- The facts underlying this judgement illustrate the complex situation that
existed in Bosnia and Herzegovina following its independence in 1992. The
relevant geographical area is Mostar and the surrounding municipalities in
the South-western part of Bosnia and Herzegovina. Mostar is named after the
famous bridge, which used to cross the Neretva River. The name of Mostar is
now connected with a tragic example of a multi-cultural town divided by conflict.
Mostar and the surrounding region was the ground for several conflicts between
the different groups following the break-up of Socialist Federal Republic
of Yugoslavia (“SFRY”). This judgement deals with period running from April
1993 to January 1994 and the conflict between the BH Croats1
and BH Muslims.2 The two ethnic groups
had co-operated and jointly fought on the same side in 1992 against the Serb-Montenegrin
forces.3 Due to factors, which this judgement
will not answer, the BH Croats and BH Muslims started a bitter conflict, and
Mostar became divided into an Eastern part, dominated by BH Muslims and a
Western part, dominated by BH Croats.
A. The accused and the charges
- The two accused are Mladen Naletilic (Tuta) and Vinko Martinovic (Stela).
Mladen Naletilic is aged 56 and was born on 1 December 1946 in Siroki Brijeg4
in Bosnia and Herzegovina. Mladen Naletilic lived outside Bosnia and Herzegovina,
for the most part in Germany. In 1990-1991 he returned to Siroki Brijeg and
set up a military group called the Convicts’ Battalion (“KB”), which under
his leadership fought against the Serb forces in Mostar during the spring
of 1992.
- Vinko Martinovic (Stela) is aged 39 and was born on 21 September 1963 in
Mostar, Bosnia and Herzegovina. He was raised in a part of Mostar called Rodoc.5
Prior to the war he had mostly been engaged in commerce and was for a while
a taxi driver in Mostar.6 In 1992 when
the conflict in Mostar started against the Serb-Montenegrin army, Vinko Martinovic
joined the HOS and became a commander.7
Vinko Martinovic was never engaged politically.8
- The Indictment contains a total of twenty-two counts.9
The Prosecution charges the accused Mladen Naletilic with persecution on political,
racial and religious grounds (Count 1). Counts 2-8 cover allegations of unlawful
labour and the use of detainees as human shields. Counts 9-12 pertain to allegations
of torture, cruel treatment and wilfully causing great suffering. Count 18
pertains to allegations of unlawful transfer of civilians and counts 19-22
concern allegations of plunder and destruction of properties.
- Vinko Martinovic is also charged with persecution (Count 1) as well as
unlawful labour and the use of detainees as human shields (Counts 2-8). Counts
11-12 pertain to allegations of cruel treatment and wilfully causing great
suffering. Counts 13-17 specifically concern allegations of murder, wilful
killing and wilfully causing great suffering arising from the death of Nenad
Harmandžic. Count 18 pertains to allegations of unlawfully transferring civilians.
Count 21 concerns allegations of plunder.
- Prior to the commencement of the trial, 16 prosecution witnesses were heard
in The Hague by deposition pursuant to Rule 71 of the Rules.10
The testimonies of twelve persons who had previously testified in the Blaskic
case or the Kordic case were admitted into evidence in the present
case by allowing the relevant transcripts into evidence.11
- The trial commenced on 10 September 2001 and concluded on 31 October 2002.
The Chamber heard 56 viva voce witnesses for the Prosecution, making
the total number of witnesses for the Prosecution to be 84. The Naletilic
Defence presented a total of 35 witnesses, including 3 expert witnesses.12
The Martinovic Defence presented 27 witnesses, including 2 expert witnesses.
