaca Nova Gradiska was set on fire by “Serbs” Marko Vukovi testified that after the attack on Grabovac some houses and a motel were torched and burnt as well as the motel Marko Vukovi 24 Mar 2006 T 2634 1005 Witness MM-078 24 May 2006 T 4450 During the attack in September 1991 the centre of Drni was “completely” destroyed Ex 984 para 5 3 p 16 Borislav Ðuki 20 Oct 2006 T 9896 Regarding damage to houses and churches and looting in Kijevo see Witness MM-078 24 May 2006 T 4434-4435 Borislav Ðuki testified that there were no JNA units in Kijevo on 27 August 1991 Borislav Ðuki 20 Oct 2006 T 9885-9886 Witness MM-078 24 May 2006 T 4444 T 4527-4528 Borislav Ðuki 19 Oct 2006 T 9768-9769 Ex 106 Report of Ratko Mladić JNA 9th Corps to General Staff of the SFRY concerning the attack on Kijevo dated 4 October 1991 Milan Babić 17 Feb 2006 T 1559-1560 1006 Ex 895 pp 22-24 1007 Ex 518 p 4 signed by Milan Marti as Minister of the Interior 1008 Ex 507 Official Note on Saborsko Operation dated 7 April 1992 p 5 One of the cars they stole was afterwards in use by the Pla ki SJB ibid 1009 Witness MM-037 29 Mar 2006 T 2821-2822 1010 Ex 507 Official Note on Saborsko Operation dated 7 April 1992 p 6 1011 Ex 561 Report of MUP concerning the activities of Predrag Baklaji dated 14 July 1993 See also Ex 43 a request of the commander of the 2nd Lika TO Brigade to Milan Martić to disband the unit of Predrag Baklajić which had previously been trained in Golubić because it was engaged in looting in November 1991 in Vrhovine near Dabar 1012 On 18 January 1992 the Čengić family were killed in their house in Ervenik Village Knin municipality by three members of the TO The same three perpetrators also set fire to houses sheds and barns in the village Ex 974 see also Witness MM-117 17 Oct 2006 T 9565 T 9559-9560 Ex 732 Ex 75 dated 28 September 1992 Ex 737 reporting Case No IT-95-11-T 121 12 June 2007 3 1993-1995 328 Throughout 1993 there were further reports of killings 1018 intimidation 1019 and theft 1020 By 1995 several Croat villages had been attacked and destroyed including Rakovica 1021 Poljanak Kuselj Saborsko Korana Rastovaca Celiste Smoljanac Dreznik Rakovac Lipovaca Vaganac 1022 Hrvatska Dubica 1023 and Medvi a 1024 I The political objective of the Serb leadership 329 The President of Serbia Slobodan Milo evi publicly supported the preservation of Yugoslavia as a federation of which inter alia the SAO Krajina would form a part 1025 However that in Slunj a Croat was beaten to death and his father beaten into a coma by three persons in local “Milicija” uniforms John McElligott 26 May 2006 T 4606-4607 See also Ex 739 Ex 732 1013 Ex 763 reporting on “a disturbing pattern of abuse harassment and discriminatory treatment of Croats particularly in 7 villages south of Glina town” as well as murders destruction of houses and terrorising of residents by “roaming gangsters” Also reporting on discriminatory distribution of humanitarian aid by the “local red cross” and that buses refused to stop at bus stops See also Charles Kirudja 31 May 2006 T 4885-4886 Ex 739 Ex 728 1014 Ex 732 UNCIVPOL situation report for Sector South dated 29 May 1992 John McElligott 26 May 2006 T 4579 T 4606-4607 Ex 728 Ex 736 1015 Ex 733 reporting that local police officers wearing uniforms with “Serbian Krajina” or “policemen” based in the Vrlika Sinj area were consistently stealing from elderly Croatian people See also Ex 728 1016 Ex 735 dated 2 October 1992 reporting of the destruction by explosives of St Anna’s Church in Zvjerinac which is part of the village of Kosovo south of Knin on 1 October See also John McElligott 26 May 2006 T 4601-4602 4606-4607 Ex 737 UNCIVPOL daily situation report for 6 and 7 November 1992 dated 8 November 1992 1017 See also Ex 75 dated 28 September 1992 UNCIVPOL’s Report for October 1992 lists numerous incidents of killings thefts destruction and looting Ex 736 A United Nations Report on the Human Rights situation in the former Yugoslavia dated 17 November 1992 reports from Sector South that United Nations staff were collecting evidence of murders robberies looting and other forms of criminal violence “often related to ethnic cleansing” Ex 865 United Nations report on the situation of Human Rights in the territory of the former Yugoslavia dated 17 November 1992 paras 78-81 See also Ex 728 Witness MM-117 16 Oct 2006 T 9472-9473 testifying that according to the Ministry of the Interior in 1992 there were 6 000 criminal reports which included looting and to a great extent that Croats were the victims of these crimes Ex 864 Further Report by the Secretary-General of the United Nations to the Security Council pursuant to UN resolution 743 dated 24 November 1992 Ex 727 Ex 726 Reporting on 497 crimes against Croats only in Sector South between August 1992 and May 1993 See also John McElligott 26 May 2006 T 46164617 30 May 2006 T 4731-4732 1018 See Ex 741 Ex 726 Reporting on 497 crimes against Croats only in Sector South between August 1992 and May 1993 John McElligott 26 May 2006 T 4616-4617 30 May 2006 T 4731-4732 UNCIVPOL reported that the Benkovac police had reported between 11 and 17 Croats murdered and one woman raped “in the previous week” Ex 729 Daily Situation Report from UNCIVPOL HQ Sector South dated 22 February 1993 Concerning evidence of rape see also Marica Vukovi 22 Mar 2006 T 2453-2454 Ex 743 reporting on the killing of an elderly Croat woman in Luka-Drage Ex 744 reporting on robbery and assault of Ivica Begi aged 69 by four men in “military uniforms” shooting of Kata Begi and murder of Ana Vracar all being Croats living in Podlapača Titova Korenica on 12 July 1993 and the shooting of Milka Bilusic on 16 Jun 1993 in Ljuboti by four men “dressed in uniforms of soldiers” as well as the beating and murder of Marija Sari from Lukar Drage by “Serbian soldiers” on 7 June 1991 See also MM117 13 Oct 2006 T 9358 1019 See also Ex 729 Ex 743 reporting that “Captain Dragan’s soldiers” harassed an elderly Croat near Bru ka 1020 Ex 743 UNCIVPOL Report for Sector South for June and July 1993 dated July 1993 1021 Vlado Vukovi 27 Mar 2006 T 2675-2676 1022 Marica Vukovi 22 Mar 2006 T 2451 See also Ex 1042 Tab 2 Ex 1043 Tab 2 DVD 2 p 17 Ex 1044 1023 Josip Josipovi 6 Apr 2006 T 3325-3326 1024 Stanko Ersti Ex 392 T 24974 1025 Ex 200 Ex 201 Ex 202 Ex 979 See also Milan Babi 16 Feb 2006 T 1415-1416 testifying that Slobodan Milošević endorsed a “firm type of federation” along with the preservation of the right of self-determination of people who were in majority in an area T 1488-1489 15 Feb 2006 T 1384-1385 2 Mar 2006 T 1781 3 Mar 2006 T 1925 Lazar Macura 14 Sep 2006 T 8326-8327 In this respect the Trial Chamber recalls the evidence concerning the referendum held on 12 May 1991 see supra para 134 Case No IT-95-11-T 122 12 June 2007 Slobodan Milošević covertly intended the creation of a Serb state 1026 Milan Babić testified that Slobodan Milošević intended the creation of such a Serb state through the establishment of paramilitary forces and the provocation of incidents in order to allow for JNA intervention initially with the aim to separate the warring parties but subsequently in order to secure territories envisaged to be part of a future Serb state 1027 In Milan Babić’s view Slobodan Milo evi advocated this political objective from the summer of 1990 until the end of 1991 1028 330 Through the summer of 1991 the objective of the JNA was to protect the Serbs against attacks by Croatian armed formations and prevent occupation of cities under Serb control 1029 At the end of the summer 1991 and coinciding with the attack on Kijevo the JNA became an active participant in Croatia on the side of the SAO Krajina According to the SFRY Federal Secretary for Defence General Veljko Kadijevi the task of the JNA became one of protecting “the Serb people in Croatia in such a way that all regions with a majority Serb population would be completely freed from the presence of the Croatian army and the Croatian authorities” 1030 Veljko Kadijević also noted that among ”the principal ideas” behind the deployment of the JNA during the second phase was “full co-ordination with Serb insurgents in the Serbian Krajina” 1031 331 On 3 October 1991 Veljko Kadijevi stated that the objective of the JNA in the conflict was “to restore control in crisis areas to protect the Serbian population from persecution and annihilation” 1032 On 12 October 1991 General Blagoje Adžić Chief of the General Staff of the JNA stated that the main task of the JNA was to prevent “the spread of interethnic conflicts and the recurrence of genocide against the Serbian people in Croatia ”1033 On 25 October 1991 at a meeting of among others Slobodan Milošević Veljko Kadijević and Blagoje Adžić Slobodan Milošević stated that “we have helped the Serbs in Croatia abundantly and we will continue to do so until the end” 1034 1026 Ex 201 Milan Babi 16 Feb 2006 T 1415-1416 21 Feb 2006 T 1672 Witness MM-117 16 Oct 2006 T 94919497 Mile Daki 25 Oct 2006 T 10025-10026 Ex 1039 Group 13 pp 4-8 1027 Milan Babi 16 Feb 2006 T 1416 17 Feb 2006 T 1572-1574 1028 Milan Babi 2 Mar 2006 T 1806 1029 Milan Babi 17 Feb 2006 T 1503-1506 Ex 476 ERN 03023105 noting that at a meeting on 4 April 1991 Slobodan Milošević Veljko Kadijević Blagoje Adžić and Borisav Jović agreed that “the military will not allow the Croatian police to occupy Knin and other Serb cities which are now under Serb control” Slobodan Peri a lieutenant colonel in the 5th JNA Military District in Zagreb testified that at his “operational level” he did not have the impression that the strategic goal of the JNA was to prepare the Serbs for a war against Croatia or that the JNA was “tasked with preparing the Serb people for their own defence” Slobodan Perić 7 Sep 2006 T 7913 However the Trial Chamber is of the view that at his operational level Slobodan Peri would not have been aware of the specific strategic goal See also Ex 24 p 68 ERN 00362704 Ex 26 1030 Ex 24 p 73 ERN 00362709 See also Ex 27 p 3 1031 Ex 24 pp 73-74 77 ERN 00362709-00362710 00362713 See also Ex 214 Ex 477 Ex 973 1032 Ex 25 p 3 1033 Ex 26 1034 Ex 476 p 358 ERN 03023174 Case No IT-95-11-T 123 12 June 2007 332 Several witnesses explained that the JNA’s role changed because Croatia considered the JNA a hostile army and in September 1991 had ordered the ZNG and police to block and seize JNA facilities across Croatia in order to immobilise the JNA 1035 According to some witnesses the JNA therefore intervened only to defend itself 1036 333 The SAO Krajina and subsequently the RSK leadership endorsed Slobodan Milošević’s vision to create a Serb-dominated state 1037 In early July 1991 Milan Martić stated that the Milicija Krajine were “defending Serbian land and the Serbs’ ethnic area” 1038 Similarly on 19 August 1991 Milan Martić stated that he would accept no autonomy and that “the territories controlled by the police and the Territorial Defence of the Serbian Autonomous Region of Krajina will forever remain Serbian” 1039 Milan Babić embraced the same view stating on 5 September 1991 that “the Serbs are recognised in every part of Yugoslav State territory as a nation which they will continue to be w ithin the part of the state that remains as a whole following the secession of the former Socialist Republic of Croatia’s real territory and all Slovenia ” 1040 On 12 December 1991 Milan Martić stated that “nobody … has the right to deny the Serbian people the right to live in their own country” 1041 334 On 14 May 1992 Mile Pašpalj the President of the RSK Parliament expressed the need to establish “the state of Serbian Krajina” in order to survive 1042 On 3 July 1992 Milan Martić criticised the presidents of the Banija and Kordun municipal assemblies for their decision to form autonomous districts because the RSK had “paid in blood the corridor we won and linked up Serbian territories” 1043 At a meeting on 14 June 1993 with Cedric Thornberry the UNPROFOR Director of Civil Affairs Milan Marti stated that the “joint life of Croats and Serbs in one State is 1035 Milan Babi 17 Feb 2006 T 1563 3 Mar 2006 T 1887 1898 Radoslav Maksić 7 Feb 2006 T 1222 Slobodan Peri 6 Sep 2006 T 7871 7 Sep 2006 T 7922 Milan Dragi i 19 Sep 2006 T 8657 Borislav Ðuki 18 Oct 2006 T 9694-9695 20 Oct 2006 T 9846-9847 9850 Imra Agoti Ex 398 T 23266 Ex 238 p 110 1036 Slobodan Peri 7 Sep 2006 T 7923-7924 7926-7928 Milan Dragi i 19 Sep 2006 T 8601 1037 Veljko Džakula 16 Jan 2006 T 404-405 testifying that during 1991 and 1992 Milan Martić worked for the “recognition and joining the association of Serb lands Republika Srpska and Serbia” Milan Babi 16 Feb 2006 T 1476-1477 2 Mar 2006 T 1830-1832 Ante Marinović 23 Mar 2006 T 2474 Witness MM-078 25 May 2006 T 4498 Witness MM-117 16 Oct 2006 T 9491-9496 Mile Daki 25 Oct 2006 T 10025 Ex 201 p 3 Ex 213 Ex 474 p 4 Ex 912 According to the Constitutional Law of the SAO Krajina “ the SAO Krajina shall represent a form of political and territorial autonomy within the Federative Yugoslavia … ” see Ex 151 Art 1 Moreover the header or the stamp of several official SAO Krajina documents in evidence show that the SAO Krajina was considered to form part of the SFRY see e g Ex 34 Ex 35 Ex 3 Ex 42 Ex 188 Ex 190 Ex 467 The Law on Defence of the RSK adopted 23 March 1992 also provided that the RSK armed forces were a “composite part” of the armed forces of the SFRY Ex 6 p 123 1038 Ex 498 p 4 See also Ex 205 Ex 973 Ex 975 Milan Babi 17 Feb 2006 T 1518 Witness MM-117 17 Oct 2006 T 9586-9587 1039 Ex 215 1040 Ex 236 p 5 1041 Ex 518 p 3 1042 Ex 750 p 2 See also Slobodan Jarčevi 14 Jul 2006 T 6292-6293 Ex 861 Ex 862 1043 Ex 77 p 3 See also Slobodan Jarčević 13 Jul 2006 T 6192-6194 Case No IT-95-11-T 124 12 June 2007 impossible because of genocide politic sic of Croatia We want to separate in 2 states … I am convinced that we will be good neighbors as separate states ” 1044 335 Efforts to unify the Croatian Krajina and the Bosnian Krajina continued throughout 1992 until 1995 The evidence shows that the RSK leadership sought an alliance and eventually unification with the RS in BiH and that Milan Martić was in favour of such unification 1045 A letter dated 3 April 1993 from inter alia Milan Marti as Minister of the Interior to the Assembly of the RS written on behalf of “the Serbs from the RSK” advocates a joinder of the “two Serbian states as the first stage in the establishment of a state of all Serbs” 1046 Moreover in this regard the Trial Chamber recalls the evidence concerning operation Koridor 92 1047 336 On 21 January 1994 during the election campaign for the RSK presidential elections Milan Martić stated that he would “speed up the process of unification” and “pass on the baton to our all Serbian leader Slobodan Milo evi ” 1048 J Milan Martić’s knowledge of and reactions to crimes committed 337 Several witnesses testified that in his capacity as Minster of the Interior Milan Martić was de jure and de facto in control of the SAO Krajina and RSK police from 1991 through 1993 1049 As Minister of the Interior Milan Martić was kept informed concerning the activities of the SJBs and maintained “excellent communications” with the units subordinated to the MUP 1050 The evidence shows that information concerning military activities during the autumn of 1991 was sent to Milan Martić 1051 Moreover information regarding crimes committed in the SAO Krajina and the RSK 1044 Ex 965 p 5 Veljko Džakula 17 Jan 2006 T 436 Rade Rašeta 2 May 2006 T 3925-3926 T 3961-3962 testifying that in the summer of 1994 Radovan Karad‘i met in Knin with the RSK leadership about the ways in which the RSK and the RS could come closer on political and military levels in view of possible future unification Ex 6 p 168 describing the Prijedor Declaration of 31 October 1992 Ex 110 paras 4-5 Ex 475 Ex 656 p 3 Ex 660 Ex 868 p 3 1046 Ex 976 The other signatories of the letter are the RSK General Staff Commander Mile Novaković the Minister of Defence Stojan Španović and the Chief of Staff of the RSK General Staff Borislav Ðukić 1047 See supra paras 154 160 1048 Ex 14 p 1 Ex 660 See also Milan Babić 16 Feb 2006 T 1475-1476 Ex 504 Ex 868 p 3 in which in July 1994 Goran Had‘i President of the RSK stated that “ o ur aim is well known and this is a unified Serbian state” 1049 Veljko Džakula 16 Jan 2006 T 400-403 also testifying that Milan Marti was “a person who had authority who was obeyed whose orders were complied with” and that “if someone failed to comply with an order of his he could be quite rough He could be angry He could threaten that they would be replaced” Stevo Plejo 20 Sep 2006 T 87028703 21 Sep 2006 T 8797-8798 see also Aernout van Lynden 2 Jun 2006 T 5017-5018 Nikola Medaković 9 Oct 2006 T 8965-8966 8968 Mile Dakić 25 Oct 2006 T 10023 See also Milan Babić 15 Feb 2006 T 1407 Ex 1028 ERN L0079770 p 24 Stevo Plejo 20 Sep 2006 T 8703 Ex 44 On 23 August 1993 Milan Marti suspended the work of the RSK SDB pending restructuring of the SDB because “the political and security situation has deteriorated and the work of certain ministry departments has been blocked” Ex 525 1050 Radoslav Maksi 6 Feb 2006 T 1177-1178 See also Witness MM-003 8 Mar 2006 T 1979-1981 testifying about meetings with chiefs of SJBs 1051 Ex 957 dated 1 to 2 September 1991 provides that information had been received from inter alia Kistanje Plaški Gračac Glina Kostajnica and Dubica Štica concerning fighting and “mopping up” activities It is unclear in which capacity Milan Martić received this information Minister of the Interior or Deputy Commander of the TO See also Radoslav Maksić 6 Feb 2006 T 1177 testifying that the TO sent reports to the MUP 1045 Case No IT-95-11-T 125 12 June 2007 was regularly reported to Milan Martić In particular police inspectors who carried out investigations into crimes on the ground reported to the MUP and Milan Martić during the time period of 1991 to 1995 pursuant to reporting regulations 1052 Defence witness Slobodan Jarčević who was the Foreign Minister of the RSK from October 1992 until April 1994 testified that crimes committed in the territory of the RSK including those charged in the Indictment against Milan Martić were discussed at government sessions 1053 The evidence also shows that there were numerous contacts between UNPROFOR and the RSK government including the SJBs regarding crimes committed on the ground by members of the MUP 1054 338 There is evidence that Milan Martić stressed that the police should act in accordance with the law and that the police should never differentiate between citizens based on ethnic political religious or other affiliation 1055 Moreover the evidence shows that Milan Martić in some cases took measures to address the criminal behaviour of members of the MUP and of other units 1056 At some point during 1991 there was an incident where Croat prisoners were mistreated by “a 1052 Witness MM-096 25 Aug 2006 T 7188-7189 Pursuant to an SFRY Regulation of 1974 the SJBs had a reporting obligation to the SUP and to the MUP and these obligations were complied with On 20 May 1992 this regulation was superseded by the “Mandatory Instruction on Implementation and Information in Internal Affairs Organs in the Republic of Serbian Krajina” which was issued by Milan Martić in his capacity as Minister of the Interior Ex 893 Witness MM-096 23 Aug 2006 T 6971-6974 Pursuant to this very detailed Instruction item 9 “ t he internal affairs organ shall urgently inform the MUP about all important incidents and trends and measures undertaken” Moreover the MUP’s “permanent duty service” was under an obligation to “compile daily information about incidents trends and measures undertaken” item 11 regarding the permanent duty service see also Witness MM-096 25 Aug 2006 T 7172-7173 If a report contained information concerning two or more casualties the SJB would not only report to the SUP but would immediately inform also the MUP in Knin Witness MM-096 25 Aug 2006 T 7171-7172 1053 Slobodan Jarčević 13 Jul 2006 T 6209-6210 also testifying that in his capacity as Foreign Minister he sent a letter to the UN Security Council wherein he attempted to explain the situation attending those crimes Moreover Slobodan Jarčević testified that the RSK government “did not take any steps against the members of any other nation or ethnic group” Slobodan Jarčević 13 Jul 2006 T 6212 In his view it was difficult for the RSK government to protect the Croats who remained in the RSK because many of the crimes were committed out of revenge for losing family members Slobodan Jarčević 13 Jul 2006 T 6209 1054 Witness MM-096 25 Aug 2006 T 7185 On 24 August 1992 Cedric Thornberry the Director for Civil Affairs of UNPROFOR sent a letter to the RSK Ilija Priji concerning crimes in the Vrlika area committed by the police requesting the policemen who were engaging in such crimes be removed from the force Ex 734 See also Ex 733 Ex 735 Ex 736 Ex 737 Ex 739 Ex 740 Milan Marti issued instructions regulating in detail the mode of cooperation with UNPROFOR and UNCIVPOL according to which all organs of the RSK MUP should be at the disposal of UNCIVPOL which was permitted to observe at the SJBs and to act in response to complaints by RSK citizens Witness MM-117 18 Oct 2006 T 9647-9649 The Trial Chamber notes that in the Secretary-General’s report of 28 September 1992 it was reported that “the overall failure to cooperate with UNPROFOR has undermined UNPROFOR’s ability to fulfil its police monitoring functions Ex 75 para 17 see also para 18 Charles Kirudja testified about interference by RSK authorities with UNPROFOR’s mission Charles Kirudja 31 May 2006 T 4828 see also T 4832-4833 regarding arrests of UNPROFOR members See also Ex 757 1055 Radoslav Maksić 7 Feb 2006 T 1231 Witness MM-096 21 Aug 2006 T 6845-6846 Witness MM-117 13 Oct 2006 T 9339 9346 17 Oct 2006 T 9580-9582 There is evidence that in August 1991 Milan Martić was aware that prisoners were taken from Kijevo to the Knin SJB On one occasion he told the police transferring prisoners to “ p lease make sure that none of the people are harmed or killed” When asked why by police officer Bozo Ceko Milan Martić answered “these people have to be exchanged They are prisoners” Dragan Kne‘evi 3 Nov 2006 T 10674 The Trial Chamber also notes that some measures were taken by the JNA 9th Corps to prevent crimes including to carry out investigations by military prosecutors Borislav Ðuki 23 Oct 2006 T 9920-9921 See also Ex 27 Ex 965 p 5 1056 Witness MM-003 8 Mar 2006 T 2025 testifying that Milan Marti was informed that looting was perpetrated by the police in areas where fighting had occurred and that he disapproved of this and changed the commanders of the police in the villages “where there were major problems and where he had indications of things like that going on” Case No IT-95-11-T 126 12 June 2007 commanding officer” at the training camp in Golubić wherefore Captain Dragan Vasiljković requested Milan Martić take measures 1057 Milan Martić expelled the commanding officer but eventually this person was allowed to stay on at Golubić 1058 In November 1991 an attempt was made by Veljko Rađunovi and Mile Mi ljenovi to secede inter alia Hrvatska Dubica from the Hrvatska Kostajnica municipality and annex it to Bosanska Dubica 1059 The evidence shows that Milan Martić visited the area after the president of the Hrvatska Kostajnica municipality had requested assistance and that Milan Marti disbanded Veljko Rađunovi ’s police unit and replaced it with a military police unit of the JNA Banja Luka Corps 1060 In January 1992 SJBs were set up in Hrvatska Kostajnica and Šaš after which some of the renegade groups were imprisoned or entered the legal formations of the SAO Krajina 1061 However the Trial Chamber also heard evidence that after a certain period the JNA unit was expelled and the previously disbanded unit was reinstalled 1062 339 On 19 February 1992 Milan Marti ordered the disbandment of an RSK MUP Special Purpose unit commanded by Predrag Baklaji due to information that this unit had been involved in criminal activities including several murders and incidents of robbery theft and destruction 1063 This disbandment was ultimately not carried through and the unit continued with criminal activities in 1992 1064 On 1 April 1993 Milan Marti requested the MUP of Serbia to provide 20-30 inspectors to deal with homicides and property offences which were “rapidly increasing recently in the RSK” 1065 On 7 September 1993 Milan Marti ordered the arrest of members of certain paramilitary groups who were suspected of committing organised crimes 1066 There is evidence that the unit Arkan’s Tigers under the command of Željko “Arkan” Raznjatović left the territory of the RSK in 1993 after an order had been issued by the SVK commander Mile Novaković and Milan 1057 Stevo Plejo 20 Sep 2006 T 8702 Stevo Plejo 20 Sep 2006 T 8702-8703 21 Sep 2006 T 8796-8798 1059 Witness MM-022 20 Mar 2006 T 2315-2317 2352-2353 1060 Witness MM-022 20 Mar 2006 T 2316-2318 2352-2353 Josip Josipović 6 Apr 2006 T 3322 Nikola Dobrijević 10 Nov 2006 T 10890-10901 10895-10896 See also Ex 290 p 2 stating that the “local Chetniks” including Mom ilo Kova evi and Stevo Rađun controlled the area and were in conflict with “Marti ’s men” Ex 600 indicating that in September 1991 Stevan Borojevi requested that he and his unit remain under the command of Milan Marti Ex 601 indicating that on 13 January 1992 Stevan Borojevi was under the command of Milan Marti Ex 602 See further Nikola Dobrijević 13 Nov 2006 T 10983-10985 10112-10113 1061 Nikola Dobrijević 10 Nov 2006 T 10889-10890 10892-10893 10896-10897 13 Nov 2006 T 10943 10989 1062 Josip Josipović 6 Apr 2006 T 3322 1063 Ex 43 Ex 563 Ex 566 providing that the arrest in February 1992 of the leaders and several members of this unit only temporarily stopped its activities and that as a result of “inadequate judicial measures” and a “poor political situation in Krajina” this unit could resume its criminal activities See further Ex 561 which reports on murders in Dabar of seven civilians Ex 560 which provides that the “Minister of the Interior be informed about the content of this Information since Baklaji refers to him as his order issuing authority and the only one he is subordinated to ” 1064 Ex 563 1065 Ex 665 1066 Ex 541 See also Witness MM-096 22 Aug 2006 T 6919 25 Aug 2006 T 7173-7174 testifying that sometime between 1993 and 1994 Milan Marti ordered that perpetrators of serious crimes particularly murders be arrested 1058 Case No IT-95-11-T 127 12 June 2007 Martić as Minister of the Interior 1067 Lastly there is some evidence that criminal investigations were carried out and that perpetrators were brought to justice 1068 340 There is no further evidence that measures were taken to address the widespread criminal activities which the evidence shows occurred in the SAO Krajina and the RSK from 1991 through 1995 1069 Rather there is evidence which shows the contrary After the attack on Struga Captain Dragan Vasiljkovi arrested ten members of the TO in Dvor who were allegedly responsible for killing several civilians Subsequently Milan Martić arrived in Dvor and ordered Captain Dragan Vasiljkovi to release the ten men which he did 1070 341 Rade Rašeta testified that on one occasion Milan Marti told him that “he could not make himself hate Croats” and “whoever was saying that he was a nationalist and hated Croats was wrong” 1071 Witness MM-003 testified that Milan Marti did not express hatred towards the Croat population but rather that “ h e hated the chequerboard emblem” and that “ h e hated Tudjman most of all” 1072 The Trial Chamber heard evidence that during the summer and autumn of 1991 Milan Martić instructed persons involved in humanitarian assistance to treat both Croat and Serb refugees arriving from Drni equally 1073 Slobodan Jarčević testified that Milan Martić “demonstrated the nobility of his character” by looking after refugees who arrived from BiH in 1994 despite the difficulties that the RSK was facing due to international sanctions 1074 However the Trial Chamber notes the evidence concerning the return of Croat refugees which was a condition of the Vance Plan and which Milan Marti was clearly against and in fact obstructed 1075 1067 Witness MM-096 22 Aug 2006 T 6921-6922 6925 24 Aug 2006 T 7038-7039 The Trial Chamber notes that there is no evidence that this unit was suspected of having committed crimes 1068 Witness MM-117 13 Oct 2006 T 9346-9347 9351 concerning the murder of the Čengić family in 1992 near Knin T 9392-9393 concerning incidents in 1993 including murders which may have been motivated by revenge by Serbs and that the police identified several perpetrators and filed criminal reports for further judicial