Throughout the trial, approximately 2750 exhibits were admitted.13
B. General considerations regarding the evaluation
of the evidence
- The Chamber has applied the rules of evidence set forth in the Rules, as
enshrined in Rule 89 of the Rules. Where the Rules did not provide for guidance,
it has applied rules of evidence which will best favour a fair determination
of the matter before it and which are consonant with the spirit of the Statute
and the general principles of law.14
- Articles 21(3) of the Statute enshrines the presumption of innocence to
which each accused is entitled. The onus of establishing the guilt of the
accused beyond reasonable doubt pursuant to Rule 87(A) of the Rules rests
fully on the Prosecution. The Chamber has only entered convictions where the
evidence of the witnesses and the other evidence on which the Prosecution
has relied established the alleged facts and the responsibility of the accused
beyond reasonable doubt, notwithstanding the evidence submitted by the Defence
witnesses and in form of Defence exhibits. Article 21(4)(g) of the Statute
provides that no accused shall be compelled to testify against him or herself.
Mladen Naletilic and Vinko Martinovic decided not to testify at trial. In
line with Article 21(4)(g), the Chamber has not attached any probative value
to their decisions.
- In evaluating the evidence given by witnesses, the Chamber has taken into
account that the alleged events took place almost ten years before the witnesses
presented their testimonies in court. The Chamber accepts that due to the
long period elapsed between the alleged commission of the crimes and the trial,
witnesses cannot reasonably be expected to recall the precise minutiae, such
as exact dates or times, of events. The Chamber further notes that many Prosecution
witnesses were transferred through a number of different detention facilities,
in a sequence that may, for some, have amounted to traumatic experiences.
The Chamber finds that such witnesses cannot be expected to recall each and
every detail regarding the sequence or details of the events. The Chamber
further shares the view of Trial Chamber II that in most instances the oral
evidence of a witness will not be identical with the evidence given in a prior
statement. It lies in the nature of criminal proceedings that a witness may
be asked different questions at trial than he was asked in prior interviews
and that he may remember additional details when specifically asked in court.15
Consequently, the Chamber has not attached particular significance to minor
inconsistencies in the testimony of a witness or irrelevant discrepancies
in peripheral matters in the testimonies of different witnesses who testified
to the same events. The Chamber has, however, only attached probative weight
to evidence submitted by witnesses who were, as a minimum, able to recount
the essence of the incident charged in sufficient detail.
- Due to the particular circumstances of the case, only a single witness
has testified with regard to certain incidents alleged. The Chamber, as held
by the Appeals Chamber,16 accepts that
the testimony of a single witness on a material fact does not, as a matter
of law, require corroboration. It has however been very careful to scrutinise
the evidence of a single witness with particular care before entering a conviction
upon it. The Chamber has accepted hearsay evidence as being generally admissible
under the Rules.17 It has however taken
into account that the weight or probative value to be afforded to hearsay
evidence will usually be less than that given to the testimony of a witness
who has given it under a form of oath and who has been cross-examined.18
- The Chamber has carefully reviewed the deposition transcripts and the trial
transcripts from the Blaskic and Kordic case and has taken into
account that all those witnesses were tested by cross-examination, even though
not before the Chamber.19 In cases where
evidence given during deposition proceedings or contained in trial transcripts
conflicted with evidence given by viva voce witnesses at trial, the
Chamber has carefully scrutinised all evidence presented. The Chamber finds
it generally appropriate to attach the highest probative value to evidence
submitted by such witnesses who appeared before the Chamber in personam.
II. GENERAL FINDINGS
A. Historical background20
- In June 1991 both Slovenia and Croatia declared their independence from
the SFRY.21 This provoked a short military
intervention in Slovenia by the JNA, which was dominated and led from Belgrade.
In the Republic of Croatia, a full-scale conflict broke out during the second
half of 1991. In January 1992, a peace agreement was signed and the Republic
of Croatia was recognised in the spring of 1992.22
Despite the boycott of the BH Serbs, a referendum on independence from SFRY
was held in Bosnia and Herzegovina on 29 February and 1 March 1992. Based
on overwhelming support from both BH Croats and BH Muslims, independence was
declared on 3 March 1992.23
- Following the declaration of independence, the BH Serbs attacked different
parts of Bosnia and Herzegovina. The state administration of Bosnia and Herzegovina
effectively ceased to function having lost control over the entire territory.
The BH Serbs were not the only ones with ambitions for territorial expansion;
the BH Croats and their leader Franjo Tu|man also aimed at securing parts
of Bosnia and Herzegovina as Croatian. Secret discussions between Franjo Tu|man
and Slobodan Milosevic on the division of Bosnia and Herzegovina were held
as early as March 1991. The policies of the Republic of Croatia and its leader
Franjo Tu|man towards Bosnia and Herzegovina were never totally transparent
and always included Franjo Tu|man’s ultimate aim of expanding Croatia’s borders.
- The BH Croats participated in the institutions of the newly independent
Bosnia and Herzegovina in Sarajevo. Even before the referendum on independence,
the “HZ H-B” was founded.24 The HZ H-B
started to play a more prominent role as the actual legislators and administrators
of the areas of relevance to this Indictment. There were many differing expectations
expressed on the reasons for the establishment of HZ H-B; some saw it as a
temporary institution to fill a void after virtual disintegration of the government
of Bosnia and Herzegovina. Others saw it as a step towards forming part of
the Republic of Croatia or creating an independent state. Regardless of which,
many BH Croats wanted to take the initiative and create a structure for defence
against the Serbs.
- On 10 April 1992, the President of the HZ H-B, Mate Boban, issued a decree
creating the HVO.25 The HVO became the
supreme executive and defence authority for the HZ H-B and the BH Croats.
Mate Boban himself became the supreme commander of the HVO.26
This meant that in this part of Bosnia and Herzegovina, the HZ H-B had the
actual authority.
- During the first months of 1992, the situation deteriorated in Mostar and
armed conflict broke out. In April 1992, the Municipal Crisis Staff in Mostar
stated that “the Mostar municipality is under partial occupation by units
of the so-called Yugoslav People’s Army [JNA] and paramilitary formations
which are engaged in co -ordinated armed operations”.27
The Municipal Crisis Staff was originally composed of representatives of different
people but the Serb representatives left.
- The BH Croats and BH Muslims organised a joint defence against the Serb
forces.28 In Mostar and the surrounding
municipalities, it was organised under the auspices of the HVO. Even though
the HVO was the military formation of the Croats, during this period it comprised
of both BH Croats and BH Muslims. The Muslims formed their own military units
that were under the overall command of the HVO.29
This meant that while opposing the Serb forces, the Croats and the Muslims
fought under the joint command of the HVO. During the summer of 1992, the
shelling of Mostar continued and in the autumn, while the Serb forces withdrew
from the town itself, they continued to shell it. Minor incidents between
the BH Croats and the BH Muslims occurred. Mladen Naletilic was seen as one
of the great defenders of Mostar and posters with his picture were placed
all over Mostar and its surroundings.
- Efforts were made in order to find a solution to the conflict in Bosnia
and Herzegovina. In January 1993 the active peace initiative was the so-called
Vance -Owen Plan,30 which involved the
establishment of 10 provinces in Bosnia and Herzegovina. The idea was that
during an interim period, these different provinces would be administered
jointly by the three groups but with the dominating group appointing the Governor.31
The BH Croats would be in a majority in three of the provinces, which in the
plan were referred to as number 3, 8 and 10.32
Province number 8 was the area relevant to the Indictment and included the
following municipalities: Citluk, Capljina, Grude, Jablanica, Kojnic, Ljubuski,
Mostar, Neum, Posusje, Prozor, Stolac, and parts of Trebinje.33
- Mate Boban signed the Vance-Owen Plan on behalf of the BH Croats on 2 January
1993.34 Neither the BH Serb nor the BH
Muslim representatives had signed the plan at this stage. Despite knowing
that the other parties had not signed, but filled with confidence that they
had the world’s opinion behind them, the BH Croats attempted to implement
the Vance-Owen Plan unilaterally.35 This
attempt led to dramatically increased tensions between the BH Croats and the
BH Muslims.36
- The negotiations around the Vance-Owen Plan continued in February and March
1993 and President Izetbegovic signed the plan on behalf of the BH Muslims
on 25 March 1993.37 The BH Serb representative
still did not agree to the plan.