proceedings Further in relation to Milan Martić’s authority to take measures see Ex 38 Report to the SAO Krajina TO Staff dated 6 August 1991 providing that Milan Martić issued a cease-fire order due to the visit of the SFRY Vice-President Branko Kostić Ex 40 reporting that Milan Martić issued an order to the Benkovac TO staff on 16 September 1991 resubordinating TO members of the Benkovac TO to a unit of Lieutenant Colonel Živanović for lifting the blockade of the Zemunik airport Ex 521 Ex 602 order of Milan Marti dated 26 Nov 1991 that “all persons wearing camouflage uniforms who are not members of the SAO Krajina police … have to return the insignia of police members and report to the recruiting office in Kostajnica in order to join JNA ” See also Nikola Dobrijević 13 Nov 2006 T 11013 1069 See supra section III H In this respect the Trial Chamber recalls the testimony of Josip Josipovi that neither Momčilo Kovačević nor Stevo Rađunović were investigated or prosecuted concerning crimes committed in the Hrvatska Dubica area Josip Josipovi 7 Apr 2006 T 3373 1070 Aernout van Lynden 2 Jun 2006 T 5017-5019 5038-5039 Ex 587 Ex 588 See also Ex 1042 Tab 2 Ex 1043 Tab 2 DVD 2 pp 8-11 Ex 1044 1071 Rade Rašeta 2 May 2006 T 3901 See also Charles Kirudja 1 Jun 2006 T 4961 Witness MM-096 21 Aug 2006 T 6846 Witness MM-090 31 Aug 2006 T 7482 7522 Witness MM-117 13 Oct 2006 T 9336 9339 Witness MM105 2 Nov 2006 T 10623 Ex 966 p 1 1072 Witness MM-003 9 Mar 2006 T 2105-2106 1073 Ljubica Vujani 18 Sep 2006 T 8499-8501 See also Ljubica Vujani 18 Sep 2006 T 8498-8499 1074 Slobodan Jarčevi 12 Jul 2006 T 6172-6173 1075 See supra para 138 Milan Babić 20 Feb 2006 T 1645-1647 1651-53 testifying that Milan Marti never stated that the right conditions existed for the return of refugees See also Veljko Džakula 16 Jan 2006 T 405 407 17 Jan Case No IT-95-11-T 128 12 June 2007 342 The evidence shows that Milan Martić actively advocated and pursued the goal of creating an ethnically Serb state in spite of his awareness of the serious and widespread crimes which were being perpetrated against the Croat and other non-Serb civilian population as a result of this policy While the Trial Chamber notes the evidence presented above that Milan Martić did not personally express hatred towards Croats or other non-Serbs and on one occasion instructed that Serb and Croat refugees be treated equally this evidence does not serve to outweigh the substantial evidence of Milan Martić’s conscious disregard for the fate of the Croat and other non-Serb population and persistent pursuance of the goal to create a Serb state IV RESPONSIBILITY OF MILAN MARTIĆ A Findings on the crimes charged 1 General requirements of Article 3 of the Statute 343 The Defence submitted that an armed rebellion organised by Croatian authorities existed in the territory of Croatia from 1990 to 1992 “when Yugoslavia de facto ceased to exist” 1076 It is alleged that this rebellion was aimed at achieving the independence of Croatia The Defence claims that the federal authorities of the SFRY in Belgrade including the Presidency the federal Defence Ministry the SSNO and the JNA lawfully acted with the aim to suppress this armed rebellion 1077 The Defence further claims that the SAO Krajina leadership the police and the TO had a duty to comply with the order and instructions of the federal authorities 1078 The Prosecution submits that an armed conflict existed during the Indictment period and that the SAO Krajina leadership including Milan Marti directly participated in the armed conflict 1079 2006 T 410-411 John McElligott 29 May 2006 T 4707-4708 Charles Kirudja 31 May 2006 T 4881 Ex 232 Ex 761 a message concerning the expulsion of 5 Croats from Ličko Petrovo Selo which was copied to Milan Martić but to which he never replied Charles Kirudja 31 May 2006 T 4879-4881 However according to Slobodan Jar evi Milan Marti was of the view that both Serbs and Croats should be allowed to return Slobodan Jarčević 14 Jul 2006 T 6331 6333 See also Witness MM-105 2 Nov 2006 T 10620-10621 The Trial Chamber notes Milan Martić’s reaction to information received in June 1991 that Croat refugees in Šibenik from the Knin area had been beaten and harassed by the SAO Krajina police As for the injuries Milan Martić said “Well they can injure themselves inflict injuries on themselves and then show this and say that somebody had beaten them” and that Marti 's Police beat no one without a reason Moreover Milan Martić said that he had “told the refugees that if they wanted to stay they could stay but they had to respect the laws of the SAO Krajina” something which they rejected and therefore left Witness MM-079 3 Apr 2006 T 3112-3113 Lastly the Trial Chamber notes that on 23 November 1994 Charles Kirudja met with Slobodan Miloševi and Milan Marti in Belgrade during which meeting Milan Martić was not amenable to letting humanitarian assistance go to the Muslim population in the Bihać pocket in BiH according to a plan devised by Charles Kirudja and Yasushi Akashi Milan Martić had to be ordered by Slobodan Milošević to let the assistance go through Charles Kirudja 1 Jun 2006 T 4897 4962 4965 Ex 765 See also Ex 85 1076 Defence Closing Statement T 11257-11258 T 11264-11267 1077 Defence Closing Statement T 11262-11268 1078 Defence Closing Statement T 11264-11267 In addition the Defence submits that during the hostilities a violation of Article 3 of Additional Protocol II was carried out by foreign states see ibid at T 11260-11262 The Trial Chamber does not find it necessary to consider this argument 1079 Prosecution Rebuttal T 11375-11378 See also Prosecution Final Trial Brief paras 356-357 Case No IT-95-11-T 129 12 June 2007 344 Armed clashes erupted between Serbs and Croats from April 1991 in the territory of Croatia The police and local people from both sides participated in the hostilities Following these armed clashes the JNA intervened to separate the sides by establishing buffer zones From August 1991 the hostilities intensified with the direct involvement of the JNA and the Serb forces of the SAO Krajina During the summer and autumn of 1991 numerous attacks were carried out on Croat majority villages by the JNA acting in coordination with the TO and the Milicija Krajine 1080 The evidence further shows that throughout 1991 the SAO Krajina leadership including Milan Marti played an active role in the conflict During the conduct of the hostilities the SAO Krajina leadership requested and obtained military assistance from Serbia 1081 The leadership participated in the establishment of a training camp which was predominantly military in character where members of the Milicija Krajine were trained These units subsequently directly participated in the hostilities 1082 Furthermore evidence shows that the leadership established the armed forces of the SAO Krajina made up of the TO and the Milicija Krajine and cooperated with the JNA in organising operations on the ground 1083 During this period Croatian authorities organised the Croatian army inter alia by forming a special military unit the ZNG which was employed in the hostilities 1084 345 From the end of 1991 several cease-fire agreements and agreements on the withdrawal of the JNA from Croatia were adopted 1085 In particular the Trial Chamber notes the adoption on 21 February 1992 of the UN Security Council Resolution 743 implementing the Vance Plan and establishing UNPROFOR in the UNPAs 1086 However the peace plan did not end the conflict which continued in Croatia and also extended into northern BiH and which continued through 1995 with several attacks and incursions from both sides 1087 346 The Trial Chamber finds that the crimes which Milan Marti is charged with were closely related to the conflict In this regard the Trial Chamber notes that the perpetrators of the crimes included members of the JNA the TO and the Milicija Krajine who were involved in the conduct of hostilities 1080 See supra section III D See supra section III B 2 1082 See supra section III B 3 section III D 1083 The Trial Chamber notes that the SAO Krajina leadership had meetings with JNA commanders in order to plan operations on the ground See for example supra para 174 referring to a meeting between Milan Marti and Colonel Dusan Smiljani Chief of Security of the JNA 10th Zagreb Corps in relation to the take-over of the Kostajnica area 1084 The Trial Chamber notes that ZNG were found in areas such as Kijevo Hrvatska Dubica Saborsko and kabrnja where attacks were carried out by the JNA and the Serb forces 1085 See supra para 138 1086 See supra para 150 1087 See supra paras 153-154 158 303-313 327-328 1081 Case No IT-95-11-T 130 12 June 2007 347 The Trial Chamber finds that a state of armed conflict existed in the relevant territories of Croatia and BiH during the time relevant to the crimes charged in the Indictment The Defence’s argument concerning an armed rebellion is therefore dismissed Moreover the Trial Chamber finds that the crimes charged were committed in the context of the armed conflict Consequently the Trial Chamber has jurisdiction over all crimes charged in the Indictment and general requirements of Article 3 of the Statute have been fully satisfied 2 General requirements under Article 5 of the Statute 348 The Trial Chamber recalls its finding regarding the existence of an armed conflict and finds that crimes with which Milan Martić has been charged were linked geographically and temporally with the armed conflict 349 From around June 1991 through December 1991 military operations and raids were carried out against predominantly Croat villages in the SAO Krajina including by the Milicija Krajine the JNA and the TO 1088 The attacked villages included Potkonije Vrpolje Glina Kijevo Drni Hrvatska Kostajnica Cerovljani Hrvatska Dubica Ba in Saborsko Poljanak Lipovača kabrnja Nadin and Bru ka Villagers were left with no choice but to flee During or immediately after the attacks villagers who stayed behind were killed and beaten Private and public property including churches and schools were destroyed and looted Hundreds of Croat and other non-Serb civilians and members of Croatian armed forces and formations were captured during and after the attacks and were detained in Knin and other locations where they were subjected to severe mistreatment 1089 Moreover grave discriminatory measures were taken against the Croat population throughout 1991 1090 350 There is evidence that there were unarmed or poorly armed Croatian protection forces in the villages of Lipova a Poljanak and Bru ka 1091 The Trial Chamber considers that this does not alter the civilian nature of the attacked population 1092 Croatian armed forces and formations consisting of several hundred men were present in kabrnja and in Saborsko and fought against the JNA the TO and the police forces of the SAO Krajina 1093 However considering the size of the civilian population in these areas the Trial Chamber finds that the presence of Croatian armed forces and formations in the Škabrnja and Saborsko areas does not affect the civilian character of the attacked population 1088 See supra section III D See supra section III D section III E 1090 See supra paras 324-326 1091 See supra paras 201 213 266 There were ZNG and Croatian police forces in Hrvatska Dubica and the surrounding villages However they withdrew from the villages around 13 September 1991 see supra para 177 1089 Case No IT-95-11-T 131 12 June 2007 351 Acts of violence and intimidation against the Croat and other non-Serb population including killings beatings robbery theft harassment and destruction of houses and Catholic churches were prevalent in the RSK during the period between 1992 and 1995 and resulted in an exodus of the Croat and other non-Serb population from the territory of the RSK 1094 The Trial Chamber also recalls the evidence regarding operation “Koridor 92” As a result of this operation the Posavina area was devastated and many civilians including Croats were killed 1095 There is also evidence that in July 1992 the RSK authorities cooperated with the authorities of Bosanski Novi BiH in the displacement of the non-Serb population from Bosanski Novi to Croatia and other countries 1096 352 The Trial Chamber finds that there was a widespread and systematic attack directed against the Croat and other non-Serb civilian population in the relevant territories of Croatia and BiH during the time relevant to the crimes charged in the Indictment 353 The evidence presented establishes beyond reasonable doubt that the perpetrators of the crimes charged in the Indictment knew about the attack on the civilian population and that their acts were part thereof 3 Counts 1 3 to 4 and 12 to 14 – Persecution murder destruction and plunder Articles 3 and 5 a Hrvatska Dubica 1097 354 The Trial Chamber finds that the following 41 persons were detained in the fire station in Hrvatska Dubica on 20 October 1991 and intentionally killed the following day at Krečane near Baćin Katarina Alavan i Terezija Alavan i Josip Antolovi Marija Batinovi Mara ori Mijo ovi Marija Deli Ana Dikuli Ru a Dikuli Sofija Dikuli tjepan Dikuli Antun uki Marija uki Antun urinovi Ana Feri Juraj Feri Kata Feri Filip Juki Marija Juki Jozo Karanovi Antun Krivaji Reza Krivaji Barbara Kropf Pavao Kropf Ivan Kuli i Nikola Lon ari Antun Mucavac Ivo Pezo Sofija Pezo Anka Piktaja tjepan Sabljar Veronika Stankovi Antun vra i Marija vra i Ana Tepi Du an Tepi Ivan Trnini Ivo Trnini Kata Trnini Terezija Trnini and Katarina Vladi The Trial Chamber finds that it has been proven beyond reasonable doubt that all victims were civilians and that they were taking no active part in the hostilities at the time of their deaths Based on the evidence concerning the organised rounding up detention and guarding of the civilians at the fire station by the Milicija Krajine and the evidence that the victims were killed only one day subsequent to their detention the Trial Chamber 1092 Article 50 of Additional Protocol I Blaškić Appeal Judgement para 115 See supra fn 95 See supra paras 224 regarding Saborsko 236-237 regarding kabrnja 1094 See supra section III F section III H 2-3 1095 See supra para 154 1096 See supra para 300 1093 Case No IT-95-11-T 132 12 June 2007 considers it established beyond reasonable doubt that the Milicija Krajine was responsible for these killings The Trial Chamber finds that all the elements of murder as a crime against humanity Count 3 and as a violation of the laws or customs of war Count 4 have been established 355 The Trial Chamber heard evidence that between mid-September 1991 and mid-October 1991 approximately ten Croat or mixed ethnicity houses were destroyed in Hrvatska Dubica 1098 There is evidence that “reservists” were involved in these acts The Trial Chamber notes in particular that by mid-September 1991 there were only some 60 mainly elderly people remaining in the village and considers that this destruction was not justified by military necessity However the Trial Chamber considers that the destruction of 10 houses in a village of some 400 to 500 households gives rise to doubt as to whether this destruction can be considered as destruction on a large scale The Trial Chamber therefore finds that the elements of wanton destruction of villages or devastation not justified by military necessity Count 12 have not been met 356 In relation to the destruction of the Catholic church in Hrvatska Dubica the Trial Chamber considers that the evidence does not establish beyond reasonable doubt that it was destroyed before December 1991 1099 For these reasons the Trial Chamber concludes that the elements of the crime of destruction or wilful damage done to institutions dedicated to education or religion Count 13 have not been met 357 The Trial Chamber heard evidence that the JNA TO and Milicija Krajine took part in looting of Croat houses in Hrvatska Dubica from mid-September 1991 and stole cars tractors tools machinery furniture and cattle 1100 The Trial Chamber finds that this intentional appropriation of property was carried out without lawful basis or legal justification Furthermore given the scale of the looting the Trial Chamber finds that it resulted in grave consequences for the victims having regard to the overall effect on the civilian population and the multitude of offences committed The Trial Chamber finds that all the elements of the crime of plunder of public or private property Count 14 have been established 358 The Trial Chamber recalls that among the persons rounded up in the fire station in Hrvatska Dubica the clear majority were Croats The Trial Chamber notes that there were also Serbs among those rounded up However the evidence shows that three Serbs managed to leave the fire station and that seven Croats managed to leave the fire station after their Serb neighbours or friends had contacted the guards The Trial Chamber finds that the killings of the above-mentioned 41 victims 1097 See supra section III D 2 b See supra para 180 1099 See supra para 194 1100 See supra para 180 1098 Case No IT-95-11-T 133 12 June 2007 were carried out with intent to discriminate on the basis of Croat ethnicity The elements of the crime of persecutions Count 1 have therefore been met in relation to these killings b Cerovljani 1101 359 The Trial Chamber finds that the following persons from Cerovljani were intentionally killed Marija Antolović Ana Blinja Josip Blinja Katarina Blinja Nikola Blinja Andrija Likić Ana Lončar Antun Lončar and Kata Lončar born 1906 The Trial Chamber recalls the manner in which the victims from Hrvatska Dubica were rounded up and detained in the fire station on 20 October 1991 and that they were subsequently killed on 21 October 1991 at Krečane near Baćin and buried in the mass grave at that location Furthermore the Trial Chamber recalls its finding that the Milicija Krajine was responsible for the killing of the victims detained in the fire station The Trial Chamber considers that the rounding up detention and killing of the above-named victims from Cerovljani is almost identical to the events in Hrvatska Dubica including that most of the victims were buried at the mass grave in Krečane It is therefore established beyond reasonable doubt that the above-mentioned victims from Cerovljani were killed on or around 20 or 21 October 1991 either by the Milicija Krajine or units of the JNA or the TO or a combination of some of them that the Trial Chamber has found were present in the area at this time The Trial Chamber considers it proven beyond reasonable doubt that these victims were civilians and that they were not taking an active part in the hostilities at the time of their deaths The Trial Chamber therefore concludes that all the elements of murder as a crime against humanity Count 3 and as a violation of the laws or customs of war Count 4 have been established 360 The Trial Chamber finds that on 13 21 and 24 September 1991 armed Serbs from Živaja under the command of Nikola Begović burnt 10 houses in Cerovljani 1102 The Trial Chamber finds that in a small village of some 500 people the destruction of 10 houses must be regarded as destruction on a large scale The Trial Chamber finds that there is evidence that this destruction was not carried out for reasons of military necessity In this regard the Trial Chamber notes in particular the evidence that only elderly persons remained in Cerovljani and that the armed Serbs came on three separate occasions Finally the intent of the perpetrators may be inferred from the repeated and deliberate nature of the attacks as well as from the absence of any military necessity The Trial Chamber therefore finds that the elements of wanton destruction of villages or devastation not justified by military necessity Count 12 have been met 1101 1102 See supra section III D 2 c See supra para 187 Case No IT-95-11-T 134 12 June 2007 361 The Trial Chamber finds that on 24 September 1991 the same armed Serbs damaged the Catholic church in Cerovljani 1103 The Trial Chamber finds that it has been proven that the church was not used for military purposes at the time it was damaged The intent of the perpetrators to cause damage may be inferred from the fact that it occurred without any military necessity and as part of a series of repeated attacks targeting property in Cerovljani The Trial Chamber therefore concludes that the elements of the crime of destruction or wilful damage done to institutions dedicated to education or religion Count 13 have been met 362 The Trial Chamber heard evidence that the car of Antun Bla evi was stolen by the same armed Serbs mentioned above 1104 Given the circumstances of this appropriation the Trial Chamber considers that it was done without any lawful basis or legal justification However it is required that the property be of “sufficient monetary value” for its appropriation to involve grave consequences for the victim While the Trial Chamber finds that a personal vehicle is an item of some value the evidence is insufficient to establish that this particular appropriation resulted in grave consequences for the victim The elements of the crime of plunder of public or private property under Article 3 Count 14 have therefore not been met 363 The Trial Chamber considers the totality of the evidence in relation to the events in Cerovljani in September and October 1991 to establish that the Croat civilian population and Croat property including the Catholic church were the objects of attack In this respect the Trial Chamber recalls the systematic and repeated incursions into the village by armed Serbs with resulting killings and destruction Moreover the Trial Chamber recalls that a Croat civilian Kata Lončar survived the occupation because she had connections with the Serbs 1105 The Trial Chamber therefore finds it established beyond reasonable doubt that the killings of the ten victims referred to above were carried out with intent to discriminate on the basis of Croat ethnicity Moreover the Trial Chamber considers the evidence to establish beyond reasonable doubt that the destruction of private houses and of the Catholic church was carried out with the same discriminatory intent The elements of the crime of persecutions Count 1 have therefore been met in relation to the killings and the destruction in Cerovljani c Baćin and surroundings 1106 364 The Trial Chamber recalls that Vera Jukić Terezija Kramarić Mijo Krnić Marija Mila inović Marija estić and Soka Volarević were exhumed from the mass grave at Krečane near 1103 Ibid Ibid 1105 See supra para 188 1106 See supra section III D 2 d 1104 Case No IT-95-11-T 135 12 June 2007 Baćin and that Nikola Barunović was exhumed from the mass grave at Višnjevački Bok where Ivo Pezo who had previously been detained at the fire station in Hrvatska Dubica was also exhumed On the basis of this evidence the Trial Chamber considers it established beyond reasonable doubt that these seven victims were killed at or around the same time as the victims from Hrvatska Dubica and Cerovljani were killed Moreover the Trial Chamber considers it established beyond reasonable doubt that these victims were intentionally killed either by the Milicija Krajine or units of the JNA or the TO or a combination of some of them which the Trial Chamber has found were present in the area from mid-October 1991 The Trial Chamber finds it established beyond reasonable doubt that the victims were civilians and that they were taking no active part in the hostilities at the time of their deaths The Trial Chamber concludes that the elements of murder as a crime against humanity Count 3 and as a violation of the laws or customs of war Count 4 have been established 365 The Trial Chamber finds that the following 21 persons from Ba in were intentionally killed around October 1991 Matija Barunovi Antun Bunjevac Tomo Bunjevac Antun ori Barica ori Josip ori Josip ori Vera ori Nikola Felbabi Grga Glavini Anka Josipovi Ankica Josipovi Ivan Josipovi Josip Karagi Kata Lon ar born 1931 tjepan Lon ar Antun Ordani Luka Ordani Antun Pavi Matija Pavi and Nikola Vrpoljac 1107 The Trial Chamber finds it established beyond reasonable doubt that the victims were civilians and that they were taking no active part in the hostilities at the time of their deaths Based on the totality of the evidence the Trial Chamber finds it established beyond reasonable doubt that the above-mentioned victims from Baćin were killed around October 1991 either by the Milicija Krajine or units of the JNA or the TO or a combination of some of them which the Trial Chamber has found were present in the area at this time The Trial Chamber finds that the elements of crimes of murder as a crime against humanity Count 3 and of murder as a violation of the laws or customs of war Count 4 have been established 366 In relation to the destruction of houses and the Catholic church in Baćin it has not been proven beyond reasonable doubt that the destruction occurred before December 1991 1108 For these reasons the Trial Chamber concludes that the elements of the crime of wanton destruction of villages or devastation not justified by military necessity Count 12 and of the crime of destruction or wilful damage done to institutions dedicated to education or religion Count 13 have not been met 1107 The Trial Chamber recalls that it will not consider the killing of Željko Abaza for a conviction see supra fn 494 See also supra section I C 1108 See supra para 195 Case No IT-95-11-T 136 12 June 2007 367 The Trial Chamber recalls that in 1991 the population in Baćin was 95% Croat and 1 5% Serb Even making allowance for the possibility that there may have been a few Serbs among the 21 victims referred to above this does not affect the Trial Chamber’s assessment that these killings were carried out with intent to discriminate on the basis of Croat ethnicity With regard to the six victims exhumed from the mass graves in Krečane near Baćin and in Višnjevački Bok the Trial Chamber recalls its findings regarding the killing of persons from Cerovljani and Hrvatska Dubica and finds that also these six killings were carried out with intent to discriminate on the basis of Croat ethnicity The Trial Chamber therefore finds that all the elements of the crime of persecution Count 1 have been met d Lipovača and neighbouring hamlets 1109 368 The Trial Chamber recalls that Franjo Brozin evi Marija Brozin evi Mate Brozin evi Mira Brozin evi Mirko Brozin evi Ro a Brozin evi and Katarina Cindri were killed in Lipovača towards the end of October 1991 The evidence shows beyond reasonable doubt that the victims were civilians and were not taking an active part in the hostilities at the time of their deaths The Trial Chamber recalls the warning given by the JNA to the inhabitants of Lipovača to beware of paramilitary forces who followed after the JNA The Trial Chamber further recalls that after the departure of the JNA paramilitary forces arrived in Lipovača and Nova Kršlja from mid-October and that after their arrival the dead bodies of the above-mentioned victims were discovered The Trial Chamber therefore considers it established beyond reasonable doubt that these intentional killings were perpetrated by Serb paramilitary forces The Trial Chamber concludes that the elements of murder as a crime against humanity Count 3 and as a violation of the laws or customs of war Count 4 have been established 369 The Trial Chamber heard evidence that at the end of September or early October 1991 the JNA arrived in Lipovača and fired its tanks at and damaged the Catholic church in Drežnik Grad nearby 1110 The Trial Chamber has not been furnished with evidence that the church was not being used for military purposes at the time it was damaged In this respect the Trial Chamber notes that the Croatian police were also present in Drežnik Grad at the time The Trial Chamber therefore concludes that the elements of the crime of destruction or wilful damage done to institutions dedicated to education or religion Count 13 have not been met 370 The Trial Chamber recalls that in 1991 the population in Lipovača was 83% Croat and 16% Serb Moreover the Trial Chamber recalls the warning to the villagers by members of the JNA to 1109 1110 See supra section III D 3 b See supra para 202 Case No IT-95-11-T 137 12 June 2007 beware of Serb paramilitary units who followed after the JNA and that such paramilitary units arrived after the JNA had left 1111 The evidence shows that after their arrival Mate Brozin evi Ro a Brozin evi and Mirko Brozin evi all Croats were killed 1112 The Trial Chamber finds the evidence to establish beyond reasonable doubt that these killings were carried out with intent to discriminate on the basis of Croat ethnicity Moreover in light of the totality of the evidence the Trial Chamber also finds that the killings of Franjo Brozin evi Mira Brozin evi Marija Brozin evi and Katarina Cindri were carried out with the same discriminatory intent The Trial Chamber therefore finds that all the elements of the crime of persecution Count 1 have been met e Vukovići and Poljanak 1113 371 The Trial Chamber finds that Tomo Vuković was intentionally killed by unidentified armed Serbs in Vukovići on 8 October 1991 The Trial Chamber considers it proven beyond reasonable doubt that Tomo Vuković was a civilian and that he was not taking an active part in the hostilities at the time of his death 1114 Moreover the Trial Chamber finds that Joso Matovina Nikola Matovina Dane Vuković son of Poldin Dane Vuković son of Mate Lucija Vuković Milka Vuković Nikola “Šojka” Vuković born 1926 and Vjekoslav Vuković were intentionally killed on 7 November 1991 The Trial Chamber finds that all victims were civilians and that none of them were taking an active part in the hostilities at the time of their deaths The Trial Chamber finds that on 7 November 1991 there was a mixture of JNA soldiers including members of a JNA special unit from Niš as well as local armed men present in Vukovići The Trial Chamber finds it proven beyond reasonable doubt that these groups of soldiers were responsible for the killings of these victims 372 In relation to the killings in Poljanak the Trial Chamber finds that Ivan Vuković and Nikola Vuković born 1938 were intentionally killed on 7 November 1991 The Trial Chamber finds that these victims were civilians and that neither of them was taking an active part in the hostilities at the time of their deaths The evidence shows beyond reasonable doubt that the killings were perpetrated by around 20 armed soldiers present in Poljanak on 7 November 1991 who wore camouflage and olive-green uniforms and some of whom had arrived from the direction of Vukovići just before the killing of Ivan Vuković and Nikola Vuković 1111 Ibid See supra para 207 1113 See supra section III D 3 c 1114 The Trial Chamber notes in particular Ex 376 pp 6-7 which provides that Tomo Vuković was killed as he tried to escape from his house which had been set on fire 1112 Case No IT-95-11-T 138 12 June 2007 373 The Trial Chamber concludes that the elements of murder as a crime against humanity Count 3 and as a violation of the laws or customs of war Count 4 have been established for the killings in Vukovići and Poljanak 374 The Trial Chamber finds that at least three houses were destroyed in Vukovići as a result of the shelling on 8 October 1991 and that one or two further houses were burnt in Vukovi i on 7 November 1991 1115 The Trial Chamber finds beyond doubt that in a village consisting of some six or seven houses the burning of four or five houses constitutes destruction on a large scale The evidence is insufficient to identify the perpetrators of the destruction on 8 October 1991 With regard to the destruction on 7 November 1991 the Trial Chamber recalls its finding regarding the presence in Vukovići on this date of a large group of soldiers 1116 The Trial Chamber concludes that the destruction was perpetrated by members of these units The circumstances of the destruction on 7 November 1991 show beyond reasonable doubt that the destruction was not justified by military necessity and that the destruction was carried out intentionally The Trial Chamber concludes that all the elements of the crimes of wanton destruction of villages or devastation of villages not justified by military necessity Count 12 have been met 375 With regard to Poljanak the evidence establishes that several houses sheds and cars were burnt on 7 November 1991 by the soldiers present in the village 1117 The Trial Chamber considers that the evidence establishes beyond reasonable doubt that the destruction occurred on a large scale The Trial Chamber is satisfied that the destruction was not carried out for reasons of military necessity and that it was perpetrated intentionally The Trial Chamber therefore finds that the elements of destruction of villages or devastation not justified by military necessity Count 12 have been met 376 The Trial Chamber also heard evidence that some private property was looted in Poljanak 1118 However the Trial Chamber was not presented with evidence which would enable it to conclude that the property appropriated was of sufficient monetary value to involve grave consequences for the relevant victims The Trial Chamber therefore finds that the elements of plunder of public or private property Count 14 have not been met 377 The Trial Chamber recalls that all victims from Vukovići and Poljanak were Croats The Trial Chamber also recalls that one of the soldiers in Poljanak boasted that he slit the throats of 1115 See supra para 214 Ibid 1117 See supra para 219 1118 Ibid 1116 Case No IT-95-11-T 139 12 June 2007 Ustašas 1119 The Trial Chamber finds that the above-mentioned killings in Vukovići and Poljanak were carried out with intent to discriminate on the basis of Croat ethnicity The Trial Chamber therefore finds that all the elements of the crime of persecution Count 1 have been met 378 The Trial Chamber recalls that all the houses that were destroyed in Vukovići and Poljanak belonged to Croats Moreover the evidence shows that while burning houses in Poljanak the soldiers made comments such as “Milo evi built the house and Milo evi is going to destroy it” and “what’s Tu man done for you All you are going to get from him is a bullet in your head” 1120 The Trial Chamber finds it established beyond reasonable doubt that the destruction in Vukovići and Poljanak was carried out with intent to discriminate on the basis of Croat ethnicity The Trial Chamber therefore concludes that all the elements of the crime of persecution Count 1 have been met f Saborsko 1121 379 The Trial Chamber finds that 20 persons were intentionally killed in Saborsko on 12 November 1991 Ana Bi ani Milan Bi ani Nikola Bi ani Petar Bi ani Darko Dumen i Ivica Dumen i Kata Dumen i Nikola Dumen i Kata Matovina born 1920 Mate Matovina born 1895 Milan Matovina Slavko Serti Mate pehar Josip trk Jure Juraj Štrk Ivan Vukovi Jeka Jela Vukovi Jure Vukovi born 1929 Jure Vukovi born 1930 and Petar Vukovi With regard to the killings at Petar Bićanić’s house the evidence establishes that the two perpetrators wore Serbian dark grey uniforms and helmets with a five pointed red star The Trial Chamber finds that they were members of units present in Saborsko after the attack on 12 November 1991 With regard to the other twelve victims the Trial Chamber finds it established beyond reasonable doubt that they were killed by members of units present in Saborsko after the attack on 12 November 1991 The evidence proves that the eight persons killed at Petar “Krtan” Bi ani ’s house were civilians and that they were not taking an active part in the hostilities at the time of their deaths Furthermore the Trial Chamber concludes based on the totality of the evidence that Ana Bi ani Kata Dumen i Nikola Dumen i Kata Matovina and Mate Matovina were civilians and that they were not taking an active part in the hostilities at the time of their deaths With regard to Darko Dumen i Ivica Dumen i Milan Matovina Slavko Serti Mate pehar Josip trk and Petar Vuković the Trial Chamber finds that the evidence is insufficient to establish beyond reasonable doubt whether they were civilians or taking no active part in the 1119 See supra para 216 See supra para 219 1121 See supra Section III D 3 1120 Case No IT-95-11-T 140 12 June 2007 hostilities at the time of their deaths 1122 In conclusion the Trial Chamber finds that the elements of murder as a crime against humanity Count 3 and as a violation of the laws or customs of war Count 4 have been established for the killings of the following 13 victims Ana Bi ani Milan Bi ani Nikola Bi ani Petar Bi ani Kata Dumen i Nikola Dumen i Kata Matovina Mate Matovina Jure trk Ivan Vukovi Jela Vuković Jure Vukovi and his half brother also named Jure Vukovi 380 The Trial Chamber finds that during the shellings of Saborsko from August 1991 until the attack on 12 November 1991 the church of St John and civilian buildings and homes were damaged The evidence shows that there was a significant armed presence in and around Saborsko during this time period and that from at least September 1991 until the fall of Saborsko on 12 November 1991 a Croatian MUP reserve force was deployed in the church of St John which was used as an observation post machinegun nest and for ammunition storage 1123 While the evidence establishes that the shelling of Saborsko was carried out from several directions including from the direction of the JNA barracks at Lička Jasenica it is insufficient to conclude which units were responsible for the shelling The Trial Chamber further finds that both the church of St John and the church of the Mother of God were hit during the attack on 12 November 1991 With regard to the latter church the evidence establishes that it was used as a military observation post on 12 November 1991 The Trial Chamber therefore finds prior to the attack on 12 November 1991 the church of St John was used for a military purpose and that during the attack on 12 November both churches were used for military purposes The Prosecution has thus failed to meet its burden of proof in this respect There is further evidence that the two churches were destroyed by midDecember 1991 However the evidence is insufficient to establish who carried out this destruction The Trial Chamber therefore finds that the elements of destruction or wilful damage done to institutions dedicated to education or religion Count 13 have not been met 381 The Trial Chamber finds that after the attack on Saborsko civilian houses and property were burnt on a large scale by the Serb forces which entered the village 1124 The Trial Chamber finds that this burning was carried out deliberately and was not justified by military necessity noting in particular the evidence that the attack had ceased at the time this destruction took place Consequently the elements of the crime of wanton destruction of villages or devastation not justified by military necessity Count 12 have been met 1122 In this regard the Trial Chamber has taken into account the evidence that 20 to 30 villagers were organised into armed patrols from June 1991 see supra para 221 and the range of the ages of the male victims referred to at the time of their death between 19 and 59 years old 1123 See supra para 224 1124 See supra para 227 Case No IT-95-11-T 141 12 June 2007 382 The Trial Chamber heard evidence that Serb soldiers and policemen who participated in the attack looted shops and businesses and took tractors cars and livestock 1125 The Trial Chamber finds that this looting was done on a large scale noting in particular the evidence that nearly every household in Saborsko had a tractor stolen 1126 The Trial Chamber finds that this appropriation resulted in grave consequences for the victims taking into account the overall effect on the civilian population and the multitude of offences committed Furthermore the evidence establishes that this appropriation was done intentionally and without lawful basis or legal justification The elements of the crime of plunder of public or private property under Article 3 Count 14 have therefore been met 383 The Trial Chamber recalls that some of the soldiers present in Saborsko abused the inhabitants with profanities such as “Fuck your Ustasha mother” and that all Croat villagers should be slaughtered 1127 The Trial Chamber further recalls that Saborsko was 93 9% Croat and 3 3% Serb 1128 Even making allowance for the possibility that there may have been a few Serbs among the 13 victims referred to above this does not affect the Trial Chamber’s overall assessment that these killings were carried out with intent to discriminate on the basis of Croat ethnicity The Trial Chamber therefore concludes that all the elements of the crime of persecution Count 1 have been met 384 The Trial Chamber recalls that the crime of wanton destruction of villages or devastation not justified by military necessity was committed The evidence shows that houses were burnt in Tuk Dumenčići Solaje and Borik 1129 The evidence further shows that Solaje was a Serb hamlet and that in Borik both Serb and Croat houses were burnt Therefore the Trial Chamber does not find it established beyond reasonable doubt that these acts of destruction were carried out with intent to discriminate on the basis of Croat ethnicity The Trial Chamber therefore concludes that the elements of the crime of persecution Count 1 have not been met g Vaganac 385 The Indictment charges that destruction and looting was committed in Vaganac however the Trial Chamber has not been furnished with evidence supporting these charges For these reasons the Trial Chamber concludes that the elements of the crime of wanton destruction of villages or devastation not justified by military necessity Count 12 of the crime of destruction or 1125 Ibid See supra fn 632 1127 See supra para 229 1128 See supra fn 592 1129 See supra para 227 1126 Case No IT-95-11-T 142 12 June 2007 wilful damage done to institutions dedicated to education or religion Count 13 and of the crime of plunder of public or private property under Article 3 Count 14 have not been met h Škabrnja 1130 386 The Trial Chamber recalls that Josip Miljani Krsto Šegarić Lucia Šegarić and Stana Vickovi were killed at Slavko Šegarić’s house in Ambar on 18 November 1991 The Trial Chamber finds that Krsto Šegarić was intentionally killed by Ðuro Kosović a local paramilitary soldier wearing a camouflage uniform with an SAO Krajina patch and who participated together with other SAO Krajina forces in the attack on Škabrnja The Trial Chamber further finds that the evidence establishes beyond reasonable doubt that Josip Miljanić Stana Vicković and Lucia Šegarić were intentionally killed by other members of such paramilitary soldiers The Trial Chamber finds that all four victims were civilians and that none of them were taking an active part in the hostilities at the time of their deaths The Trial Chamber concludes that all of the elements of murder as a crime against humanity Count 3 and as a violation of the laws or customs of war Count 4 have been established for the above-mentioned killings 387 The Trial Chamber finds that Jozo Brkić Jozo Miljanić Slavka Miljanić Petar Pavičić Mile Pavičić Ilija Ražov Kata “Soka” Rogić Ivica Šegarić Rade Šegarić and Vice Šegarić were intentionally killed outside Petar Pavičić’s house in Škabrnja on 18 November 1991 The perpetrators of these killings were members of local paramilitary units who participated together with other SAO Krajina forces in the attack on Škabrnja and who wore camouflage uniforms and different sorts of headgear Mile Pavičić and Ivica Šegarić are listed in Annex I to the Indictment as civilian victims however the evidence shows that both were members of the Croatian defence force in Škabrnja The evidence shows that neither of them were taking an active part in the hostilities at the time of their deaths The Trial Chamber concludes that the remainder of the victims were civilians and were not taking an active part in the hostilities at the time of their deaths The Trial Chamber finds that the elements of murder as a crime against humanity Count 3 and as a violation of the laws or customs of war Count 4 have been established for the killings of Jozo Brkić Jozo Miljanić Slavka Miljanić Petar Pavičić Ilija Ražov Kata “Soka” Rogić Rade Šegarić and Vice Šegarić With regard to Mile Pavičić and Ivica Šegarić the Trial Chamber finds that the elements of murder as a violation of the laws or customs of war Count 4 have been established 388 The Trial Chamber finds that Novica Atelj Stoja Brkić Danka Brzoja Ika Čirjak Maša Čirjak Marija Šestan and Jakov Šestan were intentionally killed at Pere Sopić’s house in Nadin on 19 November 1991 by soldiers wearing JNA uniforms The Trial Chamber finds that these victims 1130 See supra section III D 4 Case No IT-95-11-T 143 12 June 2007 were civilians and were not taking an active part in the hostilities at the time of their deaths The Trial Chamber finds that the elements of murder as a crime against humanity Count 3 and as a violation of the laws or customs of war Count 4 have been established for these killings 389 The Trial Chamber finds that the following civilians were killed in Škabrnja Nadin or Benkovac on 18 and 19 November 1991 Ivan Babić Luka Bilaver Marija Brki born 1943 Marko Brki Željko Ćurković Marija Dra ina Ana Juri Grgo Juri Petar Juri Niko Pavi i i Josip Perica Ljubo Perica Ivan Ražov Jela Ra ov Branko Rogić Nikola Rogi Petar Rogić Kljajo Šegarić Lucka Luca Šegarić Grgica “Maja” Šegarić Mara @ili Milka Žilić Pavica @ili Roko @ili Tadija @ili and Marko @upan The Trial Chamber further finds that these victims were taking no active part in the hostilities at the time of their deaths The Trial Chamber finds that it has been proven beyond reasonable doubt that these victims with the exception of Petar Rogić were intentionally killed by members of the units including JNA and TO units which took part in the attack on Škabrnja and Nadin on 18 and 19 November 1991 With regard to Petar Rogić the Trial Chamber finds that he was intentionally killed in Benkovac by unidentified perpetrators after having been taken from Škabrnja The Trial Chamber finds that the elements of murder as a crime against humanity Count 3 and as a violation of the laws or customs of war Count 4 have been established for these killings except for the killing of Petar Rogi 390 The Trial Chamber finds that the following members of the Croatian defence forces present in Škabrnja and Nadin were killed on 18 and 19 November 1991 Vladimir Horvat Nediljko Juri Slavko Miljanić Ga par Perica Ante Ra ov Marko Rogi Bude egari Miljenko Šegarić ime egari Nediljko kara and Stanko Vickovi The evidence as to cause of death establishes beyond doubt that Ante Ražov Šime Šegarić and Miljenko Šegarić were not taking an active part in the hostilities at the time of their deaths The evidence further establishes beyond reasonable doubt that Vladimir Horvat Ga par Perica and Marko Rogi were not taking an active part in the hostilities at the time of their deaths The Trial Chamber finds that it has been proven beyond reasonable doubt that these victims with the exception of Šime Šegarić and Miljenko Šegarić were intentionally killed by members of the units including JNA and TO units which took part in the attack on Škabrnja and Nadin on 18 and 19 November 1991 With regard to Miljenko Šegarić the Trial Chamber finds that he was intentionally killed in Benkovac by unidentified perpetrators after having been taken from Škabrnja With regard to Šime Šegarić the evidence establishes beyond reasonable doubt that he was taking no active part in the hostilities when he was intentionally killed in Knin by unidentified perpetrators after having been put by paramilitary soldiers in a JNA APC in Škabrnja With regard to Slavko Miljanić Bude Šegarić Nediljko Jurić Nediljko Škara and Stanko Vickovi the evidence is insufficient to establish that at the time of their deaths they were taking no active part in the hostilities Case No IT-95-11-T 144 12 June 2007 391 The Trial Chamber finds that the elements of murder as a violation of the laws or customs of war Count 4 have been established for Ante Ra ov Vladimir Horvat Ga par Perica Marko Rogi and Šime Šegarić but not for Miljenko Šegarić 392 The Trial Chamber finds that Marija Bilaver Josipa Brki Mate Brki and Kata Perica were killed in Škabrnja on 11 March 1992 Moreover the Trial Chamber finds that the following persons were killed between 18 November 1991 and 11 March 1992 Grgo Bilaver Peka Bilaver Ana Brkić Mijat Brkić Jure Erlić Dumica Gospić Ljubomir Ivković Neđelko Ivković Tereza Ivković Simica Jurjević Mirko Kardum Simo Ražov Grgica Ražov Marko Ražov and Pera Škara The Trial Chamber finds all of these victims except Neđelko Ivković were civilians and were taking no active part in the hostilities at the time of their deaths The Trial Chamber finds that it has been proven beyond reasonable doubt that these victims were intentionally killed by members of the units that took part in the attack on Škabrnja and Nadin on 18 and 19 November 1991 or which were subsequently present in the area of Škabrnja following the attack and until March 1992 These units included JNA units units from a TO brigade under JNA command and paramilitary units The Trial Chamber finds that the elements of murder as a crime against humanity Count 3 and as a violation of the laws or customs of war Count 4 have been established except with regard to Neđelko Ivković who the evidence establishes was a “Croat defender” However it has not been established beyond reasonable doubt that he was not taking an active part in the hostilities at the time of his death 393 With regard to Kata Brkić born 1935 Kata Brkić born 1939 Marija Brkić born 1906 Božo Stura and Draginja Stura the evidence is insufficient to conclude whether they were killed between 18 November 1991 and 11 March 1992 With regard to Neđelko Ivković the evidence shows that he was a member of the Croatian defence forces and that he was killed on 19 November 1991 The evidence is insufficient to conclude that he was not taking active part in the hostilities at the time of his death The Trial Chamber finds that the elements of murder as a crime against humanity Count 3 and as a violation of the laws or customs of war Count 4 have not been established for these killings 394 The Trial Chamber recalls the evidence that there was intensive shelling in Škabrnja on the morning of the attack 1131 Moreover there is evidence that fire was opened on private houses by JNA tanks and using hand-held rocket launchers 1132 The Trial Chamber recalls the evidence that members of Croatian forces were in some of the houses in Škabrnja 1133 In the Trial Chamber’s 1131 See supra para 239 See supra para 241 1133 See supra para 240 1132 Case No IT-95-11-T 145 12 June 2007 opinion this gives rise to reasonable doubt as to whether the destruction resulting from these actions was carried out for the purposes of military necessity The elements of wanton destruction of villages or devastation not justified by military necessity Count 12 have therefore not been met 395 There is evidence that during the attack the church of the Assumption of the Virgin in the centre of Škabrnja was shot at by a JNA tank Furthermore several soldiers entered the church and fired their weapons 1134 The Trial Chamber finds that the church of the Assumption of the Virgin was not used for military purposes at the time of this damage and furthermore that the circumstances surrounding this damage establishes the intent of the perpetrators to cause such damage The Trial Chamber notes the evidence that on 18 November 1991 a JNA tank opened fire in the direction of the school in Škabrnja and that by 19 November 1991 the school had been destroyed However the Trial Chamber considers the evidence to be insufficient to show that the school was not being used for military purposes at the time it was damaged The Trial Chamber finds that the elements of the crime of destruction or wilful damage done to institutions dedicated to education or religion Count 13 have been met in relation to the church of the Assumption of the Virgin 396 The Trial Chamber heard evidence that looting was committed in Škabrnja by soldiers under the command of the Benkovac TO by Serb paramilitaries and by local Serbs after the attack 1135 However the Trial Chamber was not presented with sufficient evidence as to the nature or scale of such looting in order to enable it to establish whether the property appropriated was of sufficient monetary value to result in grave consequences for the victims The Trial Chamber therefore finds that the elements of the crime of plunder of public or private property Count 14 have not been met 397 The Indictment charges that destruction and looting was committed in Nadin however the Trial Chamber has not been furnished with evidence supporting these charges For these reasons the Trial Chamber concludes that the elements of the crime of wanton destruction of villages or devastation not justified by military necessity Count 12 of the crime of destruction or wilful damage done to institutions dedicated to education or religion Count 13 and of the crime of plunder of public or private property under Article 3 Count 14 have not been met 398 The Trial Chamber recalls that the majority of the victims in Škabrnja and Nadin referred to above were of Croat ethnicity The evidence shows that soldiers present in Škabrnja threatened villagers hiding in the basements saying “Come out you Usta e we are going to slaughter you all” 1134 1135 See supra para 241 See supra para 263 Case No IT-95-11-T 146 12 June 2007 and that even women and children were being called “Usta as” and were insulted by soldiers 1136 The Trial Chamber further recalls that Škabrnja and Nadin were almost exclusively Croat villages 1137 Even making allowance for the possibility that there may have been a few Serbs among the victims referred to above this does not affect the Trial Chamber’s overall assessment that these killings were carried out with intent to discriminate on the basis of Croat ethnicity The Trial Chamber therefore concludes that all the elements of the crime of persecution Count 1 have been met 399 The Trial Chamber recalls that the church of the Assumption of the Virgin was destroyed and that it was not used for military purposes at the time of the destruction The Trial Chamber recalls the manner in which the church was destroyed and concludes that this destruction was carried out with the same discriminatory intent as referred to above The Trial Chamber therefore concludes that the elements of the crime of persecution Count 1 have been met i Bruška 1138 400 The Trial Chamber finds that Sveto Dra a Dragan Marinovi Draginja Marinovi Du an Marinovi Ika Marinovi Krsto Marinovi Manda Marinovi Petar Marinovi Roko Marinovi and Stana Marinovi were intentionally killed in Bru ka on 21 December 1991 by the Milicija Krajine The Trial Chamber considers that the JNA reports which indicate that these killings were carried out in revenge do not disturb this finding 1139 With the exception of Sveto Drača all victims were civilians and were not taking an active part in the hostilities at the time of their deaths The Trial Chamber finds that the elements of murder as a crime against humanity Count 3 and as a violation of the laws or customs of war Count 4 have been established for these victims 401 With regard to Sveto Drača the Trial Chamber concludes that he was a member of the JNA and that he was wearing an olive-drab uniform when he was killed The Trial Chamber recalls that the JNA fought on the same side as the Milicija Krajine For these reasons the Trial Chamber concludes that the elements of the crime of murder as a violation of the laws or customs of war Count 4 have not been met 402 The evidence presented to the Trial Chamber is insufficient to establish when the destruction occurred in Bruška and who carried out this destruction 1140 For these reasons the Trial Chamber 1136 See supra para 248 See supra para 235 1138 See supra section III D 5 1139 See supra para 272 1140 See supra para 273 1137 Case No IT-95-11-T 147 12 June 2007 concludes that the elements of wanton destruction of villages or devastation not justified by military necessity Count 12 have not been met 403 The Trial Chamber recalls that prior to the above-mentioned killings in Bruška armed men identifying themselves as “Martic’s men” or “Martic’s Militia” would come to Bru ka daily to intimidate the inhabitants calling them “Usta as” and telling them that Bru ka would be a part of a Greater Serbia and that they should leave 1141 The Trial Chamber further recalls that the victims with the exception of Sveto Drača were Croats The Trial Chamber therefore finds it established beyond reasonable doubt that these killings were carried out with intent to discriminate on the basis of Croat ethnicity Trial Chamber therefore concludes that the elements of the crime of persecution Count 1 have been met for all victims except Sveto Drača 4 Count 2 – Extermination 404 The Trial Chamber recalls that the crime of extermination does not require a minimum number of victims and that it may be established by an accumulation of separate and unrelated killings However the Trial Chamber stresses that it is