- The Vance-Owen Plan states that “(b(oth Bosnian Army and HVO forces shall
be deployed in the Provinces 5, 8, 9, 10 under arrangements agreed between
them.”38 It meant that in the area relevant
to this Indictment, province number 8, both the BH Croats and BH Muslims had
agreed. After the BH Croat signing of the Vance-Owen Plan, the point of view
of the Croats was clear regarding the arrangements in relation to the respective
forces. Mate Boban drew up a proposal for a Joint Statement, which he intended
to be signed by Alija Izetbegovic and himself, outlining how their respective
armies would operate within the different provinces. However, Alija Izetbegovic
never signed the statement, which meant that there never was a “Joint Statement”,
but only a “Boban’s Statement”.39 In
his statement Mate Boban repeated the demands of the BH Croats, that all ABiH
units were to be subordinated to the HVO in the “Croat” provinces.40
- The evidence does not allow the conclusion that a deadline was set for
15 April 1993, but the position of the BH Croats was again made clear to the
BH Muslims.41 The policy to make these
areas Croatian was twofold: i) to establish a military frontline between the
“BH Croat” provinces 8 and 10 and the “BH Muslim” province 9, and ii) to eliminate
all Muslim resistance within these provinces in order for the BH Croats to
have full military control of “their” provinces. The BH Muslims rejected wishes
expressed in “Boban’s Statement”,42 however
the BH Croats proceeded to assume their control over these areas.
- The incidents between BH Croats and BH Muslims during the end of 1992 and
the spring of 1993 had an impact on the formation and composition of the armed
forces in Bosnia and Herzegovina. As the former army of Yugoslavia, the JNA,
was dominated and mostly controlled by the Serbs. The defense organized by
the BH Croats and the BH Muslims mostly consisted of local territorial defense
(often referred to as TO) and other units, which the BH Croats and BH Muslims
had managed to get control of. The BH Croat and BH Muslim defence was organized
under the umbrella of the HVO. However, these units were BH Croat, BH Muslim
and mixed units or as one witness described them, “the Armed Forces were composed
of all those who were prepared to fight for Bosnia and Herzegovina.”43
A separation and a clearer division started to develop: BH Muslims were either
leaving the HVO units taking their weapons with them to join the increasing
BH Muslim units, or were dismissed and thrown out of their HVO units.
- Tension increased further, and by mid-April 1993, it turned into a full-scale
conflict between the HVO and the ABiH in central Bosnia and in the area relevant
to the Indictment. The Prosecution deals with crimes related to three attacks:
Sovici and Doljani on 17 April 1993, Mostar on 9 May 1993 and Rastani on 23
September 1993.
B. The conflict in the area
1. Sovici and Doljani- the attack on 17 April 1993
and the following days 44
- The villages of Sovici and Doljani are situated in the municipality of
Jablanica, about 50 kilometers north of Mostar.45
Prior to the conflict, Sovici had a population of around 800 people with predominantly
BH Muslim background.46 Both Sovi ci
and Doljani are situated in a valley surrounded by mountains and are made
of several small hamlets. Doljani is about six kilometers away from Sovici
in the direction of Jablanica.47 From
early April 1993, the HVO headquarters was in a house with a fish-growing
pond, the so -called fish farm in Orlovac (“the fishfarm”), which is one of
the hamlets in Doljani.48 The territorial
defence, which was organized since 1992 in the conflict with the Serbs, was
now divided, and the HVO and the ABiH held separate positions around the villages.49
- The HVO started shelling the village of Sovici early in the morning on
17 April 1993.50 The shelling came from
the direction of Risovac, which is south of Sovici.51
Certain witnesses described that the attack came as a surprise since there
had been no previous animosity between BH Croats and BH Muslims and that the
BH Muslims put up very little resistance.52
The Chamber’s view is, however, that there had been extreme tensions in the
area for some time and that there was provocation and high alert on both sides.53
- A member of the 3rd Mijat Tomic Battalion, who was present at the fishfarm
during the whole operation kept a diary of the events in Doljani, the so-called
Rados Diary.54 It states on 16 April
1993:
[w]e listened to the news on the car radio. There was
fighting between the BH Army and the HVO all around central Bosnia, in
Zenica, Vitez, Travnik, Busovaca, Kojnic and Jablanica. Srebrenica is
on its last legs; they were sending appeals all around the world. I forgot
to mention that we were visited by the following delegations : twice by
the delegations from the BH Army – Zajko and Dzino first, than Zajko and
Salih Jusic; twice by Marc Deperot from the International Red Cross Committee
(ICRC) and once by the ECMM (the European Monitoring Mission). They placed
great blame on the HVO and local power brokers; our men referred them
to the signed documents of the Vance-Owen plan.