nevertheless a requirement that the evidence supports a finding that the killings occurred on a large scale In the present case the Trial Chamber has examined the killing incidents charged under Count 2 and has in particular considered the evidence that the crimes were committed within a limited period of time and within a limited territory Having considered these factors as well as the totality of the evidence surrounding the killing incidents charged as extermination the Trial Chamber finds that the evidence is insufficient to establish that the crime of extermination was committed on an accumulated basis Thus the element that the killings be committed on large scale has not been met 405 The Prosecution has argued in the alternative that should the Trial Chamber not find extermination on the basis of an accumulation of all the killings charged the killings committed “at Baćin” would amount to extermination in and of themselves 1142 The Trial Chamber understands this to refer to the killings carried out at Krečane near Baćin The killings committed at Krečane were without doubt grave particularly considering the organised and callous manner in which the evidence shows that they were carried out However the Trial Chamber cannot agree with the Prosecution These killings even taken together cannot be considered as having been committed on a large scale In other words the killings at Krečane near Baćin do not meet the element of massiveness required for extermination 1141 1142 See supra para 266 Prosecution Final Trial Brief para 397 Case No IT-95-11-T 148 12 June 2007 406 In conclusion the Trial Chamber finds that the elements of the crime of extermination as a crime against humanity Count 2 have not been met 5 Counts 1 and 5 to 9 – Detention-related crimes and persecution a Detention facility at the JNA 9th Corps barracks in Knin 1143 407 The Trial Chamber finds that between 75 and 200 persons were detained at several locations at the premises of the JNA 9th Corps barracks in Knin Among the detainees were both Croat and other non-Serb civilians and members of Croatian armed forces and formations The Trial Chamber finds that the former category of detainees were deprived of their liberty without due process of law 408 The Trial Chamber heard evidence of many instances of beatings and mistreatment of the detainees at the JNA 9th Corps barracks The Trial Chamber finds in light of all the circumstances in which beatings and mistreatment were carried out that such acts caused serious physical and or mental suffering to the detainees The Trial Chamber further finds that in some instances the mistreatment was carried out intentionally for the prohibited purpose of intimidating the victims 1144 409 The Trial Chamber finds that the detainees at the JNA 9th Corps barracks were detained by the JNA Moreover while the evidence is insufficient to establish who carried out the beatings and the mistreatment at the premises of the JNA 9th Corps barracks the Trial Chamber concludes that the beatings and mistreatment were carried out at locations under the control of the JNA 410 The Trial Chamber finds that the elements of the crimes of imprisonment Count 5 torture Counts 6 and 8 other inhumane acts Count 7 and cruel treatment Count 9 have been met in relation to the civilian detainees at the JNA 9th Corps barracks including Petar Gurlica and Jere Misković With regard to the detainees who were not civilian including Luka Brkić Ante “Neno” Gurlica and Marin Gurlica the Trial Chamber finds that the elements of the crimes of torture Count 8 and cruel treatment Count 9 have been established 411 The Trial Chamber recalls that most of those imprisoned in the JNA barracks in Knin were not of Serb ethnicity Moreover the Trial Chamber recalls the discriminatory remarks of Ratko Mladi when he visited the sports hall at the JNA barracks premises and that he threatened the detainees saying that their fate would be the same as that of the people from kabrnja 1145 Furthermore the Trial Chamber recalls that the detainees were forced to take oaths “for the King 1143 See supra section III E 3 a See supra para 283 1145 Ibid 1144 Case No IT-95-11-T 149 12 June 2007 and the fatherland the Serbian fatherland” 1146 The Trial Chamber finds the evidence to establish beyond reasonable doubt that the crimes of imprisonment torture inhumane acts and cruel treatment were carried out with intent to discriminate on the basis of ethnicity The Trial Chamber therefore concludes that all the elements of the crime of persecution Count 1 have been met in relation to the civilians who were detained at the JNA barracks b Detention facility at the old hospital in Knin 1147 412 The Trial Chamber finds that from mid-1991 to mid-1992 between 120 and 300 persons were detained in the old hospital in Knin Among the detainees were both Croats and other nonSerb civilians and members of Croatian armed forces and formations The Trial Chamber finds that the majority of the former category of detainees were deprived of their liberty without due process of law The Trial Chamber concludes that the elements of the crime of imprisonment under Count 5 have been met 413 The Trial Chamber heard evidence of many instances of beatings and mistreatment of detainees at the old hospital 1148 The Trial Chamber finds in light of all the circumstances in which beatings and mistreatment were carried out that such acts caused serious physical and or mental suffering to the detainees The Trial Chamber further finds that in some instances the mistreatment was carried out intentionally for the prohibited purposes of obtaining information and or to discriminate against them because of their ethnicity 1149 414 The Trial Chamber finds that as of the summer of 1991 the detention facility at the old hospital in Knin was run by the Ministry of Justice of the SAO Krajina The evidence establishes beyond reasonable doubt that the beatings mistreatment and torture of the detainees was carried out inter alia by members of the MUP referred to by witnesses as “Martić’s police” wearing blue police uniforms by the Milicija Krajine and by persons wearing camouflage uniforms 1150 Moreover the evidence shows beyond reasonable doubt that the leadership permitted civilians from outside the old hospital and Serb detainees to beat and mistreat the non-Serb detainees 415 The Trial Chamber finds that the elements of the crimes of torture Counts 6 and 8 other inhumane acts Count 7 and cruel treatment Count 9 have been met in relation to the civilian 1146 Ibid See supra section III E 3 b 1148 See supra paras 288-289 1149 See supra para 288 1150 In this respect the Trial Chamber notes in particular the evidence that members of the Milicija Krajine brought Stanko Erstić to the old hospital that members of “Martić’s Special Forces” carried out beatings and that Milan Martić was present on one occasion wearing camouflage uniform with the Milicija Krajine patch on the sleeve see supra para 286 1147 Case No IT-95-11-T 150 12 June 2007 detainees With regard to the detainees who were not civilian the Trial Chamber finds that the elements of the crimes of torture Count 8 and cruel treatment Count 9 have been met 416 The Trial Chamber recalls that at the old hospital in Knin there were Croat and other non- Serb detainees The evidence shows that detainees were insulted by the guards saying that “the Croatian nation has to be destroyed” and that “all Croats have to be killed” 1151 On one occasion Vojislav Šešelj from the Serbian Radical Party visited the old hospital and asked the detainees “how many Serbian children they slaughtered how many mothers” 1152 The Trial Chamber finds the evidence to establish beyond reasonable doubt that the crimes of imprisonment torture inhumane acts and cruel treatment were carried out with intent to discriminate on the basis of ethnicity The Trial Chamber therefore concludes that all the elements of the crime of persecution Count 1 have been met in relation to the civilians who were detained at the old hospital in Knin c Detention facility at the SJB in Titova Korenica 1153 417 The Trial Chamber heard evidence that the following persons were detained in the SJB in Titova Korenica for periods ranging between 10 days and 9 months Vlado Vukovi Ignjac Ivanus Nikola Pemper Milan Pavli Perica Bi ani and Ivica Bi ani The Trial Chamber recalls that they were all Croats However the Trial Chamber notes that Vlado Vukovi and Ignjac Ivanus were Croatian policemen and that Perica Bi ani and Ivica Bi ani were members of the civilian protection force of Poljanak Therefore at the moment of their detention these persons did not hold the status of civilians as opposed to Milan Pavlić who the evidence shows was a civilian The Trial Chamber has not received evidence as to whether Nikola Pemper was a civilian Furthermore the Trial Chamber has not received evidence that he was mistreated at the Titova Korenica SJB With regard to the other the persons detained at the Titova Korenica SJB the Trial Chamber finds that the evidence is insufficient to establish that they were civilians With regard to Milan Pavlić the Trial Chamber cannot establish beyond reasonable doubt he was detained without due process of law and the Trial Chamber therefore finds that the elements of the crime of imprisonment Count 5 have not been met 418 The Trial Chamber heard evidence that while detained Vlado Vukovi was subjected to beatings and mistreatment inter alia by members of the MUP who called themselves “Martić’s men” and by persons in camouflage uniforms The evidence shows that members of the Milicija Krajine were present during the beatings but did nothing to stop the beatings Moreover the Trial Chamber notes the evidence that Milan Pavli and Perica Bi ani were severely mistreated The 1151 1152 See supra para 288 Ibid Case No IT-95-11-T 151 12 June 2007 Trial Chamber finds in light of all the circumstances in which the beatings and mistreatment were carried out that they caused serious physical and or mental suffering to the detainees The Trial Chamber further finds that the mistreatment of Vlado Vuković was carried out intentionally for the prohibited purpose of intimidating him 1154 419 With regard to Milan Pavlić the Trial Chamber finds that the elements of the crime of inhumane acts Count 7 have been met However the Trial Chamber has not received evidence to establish the elements of torture Count 6 or persecutions Count 1 With regard to the other detainees at the SJB the Trial Chamber finds that the elements of the crimes of cruel treatment Count 9 and in relation to Vlado Vuković also torture Count 8 have been met d Detention facilities in Benkovac 1155 420 The Trial Chamber finds that two Croats Ivan Atelj and ime Čači were detained in the SJB in Benkovac for 19 days There is insufficient evidence to conclude that these persons were civilians However the evidence establishes that they were taking no active part in the hostilities 421 During interrogations at the Benkovac SJB Ivan Atelj and ime a i were threatened and subjected to severe beatings by the policemen The Trial Chamber finds that the beatings caused serious physical and mental suffering to the detainees The Trial Chamber also finds that the mistreatment was carried out intentionally in order to obtain information 422 The Trial Chamber concludes that the elements of the crimes of imprisonment Count 5 torture Count 6 inhumane acts Count 7 and persecutions Count 1 have not been met However the elements of the crimes of torture Count 8 and cruel treatment Count 9 have been met 423 The Trial Chamber finds that at least 40 non-Serb civilians and members of the Croatian armed forces and formations including Luka Brkić Tomislav egari Tomislav Gurlica and Marin Juri were detained by the JNA at the kindergarten in Benkovac following the attack on Škabrnja While the Trial Chamber considers that these persons were detained without due process of law the Trial Chamber finds that this detention is more appropriately described as part of the crime of deportation to which these persons were later subjected The Trial Chamber therefore finds that the elements of the crime of imprisonment Count 5 have not been established 1153 See supra section III E 1 See supra para 275 1155 See supra section III E 2 1154 Case No IT-95-11-T 152 12 June 2007 424 The evidence is insufficient as to whether the detainees at the kindergarten in Benkovac were mistreated Thus the Trial Chamber concludes that the elements of the crimes of inhumane acts Count 7 torture Counts 6 and 8 and cruel treatment Count 9 have not been met The evidence shows that Tomislav egari Tomislav Gurlica and Marin Juri were taken from the kindergarten to the communal store in Biljani by the same individuals who detained them at the kindergarten In Biljani they were threatened and insulted after which they were brought back to the kindergarten 1156 The Trial Chamber concludes considering in particular the age of the three victims that they were subjected to inhumane acts and cruel treatment in Biljani The elements of these crimes Counts 7 and 9 have therefore been met However the elements of torture Counts 6 and 8 have not been met 425 With regard to the mistreatment of Tomislav egari Tomislav Gurlica and Marin Juri the Trial Chamber finds that the evidence is insufficient to establish that these acts were carried out with intent to discriminate on the basis of Croat ethnicity The Trial Chamber therefore concludes that the elements of the crime of persecution Count 1 have not been met 6 Counts 1 10 and 11 – Persecution deportation and forcible transfer 1157 426 From 1990 through the spring of 1991 the Croat and non-Serb population in the Knin area was subjected to increasingly severe forms of discriminatory treatment 1158 From June 1991 military operations were carried out by the SAO Krajina police including the Milicija Krajine the JNA and the TO against predominantly Croat villages including Lovinac Ljubovo Glina and Struga 1159 This further raised the tensions Following Milan Martić’s ultimatum to the inhabitants of Kijevo most of the Croat population was evacuated after which the JNA 9th Corps the Milicija Krajine and the local TO attacked the village 1160 The attack resulted in destruction of houses damage to the church and looting In August 1991 Croat civilians were displaced from the areas of Knin and Glina to areas under Croatian control 1161 After the attack on Kijevo the villages of Vrlika and Drni were attacked Destruction and looting were carried out following these attacks 1162 There is further evidence that in 1991 Croats were killed by Serb forces in various locations in the SAO Krajina 1163 1156 See supra para 278 See supra section III F 1158 See supra para 296 1159 See supra paras 163-165 1160 See supra paras 166-168 1161 See supra para 296 1162 See supra paras 170-171 1163 See supra para 324 1157 Case No IT-95-11-T 153 12 June 2007 427 From August 1991 and into early 1992 forces of the TO and the police of the SAO Krajina and of the JNA attacked Croat-majority villages and areas including the villages of Hrvatska Kostajnica Cerovljani Hrvatska Dubica Ba in Saborsko Poljanak Lipovača kabrnja and Nadin The displacement of the non-Serb population which followed these attacks was not merely the consequence of military action but the primary objective of it This conclusion is supported by the evidence of a generally similar pattern to the attacks The area or village in question would be shelled after which ground units would enter After the fighting had subsided acts of killing and violence would be committed by the forces against the civilian non-Serb population who had not managed to flee during the attack Houses churches and property would be destroyed in order to prevent their return and widespread looting would be carried out In some instances the police and the TO of the SAO Krajina organised transport for the non-Serb population in order to remove it from SAO Krajina territory to locations under Croatian control Moreover members of the nonSerb population would be rounded up and taken away to detention facilities including in central Knin and eventually exchanged and transported to areas under Croatian control 1164 428 The Trial Chamber considers the evidence to establish beyond reasonable doubt that the systematic acts of violence and intimidation carried out inter alia by the JNA the TO and the Milicija Krajine against the non-Serb population in the villages created a coercive atmosphere in which the non-Serb population did not have a genuine choice in their displacement Based on this evidence the Trial Chamber concludes that the intention behind these acts was to drive out the nonSerb population from the territory of the SAO Krajina In this respect the Trial Chamber recalls that the forces in question also undertook direct actions to remove those who had not fled to territories under Croatian control The Trial Chamber also recalls that in spite of this intention to remove the non-Serb population from the territory of the SAO Krajina in some instances the nonSerb population left their homes temporarily as a result of the acts of violence and intimidation and subsequently returned 429 Based on the above the Trial Chamber concludes that by the end of 1991 large numbers of the non-Serb population had been forcibly removed from the territory of the SAO Krajina to territories under the control of Croatia The elements of the crime of deportation Count 10 have therefore been met Moreover the Trial Chamber concludes that in some instances due to the existing coercive atmosphere existing during this time period members of the non-Serb population 1164 In relation to Hrvatska Kostajnica see section III D 2 a Hrvatska Dubica see section III D 2 b Cervoljani see section III D 2 c Baćin see section III D 2 d see also section III D 2 e In relation to Lipovača see section III D 3 b Poljanak and Vukovići see section III D 3 c Saborsko see section III D 3 d Škabrnja see section III D 4 Case No IT-95-11-T 154 12 June 2007 fled their homes without going to territories under Croatian control 1165 In such instances the elements of the crime of other inhumane acts forcible transfer Count 11 have been met 430 With regard to the period from 1992 to 1995 the Trial Chamber has been furnished with a substantial amount of evidence of massive and widespread acts of violence and intimidation committed against the non-Serb population which were pervasive throughout the RSK territory 1166 The Trial Chamber notes in particular that during this time period there was a continuation of incidents of killings beatings robbery and theft harassment and extensive destruction of houses and Catholic churches carried out against the non-Serb population 1167 These acts created a coercive atmosphere which had the effect of forcing out the non-Serb population from the territory of the RSK As a consequence almost the entire non-Serb population left the RSK Moreover in some instances the RSK authorities provided transportation and escorts in order to remove the non-Serb population to territories under Croatian control Furthermore the Trial Chamber recalls that in July 1992 the RSK authorities cooperated with the authorities in Bosanski Novi BiH in the displacement of the non-Serb population from that municipality to Croatia Slovenia Austria and Germany 1168 431 Based on the substantial evidence referred to above the Trial Chamber finds that due to the coercive atmosphere in the RSK from 1992 through 1995 almost the entire non-Serb population was forcibly removed to territories under the control of Croatia The elements of the crime of deportation Count 10 have therefore been met 432 In light of the evidence referred to above which establishes that acts of killing mistreatment deportation forcible transfer destruction and other acts of intimidation were carried out with the intent to discriminate on the basis of ethnicity the Trial Chamber finds that all the elements of persecution Count 1 have been met for the period from August 1991 through 1995 7 Counts 1 and 15 to 19 – Shelling of Zagreb on 2 and 3 May 1995 1169 433 The Trial Chamber will consider Counts 15 to 19 in the following section 1170 1165 See supra paras 202 211 222 See supra paras 327-328 1167 Ibid 1168 See supra para 300 1169 See supra section III G 1170 See infra section IV B 4 1166 Case No IT-95-11-T 155 12 June 2007 B Findings on the individual criminal responsibility of Milan Martić 434 Milan Martić is charged with individual criminal responsibility pursuant to Article 7 1 in its entirety in relation to each Count Article 7 1 of the Statute provides A person who planned instigated ordered committed or otherwise aided and abetted in the planning preparation or execution of a crime referred to in articles 2 to 5 of the present Statute shall be individually responsible for the crime With regard to Counts 3 to 14 and Count 1 insofar as it relates to these counts the Trial Chamber finds that the individual criminal responsibility of Milan Martić is one of JCE pursuant to Article 7 1 of the Statute With regard to Counts 15 to 19 and Count 1 insofar as it relates to these counts the Trial Chamber finds that the individual criminal responsibility of Milan Martić is one of ordering pursuant to Article 7 1 of the Statute Other modes of liability pursuant to Article 7 1 and 7 3 of the Statute will not be considered 1 JCE pursuant to Article 7 1 of the Statute 435 JCE is established as a form of liability within the meaning of “commission” under Article 7 1 of the Statute 1171 The Appeals Chamber found that “whoever contributes to the commission of crimes by a group of persons or some members of a group in execution of a common criminal purpose may be held to be criminally liable subject to certain conditions” 1172 Three categories of JCE have been identified in customary international law 1173 The Prosecution charges Milan Martić pursuant to the “first” and “third” categories of JCE 1174 As stated by the Appeals Chamber regardless of the categories of JCE a conviction requires a finding that the accused participated in a JCE There are three requirements for such a finding a plurality of persons the existence of a 1171 Tadić Appeal Judgement para 190 See also Prosecutor v Milan Milutinovi Nikola ainovi and Dragoljub Ojdani Case No IT-99-37-AR72 Decision on Dragoljub Ojdani ’s Motion Challenging Jurisdiction – Joint Criminal Enterprise 21 May 2003 paras 20 31 Staki Appeal Judgement para 62 and the jurisprudence cited therein 1172 Tadić Appeal Judgement para 190 1173 Tadić Appeal Judgement para 220 1174 Indictment para 5 The first form of JCE is described by the Appeals Chamber as follows “all-co-defendants acting pursuant to a common design possess the same criminal intention for instance the formulation of a plan among the co-perpetrators to kill where in effecting this common design and even if each co-perpetrator carries out a different role within it they nevertheless all possess the intent to kill The objective and subjective prerequisites for imputing criminal responsibility to a participant who did not or cannot be proven to have effected the killing are as follows i the accused must voluntarily participate in one aspect of the common design for instance by inflicting nonfatal violence upon the victim or by providing material assistance to or facilitating the activities of his co-perpetrators and ii the accused even if not personally effecting the killing must nevertheless intend this result ” Tadić Appeal Judgement para 196 the third is characterized as follows “a common design to pursue one course of conduct where one of the perpetrators commits an act which while outside the common design was nevertheless a natural and foreseeable consequence of the effecting of that common purpose An example of this would be a common shared intention on the part of a group to forcibly remove members of one ethnicity from their town village or region to effect ‘ethnic cleansing’ with the consequence that in the course of doing so one or more of the victims is shot and killed ” Tadić Appeal Judgement para 204 Case No IT-95-11-T 156 12 June 2007 common purpose or plan which amounts to or involves the commission of a crime provided for in the Statute and the participation of the accused in this common purpose 1175 436 A JCE exists when a plurality of persons participate in the realisation of a common criminal purpose However they need not be organised in a military political or administrative structure 1176 437 The first form of JCE requires the existence of a common purpose which amounts to or involves the commission of one or more crimes provided for in the Statute 1177 The common purpose need not be previously arranged or formulated and may materialise extemporaneously 1178 438 It is not required that the principal perpetrators of the crimes which are part of the common purpose be members of a JCE 1179 An accused or another member of a JCE may use the principal perpetrators to carry out the actus reus of a crime However “an essential requirement in order to impute to any accused member of the JCE liability for a crime committed by another person is that the crime in question forms part of the common criminal purpose ” 1180 This may be inferred inter alia from the fact that “the accused or any other member of the JCE closely cooperated with the principal perpetrator in order to further the common criminal purpose ” 1181 439 For the first form of JCE it is also required that the accused must both intend the commission of the crime and intend to participate in a common plan aimed at its commission 1182 For the third form of JCE the accused is held responsible for a crime outside the common purpose if under the circumstances of the case i it was foreseeable that such a crime might be perpetrated by one or other members of the group and ii the accused willingly took that risk dolus eventualis The crime must be shown to have been foreseeable to the accused in particular 1183 440 The requirement of participation for both forms of JCE is satisfied when the accused assisted or contributed to the execution of the common purpose The accused need not have 1175 Br anin Appeal Judgement para 364 Vasiljevi Appeal Judgement para 100 referring to Tadić Appeal Judgement para 227 1177 Br anin Appeal Judgement para 418 The Appeals Chamber stated that the Trial Chamber should make a finding that the criminal purpose is not “merely the same but also common to all of the persons acting together within a joint criminal enterprise” Br anin Appeal Judgement para 430 1178 Br anin Appeal Judgement para 418 1179 Br anin Appeal Judgement para 410 1180 Br anin Appeal Judgement para 418 1181 Br anin Appeal Judgement para 410 See also paras 413 418 noting that the requirement that the crime be part of a common purpose is a matter of evidence 1182 Brđanin Appeal Judgement para 365 The Appeals Chamber also noted that “a Chamber can only find that the accused has the requisite intent if this is the only reasonable inference on the evidence” id para 429 1183 Br anin Appeal Judgement para 365 The Appeals Chamber has clarified that it is not a requirement that the crime which was foreseeable was carried out by a member of the JCE but that it may be perpetrated also by one or more persons used by a member of the JCE in order to carry out the actus reus of the crimes forming part of the common purpose id para 411 1176 Case No IT-95-11-T 157 12 June 2007 performed any part of the actus reus of the perpetrated crime 1184 It is also not required that his participation be necessary or substantial to the crimes for which the accused is found responsible 1185 Nevertheless it should at least be a significant contribution to the crimes for which the accused is to be found responsible 1186 2 Ordering pursuant to Article 7 1 of the Statute 441 Ordering requires that a person in a position of authority instructs another person to commit a crime 1187 It is required that the crime in question was actually committed by the principal perpetrators 1188 It is sufficient that the person ordering the crime possesses authority whether de jure or de facto 1189 This authority may be proved expressly or may be reasonably implied from the evidence 1190 The mens rea is either direct intent in relation to the perpetrator’s own ordering or indirect intent that is a person who orders with the awareness of the substantial likelihood that a crime will be committed in the execution of that order has the requisite mens rea for this mode of liability under Article 7 1 of the Statute 1191 3 Findings on Counts 1 to 14 a Common purpose 442 The Prosecution alleges that the common purpose of the JCE was ”the forcible removal of a majority of the Croat Muslim and other non-Serb population from approximately one-third of the territory of the Republic of Croatia “Croatia” and large parts of the Republic of Bosnia and Herzegovina “BiH” in order to make them part of a new Serb-dominated state ” 1192 The evidence establishes the existence as of early 1991 of a political objective to unite Serb areas in Croatia and in BiH with Serbia in order to establish an unified territory 1193 Moreover the evidence establishes that the SAO Krajina and subsequently the RSK government and authorities fully embraced and advocated this objective and strove to accomplish it in cooperation with the Serb leaderships in Serbia and in the RS in BiH 1194 The Trial Chamber considers that such an objective that is to unite with other ethnically similar areas in and of itself does not amount to a common purpose within the 1184 Kvočka et al Appeal Judgement para 99 Staki Appeal Judgement para 64 Br anin Appeal Judgement para 430 Kvočka et al Appeal Judgement para 98 1186 Br anin Appeal Judgement para 430 1187 Kordi and erkez Appeal Judgement para 28 Gacumbitsi Appeal Judgement para 182 1188 Br anin Trial Judgement para 267 with further references 1189 Br anin Trial Judgement para 270 See also Kordi and erkez Appeal Judgement para 28 in which it is held that a formal superior-subordinate relationship is not required 1190 Br anin Trial Judgement para 270 Limaj et al Trial Judgement para 515 1191 See Kordić and Čerkez Appeal Judgement paras 29-30 Blaškić Appeal Judgement para 42 1192 Indictment para 4 1193 See supra Section III I 1194 Ibid 1185 Case No IT-95-11-T 158 12 June 2007 meaning of the law on JCE pursuant to Article 7 1 of the Statute However where the creation of such territories is intended to be implemented through the commission of crimes within the Statute this may be sufficient to amount to a common criminal purpose 443 The Trial Chamber recalls that several armed clashes occurred during the spring and early summer of 1991 between SAO Krajina and Croatian armed forces and formations 1195 Initially these clashes were the result of tensions between the Croatian and SAO Krajina police and the climate of fear and mistrust between the Serb and Croat inhabitants The evidence shows that beginning with the armed attack on the predominantly Croat village of Kijevo in August 1991 the SAO Krajina MUP and TO forces cooperated with the JNA As of this point in time the JNA was firmly involved on the side of the SAO Krajina authorities in the struggle to take control of territory in order to unite predominantly Serb areas 1196 The Trial Chamber recalls the ultimatum given by Milan Martić on 26 August 1991 in relation to the imminent attack on Kijevo that “ y ou and your leadership have brought relations between the Serbian and Croatian populations to such a state that further co-existence in our Serbian territories of the SAO Krajina is impossible” 1197 From at least this point in time until early 1992 several other predominantly Croatian villages were attacked by forces of the TO and the police forces of the SAO Krajina and of the JNA acting in cooperation 1198 The Trial Chamber recalls that these attacks followed a generally similar pattern which involved the killing and the removal of the Croat population 1199 Furthermore after these attacks widespread crimes of violence and intimidation and crimes against private and public property were perpetrated against the Croat population including detention in facilities run by MUP forces of the SAO Krajina and the JNA 1200 The threat clearly expressed in Milan Martić’s ultimatum was therefore carried out throughout the territory of the SAO Krajina in this period through the commission of widespread and grave crimes which created an atmosphere of fear in which the further presence of Croats and other non-Serbs in these territories was made impossible In this respect the Trial Chamber has concluded that the displacement of the non-Serb population was not a mere side-effect but rather a primary objective of the attacks 1201 444 Widespread acts of violence and intimidation intensified against the non-Serb population and became pervasive throughout the RSK territory from 1992 to 1995 1202 These acts were committed by members of the TO and the police of the RSK and of the JNA as well as members 1195 See supra Section III D 1 See supra paras 166-168 170-171 section III I 1197 See supra para 166 1198 See supra section III D 2-5 see also paras 170-171 section IV A 6 1199 See supra section IV A 6 1200 Ibid 1201 Ibid 1202 See supra section III H 2-3 section IV A 6 1196 Case No IT-95-11-T 159 12 June 2007 of the local Serb population and created such a coercive atmosphere that the Croat and other nonSerb inhabitants of the RSK were left with no option but to flee 1203 445 From at least August 1991 the political objective to unite Serb areas in Croatia and in BiH with Serbia in order to establish a unified territory was implemented through widespread and systematic armed attacks on predominantly Croat and other non-Serb areas and through the commission of acts of violence and intimidation In the Trial Chamber’s view this campaign of violence and intimidation against the Croat and non-Serb population was a consequence of the position taken by the SAO Krajina and subsequently the RSK leadership that co-existence with the Croat and other non-Serb population in Milan Marti ’s words ”in our Serbian territories of the SAO Krajina” was impossible 1204 Thus the implementation of the political objective to establish a unified Serb territory in these circumstances necessitated the forcible removal of the non-Serb population from the SAO Krajina and RSK territory The Trial Chamber therefore finds beyond reasonable doubt that the common purpose of the JCE was the establishment of an ethnically Serb territory through the displacement of the Croat and other non-Serb population as charged in Counts 10 and 11 b Plurality of persons 446 The Trial Chamber has been furnished with a substantial amount of evidence that the objective to unite Serb territories was espoused by the leaderships in Serbia in the RS in BiH and in the SAO Krajina and the RSK 1205 The SAO Krajina and later the RSK government which included Milan Babić and Milan Martić sought and received significant financial logistical and military support from Serbia including from the MUP and SDB of Serbia and from the RS in BiH 1206 Milan Martić also admitted that he had himself “personally never ceased this cooperation” and that there was “good cooperation with the leadership of Serbia notably the MUP ” 1207 In fact the evidence shows that the police of the SAO Krajina were mainly financed with funds and material from the MUP and the SDB of Serbia 1208 This support continued from 1991 to 1995 and even included modifications regarding units and personnel within the armed forces of the SAO Krajina and of the RSK 1209 There is evidence that the cooperation between the armed forces of the SAO Krajina and later the RSK and the JNA was extensive and covered such major military actions as those carried out in Kijevo Hrvatska Kostajnica Saborsko and in Škabrnja as well as 1203 See supra section IV A 6 See supra para 166 1205 See supra section III I 1206 See supra section III B 2 section III C 2 1207 See supra section III C 2 referring to Ex 951 p 1 1208 See supra section III B 2 1209 See supra section III B 2 section III C 2 See also para 142 1204 Case No IT-95-11-T 160 12 June 2007 operation Koridor 92 1210 In this respect the Trial Chamber recalls the evidence that the SVK and the VJ were in reality one and the same organisation only located at two separate locations 1211 Moreover the evidence of Milan Martić’s arrest in 1991 gives a clear example of joint cooperation between political leaders in the SAO Krajina in the RS in BiH and in Serbia 1212 The Trial Chamber has been furnished with evidence that this type of cooperation continued until 1995 1213 The Trial Chamber therefore finds that at least Blagoje Adžić Milan Babi Radmilo Bogdanović Veljko Kadijevi Radovan Karad i Slobodan Milošević Ratko Mladić Vojislav e elj Franko “Frenki” Simatović Jovica Stanišić and Captain Dragan Vasiljković participated in the furtherance of the above-mentioned common criminal purpose c Milan Martić’s participation in the JCE 447 As noted above the Prosecution alleges that Milan Martić participated in the JCE in a number of ways 1214 448 Milan Martić’s contacts with other members of the JCE had already begun during the autumn of 1990 and intensified during 1991 and onwards 1215 The evidence shows that these contacts were close and direct and that as a result substantive financial logistical and military support was rendered to the SAO Krajina and the RSK 1216 The evidence is clear that Milan Martić actively worked together with the other JCE participants to fulfil the objective of a united Serb state something which he expressed publicly on several occasions between 1991 and 1995 1217 449 Milan Martić was considered one of the most important and influential political figures in the SAO Krajina and the RSK governments 1218 During his tenure as Minister of the Interior of the SAO Krajina and RSK Milan Martić exercised absolute authority over the MUP including the power to intervene on an individual level by appointing and removing chiefs of the SJBs as well as the authority to disband units within the MUP 1219 450 The evidence shows that the displacement of the non-Serb population had commenced in and around Knin already in 1991 The ultimatum issued by Milan Martić to the Croatian SJB and the inhabitants of Kijevo at the end of August 1991 is indicative of Milan Martić’s mindset in 1210 See supra section III C 1 section III D 1-5 With regard to Kijevo the Trial Chamber notes in particular Ex 45 p 48 see supra fn 397 1211 See supra fn 371 1212 See supra section III B 2 1213 See supra section III C 2 1214 Indictment para 7 See supra para 6 1215 See supra section III B 2 1216 See supra section III B 2 section III C 2 1217 See supra section III B section III C 1218 See supra section III J Case No IT-95-11-T 161 12 June 2007 relation to the Croat population of the SAO Krajina 1220 Furthermore Milan Martić contributed to this displacement by fuelling the atmosphere of insecurity and fear through radio speeches wherein he stated he could not guarantee the safety of the non-Serb population 1221 451 There is no doubt that Milan Martić was aware that the non-Serb population was being driven out as a result of the coercive atmosphere in the SAO Krajina and the RSK The sheer scale of the widespread and pervasive crimes against the non-Serb population of the SAO Krajina and the RSK must have made such crimes common knowledge 1222 The Trial Chamber recalls that crimes committed within the territory of the RSK were discussed at RSK government sessions 1223 Furthermore Milan Martić and the MUP were informed by UNCIVPOL of the multitude of crimes which were being committed against the non-Serb population 1224 Here the Trial Chamber recalls that Milan Martić himself issued detailed instructions concerning the cooperation of the MUP with UNPROFOR and UNCIVPOL and concerning reporting obligations within the MUP The evidence shows that these instructions were adhered to 1225 Moreover the Trial Chamber recalls that Milan Martić disbanded both Predrag Baklajić’s unit and Veljko Rađunović’s police unit due to criminal activities However despite the substantial evidence concerning ongoing crimes committed by the MUP throughout the territory of the SAO Krajina and the RSK the Trial Chamber has only been presented with evidence of a few examples where Milan Martić intervened to punish members of the MUP who had behaved in a criminal manner 1226 The Trial Chamber cannot but conclude that Milan Martić deliberately refrained from intervening against perpetrators who committed crimes against the non-Serb population 452 The evidence establishes that Milan Martić actively participated in the forcible removal of the non-Serb population both through his own actions and those of the members of the MUP There is evidence of direct acts of deportation perpetrated by MUP forces which resulted in the removal from the SAO Krajina and RSK territory of the non-Serb population 1227 In this respect the Trial Chamber recalls in particular the collection centre at Vrpolje only a few kilometres north of Knin 1219 Ibid See supra para 166 1221 See supra section III F 1222 The Trial Chamber recalls the testimony of Slobodan Jarčević the Foreign Minister of the RSK that the RSK government “did not take any steps against the members of any other nation or ethnic group” and that it was difficult for the RSK government to protect the Croats who remained in the RSK because many of the crimes were committed out of a revenge for losing family members see supra fn 1053 In view of the pervasive nature of the crimes committed against the non-Serb population the Trial Chamber does not find this evidence credible In this respect the Trial Chamber also recalls the evidence that Milan Martić was aware of the various detention facilities which existed in the SAO Krajina and the RSK see supra para 294 Ex 518 Ex 919 1223 See supra section III J 1224 Ibid 1225 Ibid 1226 Ibid 1227 See supra section III D 2-5 section III F 1220 Case No IT-95-11-T 162 12 June 2007 which was secured by members of the Knin SJB and to which they directed the non-Serb population who desired to leave the RSK territory Members of the Knin SJB organised bus transport of the non-Serb population to areas under Croatian control During a meeting with Cedric Thornberry on 14 June 1993 Milan Martić requested that Croats who wished to leave the RSK sign statements that no one had put pressure on them to leave 1228 Milan Martić was aware of the persecutory and coercive atmosphere which existed and had existed in the SAO Krajina and RSK territory for a long time and that those non-Serbs who expressed a desire to leave the territory did so without having a genuine choice in their displacement Moreover there is evidence that Milan Martić repeatedly and publicly opposed the return of refugees 1229 453 The Trial Chamber therefore concludes that Milan Martić intended to forcibly displace the non-Serb population from the territory of the SAO Krajina and subsequently the RSK and actively participated in the furtherance of the common purpose of the JCE 454 The Trial Chamber finds that the crimes found to have been perpetrated against the non- Serb population under Counts 3 to 9 Counts 12 to 14 and Count 1 insofar as it relates to these counts were outside of the common purpose of the JCE However the Trial Chamber recalls that Milan Martić was aware that the non-Serb population was being subjected to widespread and systematic crimes including killings unlawful detentions beatings while detained and crimes against property as a result of the coercive atmosphere in the SAO Krajina and the RSK The Trial Chamber considers that this atmosphere was created and sustained by the actions of Milan Martić and other members of the JCE The Trial Chamber therefore finds that the crimes which have been found to be outside the common purpose were foreseeable to Milan Martić Furthermore the evidence includes only scarce reference to Milan Martić acting to take measures to prevent or punish such crimes Moreover despite the overwhelming evidence of the scale and gravity of the crimes being committed against the non-Serb population Milan Martić persisted in pursuing the common purpose of the JCE Thus the Trial Chamber considers it proven beyond reasonable doubt that Milan Martić willingly took the risk that the crimes which have been found to be outside the common purpose might be perpetrated against the non-Serb population 455 The Trial Chamber finds that Milan Martić incurs individual criminal responsibility pursuant to Article 7 1 of the Statute for Counts 3 to 14 and Count 1 insofar as it relates to these counts 1228 1229 See supra para 299 See supra para 341 Case No IT-95-11-T 163 12 June 2007 4 Findings on Counts 1 and 15 to 19 a Milan Martić’s ordering of the shelling of Zagreb on 2 and 3 May 1995 456 The Trial Chamber recalls that Milan Marti repeatedly admitted in media statements that he had ordered the shelling of Zagreb on 2 and 3 May 1995 In this Trial Chamber’s view this is persuasive evidence which is further supported by circumstantial evidence 457 The evidence shows that already in 1992 and 1993 Milan Marti as Minister of the Interior considered attacking Zagreb as a response to Croatian attacks on RSK cities 1230 Moreover as President of the RSK on 24 October 1994 Milan Marti threatened to strike Zagreb with rockets if the situation deteriorated 1231 458 The Trial Chamber recalls that following the start of Operation Flash in the early morning hours on 1 May 1995 the Chief of the SVK Main Staff General Milan eleketi deployed the M-87 Orkan unit to Vojni 50 kilometres south of Zagreb The Trial Chamber further recalls that during a meeting which was held on 1 May 1995 Milan Martić and Milan Čeleketić were in favour of a nonpeaceful solution Following this meeting at 1300 hours and in the presence of Milan Marti Milan eleketi issued an order to several military commanders to shell Sisak 1232 The evidence shows that Sisak was shelled at 1700 hours on 1 May 1995 The Trial Chamber finds that the abovementioned evidence establishes that Milan Marti was involved from the beginning in the RSK’s military response to Operation Flash The Trial Chamber notes the evidence of Patrick Barriot that Milan Marti merely took responsibility for the ordering of the shelling of Zagreb and that Patrick Barriot came to this conclusion on “an analysis of his personality” 1233 In light of the significant evidence to the contrary presented above the Trial Chamber finds his testimony unconvincing 459 The Trial Chamber recalls that according to the RSK Constitution the President led the SVK in times of peace and war in accordance with the Constitution and the decisions of the Supreme Defence Council 1234 Accordingly any decision to shell Zagreb should have been taken by the collegiate body of the Supreme Defence Council However the evidence establishes that Milan Martić and Milan Čeleketić circumvented the Supreme Defence Council The Trial Chamber recalls the evidence of Rade Ra eta Chief of Security of the SVK Main Staff that the decisions to shell Zagreb on 2 and 3 May 1995 were not taken by the Supreme Defence Council but by the SVK 1230 See supra section III G 3 Ibid 1232 Ibid 1233 Patrick Barriot 9 Nov 2006 T 10773-10774 10777-10778 10 Nov 2006 T 10841 1234 See supra para 155 1231 Case No IT-95-11-T 164 12 June 2007 Commander and the President of the RSK 1235 This is further supported by reports of the two RSK commissions referred to above 1236 460 In light of the totality of the evidence the Trial Chamber finds beyond reasonable doubt that Milan Marti ordered the shelling of Zagreb on 2 and 3 May 1995 b Military targets in Zagreb and the nature of the M 87 Orkan 461 The Defence argues that there were military targets in Zagreb at the time of the attacks on 2 and 3 May 1995 including the Ministry of Interior Ministry of Defence Zagreb Plešo airport which had a military purpose and the Presidential Palace 1237 The Trial Chamber notes the report of 2 May 1995 from the SVK Main Staff to the VJ General Staff which provides that the following targets in Zagreb were fired at by Orkan rockets on that day the Ministry of Defence the Presidential Palace and Zagreb Ple o airport 1238 The Trial Chamber notes that of these targets the only one that was hit was Zagreb Plešo airport where one bomblet landed in a parking lot 1239 The report also provides that “ a ccording to our source the Ministry of Defence in Kri ani eva Street was hit ” However the Trial Chamber notes that the Ministry of Defence is not located in this street but in the nearby Baureova Street 1240 The Trial Chamber notes that two police buildings in Matica Hrvatska Street also received damage to the roof and upper floors on 2 May 1995 1241 However as will be shown below the presence or otherwise of military targets in Zagreb is irrelevant in light of the nature of the M-87 Orkan 462 The M-87 Orkan is a non-guided projectile the primary military use of which is to target soldiers and armoured vehicles 1242 Each rocket may contain either a cluster warhead with 288 socalled bomblets or 24 anti-tank shells 1243 The evidence shows that rockets with cluster warheads containing bomblets were launched in the attacks on Zagreb on 2 and 3 May 1995 1244 Each bomblet contains 420 pellets of 3mm in diameter 1245 The bomblets are ejected from the rocket at a 1235 See supra para 321 Ibid 1237 Defence Final Trial Brief paras 90 147 See also Ex 1042 Tab 2 Ex 1043 Tab 2 DVD 1 pp 31 37 42 1238 Ex 95 p 3 1239 Branko Lazarevi 14 Jun 2006 T 5629 Ex 810 Ex 1042 Tab 2 Ex 1043 Tab 2 DVD 1 pp 1-2 1240 Branko Lazarevi 15 Jun 2006 T 5663-5664 testifying that the Ministry complex is 300 by 400 metres and includes military facilities and institutions Ex 1042 Tab 2 Ex 1043 Tab 2 DVD 1 pp 30-31 Ex 814 Jo ef Poje 7 Jun 2006 T 5211 1241 Ex 808 F-86 to F-89 Ex 807 F-34 to F-68 Ex 806 Branko Lazarevi 14 Jun 2006 T 5628 15 Jun 2006 T 5676 5678 1242 Jo ef Poje 6 Jun 2006 T 5067-5068 5136 Ex 7 p 38 1243 Ex 7 pp 23 44 Jo ef Poje 6 Jun 2006 T 5068-5069 See also Ex 94 p 8 Jo ef Poje 6 Jun 2006 T 5103 51295130 5133-5134 1244 Jo ef Poje 7 Jun 2006 T 5159 Reynaud Theunens 27 Jan 2006 T 824-825 Ex 772 Ex 775 Branko Lazarevi 15 Jun 2006 T 5689 Ex 809 F-65 F-66 1245 Jo ef Poje 6 Jun 2006 T 5133 Ex 7 p 23 Ex 94 p 8 1236 Case No IT-95-11-T 165 12 June 2007 height of 800-1 000m above the targeted area and explode upon impact releasing the pellets 1246 The maximum firing range of the M-87 Orkan is 50 kilometres 1247 The dispersion error of the rocket at 800-1 000m in the air increases with the firing range Fired from the maximum range this error is about 1 000m in any direction 1248 The area of dispersion of the bomblets on the ground is about two hectares 1249 Each pellet has a lethal range of ten metres 1250 463 The evidence shows that the M-87 Orkan was fired on 2 and 3 May 1995 from the Vojnić area near Slavsko Polje between 47 and 51 kilometres from Zagreb However the Trial Chamber notes in this respect that the weapon was fired from the extreme of its range Moreover the Trial Chamber notes the characteristics of the weapon it being a non-guided high dispersion weapon The Trial Chamber therefore concludes that the M-87 Orkan by virtue of its characteristics and the firing range in this specific instance was incapable of hitting specific targets For these reasons the Trial Chamber also finds that the M-87 Orkan is an indiscriminate weapon the use of which in densely populated civilian areas such as Zagreb will result in the infliction of severe casualties By 2 May 1995 the effects of firing the M-87 Orkan on Zagreb were known to those involved 1251 Furthermore before the decision was made to once again use this weapon on Zagreb on 3 May 1995 the full impact of using such an indiscriminate weapon was known beyond doubt as a result of the extensive media coverage on 2 May 1995 of the effects of the attack on Zagreb c Defence argument on reprisals 464 The Defence submits that the shelling of Zagreb may be considered lawful reprisal carried out with the aim of putting an end to violations of international humanitarian law committed by “the Croatian military and police forces” 1252 In particular the Defence submits that the shelling of 1246 Jo ef Poje 6 Jun 2006 T 5129-5130 5133 Ex 7 pp 23 44 Ex 94 p 8 Jo ef Poje 6 Jun 2006 T 5066-5067 Ex 7 p 47 1248 Firing a rocket from a distance of 49 kilometres results in an elliptical area of dispersion of 972m by 1032m Jo ef Poje 6 Jun 2006 T 5100-5103 Ex 776 Ex 778 Ex 779 See also Ex 777 showing the area of dispersion for the distance of 40 kilometres Rade Ra eta 2 May 2006 T 3939 testified that “persons who are familiar with these artillery pieces knew that they were intended for targeting wider areas and not points and that as such they could entail a lot of casualties” In this respect Jo ef Poje testified that it would have been easy to conclude what the consequences of using the Orkan would be however allowed for the possibility that not everyone is familiar with the consequences of using this weapon Jo ef Poje 6 Jun 2006 T 5113-5114 See also Jo ef Poje 6 Jun 2006 T 5064-5065 5108 5118 7 Jun 2006 T 5155-5156 5190-5192 5233-5234 Ex 7 pp 19 38 61 66-68 1249 Ex 7 p 23 Jo ef Poje 6 Jun 2006 T 5069 Ex 94 p 8 Ex 771 If the warhead opens along the edge of the dispersion ellipse it is possible that part of the bomblets fall outside of the ellipse by approximately 100 m since the surface area on which the bomblets drop is two hectares Jo ef Poje 6 Jun 2006 T 5103 1250 Ex 7 pp 23 44 1251 See supra section III G 2 1252 Defence Final Trial Brief paras 86-93 See also paras 114-136 This argument was contested by the Prosecution see Prosecution Closing Argument 10 Jan 2006 T 11221-11223 1247 Case No IT-95-11-T 166 12 June 2007 Zagreb was a reaction to Operation Flash which was in breach of the cease fire agreement and “conducted without any respect to the norms of international humanitarian law” 1253 465 In the law of armed conflict belligerent reprisals are acts resorted to by one belligerent which would otherwise be unlawful but which are rendered lawful by the fact that they are taken in response to a violation of that law committed by the other belligerent 1254 Reprisals are therefore drastic and exceptional measures employed by one belligerent for the sole purpose of seeking compliance with the law of armed conflict by the opposite party It follows that reprisals in order to be considered lawful are subject to strict conditions These conditions are well-established in customary law and are set forth below 1255 466 Reprisals may be used only as a last resort and only when all other means have proven to be ineffective 1256 This limitation entails that reprisals may be exercised only after a prior and formal warning has been given which has failed to put an end to the violations committed by the adversary 1257 In addition reprisals may only be taken after a decision to this effect has been made at the highest political or military level 1258 467 A further requirement is that the measures taken must be proportionate to the initial violation of the law of armed conflict of the opposite party 1259 According to this condition the reprisals must cease as soon as they have achieved their purpose of putting an end to the breach which provoked them 1260 Finally acts of reprisal must respect the “laws of humanity and dictates of public conscience” 1261 The Trial Chamber interprets this condition to mean that reprisals must 1253 Defence Final Trial Brief para 125 Commentary ICRC para 3427 citing the definition of reprisal adopted by the Institut de droit international in Annuaire 708-11 1934 and defining reprisal as follows “compulsory measures derogating from the ordinary rules of such law taken by a belligerent following unlawful acts to its detriment committed by another belligerent and which intend to compel the latter by injuring it to observe the law” 1255 See Commentary ICRC on Additional Protocols para 3457 which reports that the discussion about the issue of reprisal at the Diplomatic Conference on the adoption of the Additional Protocols to the Geneva Conventions showed agreement among the States on some minimum restrictions as spelled out in the main text Kupreski et al Trial Judgement para 535 1256 Ibid For example the YPA Military Manual of the SFRY FRY 1988 para 29 states that “before they undertake reprisals the armed forces of the SFRY shall try to force the enemy to respect the laws of war by means of other methods for preventing violations of such laws” A similar wording is contained in the military manuals of numerous States including inter alia Canada LOAC Manual 1999 p 15-3 para 17 United States Field Manual 1956 para 497 b Germany Military Manual 1992 para 478 Netherlands Military Manual 1993 p IV-5 United Kingdom Military Manual 1958 para 646 Ecuador’s Naval Manual 1989 para 6 2 3 1 New Zealand Military Manual 1992 para 1606 4 c and d Spain LOAC Manual 1996 Vol I para 2 3 b 6 Several of the above references to military manuals were extracted from Customary International Humanitarian Law Volume II pp 3328-3337 1257 Commentary ICRC on Additional Protocols para 3457 Kupreski et al Trial Judgement para 535 1258 Ibid 1259 Commentary