- The BH Croats were determined to implement their view of the Vance-Owen
Plan and the BH Muslims knew that if they did not agree to the demands of
BH Croats, a conflict would be imminent.55
The ABiH soldiers as well as many of the BH Muslim women and children from
Doljani left the village.56
- The attack on Sovici and Doljani was part of a larger HVO offensive aimed
at taking Jablanica,57 the main BH Muslim
dominated town in the area. The HVO commanders had calculated that they needed
two days to take Jablanica.58 The location
of Sovici was of strategic significance for the HVO as it was on the way to
Jablanica. For the ABiH it was a gateway to the plateau of Risovac, which
could create conditions for further progression towards the Adriatic coast.59
The larger HVO offensive on Jablanica had already started on 15 April 1993.
- The HVO shelling of Sovici continued uninterrupted until about five in
the afternoon on 17 April 1993.60 The
artillery destroyed the upper part of Sovici,61
as well as some houses.62 The ABiH was
fighting back, but at about five p.m. Džemal Ovnovic, the ABiH commander in
Sovici, surrendered.63 Despite the surrender
by their commander, some ABiH soldiers did not lay down their arms, but instead
fled into the hills and woods, or hid in houses and continued to shoot.64
In total, about 170 soldiers were under the command of Ovnovic and they belonged
to the 4th Corps of the ABiH.65 Approximately
70 to 75 ABiH soldiers surrendered.66
HVO soldiers searched the houses in Sovici for hidden weapons and soldiers.67
A few civilians were brought to the school but most of the women, children
and elderly were ordered to stay in their houses.68
- The elementary school in Sovici was the main place of detention and interrogation
of the captured ABiH soldiers.69 In the
early evening of 18 April 1993, the detained ABiH soldiers were taken out
of the Sovici school70 and were transported
to Ljubuski prison,71 situated in the
town of Ljubuski, about 26 kilometres Southwest of Mostar.
- Following the transfer of the captured ABiH soldiers to Ljubuski prison,
the fighting continued in the hills surrounding Sovici and the HVO attitude
hardened.72 On 18 April 1993, three HVO
soldiers were killed. On 20 April 1993, Doljani was shelled and a smaller
group of ABiH soldiers, who had resisted the HVO for some days were captured
and brought for interrogation at the HVO headquarters, the fishfarm. These
soldiers received harsher treatment.73
In the evening of 20 April 1993, the operative commander of the KB based in
Siroki Brijeg, Mario Hrkac (Cikota), was killed in combat and the KB then
withdrew to Siroki Brijeg to pay its respects.74
- Starting on 18 April 1993, the civilians were forced by HVO soldiers to
gather in the school in Sovici or in one of the six or seven houses in the
Junuzovici hamlet, while the BH Croat civilians remained in their houses.75
In total, at least 400 BH Muslim civilians were detained.76
They were guarded by HVO soldiers - elderly men were mostly held in the school,77
while women and children were held in the Junuzovici houses.78
- On 3 May 1993, a Joint Commission with General Petkovic representing the
HVO and General Halilovic representing the ABiH together with international
representatives and medical personnel visited Sovici and Doljani.79
The next evening, the civilians held in the school and the Junuzovici houses80
were called out and transported to somewhere close to Gornji Vakuf, which
was an area controlled by the ABiH.81
- The HVO advance towards Jablanica was halted after a cease-fire agreement
had been negotiated.82 At the end of
July 1993, the ABiH retook a part of Doljani.83
2. Mostar – events between 9 May 1993 and January
199484
- Mostar is the largest town in South-eastern Bosnia and Herzegovina and