ICRC on Additional Protocols para 3457 Kupreski et al Trial Judgement para 535 1260 Ibid 1261 Ibid 1254 Case No IT-95-11-T 167 12 June 2007 be exercised to the extent possible in keeping with the principle of the protection of the civilian population in armed conflict and the general prohibition of targeting civilians 1262 468 The Trial Chamber finds that the evidence presented to the Trial Chamber regarding the shelling of Zagreb fails to show that the conditions for lawful reprisals have been met First even if the Trial Chamber was to assume that the Croatian forces had engaged in serious violations of international humanitarian law during Operation Flash the evidence shows that the shelling was not carried out as a last resort after having exhausted all other means Indeed the Trial Chamber has been provided with evidence that peace negotiations were ongoing during Operation Flash until 3 May 1995 1263 Furthermore no formal warning was given prior to the shelling that acts of reprisals would be carried out in reaction to the alleged violations conducted during Operation Flash 1264 The Trial Chamber cannot therefore find that the shelling of Zagreb constituted a lawful reprisal and does not consider it necessary to analyse the issue of reprisal any further The Defence argument in this regard is consequently dismissed d General requirements of Article 3 and Article 5 of the Statute 469 The Trial Chamber recalls its findings concerning the existence of an armed conflict in the territories relevant to the crimes charged in the Indictment The Trial Chamber considers the shelling of Zagreb on 2 and 3 May 1995 and the crimes in relation to this shelling with which Milan Martić has been charged were related to the armed conflict in such a way as to meet the relevant general requirements of Article 3 and Article 5 of the Statute Moreover in particular due to the characteristics of the M-87 Orkan and due to the large-scale nature of the attack the Trial Chamber finds that the shelling constituted a widespread attack directed against the civilian population of Zagreb Furthermore the Trial Chamber considers it proven beyond doubt that Milan Marti was aware of this attack on the civilian population and that his ordering of the shelling formed part of the attack The Trial Chamber therefore concludes that the general requirements of Article 3 and Article 5 of the Statute have been met 1262 See supra section II E See supra para 302 1264 See supra section III G 1-2 In this regard the Trial Chamber notes that the threat to shell Zagreb given by Milan Marti to Ambassador Peter Galbraith on 24 October 1994 cannot be considered a warning for the purpose of reprisal for at least three reasons it was given long before Operation Flash commenced it was not addressed directly to the Croatian authorities and it lacked any elements of formality The same is true for the speech given by Milan Marti on 10 February 1995 to the SVK commanding officers and for the interview of Milan Čeleketić reported in a newspaper article on 24 March 1995 The Trial Chamber notes also that with regard to the interview of Milan Čeleketić it could not be considered as a warning for the purpose of reprisal since it was not given by the highest political or military authority 1263 Case No IT-95-11-T 168 12 June 2007 e Counts 15 and 16 – Murder 470 The Trial Chamber finds that the deaths of Ana Muteveli Damir Dra i Stjepan Krhen Ivanka Kova Ivan Brodar Luka Skra i and Ivan Markulin were caused as a result of the rocket attacks on Zagreb which were ordered by Milan Martić Having regard in particular to the Trial Chamber’s findings concerning the nature of the M-87 Orkan and that Milan Martić who ordered the use of the M-87 Orkan was aware that death was a probable consequence of this attack the Trial Chamber finds that the mental element of the crime of murder is established The Trial Chamber recalls that Ivan Markulin was a member of the Croatian MUP and that he was in the process of deactivating a bomb at the time of his death and was not taking an active part in the hostilities The Trial Chamber therefore finds that Milan Martić bears individual criminal responsibility under Article 7 1 of the Statute for Counts 15 and 16 for the murder of Ana Muteveli Damir Dra i Stjepan Krhen Ivanka Kova Ivan Brodar and Luka Skra i The Trial Chamber further finds that Milan Martić bears individual criminal responsibility under Article 7 1 of the Statute for Count 16 for the murder of Ivan Markulin f Counts 17 and 18 – Inhumane acts under Article 5 i and cruel treatment under Article 3 471 The Trial Chamber finds that the evidence from persons injured during the shelling of Zagreb is representative of the injuries and suffering caused to the 214 persons who were injured on 2 and 3 May 1995 The Trial Chamber therefore concludes that the shelling caused serious mental and or physical suffering to those injured The Trial Chamber considers that Milan Martić knew that the shelling was likely to cause such suffering and thus intentionally committed acts which amount to cruel treatment under Article 3 and inhumane acts under Article 5 against these persons The Trial Chamber recalls that of the persons injured 7 were not civilians The Trial Chamber therefore finds Milan Martić incurs individual criminal responsibility under Article 7 1 of the Statute for Count 17 other inhumane acts under Article 5 i and for Count 18 for cruel treatment under Article 3 in relation to 207 victims and for Count 18 cruel treatment under Article 3 in relation to the other 7 victims g Count 19 – Attacks on civilians under Article 3 472 In examining the responsibility of Milan Martić for the crime of attacks on civilians under Article 3 the Trial Chamber recalls that a direct attack on civilians may be inferred from the indiscriminate character of the weapon used The Trial Chamber has previously found that the M-87 Orkan was incapable of hitting specific targets 1265 The Trial Chamber has also found that these 1265 See supra section IV B 4 b Case No IT-95-11-T 169 12 June 2007 attacks resulted in death and serious injury to the civilian population Having regard in particular to the nature of the M-87 Orkan and the finding that Milan Martić knew of the effects of this weapon the Trial Chamber finds that Milan Martić wilfully made the civilian population of Zagreb the object of this attack Milan Martić therefore incurs individual criminal responsibility under Article 7 1 of the Statute for Count 19 attacks on civilians under Article 3 h Count 1 – Persecution 473 The Trial Chamber recalls the situation prevailing prior to the shelling of Zagreb including the launch of Operation Flash by Croatian armed forces Moreover the Trial Chamber recalls that prior to the shelling of Sisak and Zagreb Milan Martić considered the shelling of Croatian cities as a response to Croatian attacks on RSK cities However the Trial Chamber has not found any evidence which would persuade it beyond reasonable doubt that Milan Martić intended to commit such attacks including the attacks which were eventually carried out on Zagreb on 2 and 3 May 1995 with discriminatory intent on the basis of ethnicity Rather the evidence shows that Milan Martić intended to shell the city of Zagreb in order to retaliate on Croatia and to stop further Croatian attacks on the RSK While an attack on a city such as in this case is without doubt grave the Trial Chamber cannot find that it establishes in and of itself that it was carried out with the requisite intent The Trial Chamber therefore concludes that the elements of the crime of persecution Count 1 have not been established C Cumulative convictions 474 Cumulative convictions that is multiple convictions entered under different statutory provisions in relation to the same conduct are permissible only if each statutory provision involved has a materially distinct element not contained in the other An element is materially distinct from another if it requires proof of a fact not required by the other element Where this test is not met the Trial Chamber will enter a conviction only under the more specific provision 1266 475 Milan Marti has been found criminally responsible for the crime of persecution Count 1 and for the crimes charged in Counts 3 to 19 1267 The acts underlying the findings of persecution include the acts underlying the findings of the crimes under Counts 3 to 14 Persecution requires a 1266 Čelebići Appeal Judgement paras 412-413 This test has been further clarified by the Appeals Chamber in Kordi and erkez as follows “ w hen applying the Čelebići test what must be considered are the legal elements of each offence not the acts or omissions giving rise to the offence What each offence requires as a matter of law is the pertinent inquiry The Appeals Chamber will permit multiple convictions for the same act or omission where it clearly violates multiple distinct provisions of the Statute where each statutory provision contains a materially distinct element not contained in the other s and which element requires proof of a fact which the elements of the other statutory provision s do not … ” Kordi and erkez Appeal Judgement para 1033 footnotes omitted See also Kunarac et al Appeal Judgement para 177 Staki Appeal Judgement paras 355-358 Case No IT-95-11-T 170 12 June 2007 materially distinct element that is not present as an element in any of the other crimes that is proof that the act or omission discriminated in fact and that the act or omission was committed with the specific intent to discriminate on the basis of one of the grounds listed in Article 5 1268 The other crimes under Counts 3 to 14 require proof of materially distinct elements which are not present in the crime of persecution As a result cumulative conviction is permissible for persecution and for the crimes found to have been committed under Counts 3 to 14 476 Milan Marti has been found criminally responsible for the following crimes charged under Article 3 and Article 5 of the Statute which are based on the same conduct murder as a crime against humanity Count 3 and murder as a violation of the laws and customs of war Count 4 1269 torture as a crime against humanity Count 6 and torture as a violation of the laws or customs of war Count 8 1270 inhumane acts as a crime against humanity Count 7 and cruel treatment as a violation of the laws or customs of war Count 9 1271 murder as a crime against humanity Count 15 and murder as a violation of the laws and customs of war Count 16 1272 and inhumane acts as a crime against humanity Count 17 and cruel treatment as a violation of the laws or customs of war Count 18 1273 Crimes under Article 3 of the Statute require a materially distinct element to be proven which is not required for the crimes under Article 5 of the Statute that is the nexus between the acts of the accused and the armed conflict Crimes under Article 5 of the Statute require a materially distinct element that is not required for the crimes under Article 3 of the Statute a widespread or systematic attack directed against any civilian population Therefore cumulative convictions are permissible under Article 3 and Article 5 1274 477 Milan Marti has been found criminally responsible for the crimes of torture Count 6 and inhumane acts Count 7 as crimes against humanity in relation to the same conduct 1275 The crime of torture has a materially distinct element that is the act or omission must have been carried out for a prohibited purpose This element is not required for the crime of inhumane acts However the crime of inhumane acts does not require proof of a materially distinct element 1276 Accordingly a cumulative conviction for the two crimes is not permissible and the Trial Chamber will enter a conviction for the crime of torture only The same reasoning applies to the crime of torture and the 1267 See supra section IV A B Staki Appeal Judgement paras 359-364 Kordi and erkez Appeal Judgement para 1041 1269 See supra paras 354 359 364 365 368 373 379 386-389 392 400 1270 See supra paras 410 415 1271 See supra paras 410 415 419 424 1272 See supra para 471 1273 See supra para 472 1274 Jeliši Appeal Judgement para 82 1275 See supra paras 410 415 1276 Kunarac et al Appeal Judgement paras 142 144 confirming Kunarac et al Trial Judgement para 497 See also Br anin Trial Judgement para 481 Krnojelac Trial Judgement para 181 1268 Case No IT-95-11-T 171 12 June 2007 crime of cruel treatment as violations of laws and customs of war for which Milan Martić has been found criminally responsible in relation to the same conduct 1277 478 In relation to the shelling of Zagreb Milan Marti has been found criminally responsible for the crimes of murder Count 16 cruel treatment Count 18 and attacks on civilians Count 19 all violations of laws and customs of war under Article 3 1278 These crimes are based on the same conduct The crime of attacks on civilians requires the existence of an attack directed against a civilian population the killings of or infliction of serious bodily injury to civilians as a consequence of the attack and the intent to make the civilian population the object of attack As the crime of attacks on civilians requires materially distinct elements not required for murder or cruel treatment the latter crimes are absorbed by the crime of attacks on civilians As a result cumulative conviction for these crimes is not permissible and the Trial Chamber will only enter a conviction for the crime of attacks on civilians 1279 D Summary of the Trial Chamber’s findings in relation to each count 479 The Trial Chamber finds Milan Martić NOT GUILTY of Count 2 480 Extermination a crime against humanity The Trial Chamber finds Milan Martić GUILTY pursuant to Article 7 1 of the Statute on the following counts Count 1 Persecutions a crime against humanity 1280 Count 3 Murder a crime against humanity 1281 Count 4 Murder a violation of the laws or customs of war 1282 Count 5 Imprisonment a crime against humanity 1283 Count 6 Torture a crime against humanity 1284 Count 7 Inhumane acts a crime against humanity 1285 1277 See supra paras 410 415 419 422 See supra paras 471 472 473 1279 Strugar Trial Judgement para 449 1280 See supra paras 358 363 367 370 377-378 383 398-399 403 411 416 432 Hence acquitting Milan Marti as to the rest of the charges under Count 1 see supra paras 384 403 419 422 425 474 1281 See supra paras 354 359 364-365 368 373 379 386-389 392 400 Hence acquitting Milan Marti as to the rest of the charges under Count 3 see supra paras 387 389-393 401 1282 See supra paras 354 359 364-365 368 373 379 386-389 391-392 400 Hence acquitting Milan Marti as to the rest of the charges under Count 4 see supra paras 389-393 401 1283 See supra paras 410 412 Hence acquitting Milan Marti as to the rest of the charges under Count 5 see supra paras 417 422 423 1284 See supra paras 410 415 Hence acquitting Milan Marti as to the rest of the charges under Count 6 see supra paras 419 422 424 1285 See supra paras 410 415 419 424 Hence acquitting Milan Marti as to the rest of the charges under Count 7 see supra para 422 424 1278 Case No IT-95-11-T 172 12 June 2007 Count 8 Torture a violation of the laws or customs of war 1286 Count 9 Cruel treatment a violation of the laws or customs of war 1287 Count 10 Deportation a crime against humanity 1288 Count 11 Forcible transfer a crime against humanity 1289 Count 12 Wanton destruction of villages or devastation not justified by military necessity a violation of the laws or customs of war 1290 Count 13 Destruction or wilful damage done to institutions dedicated to education or religion a violation of the laws or customs of war 1291 Count 14 Plunder of public or private property a violation of the laws or customs of war 1292 Count 15 Murder a crime against humanity 1293 Count 16 Murder a violation of the laws or customs of war 1294 Count 17 Inhumane acts a crime against humanity 1295 Count 18 Cruel treatment a violation of the laws or customs of war 1296 Count 19 Attacks on civilians a violation of the laws or customs of war 1297 While the Trial Chamber has found that the elements have been established for the crimes charged under Count 16 and Count 18 in view of the fact that these crimes are absorbed by the crime of attacks on civilians under Count 19 the Trial Chamber will only enter a conviction with respect to the crime of attacks on civilians V SENTENCING LAW AND FACTS A Applicable law 481 The relevant provisions covering sentencing are set out in Article 24 of the Statute and Rule 101 of the Rules of Procedure and Evidence Article 24 of the Statute provides 1286 See supra paras 410 415 419 422 Hence acquitting Milan Marti as to the rest of the charges under Count 8 see supra paras 424 1287 See supra paras 410 415 419 422 424 Hence acquitting Milan Marti as to the rest of the charges under Count 9 see supra para 424 1288 See supra para 431 1289 See supra para 429 1290 See supra paras 360 374-375 381 Hence acquitting Milan Marti as to the rest of the charges under Count 12 see supra paras 355 366 385 394 397 402 1291 See supra paras 361 395 Hence acquitting Milan Marti as to the rest of the charges under Count 13 see supra paras 356 366 369 380 385 397 1292 See supra paras 357 382 Hence acquitting Milan Marti as to the rest of the charges under Count 14 see supra paras 362 376 385 396-397 1293 See supra para 471 1294 See supra para 471 1295 See supra para 472 1296 See supra para 472 1297 See supra para 473 Case No IT-95-11-T 173 12 June 2007 1 The penalty imposed by the Trial Chamber shall be limited to imprisonment In determining the terms of imprisonment the Trial Chambers shall have recourse to the general practice regarding prison sentences in the courts of the former Yugoslavia 2 In imposing the sentences the Trial Chambers should take into account such factors as the gravity of the offence and the individual circumstances of the convicted person 3 In addition to imprisonment the Trial Chambers may order the return of any property and proceeds acquired by criminal conduct including by means of duress to their rightful owners Rule 101 of the Rules of Procedure and Evidence provides A A convicted person may be sentenced to imprisonment for a term up to and including the remainder of the convicted person’s life B In determining the sentence the Trial Chamber shall take into account the factors mentioned in Article 24 paragraph 2 of the Statute as well as such factors as i any aggravating circumstances ii any mitigating circumstances including the substantial cooperation with the Prosecutor by the convicted person before or after conviction iii the general practice regarding prison sentences in the courts of the former Yugoslavia iv the extent to which any penalty imposed by a court of any State on the convicted person for the same act has already been served as referred to in Article 10 paragraph 3 of the Statute C Credit shall be given to the convicted person for the period if any during which the convicted person was detained in custody pending surrender to the Tribunal or pending trial or appeal These provisions set forth factors to be taken into consideration by the Trial Chamber when deciding a sentence 1298 They do not constitute binding limitations on the Trial Chamber’s discretion to impose a sentence 1299 which must always be decided based on the facts of each particular case 1300 482 The Appeals Chamber has held that the sentencing practice of the Tribunal in cases involving similar circumstances is but one factor which a Chamber must consider when exercising its discretion in imposing a sentence 1301 The Appeals Chamber has held that comparisons between cases as regards sentencing are not reliable as the sole basis for sentencing 1302 On the other hand “ a previous decision on sentence may indeed provide guidance if it relates to the same offence and was committed in substantially similar circumstances” 1303 However this assistance may be limited 1304 as “when comparing a case to the same offence committed in substantially similar circumstances the Trial Chamber still has an overriding obligation to tailor a penalty to fit the 1298 Rule 101 B of the Rules See also Krstić Appeal Judgement para 241 Čelebići Appeal Judgement para 716 Krstić Appeal Judgement paras 241-242 Čelebići Appeal Judgement paras 715 718 780 See also Kambanda Appeal Judgement para 124 Furundžija Appeal Judgement para 238 1300 Krstić Appeal Judgement para 241 Jelisić Appeal Judgement para 101 Čelebići Appeal Judgement para 717 1301 Krstić Appeal Judgement para 248 Čelebići Appeal Judgement para 757 1302 Čelebići Appeal Judgement para 719 1303 Momir Nikolić Sentencing Appeal Judgement para 38 citing Furund‘jia Appeal Judgement para 250 Čelebići Appeal Judgement para 720 1304 Čelebići Appeal Judgement para 721 1299 Case No IT-95-11-T 174 12 June 2007 gravity of the crime and the individual circumstances of the accused which include the consideration of both aggravating and mitigating circumstances ” 1305 483 The Prosecution recalls the sentencing judgement of Milan Babi who was sentenced by the Tribunal to a period of 13 years’ imprisonment for his criminal conduct to which he pled guilty The Prosecution submits that the culpability of Milan Marti should be compared with that of Milan Babi whose conduct occurred within a more limited time 1 August 1991 to 15 February 1992 who cooperated with the Tribunal and who testified in three trials and therefore received a lower sentence than he otherwise might have 1306 The Trial Chamber considers that guidance may be had from the Babi case however such guidance will necessarily be limited 1 Principles and purposes of sentencing 484 The jurisprudence of the Tribunal has consistently held that the main purposes of sentencing for crimes within the jurisdiction of the Tribunal are deterrence and retribution 1307 The penalties imposed by the Tribunal must in general have sufficient deterrent value to dissuade those who would consider committing similar crimes from doing so 1308 However deterrence “must not be accorded undue prominence in the overall assessment of the sentences to be imposed on persons convicted by the International Tribunal” 1309 Moreover “unlike vengeance retribution incorporates a principle of restraint retribution requires the imposition of a just and appropriate punishment and nothing more” 1310 However a sentence imposed “should make plain the condemnation of the international community of the behaviour in question ” 1311 A third purpose of sentencing is rehabilitation which while it may be considered a relevant factor “is not one which should be given undue weight” 1312 2 Gravity and individual circumstances of the convicted person 485 Article 24 2 of the Statute provides that in imposing sentences Trial Chambers should take into account such factors as the gravity of the offence and the individual circumstances of the convicted person The Appeals Chamber has held that the gravity of the offence is a primary 1305 Momir Nikolić Sentencing Appeal Judgement para 38 citing Čelebići Appeal Judgement paras 717 719 Prosecution Closing Argument 10 Jan 2007 T 11231 1307 Čelebići Appeal Judgement para 806 Aleksovski Appeal Judgement para 185 See also Furund‘ija Trial Judgement para 288 Tadi Sentencing Judgement paras 7-9 Kupreški et al Trial Judgement para 848 As regards deterrence see also Čelebići Appeal Judgement para 800 citing Tadić Jurisdiction Decision para 72 1308 Kordić and Čerkez Appeal Judgement para 1078 1309 Kordić and Čerkez Appeal Judgement para 1078 Čelebići Appeal Judgement para 801 Aleksovski Appeal Judgement para 185 Tadić Sentencing Appeal Judgement para 48 1310 Kordić and Čerkez Appeal Judgement para 1075 emphasis in original See also Aleksovski Appeal Judgement para 185 Dragan Nikolić Sentencing Judgement para 140 1311 Aleksovski Appeal Judgement para 185 citing Erdemović Sentencing Judgement paras 64-65 1306 Case No IT-95-11-T 175 12 June 2007 consideration in imposing a sentence 1313 There is no hierarchy of crimes within the jurisdiction of the Tribunal 1314 Sentences must reflect the inherent gravity or totality of the criminal conduct of the accused requiring a consideration of the particular circumstances of the case as well as the form and degree of the participation of the accused in the crime 1315 486 The Appeals Chamber has found that factors to be considered include the discriminatory nature of the crimes where this is not considered as an element of a conviction 1316 and the vulnerability of the victims 1317 The Appeals Chamber has also held that the consequences of the crime upon the victim directly injured is always relevant to sentencing 1318 further factors such as the effects of the crime on relatives of the immediate victims may also be considered 1319 487 The Prosecution submits that the crimes with which Milan Martić is charged are of serious gravity and directs the Trial Chamber’s attention to persecutions as a crime against humanity and crimes involving the intentional deprivation of life 1320 The Prosecution further submits that the targeted group in this case was predominantly civilian and included women children and the elderly 1321 488 Milan Marti has been found responsible for inter alia the crimes of murder imprisonment torture cruel treatment destruction including of buildings dedicated to religion as well as plunder directed against people of Croat ethnicity Many of these crimes were committed with discriminatory intent The Trial Chamber agrees with the Prosecution that the fact that the crimes were committed with discriminatory intent is a factor to be taken into consideration when assessing the gravity of the criminal conduct of Milan Martić 489 Milan Marti has also been found guilty of the crimes of deportation and other inhumane acts forcible transfer The Trial Chamber particularly notes that the non-Serb population was subjected to widespread and systematic crimes including killings beatings and crimes against 1312 Čelebići Appeal Judgement para 806 See also Deronjić Sentencing Appeal Judgement paras 135-137 Stakić Appeal Judgement paras 400-402 1313 Blaskić Appeal Judgement para 683 Čelebići Appeal Judgement para 731 Kupreškič et al Appeal Judgement para 442 See also Aleksovski Appeal Judgement para 182 1314 Stakić Appeal Judgement para 375 1315 Blaškić Appeal Judgement para 683 citing Furund ija Appeal Judgement para 249 See also Èelebiæi Appeal Judgement para 731 citing Kupreškić et al Trial Judgement para 852 cited in the Aleksovski Appeal Judgement at para 182 See also Čelebići Appeal Judgement para 769 Stakić Trial Judgement para 903 1316 Kvočka et al Trial Judgement para 702 1317 Bla kić Appeal Judgement para 683 Kunarac et al Appeal Judgement para 352 1318 Blaškić Appeal Judgement para 683 Krnojelac Trial Judgement para 512 1319 Blaškić Appeal Judgement para 683 Krnojelac Appeal Judgement para 260 The Trial Chamber in Čelebići held that “The gravity of the offences of the kind charged has always been determined by the effect on the victim or at the most on persons associated with the crime and nearest relations Gravity is determined in personam and is not one of a universal effect ” Čelebići Trial Judgement para 1226 1320 Prosecution Final Trial Brief para 478 1321 Prosecution Final Trial Brief para 480 Prosecution Closing Argument 10 Jan 2007 T 11234 Case No IT-95-11-T 176 12 June 2007 property as a result of the coercive atmosphere in the SAO Krajina and the RSK between 1991 and 1995 and that as a result almost all of the Croat and other non-Serb population were forcibly displaced The scale and systematic nature of these crimes are factors which the Trial Chamber considers to be of particular gravity 490 The Trial Chamber recalls that the majority of the crimes for which Milan Marti has been found guilty were committed against elderly persons or against people held in detention Furthermore the majority of the victims were civilians The special vulnerability of these groups of victims adds to the gravity of the crimes for which Milan Marti has been found guilty 491 The Trial Chamber recalls the effects of the crimes committed on victims and their families Virtually the entire Croat and other non-Serb population was expelled and many had their houses and property burnt and looted Appalling acts of inhumane treatment including torture were committed in detention facilities against Croat and other non-Serb detainees The Trial Chamber recalls in particular the testimony of some victims of these crimes concerning the suffering they endured and continue to endure as a result of these crimes Moreover the Trial Chamber recalls the horrific injuries and the serious suffering inflicted on civilians as a consequence of the indiscriminate attacks on Zagreb ordered by Milan Martić The impact and long-lasting effects of these crimes for which Milan Martić is individually criminally responsible including as a direct perpetrator render them especially grave 492 In relation to “the individual circumstances of the convicted person” the Appeals Chamber has held that while such circumstances can be either mitigating or aggravating family concerns should in principle be a mitigating factor 1322 The Trial Chamber will consider this factor in the following section 3 Aggravating and mitigating factors 493 The Statute and the Rules require the Trial Chamber to take account of both aggravating and mitigating circumstances when imposing a sentence 1323 The Appeals Chamber has held that the weight to be attached to such circumstances is a matter within the Trial Chamber’s discretion 1324 1322 Kunarac et al Appeal Judgement para 362 Erdemović Second Sentencing Judgement para 16 Tadić Sentencing Judgement para 26 1323 See above Article 24 of the Statute and Rule 101 of the Rules Čelebići Appeal Judgement para 717 1324 Čelebići Appeal Judgement paras 718 777 780 Bla kić Appeal Judgement para 696 Case No IT-95-11-T 177 12 June 2007 Factors which a Trial Chamber takes into account as aspects of the gravity of the crime cannot additionally be taken into account as separate aggravating circumstances and vice versa 1325 494 While mitigating circumstances not directly related to the offence may be considered with regard to aggravating circumstances only those relating directly to the commission of the offence may be considered 1326 Furthermore the absence of a mitigating factor can never serve as an aggravating factor 1327 a Aggravating circumstances 495 Aggravating circumstances must be proved by the Prosecution beyond reasonable doubt 1328 Such factors include i the position of the accused that is his position of leadership his level in the command structure or his role in the broader context of the conflict of the former Yugoslavia 1329 ii the discriminatory intent 1330 or the discriminatory state of mind for crimes for which such a state of mind is not an element or ingredient of the crime 1331 iii the length of time during which the crime continued 1332 iv active and direct criminal participation if linked to a high-rank position of command 1333 the accused’s role as fellow perpetrator 1334 and the active participation of a superior in the criminal acts of subordinates 1335 v the informed willing or enthusiastic participation in crime 1336 vi premeditation and motive 1337 vii the sexual violent and humiliating nature of the acts and the vulnerability of the victims 1338 viii the status of the 1325 Deronjić Sentencing Appeal Judgement para 106 citing Krnojelac Trial Judgement para 517 Plav i Sentencing Judgement para 58 Banovi Sentencing Judgement para 53 See also Momir Nikolić Sentencing Appeal Judgement para 58 Obrenovi Sentencing Judgement para 101 e i Sentencing Judgement para 53 1326 Kunarac et al Trial Judgement para 850 1327 Bla kić Appeal Judgement para 687 citing Čelebići Appeal Judgement paras 763 783 Plavšić Sentencing Judgement para 64 Kunarac et al Trial Judgement para 847 1328 Bla kić Appeal Judgement para 686 citing Čelebići Appeal Judgement para 763 1329 Ibid citing Joki Sentencing Judgement paras 61-62 See also Tadić Sentencing Appeal Judgement paras 55-56 The Appeals Chamber in Stakić noted that “in considering the superior position in connection with Article 7 1 the Appeals Chamber recalls that it is settled in the jurisprudence of the Tribunal that superior position itself does not constitute an aggravating factor Rather it is the abuse of such position which may be considered an aggravating factor ” Stakić Appeal Judgement para 411 citing Kayishema and Ruzindana Appeal Judgement paras 358-359 Babić Sentencing Appeal Judgement para 80 Kamuhanda Appeal Judgement para 347 1330 Ibid citing Vasiljević Appeal Judgement paras 172-173 See also Vasiljević Trial Judgement para 277 holding that “the discriminatory purpose of the crimes and the selection of victims based on their ethnicity … can only constitute an aggravating factor where the crime for which an accused is convicted does not include a discriminatory state of mind as an element The crime of persecution in Article 5 h of the Statute already includes such an element Such a discriminatory state of mind goes to the seriousness of the offence but it may not additionally aggravate that offence ” Emphasis added See also Kunarac et al Appeal Judgement para 357 1331 Bla kić Appeal Judgement para 686 referring to Kunarac et al Appeal Judgement para 357 citing Tadi Appeal Judgement para 305 See also Todorović Sentencing Judgement para 57 1332 Ibid referring to Kunarac et al Appeal Judgement para 356 Todorović Sentencing Judgement para 65 1333 Ibid referring to Krstić Trial Judgement para 708 1334 Ibid referring to Furundžija Trial Judgement para 281 1335 Ibid referring to Čelebići Appeal Judgement paras 736-737 1336 Ibid referring to Jelisić Appeal Judgement para 86 Kayishema and Ruzindana Appeal Judgement para 351 1337 Ibid referring to Krstić Trial Judgement paras 711-712 See also Krsti Appeal Judgement para 258 1338 Ibid referring to Kunarac et al Trial Judgement para 867 Kunarac et al Appeal Judgement para 352 Case No IT-95-11-T 178 12 June 2007 victims their age and number and the effect of the crimes on them 1339 ix civilian detainees 1340 x the character of the accused 1341 and xi the circumstances of the offences generally 1342 496 Furthermore it has also been held that the refusal of an accused to testify cannot be taken into account in the determination of the sentence 1343 497 The Prosecution submits that the fact that the criminal conduct lasted from 1991 to 1995 throughout the Krajina region should be treated as an aggravating factor in sentencing 1344 Moreover the Prosecution submits that the following additional factors are relevant as aggravating circumstances the discriminatory intent with which the crimes were committed except for the crime of persecution where discriminatory intent is an element of the crime the scale of the crimes except for the crime of extermination where scale is an element premeditation of the crimes the willing and enthusiastic participation of the accused and that crimes were committed against civilian detainees 1345 498 The Trial Chamber recalls that throughout the period relevant for the Indictment Milan Marti held high positions within the SAO Krajina and subsequently the RSK including Minister of Interior and President of the RSK The evidence shows that Milan Marti was one of the most important and influential political figures in the SAO Krajina and the RSK governments and that as Minister of the Interior he exercised absolute authority over the MUP As President of the RSK Milan Martić held the highest political office and controlled the armed forces of the RSK The Trial Chamber considers that in holding such positions Milan Marti was obligated to prevent the commission of crimes and to ensure that all inhabitants of the territories under his authority enjoyed respect for human rights However the evidence presented to the Trial Chamber proves beyond reasonable doubt that Milan Marti abused his positions and that he through continuous and systematic efforts to create an ethnically Serb territory promoted an atmosphere of mistrust and fear between Serbs and non-Serbs in particular Croats In doing so Milan Martić contributed significantly to the furtherance of the common purpose of the JCE of which he was a key member in the SAO Krajina and the RSK The Trial Chamber considers that these factors are aggravating circumstances when determining Milan Marti ’s sentence 1339 Ibid referring to Kunarac et al Trial Judgement paras 864 866 Kunarac et al Appeal Judgement para 355 Ibid referring to Furundžija Trial Judgement para 283 1341 Ibid referring to Čelebići Appeal Judgement para 788 1342 Ibid referring to Tadić Sentencing Judgement para 19 1343 Čelebići Appeal Judgement para 783 Bla kić Appeal Judgement para 687 Plavšić Sentencing Judgement para 64 See also Čelebići Appeal Judgement para 763 Kunarac et al Trial Judgement para 847 cited in Bla kić Appeal Judgement ibid 1344 Prosecution Closing Argument 10 Jan 2007 T 11231 11234 11236 1345 Prosecution Closing Argument 10 Jan 2007 T 11231 Prosecution Final Trial Brief para 482 1340 Case No IT-95-11-T 179 12 June 2007 499 Furthermore the Trial Chamber considers that the widespread criminal conduct which covered the entire territory of the SAO Krajina and the RSK during a period of more than four years serves as an aggravating circumstance 500 The Trial Chamber recalls that the vulnerability and status of the victims as well as the discriminatory intent associated with the crimes were taken into account in assessing the gravity of the crimes for which Milan Martić has been found guilty Therefore these factors cannot be additionally considered as aggravating circumstances b Mitigating circumstances 501 Mitigating factors have to be proven “on a balance of probabilities” that is “the circumstance in question must have existed 'more probably than not’ ” 1346 Factors to be taken into account may include the following i co-operation with the Prosecution 1347 ii the admission of guilt or a guilty plea 1348 iii an expression of remorse 1349 iv voluntary surrender 1350 v good character with no prior criminal convictions 1351 vi comportment in detention 1352 vii personal and family circumstances 1353 viii the character of the accused subsequent to the conflict 1354 ix duress 1355 and indirect participation 1356 x diminished mental responsibility 1357 xi age 1358 and xii assistance to detainees or victims 1359 Poor health is to be considered only in exceptional or rare cases 1360 502 The Prosecution submits that it cannot identify any mitigating circumstances warranting a reduction in sentence Furthermore the Prosecution submits that Milan Martić has failed to demonstrate any remorse 1361 1346 Babić Sentencing Appeal Judgement para 43 Bla kić Appeal Judgement para 696 See also Jokić Sentencing Judgement paras 95-96 Todorovi Sentencing Judgement para 88 Kvo ka et al Appeal Judgement para 722 1348 Bla kić Appeal Judgement para 696 referring to Jelisić Appeal Judgement para 122 Jokić Sentencing Judgement para 76 1349 Ibid referring to Joki Sentencing Judgement para 89 Erdemović Second Sentencing Judgement para 16 iii 1350 Ibid referring to Joki Sentencing Judgement para 73 1351 Ibid referring to Erdemović Second Sentencing Judgement para 16 i Kupreškić et al Appeal Judgement para 459 1352 Ibid referring to Joki Sentencing Judgement para 100 Dragan Nikoli Sentencing Judgement para 268 1353 Ibid referring to Kunarac et al Appeal Judgement paras 362 408 1354 Ibid referring to Joki Sentencing Judgement paras 90-91 103 1355 Ibid referring to Erdemović Second Sentencing Judgement para 17 1356 Ibid referring to Krstić Appeal Judgement para 273 1357 Ibid referring to Čelebići Appeal Judgement para 590 1358 Ibid referring to Jokić Sentencing Judgement para 100 1359 Ibid referring to Sikirica et al Sentencing Judgement paras 195 229 1360 Ibid referring to Krstić Appeal Judgement para 271 Milan Simić Sentencing Judgement para 98 1361 Prosecution Final Trial Brief para 483 1347 Case No IT-95-11-T 180 12 June 2007 503 The Defence submits that before the indictment period Milan Marti had a reputation of being a professional and successful police inspector in Knin and that he was considered a person of broad-minded views and moral integrity 1362 Moreover the Defence relies on the testimony of MM078 who stated that “he was not aware of any such case where Mr Marti ordered someone to do something harmful to someone else” 1363 504 The Trial Chamber notes in this respect the Prosecution submission that Witness MM-078 also testified that Milan Marti abused his position as a police inspector in Knin by using coercive means on suspects forcing them to make statements or admissions against their will beating prisoners and detaining persons without sufficient evidence 1364 As a consequence Milan Marti was suspended from his position 1365 505 The Trial Chamber finds that the direct and specific evidence given by Witness MM-078 concerning examples of Milan Marti ’s abuse of position is credible and outweighs the Witness MM-078’s evidence referred to by the Defence as well as other similarly general statements concerning Milan Martić’s character The Trial Chamber therefore finds that the conduct of Milan Marti prior to the indictment period cannot serve as a mitigating factor 506 The Defence argued in its closing arguments that Milan Marti was not driven by “chauvinism intolerance ruthlessness in relation to members of a certain religion or ethnic group Muslims and Croats” The Defence recalled the testimonies of witnesses who stated that they never observed any traces of hatred or any kind of intolerance in Milan Marti against members of Croat community 1366 The Defence further referred to the testimony of Charles Kirudja who testified that during his meetings with Milan Marti he did not get the impression that Milan Marti wanted to expel or destroy any other peoples or to mistreat them in any way 1367 507 The Trial Chamber recalls that during the summer and autumn of 1991 Milan Martić instructed persons involved in humanitarian assistance to treat both Croat and Serb refugees arriving from Drni equally 1368 The Trial Chamber further recalls Slobodan Jarčević’s testimony that Milan Martić “demonstrated the nobility of his character” by looking after refugees who 1362 Witness MM-096 21 Aug 2006 T 6825-6826 Witness MM-116 28 Aug T 7257 Witness MM-078 25 May 2006 T 4499 Defence’s Submission Concerning Individual Circumstances of the Accused Milan Marti 30 May 2007 para 9 1364 Witness MM-078 24 May 2006 T 4393-4395 Prosecution Submission Regarding Individual Circumstances of the Accused 30 May 2007 para 3 1365 Witness MM-078 24 May 2006 T 4396 Prosecution Submission Regarding Individual Circumstances of the Accused 30 May 2007 para 3 1366 Defence Closing Argument 10 Jan 2007 T 11241 See also Defence’s Submission Concerning Individual Circumstances of the Accused Milan Marti 30 May 2007 paras 11-12 1367 Charles Kirudja 1 Jun 2006 T 4961 Defence’s Submission Concerning Individual Circumstances of the Accused Milan Marti 30 May 2007 para 10 1363 Case No IT-95-11-T 181 12 June 2007 arrived from BiH in 1994 despite the difficulties which the RSK was facing due to international sanctions 1369 508 The Trial Chamber considers that even though there is evidence showing positive traits in the character of Milan Marti and that sporadic help was given by him to Croats and other nonSerbs the effect thereof is diminished by the fact that Milan Martić at all times relevant for the crimes for which he has been found guilty held positions in which he was able and obliged to take measures to prevent or punish acts of violence 1370 The Trial Chamber recalls that in such a case sporadic benevolent acts or ineffective assistance may be disregarded 1371 The Trial Chamber finds that neither the personality of Milan Marti nor any sporadic acts of assistance given to Croats and other non-Serbs can be treated as mitigating circumstances in this case The Trial Chamber also finds that neither the age of Milan Marti nor his family situation at the time of the commission of the crimes can be treated as mitigating circumstances in this case 1372 509 As to Milan Martić’s situation since the commission of the crimes for which he has been found guilty the Defence submits that Milan Marti and his family were expelled and displaced following “Operation Storm” 1373 The Trial Chamber considers this to be a mitigating circumstance of limited weight 510 The Trial Chamber notes that the first Indictment against Milan Marti was confirmed on 25 July 1995 and made public on 23 January 1996 1374 According to Milan Martić’s own admission on the last day of the trial he was aware of the first Indictment issued against him 1375 In this respect the Trial Chamber recalls the decision taken during the pre-trial phase in this case wherein it was considered that Milan Martic’s surrender on 15 May 2002 was not necessarily fully voluntary 1376 The Trial Chamber notes that Milan Martić evaded justice for around seven years in the knowledge that an indictment was issued against him Rather than surrender in order to respond to the charges brought against him he chose to publicly make disparaging remarks about the Tribunal 1377 The 1368 Ljubica Vujani 18 Sep 2006 T 8498-8501 Slobodan Jarčevi 12 Jul 2006 T 6172-6173 1370 See supra section III J 1371 Čelebići Appeal Judgement para 776 Če i Sentencing Judgement para 79 See also Kraji nik Trial Judgement para 1162 1372 Ex 494 L0107131 1373 Defence’s Submission Concerning Individual Circumstances of the Accused Milan Marti 30 May 2007 para 3 1374 Review of the Indictment 25 Jul 1995 Advertisement of Indictment 23 Jan 1996 1375 Statement of the Accused 12 Jan 2007 T 11441 1376 The Trial Chamber considered that Milan Marti ’s surrender to the Tribunal in 2000 was at least partially caused by the enactment of the Law on Co-operation by the FRY making his further hiding almost impossible see Decision on the Motion for Provisional Release 10 Oct 2002 pp 3-4 1377 Prosecution’s Response to Motion for Provisional Release Filed by the Accused Milan Marti 18 July 2002 para 14 and Addendum Prosecution Submission Regarding Individual Circumstances of the Accused 30 May 2007 para 4 1369 Case No IT-95-11-T 182 12 June 2007 Trial Chamber finds that the fact that Milan Marti surrendered to the Tribunal in 2002 although constituting a mitigating factor in this case will be given only minimal weight 511 The Trial Chamber notes the Defence’s submission of the neuropsychiatrist’s opinion describing Milan Marti as having “a stable personality structure with a dominating quantum of emotions” and finding him to be “socially integrated non-conflictive and conciliatory” 1378 However in light of Milan Marti ’s conduct demonstrated during the trial especially the fact that he did not express any remorse for any of the crimes for which he has been found guilty the Trial Chamber rejects this opinion 4 General practice regarding sentencing in the former Yugoslavia 512 Article 24 1 of the Statute provides that “Trial Chambers shall have recourse to the general practice regarding prison sentences in the courts of the former Yugoslavia” The jurisprudence of the Tribunal has consistently held that this does not require the Trial Chambers to conform to the practice regarding prison sentences in the courts of the Former Yugoslavia it only requires that the Trial Chambers take that practice into account 1379 513 The Trial Chamber reviews this practice only as an aid in determining the appropriate penalty and may impose a sentence less than or in excess of the punishment that would be applicable under the sentencing law of the former Yugoslavia 1380 514 The Criminal Code of the Socialist Federal Republic of Yugoslavia “SFRY Criminal Code” regulated sentencing law in the territory at issue during the Indictment period 1381 Article 41 of that Code provides the various factors to be taken into account in determining the sentence including mitigating and aggravating circumstances the degree of criminal responsibility the motives of the accused his personal circumstances and his conduct after the commission of the crime 515 In terms of punishment Article 34 of the SFRY Criminal Code provides that the court could impose capital punishment imprisonment a fine and confiscation of property Article 38 of the SFRY Criminal Code provides further that prison sentences could not exceed 15 years unless the crime was eligible for the death penalty in which case the term of imprisonment could not exceed 1378 Defence’s Submission Concerning Individual Circumstances of the Accused Milan Marti 30 May 2007 para 13 Čelebići Appeal Judgement para 813 citing Serushago Sentencing Appeal Judgement para 30 See also Tadić Sentencing Appeal Judgement para 21 Kunarac et al Appeal Judgement para 377 Jelisić Appeal Judgement paras 116-117 Stakić Appeal Judgement para 398 1380 Staki Appeal Judgement para 398 1379 Case No IT-95-11-T 183 12 June 2007 20 years 1382 The Trial Chamber recalls that Article 24 of the Statute limits it to imposing a sentence of imprisonment In this context the Appeals Chamber has held that it does not violate the principle of nulla poena sine lege to impose sentences in excess of 20 years 1383 516 Having considered all of the evidence and the arguments of the Parties and based upon the factual and legal findings as determined in this judgement the Trial Chamber decides as follows 1381 Adopted by the SFRY Assembly at the Session of Federal Council held on 28 September 1976 declared by decree of the President of the Republic on 28 September 1976 published in the Official Gazette SFRY No 44 of 8 October 1976 took effect on 1 July 1977 1382 Due to the gravity of the crimes at issue the accused would have been aware that such actions constituted serious violations of international humanitarian law punishable by the harshest of penalties see elebići Appeal Judgement paras 816-817 Blaškić Appeal Judgement para 681 Furthermore the Trial Chamber notes that violations of Articles 142 “War crime against the civilian population” 148 “Making use of forbidden means of warfare” provide for a minimum sentence of five years imprisonment with a maximum sentence of death Article 151 “Destruction of cultural and historical monuments” mandates a sentence of at least one year imprisonment and Article 154 “Racial and other discrimination” allows for a sentencing range of 6 months to five years of imprisonment 1383 Stakić Appeal Judgement para 398 Case No IT-95-11-T 184 12 June 2007 VI DISPOSITION 517 The Trial Chamber finds Milan Martić NOT GUILTY of Count 2 518 Extermination a crime against humanity The Trial Chamber finds Milan Martić GUILTY pursuant to Article 7 1 of the Statute on the following counts 519 Count 1 Persecutions a crime against humanity Count 3 Murder a crime against humanity Count 4 Murder a violation of the laws or customs of war Count 5 Imprisonment a crime against humanity Count 6 Torture a crime against humanity Count 7 Inhumane acts a crime against humanity Count 8 Torture a violation of the laws or customs of war Count 9 Cruel treatment a violation of the laws or customs of war Count 10 Deportation a crime against humanity Count 11 Forcible transfer a crime against humanity Count 12 Wanton destruction of villages or devastation not justified by military necessity a violation of the laws or customs of war Count 13 Destruction or wilful damage done to institutions dedicated to education or religion a violation of the laws or customs of war Count 14 Plunder of public or private property a violation of the laws or customs of war Count 15 Murder a crime against humanity Count 17 Inhumane acts a crime against humanity Count 19 Attacks on civilians a violation of the laws or customs of war The Trial Chamber sentences Milan Martić to a single sentence of thirty-five 35 years of imprisonment Case No IT-95-11-T 185 12 June 2007 520 Milan Martić has been detained since 15 May 2002 Pursuant to Rule 101 C of the Rules Milan Martić is entitled to credit for time spent in detention which as of the date of this judgement amounts to 1 855 days and for such additional time he may serve pending the determination of any appeal Pursuant to Rule 103 C of the Rules Milan Martić shall remain in the custody of the Tribunal pending finalisation of arrangements for his transfer to the State where he shall serve his sentence Done in English and French the English version being authoritative Janet Nosworthy Bakone Justice Moloto Frank Höpfel Judge Presiding Judge Judge Dated this twelfth day of June 2007 At The Hague The Netherlands Seal of the Tribunal Case No IT-95-11-T 186 12 June 2007 ANNEX A – PROCEDURAL HISTORY A Pre-trial proceedings 521 The Initial Indictment against Milan Marti was confirmed on 25 July 1995 with corrected or amended versions subsequently filed on 26 August 2002 18 December 2002 and 14 July 2003 and the Second Amended Indictment being filed on 9 September 2003 1384 522 On 8 March 1996 an international arrest warrant was issued for Milan Martić 1385 On 15 May 2002 Milan Marti surrendered and was transferred to the Tribunal and ordered to be detained at the UNDU in The Hague 1386 At the initial appearance on 21 May 2002 Milan Marti pled not guilty to all charges and on 28 January 2003 Milan Martić pled not guilty to all additional charges and allegations of the Amended Indictment 1387 523 During his initial appearance Milan Martić was represented by Strahinja Kastratovi temporarily assigned by the Registrar from 31 May 2002 until 13 June 2002 1388 On 13 December 2002 in light of Milan Martić’s request for the withdrawal of Strahinja Kastratovi and of the communication from the latter stating unwillingness to represent Milan Marti the Registrar assigned Predrag Milovan evi as counsel for Milan Martić 1389 524 On 10 October 2002 the Trial Camber denied the Defence requests for provisional release of Milan Martić and on 12 September 2005 the Trial Chamber denied a further motion for provisional release 1390 1384 Review of the Indictment 25 Jul 1995 Motion to Request Leave to File an Amended Indictment 26 Aug 2002 Decision on the Prosecution Motion to file a Corrected Amended Indictment 13 Dec 2002 Prosecution Motion to file Amended Indictment pursuant to Trial Chamber’s Decision on Preliminary Motion against the Amended Indictment 14 Jul 2003 In relation to the Amended Indictment on 2 Jun 2003 the Trial Chamber granted in part the Defence Preliminary Motion pursuant to Rule 72A ii of the Rules on Procedure and Evidence against the Amended Indictment dated 18 Dec 2002 and 17 Mar 2003 and ordered the Prosecution to file a new Amended Indictment clarifying inconsistencies see Decision on Preliminary Motion against the Amended Indictment 2 Jun 2003 On 5 Sep 2003 the Trial Chamber denied a further preliminary motion filed by the Defence against the Amended Indictment declaring it as frivolous and ordered the Prosecution to file the Amended Indictment to be known as the Second Amended Indictment which the Prosecution did on 9 Sep 2003 On 9 Dec 2005 the Second Amended Indictment was re-filed due to a numbering mistake 1385 Decision of the Registrar 8 Mar 1996 1386 Order for Detention 15 May 2002 1387 Initial Appearance 21 May 2002 T 11-13 Further Appearance and Status Conference 28 Jan 2003 T 74-80 1388 Decision of the Registrar 31 May 2002 On 14 June 2002 the Registrar assigned Gert-Jan Knoops as counsel for a period of 100 days Decision of the Registrar 14 Jun 2002 Following an appeal by Strahinja Kastratovi and order by the Trial Chamber on 16 August 2002 the Registrar withdrew the assignment of Gert-Jan Knoops and assigned Strahinja Kastratovi Defence’s Appeal against the Decision of Registry 18 Jun 2002 Decision on Appeal against Decision of Registry 2 Aug 2002 Decision of the Registrar 16 Aug 2002 1389 Decision of the Registrar 13 Dec 2002 1390 The Trial Chamber noted several factors which substantially weighed against the Defence’s contention that there was no risk of flight Milan Martić had shown capacity for evading arrest for a prolonged period of time he had used false names had the means and know-how to obtain false documents had publicly and repeatedly displayed disregard Case No IT-95-11-T 187 12 June 2007 525 The Prosecution disclosed supporting material to the Defence pursuant to Rule 66 A i and ii on 21 May 2002 and 26 August 2002 1391 On 7 May 2004 the Prosecution disclosed material previously undisclosed to the Defence pursuant to Rule 65 ter E iii On 22 January 2004 the Prosecution assured the Trial Chamber that it had disclosed all Rule 66 A material except for that which the Trial Chamber had agreed to delay disclosure 1392 On 5 March 2004 the Prosecution disclosed to the Defence exculpatory material relative to Rule 68 On 2 November 2004 the Prosecution recognised that the “Statement of Matters that are not in Dispute” which was attached to the Defence’s Pre-Trial Brief accurately reflected the agreement between the Parties 1393 526 Status Conferences were held on 23 September 2002 28 January 2003 29 May 2003 29 September 2003 22 January 2004 21 September 2004 19 May 2005 15 September 2005 and 22 November 2005 527 The Prosecution filed its Pre-Trial Brief on 7 May 2004 On 1 November 2004 after having been given an extension of 47 days the Defence submitted its Pre-Trial Brief 528 On 10 November 2005 the Trial Chamber denied a Prosecution Motion for Joinder of the cases of Milan Marti Jovica Stani i Franko Simatovi and Vojislav e elj on the basis that the case against Milan Marti had been ready for trial for some time and that Milan Martić had been in detention for over three years and four months and therefore the trial should commence with the shortest possible delay 1394 529 On 15 December 2005 the Trial Chamber granted in part the Prosecution Motion for Leave to Amend its Rule 65 ter Exhibits List by adding 719 documents and video footage to the Prosecution exhibit list 1395 The Trial Chamber denied the motion insofar as it sought the addition for the Tribunal and had publicly announced his willingness to resort to violence in the case of forcible apprehension Moreover the Trial Chamber noted that Milan Martić’s surrender was not necessarily fully voluntary On 13 October 2002 the Defence applied for leave to appeal the Trial Chamber’s Decision of 10 October 2002 The Appeals Chamber dismissed the application on 18 Dec 2002 See also Milan Marti ’s Request for Provisional Release until Beginning of Trial dated 21 June 2002 and filed on 10 July 2002 Motion for Provisional Release 9 Jul 2002 Second Motion for Provisional Release 25 Apr 2005 1391 Initial Appearance 21 May 2002 T 13 Prosecution’s Material in Support of the Amended Indictment 26 Aug 2002 An addendum of supporting materials for the Amended Indictment being submitted on 18 November 2002 Prosecution’s Addendum of Supporting Materials in Support of Amended Indictment 1392 Status Conference 22 January 2004 T 105-106 1393 Defence Pre-Trial Brief Pursuant to Rule 65 ter F with a Confidential Annex 1 Nov 2004 See Prosecution PreTrial Brief 7 May 2004 Prosecution’s Submission to Defence’s Pre-Trial Brief 2 Nov 2004 at the Rule 65ter conference on 14 Sep 2005 both the Prosecution and the Defence stated that they could not go further than the already agreed facts Rule 65 ter Conference 14 Sep 2005 1394 Decision on Prosecution Motion for Joinder 10 Nov 2005 Prosecution Motion for Joinder 30 May 2005 Response to the Prosecution’s Motion for Joinder 13 Jun 2005 1395 Prosecution’s Motion for Leave to Amend Its Rule 65 ter Exhibit List 17 Aug 2005 Decision on Prosecution’s Motion to Amend Its Rule 65 ter Exhibit List 15 Dec 2005 Case No IT-95-11-T 188 12 June 2007 of material pertaining to the charges concerning Prnjavor ipovo and Bosanska Gradi ka regarding which areas the Prosecution had previously stated that it would not lead evidence 1396 530 On 18 November 2005 the President of the Tribunal assigned Judge Bakone Justice Moloto South Africa to the present case and on 1 December 2005 the President of the Tribunal ordered that the Bench be composed of Judge Bakone Justice Moloto presiding Judge Janet Nosworthy Jamaica and Judge Frank Höpfel Austria 1397 The Pre-Trial Conference was held on 12 December 2005 and the Pre-Defence Conference was held on 7 July 2006 B Trial proceedings 1 Overview 531 Pursuant to Rule 84 bis of the Rules Milan Martic made an opening statement on 13 December 2005 and in-court statements on 13 March 2006 and 12 January 2007 1398 The Prosecution case started on 13 December 2005 and concluded on 20 June 2006 1399 Guidelines on the Standards Governing the Admission of Evidence and Guidelines Governing the Presentation of Evidence and the Conduct of Counsel in Court were adopted on 19 January 2006 and 13 April 2006 respectively 1400 532 The Prosecution called 45 viva voce witnesses four of whom testified pursuant to Rule 89 F and 12 of whom testified pursuant to former Rule 92 bis E 1401 16 witness statements were admitted into evidence pursuant to former Rule 92 bis B two witness statements were admitted pursuant to former Rule 92 bis C and transcripts of nine witnesses were admitted pursuant to 1396 Prosecution Notification Regarding Certain Witnesses on its Rule 65 ter List 24 Nov 2005 Order Replacing a Judge in a Case before a Trial Chamber 18 Nov 2005 Order Assigning Judges to a Case in a Trial Chamber 1 Dec 2005 During the pre-Trial phase on 15 May 2002 the President of the Tribunal transferred the case to Trial Chamber I consisting of Judge Liu Daqun China presiding Judge Amin El Mahdi Egypt and Judge Alphonsus Orie The Netherlands Order of the President Assigning a Case to a Trial Chamber 15 May 2002 On 30 May 2003 the President of the Tribunal ordered the composition of the Trial Chamber as Judge Amin El Mahdi Judge Alphonsus Orie and Judge Joaquín Martín Canivell Spain Order Assigning a Case to a Trial Chamber 30 May 2003 On 2 June 2003 Judge Liu Daqun as Presiding Judge of Trial Chamber I designated Judge Alphonsus Orie as Presiding Judge in the case Order Designating a Presiding Judge for the Case 2 Jun 2003 On 7 June 2005 the President of the Tribunal assigned the case to Trial Chamber III Order Reassigning a Case to a Trial Chamber 7 Jun 2005 The case was reassigned to Trial Chamber I on 4 July 2005 Order Reassigning a Case to a Trial Chamber and Referring the Joinder Motion 4 Jul 2005 1398 Hearing 13 Dec 2005 T 296-318 Hearing 13 March 2006 T 2222-2224 Hearing 12 Jan 2007 T 11441-11442 1399 Hearing 13 Dec 2005 T 261 Hearing 20 Jun 2006 T 5835-5836 1400 Decision Adopting Guidelines on the Standards Governing the Admission of Evidence 19 Jan 2006 with Annex A Decision Adopting Guidelines on the Standards Governing the Presentation of Evidence and the Conduct of Counsel in Court 13 Apr 2004 with Annex A The Guidelines were revised on 19 May 2006 Revised Version of the Decision Adopting Guidelines on the Standards Governing the Presentation of Evidence and the Conduct of Counsel in Court 19 May 2006 1401 Decision on Prosecution’s Motion for Admission of Statement of Witness Milan Babić Pursuant to Rule 89 F 10 Feb 2006 Decision on the Prosecution Motion for the Admission of a Statement of a Witness Pursuant to Rule 89 F with Confidential Annex A 28 Apr 2006 Oral Decision on Prosecution’s Motion for Admission of Statements of Witnesses MM-016 and MM-018 Pursuant to Rule 89 F 9 May 2006 T 4151-4152 1397 Case No IT-95-11-T 189 12 June 2007 former Rule 92 bis D 1402 The testimonies of three witnesses of the Prosecution were heard via videoconference link 1403 On 13 January 2006 the Trial Chamber granted the Defence’s request for cross-examination of five Prosecution experts but dismissed the Defence’s objections that the individuals could not based on their qualifications be considered as experts and the objections concerning the impartiality of the experts and the reliability of the reports 1404 One subpoena was issued by the Trial Chamber for one witness at the request of the Prosecution 1405 The Trial Chamber also issued one order for the temporary transfer of a detained witness 1406 The Trial Chamber admitted 901 exhibits tendered into evidence by the Prosecution 533 On 26 June 2006 the Defence presented oral submissions pursuant to Rule 98 bis of the Rules moving for an acquittal on all counts 1407 The Prosecution responded on the same day and opposed the Defence submissions in their entirety 1408 On 3 July 2006 the Trial Chamber rejected the Defence motion in all respects 1409 534 The Defence case began on 11 July 2006 and ended on 16 November 2006 1410 The Trial Chamber heard 22 viva voce witnesses two of whom testified pursuant to Rule 92 ter 1411 The testimony of one Defence witness was heard via video-conference link 1412 On 13 January 2006 the Trial Chamber granted a Prosecution motion requesting assignment of pseudonyms to certain witnesses that certain witnesses would testify in closed session and that certain confidential material would not be disclosed to the public 1413 On 18 August 2006 the Trial Chamber granted a Defence motion requesting the assignment of a pseudonym to a witness and closed session 1402 Decision on Prosecution’s Motions for the Admission of Written Evidence Pursuant to Rule 92 Bis of the Rules 16 Jan 2006 Decision on Prosecution Motions on Admission of Written Statements Pursuant to Rule 92 Bis C 15 Jun 2006 Decision on Prosecution’s Motions for Admission of Transcripts Pursuant to Rule 92 bis D and of Expert Reports Pursuant to Rule 94 bis 13 Jan 2006 Oral Decisions on Prosecution’s Second Rule 92 bis Motion of 25 January 2006 15 Feb 2006 T 1322-1323 and 2 May 2006 T 3889-3890 Oral Decision to Admit the Statement of Witness MM038 23 Mar 2006 T 2464 1403 Hearing 2 Mar 2006 T 1751-1752 1404 Decision on the Prosecution’s Motions for Admission of Transcripts Pursuant to Rule 92 bis d and of Expert Reports Pursuant to Rule 94 bis 13 Jan 2006 1405 Subpoena to a Witness to Appear for a Meeting with the Prosecution 16 Sep 2005 1406 Order for Transfer of a Detained Witness 13 Jan 2006 1407 Hearing 26 Jun 2006 T 5841-5886 1408 Hearing 26 Jun 2006 T 5886-5925 Hearing 27 Jun 2006 T 5927-5939 1409 Hearing 3 Jul 2006 T 5959-5971 1410 Hearing 11 Jul 2006 T 6024-6025 Hearing 16 Nov 2006 T 11142-11143 1411 Rule 92 ter was adopted at the Extraordinary Plenary Session on 13 Sep 2006 and codifies the procedure which had developed pursuant to Rule 89 F see Milošević Decision According to the Rule 92 bis C Rule 92 ter also applies to witnesses who appear for cross-examination i e witnesses who were formerly called pursuant to Rule 92 bis E Before the introduction of Rule 92 ter Rule 89 F was applied in determining the admission of such evidence 1412 Decision on Defence Motion for the Testimony of Professor Simlja Avramov Via Video-Conference Link 10 Nov 2006 1413 Decision on Prosecution Second Motion for Protective Measures with Confidential Annexes A C and E and Confidential and Ex-Parte Annexes B D and F 13 Jan 2006 A previous Prosecution request for protective measures had been granted on 18 December 2003 Order on Prosecution Motion for Non-Disclosure of Materials Provided Pursuant to Rules 66 A Ii and 68 and for Protective Measures for Witnesses During the Pre-Trial Phase See also Decision on Prosecution’s Motion for Variation of Protective Measures 17 Mar 2006 Case No IT-95-11-T 190 12 June 2007 testimony 1414 Additional protective measures for witnesses were granted orally during the trial 1415 The Trial Chamber issued 20 orders for safe conduct at the request of the Defence In total the Trial Chamber admitted 90 Defence exhibits into evidence The Trial Chamber also admitted 24 exhibits as Chambers exhibits 535 On 28 November 2006 the Trial Chamber denied the Prosecution’s motion to admit evidence in rebuttal on the basis that it did not meet the standard for admission as rebuttal evidence pursuant to Rule 85 A iii 1416 536 On 5 January 2007 the final trial briefs of the Prosecution and the Defence were filed Closing arguments were heard on 10 11 and 12 January 2007 On 9 April 2007 the Prosecution sent a letter to the Defence disclosing details of its assistance provided to Witness MM-003 in his asylum case 1417 On 24 May 2007 the Trial Chamber ordered the Parties to make written submissions regarding the individual circumstances of Milan Martić because the Trial Chamber considered that the Parties had not adequately addressed this in their final trial briefs or closing arguments as was their duty under the Statute and under the Rules 1418 2 Testimony and evidence of Milan Babi 537 On 6 March 2006 the trial was adjourned until 8 March 2006 on account of the death of Milan Babi on 5 March 2006 at the United Nations Detention Unit where he was being detained for the duration of his testimony as a Prosecution’s witness 1419 On 8 March 2006 the question of whether Milan Babić’s death affected his evidence was raised in court and the Trial Chamber ordered the Parties to address the matter of Milan Babić’s evidence “at an appropriate moment” and that the trial proceed in the meantime 1420 On 9 June 2006 having heard the submissions of the Parties the Trial Chamber rejected the Defence’s arguments determining that pursuant to Rule 89 1414 Decision on Defence Motion for Protective Measures for Witnesses MM-096 MM-116 and MM-090 18 Aug 2006 Hearing 8 Mar 2006 T 1943 Hearing 15 Mar 2006 T 2265-2267 Hearing 4 Apr 2006 T 3178-3179 Hearing 23 Mar 2006 T 2467 Hearing 5 May 2006 T 4073-4075 Hearing 14 Aug 2006 T 6430 Hearing 11 Oct 2006 T 9129-9130 Hearing 31 Oct 2006 10388-10389 1416 Decision on Prosecution Motion to Admit Evidence in Rebuttal Pursuant to Rule 92 bis with Annexes A B and C 28 Nov 2006 See Prosecution Motion to Admit Evidence in Rebuttal Pursuant to Rule 92 bis with Annexes A B and C 16 Nov 2006 1417 Letter from Alex Whiting to Predrag Milovan evi 9 Apr 2007 The Trial Chamber was copied on this letter 1418 Order for submissions 24 May 2006 Prosecution Submission Regarding Individual Circumstances of the Accused 30 May 2007 Defence’s Submission Concerning Individual Circumstances of the Accused Milan Marti 30 May 2007 Each Party filed a response on 1 Jun 2007 1419 Hearing 6 Mar 2006 T 1935-1936 1420 Hearing 8 Mar 2006 T 1945-1948 1415 Case No IT-95-11-T 191 12 June 2007 D of the Rules in spite of the incomplete cross-examination the need to ensure a fair trial did not outweigh the probative value of the evidence of Milan Babi 1421 538 On 20 June 2006 the Trial Chamber granted certification for appeal of the Trial Chamber’s decision of 9 June 2006 to the Defence 1422 On 10 July 2006 after being given an enlargement of time by the Appeals Chamber the Defence filed its interlocutory appeal 1423 The Appeals Chamber dismissed the Defence’s appeal on 14 September 2006 1424 On 30 September 2006 the Trial Chamber denied the Defence’s motion for reconsideration and modification of the Trial Chamber’s order of 9 June 2006 1425 539 On 17 November 2006 the Trial Chamber admitted into evidence excerpts of Milan Babi ’s Prosecution Interviews submitted by the Defence to it pursuant to the Trial Chamber’s order of 9 June 2006 1426 540 On 28 November 2006 the Trial Chamber dismissed the Defence Motion requesting the Trial Chamber to order Judge Kevin Parker the Vice-President of the Tribunal to disclose to the Defence the full statements obtained during the inquiry on Milan Babi ’c death having found that it 1421 Decision on Defence Motion to Exclude Testimony of Witness Milan Babi Together with Associated Exhibits from Evidence 9 June 2006 See supra para 33 Prosecution’s Submissions Regarding the Evidence of Witness Milan Babić 6 April 2006 The Prosecution submitted that Milan Babi ’s evidence bore numerous indicia of reliability such as the fact that the testimony was given under oath in open session in the presence of the Accused was subject to three days of cross-examination and was in large part corroborated by other evidence both documentary and testimonial Motion to Exclude Testimony of Witness Milan Babi Together with Associated Exhibits from Evidence 2 May 2006 In its motion filed on 2 May 2006 the Defence requested the Trial Chamber to exclude the testimony of Milan Babi from the trial record on the basis that it was so lacking in indicia of reliability that it had no probative value and in any case that it was substantially outweighed by the need to ensure a fair trial On 8 May 2006 the Prosecution filed its Response to the Defence Motion to Exclude Testimony of Witness Milan Babi Together with Associated Exhibits from Evidence The Defence replied on 15 May 2006 1422 Decision on Defence Application for Certification of Appeal Pursuant to Rule 73 B 20 June 2006 See also Prosecution’s Response to Defence Application for Certification of Appeal Pursuant to Rule 73 B 19 June 2006 Appeal against the Trial Chamber’s Decision on the Evidence of Witness Milan Babi 10 July 2006 On 20 July 2006 the Prosecution filed its Response to Defence Interlocutory Appeal against the Trial Chamber’s Decision on the Evidence of Witness Milan Babi 1423 Decision on Motion for Enlargement of Time 23 Jun 2006 1424 Decision on Appeal against the Trial Chamber’s Decision on the Evidence of Witness Milan Babi 14 September 2006 The Appeals Chamber found that the Defence had failed to demonstrate any of the discernible errors allegedly committed by the Trial Chamber that would result in prejudice 1425 Decision on Defence Motion for Reconsideration and Modification of the Trial Chamber’s Order of 9 June 2006 30 Sep 2006 The Defence Motion was rejected inter alia on the basis that it was not shown by the Defence that there had been a change of circumstances which would require the Trial Chamber to reconsider its decision See Defence Motion for Reconsideration and Modification of the Trial Chamber’s Order of 9 June 2006 24 September 2006 Prosecution’s Response to the Defence Motion for Reconsideration and Modification of the Trial Chamber’s Order of 9 June 2006 28 September 2006 1426 Decision on Defence’s Submission Pursuant to the Trial Chamber’s Order of 9 June 2006 17 Nov 2006 see Defence’s Submission Pursuant to the Trial Chamber’s Order of 9 June 2006 4 Oct 2006 Prosecution’s Response to the Defence’s Submission Pursuant to the Trial Chamber’s Order of 9 June 2006 16 October 2006 Case No IT-95-11-T 192 12 June 2007 was not the proper forum before which a request for review of the decision taken by Judge Parker could be brought 1427 3 Site visit 541 The Trial Chamber and the Parties carried out a site visit between 25 and 30 September 2006 pursuant to the Trial Chamber’s Order of 16 May 2006 on Site visit 1428 An audiovisual record was made of the site visit The record was subsequently transcribed and both the record and the transcripts thereof were admitted into evidence by the Trial Chamber 1429 1427 Decision on Defence’s Motion for Access to Full Statements Obtained in the Inquiry of the Death of Milan Babi 28 Nov 2006 See Defence’s Motion for Access to Full Statements Obtained in the Inquiry of the Death of Milan Babi 13 Nov 2006 1428 The locations visited were Zagreb Hrvatska Dubica Cerovljani Baćin Slunj Hrvatska Kostajnica Dvor na Uni Saborsko Poljanak including the hamlet of Vukovići Lipovača Vaganac Hrvatska Korenica kabrnja Nadin Bru ka including the hamlet of Marinovići Knin Vrpolje and Golubić 1429 Order On Site Visit 16 May 2006 Order on Itinerary for the Site Visit 23 Jun 2006 Decision on Admission into Evidence of Record of Site Visit 28 Nov 2006 Ex 1042 video record Ex 1043 transcript See also Prosecution’s Proposal of Locations to Visit During Proposed Site Visit filed confidentially on 6 Apr 2006 Defence Submission Regarding sites to be Visited during the Proposed Site Visit filed confidentially on 9 May 2006 Prosecution Response to Defence Submission Regarding Sites to be Visited During the Proposed Site Visit 10 May 2006 See also Order to Redact Site Visit Record 6 June 2007 Case No IT-95-11-T 193 12 June 2007 ANNEX B – LIST OF CASES SOURCES AND SHORT CITES C ICTY Aleksovski Appeal Judgement Prosecutor v Zlatko Aleksovski Case No IT-9514 1-A Judgement 24 Mar 2000 Babić Sentencing Appeal Judgement Prosecutor v Milan Babi Case No IT-03-72 Judgement on Sentencing Appeal Judgement 18 Jul 2005 Banovi Sentencing Judgement Prosecutor v Predrag Banovi Case No IT-02-65 1S Sentencing Judgement 28 Oct 2003 Blagojevi and Joki Trial Judgement Prosecutor v Vidoje Blagojevi and Dragan Joki Case No IT-02-60-T Judgement 17 Jan 2005 Bla ki Appeal Judgement Prosecutor v Tihomir Blaškić Case No IT-95-14-A Judgement 29 Jul 2004 Brðanin Appeal Judgement Prosecutor v Radoslav Brđanin Case No IT-99-36A Judgement 3 Apr 2007 Brðanin Trial Judgement Prosecutor v Radoslav Brđanin Case No IT-99-36T Judgement 1 Sep 2004 elebi i Appeal Judgement Prosecutor v Zejnil Delalić Zdravko Mucić a k a “Pavo” Hazim Delić and Esad Landzo a k a “Zenga” Case No IT-96-21-A Judgement 20 Feb 2001 elebi i Trial Judgement Prosecutor v Zejnil Delalić Zdravko Mucić a k a “Pavo” Hazim Delić and Esad Landzo a k a “Zenga” Case No IT-96-21-T Judgement 16 Nov 1998 e i Sentencing Judgement Prosecutor v Ranko e i Case No IT-95-10-1 Sentencing Judgement 11 Mar 2004 Deronjić Sentencing Appeal Judgement Prosecutor v Miroslav Deronji Case No IT-02-61 Judgement on Sentencing Appeal 29 Jul 2005 Dragan Nikolić Sentencing Judgement Prosecutor v Dragan Nikoli Case No IT-94-02 Sentencing Judgement 18 Dec 2003 Erdemović Sentencing Judgement Prosecutor v Drazan Erdemovi Case No IT-96-22 Sentencing Judgement 29 Nov 1996 Erdemović Second Sentencing Judgement Prosecutor v Dra en Erdemovi Case No IT-96-22Tbis Sentencing Judgement 5 Mar 1998 Furund ija Appeal Judgement Prosecutor v Anto Furund ija Case No IT-95-17 1A Judgment 21 Jul 2000 Furund ija Trial Judgement Prosecutor v Anto Furund ija Case No IT-95-17 1T Judgement 10 Dec 1998 Galić Appeal Judgement Prosecutor v Stanislav Galić Case No IT-98-29-A Judgement 30 Nov 2006 Galić Trial Judgement Prosecutor v Stanislav Galić Case No IT-98-29-T Judgement 14 Dec 2003 Hadžihasanović and Kubura Rule 98 bis Prosecutor v Enver Hadžihasanović and Amir Appeal Decision Kubura Case No IT-01-47-AR 73 3 Decision on Joint Defence Interlocutory Appeal of Trial Chamber Decision on Rule 98 bis Motions for Acquittal 11 Case No IT-95-11-T 194 12 June 2007 Halilović Trial Judgement Jelisić Appeal Judgement Joki Sentencing Judgement Kordi and erkez Appeal Judgement Kordi and erkez Trial Judgement Krajišnik Trial Judgement Krnojelac Appeal Judgement Krnojelac Trial Judgement Krstić Appeal Judgement Krsti Trial Judgement Kunarac et al Appeal Judgement Kunarac et al Trial Judgement Kupre ki et al Appeal Judgement Kupre ki et al Trial Judgement Kvo ka et al Appeal Judgement Kvo ka et al Trial Judgement Limaj et al Trial Judgement Milan Simić Sentencing Judgement Milo evi Decision Milutinovi et al Decision Case No IT-95-11-T Mar 2005 Prosecutor v Sefer Halilović Case No IT-01-48-T Judgement 16 Nov 2005 Prosecutor v Goran Jelisić Case No IT-95-10-A Judgement 5 Jul 2001 Prosecutor v Miodrag Joki Case No IT-01-42-1-T Sentencing Judgement 18 Mar 2004 Prosecutor v Dario Kordić and Mario erkez Case No IT- 95-14 2-A Judgement 17 Dec 2004 Prosecutor v Dario Kordić and Mario Čerkez Case No IT- 95-14 2-T Judgement 26 Feb 2001 Prosecutor v Momčilo Krajišnik Case No IT-00-39T 27 Sep 2006 Prosecutor v Milorad Krnojelac Case No IT-97-25A Judgement 17 Sep 2003 Prosecutor v Milorad Krnojelac Case No IT-97-25T Judgement 15 Mar 2002 Prosecutor v Radislav Krsti Case No IT-98-33-A Judgement 19 Apr 2004 Prosecution v Radislav Krsti Case No IT -98-33-T Judgement 2 Aug 2001 Prosecutor v Dragoljub Kunarac et al Case No IT96-22 23- 1-A Judgement 12 Jun 2002 Prosecutor v Dragoljub Kunarac Radomir Kovac and Zoran Vuković Case No IT-96-22 23- 1-T Judgement 21 February 2001 Prosecutor v Zoran Kupreškić Mirjan Kupreškić Vlatko Kupreškić Drago Josipović and Vladimir Šanti aka “Vlado” Case No IT-95-16-A Judgement 23 Oct 2001 Prosecutor v Zoran Kupreškić Mirjan Kupreškić Vlatko Kupreškić Drago Josipović Dragan Papi and Vladimir Šanti aka “Vlado” Case No IT-9516-T Judgement 14 Jan 2000 Prosecutor v Miroslav Kvočka Milojica Kos Mlađo Radić Zoran Žigić and Dragoljub Prcać Case No IT-98-30 1-A Judgement 28 Feb 2005 Prosecutor v Miroslav Kvočka Milojica Kos Mlađo Radić Zoran Žigić and Dragoljub Prcać Case No IT-98-30 1-T Judgement 2 Nov 2001 Prosecutor v Fatmir Limaj Haradin Bala and Isak Musliu Case No IT-03-66-T Judgement 30 Nov 2005 Prosecutor v Milan Simić Case No IT-95-9 2 Sentencing Judgement 17 Oct 2002 Prosecutor v Slobodan Milošević Decision on Interlocutory Appeal on the Admissibility of Evidence-in-Chief in the Form of Written Statements 30 Sep 2003 Prosecutor v Milan Milutinovi et al Case No IT195 12 June 2007 05-87-T Decision on Prosecution Request for Certification of Interlocutory Appeal of Decision on Admission of Witness Philip Coo’s Expert Report 30 Aug 2006 Momir Nikolić Sentencing Appeal Judgement Prosecutor v Momir Nikolić Case No IT-02-60 1-A Judgement on Sentencing Appeal 8 Mar 2006 Mrk i et al Decision Prosecutor v Mile Mrk i et al Case No IT-9513 1-T Decision on Motion Seeking Clarification with Regard to Count 1 of the Indictment 19 May 2006 Naletili and Martinovi Appeal Judgement Prosecutor v Mladen Naletilić a k a “Tuta” and Vinko Martinović a k a “Štela” Case No IT-9834-A Judgement 3 May 2006 Naletili and Martinovi Trial Judgement Prosecutor v Mladen Naletilić a k a “Tuta” and Vinko Martinović a k a “Stela” Case No IT-9834-T Judgement 31 Mar 2003 Obrenovi Sentencing Judgement Prosecutor v Dragan Obrenović Case No IT-0260 2 Sentencing Judgement 10 December 2003 Ori Trial Judgement Prosecutor v Naser Ori Case No IT-03-68 Judgement 30 Jun 2006 Plav i Sentencing Judgement Prosecutor v Biljana Plav i Case No IT-0039 40 1-S Sentencing Judgement 27 Feb 2003 Prli Decision Prosecutor v Jadranko Prli et al Case No IT-0474-PT Decision on Defence Preliminary Motions Alleging Defect in the Form of the Indictment 22 Jul 2005 Sikirica et al Sentencing Judgement Prosecutor v Du ko Sikirica et al Case No IT-95-8 Sentencing Judgement 13 November 2001 Simi et al Trial Judgement Prosecutor v Blagoje Simić Miroslav Tadić and Simo Zarić Case No IT-95-9 Judgement 17 Oct 2003 Staki Appeal Judgement Prosecutor v Milomir Stakić Case No IT-97-24-A Judgement 22 Mar 2006 Staki Trial Judgement Prosecutor v Milomir Stakić Case No IT-97-24-T Judgement 29 Oct 2003 Strugar Trial Judgement Prosecutor v Pavle Strugar Case No IT- 01-42-T Judgement 31 Jan 2005 Tadi Sentencing Appeal Judgement Prosecutor v Duško Tadić a k a “Dule” Case No IT-94-1-A and IT-94-1-Abis Judgement in Sentencing Appeals 26 Jan 2000 Tadi Appeal Judgement Prosecutor v Duško Tadić a k a “Dule” Case No IT-94-1-A Judgement 15 Jul 1999 Tadi Sentencing Judgement Prosecutor v Du ko Tadi a k a “Dule” Case No IT-94-1-Tbis-R117 Sentencing Judgement 11 Nov 1999 Tadi Trial Judgement Prosecutor v Du ko Tadi Case No IT-94-1-T Judgement 14 Jul 1997 Tadić Jurisdiction Decision Prosecutor v Du ko Tadi Case No IT-94-1-AR72 Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction 2 Oct 1995 Case No IT-95-11-T 196 12 June 2007 Todorovi Sentencing Judgement Vasiljevi Appeal Judgement Vasiljevi Trial Judgement Prosecutor v Stevan Todorovi Case No IT-95-9-1 Sentencing Judgement 31 Jul 2001 Prosecutor v Mitar Vasiljevi Case No IT-98-32-A Judgement 25 Feb 2004 Prosecutor v Mitar Vasiljević Case No IT-98-32-T Judgement 29 Nor 2002 D ICTR Akayesu Trial Judgement Prosecutor v Jean-Paul Akayesu Case No ICTR-964-T Judgement 2 Sep 1998 Gacumbitsi Appeal Judgement Prosecutor v Sylvestre Gacumbitsi Case No ICTR2001-64-A Judgement 7 Jul 2006 Kambanda Appeal Judgement Prosecutor v Jean Kambanda Case No ICTR-9723-A Judgement 19 Oct 2000 Kamuhanda Appeal Judgement Prosecutor v Jean de Dieu Kamuhanda Case No ICTR-99-54A-A Judgement 19 Sept 2005 Kayishema and Ruzindana Appeal Prosecutor v Clément Kayishema and Obed Judgement Ruzindana Case No ICTR-95-1-A Judgement 1 Jun 2001 Kayishema and Ruzindana Trial Judgement Prosecutor v Clement Kayishema and Obed Ruzindana Case No ICTR-95-1-T Judgement 21 May 1991 Musema Trial Judgement Prosecutor v Alfred Musema Case No ICTR-96-13T Judgement 27 Jan 2000 Nahimana et al Trial Judgement Prosecutor v Ferdinand Nahimana et al Case No ICTR-99-52-T Judgement 3 Dec 2003 Niyitegeka Appeal Judgement Prosecutor v Eliézer Niyitegeka Case No ICTR-9614-A Judgement 9 Jul 2004 Ntakirutimana Appeal Judgement Prosecutor v Elizaphan Ntakirutimana and Gérard Ntakirutimana Cases Nos ICTR-96-10-A and ICTR96-17-A Judgement 13 Dec 2004 Rutaganda Trial Judgement Prosecutor v Georges Anderson Nderubumwe Rutaganda Case No ICTR-96-3-T Judgement 6 Dec 1999 Serushago Sentencing Appeal Judgement Prosecutor v Omar Serushago Case No ICTR-9839-A Judgement Reasons 6 Apr 2000 E ICJ ICJ Advisory Opinion Legality of the Threat or Use of Nuclear Weapons ICJ Advisory Opinion of 8 Jul 1996 I C J Reports 1996 F Other ICRC Commentary on Geneva Convention III ICRC Commentary on Geneva Convention IV Case No IT-95-11-T Jean S Pictet ed Commentary Geneva Convention III Relative to the Treatment of Prisoners of War Geneva ICRC 1960 Jean S Pictet ed Commentary Geneva Convention IV Relative to the Protection of Civilian Persons in Time of War Geneva ICRC 1958 197 12 June 2007 ICRC Commentary on Additional Protocols Yves Sandoz Christoph Swinarski and Bruno Zimmernmann eds Commentary on the Additional Protocols of 8 June 1977 to the Geneva Convention of 12 August 1949 Dordrecht Martin Nijhoff Publishers 1987 Customary International Humanitarian Law Jean-Marie Henckaerts and Louise Doswald-Beck ICRC eds International Committee of the Red Cross Customary International Humanitarian Law Volume I Rules and Volume II Practice Cambridge Cambridge University Press 2005 Case No IT-95-11-T 198 12 June 2007 MJEHILO 1 25000 'r - It'd - - - Stir await-dim I Hum 1 ji l Ill-L log-tn 1133 - - 'f 11 H1 wu' 1-H