the historic capital of Herzegovina. According to the 1991 census the population
of the municipality of Mostar comprised of 126,628 inhabitants, of which 34.6%
were BH Muslims, 33.9% BH Croats and 18.8% Serbs.85
The remainder were “Yugoslavs”86 and
others. As a result of the conflict in 1992 between the BH Croats and BH Muslims
on one side and the Serbs on the other side, most Serbs had left or been driven
out of Mostar. In May 1993, between 16,000 and 20,000 BH Muslim civilians
fleeing fighting in other parts of Bosnia and Herzegovina had taken refuge
in Mostar.87 The presence of these BH
Muslim refugees from outside Mostar created a BH Muslim majority.88
The HZ H-B authorities viewed this BH Muslim majority in Mostar as demographic
aggression against them and began moves to favour BH Croats expansion in West
Mostar.89 Mostar was politically dominated
by the BH Croats.90 Control in Mostar
was exercised on the military side by the HVO and on the civilian side by
the HZ H-B, however, these institutions were closely interrelated.91
- After the Serbs had left in the summer of 1992, tensions between the BH
Croats and the BH Muslims rose and sporadic incidents occurred in Mostar.
On 15 April 1993, there was an armed incident between the HVO and an ABiH
unit stationed in Hotel Mostar, which was on the separation line between the
BH Croat and BH Muslim part of town.92
- Both the HVO and ABiH had military formations positioned in the town. Mostar
was divided into a Western part, which was dominated by the HVO and an Eastern
part where the ABiH was largely concentrated. However, the ABiH had its headquarters
in West Mostar in the basement of a building complex referred to as Vranica.93
In the early hours of 9 May 1993, the HVO attacked Mostar using artillery,
mortars, heavy weapons and small arms.94
The HVO controlled all roads leading into Mostar and international organisations
were denied access.95 Radio Mostar announced
that all BH Muslims should hang out a white flag from their windows.96
The HVO attack had been well prepared and planned.97
- One of the targets was the ABiH headquarters in the Vranica building, which
also was residential housing for about 200 civilians.98
Around midday on 10 May 1993, the building caught fire and both civilians
and soldiers surrendered.99 Before leaving
the building 20 to 30 ABiH soldiers changed their uniforms into civilians
clothes.100 They were then assembled
in the yard outside the School of Economics, which is situated next to the
Vranica building complex. 101 They were
met by Juka Prazina, the commander of the Krusko ATG and Colonel Zeljko Bosnjak,
who was also a member of the KB.102
Juka Prazina ordered the prisoners to be separated into three groups: i) BH Croat
men and women, who were free to leave; ii) Muslim civilian men, women, children
and elderly who were transported to the Velez stadium; and iii) surrendered
ABiH soldiers, who were moved to the Tobacco Institute in Mostar.103
- Approximately 30 to 35 Muslim men were made to walk to the Tobacco Institute.
Mladen Naletilic accompanied by other HVO officials,104
and a large group of soldiers received the group of prisoners.105
This group was taken under guard to the MUP Station in Siroki Brijeg,106
which is fourteen kilometres west of Mostar. It is a BH Croat town, with a
population of less than 30,000 people.
- The BH Muslim civilian population of Mostar was targeted on 9 May 1993.
From about five o’clock in the morning, armed HVO units surrounded apartment
buildings and houses and collected and rounded up BH Muslim civilians.107
In certain apartment-blocks where both BH Muslims and BH Croats lived, only
the BH Muslims were forced to leave.108
Women, children, men and elderly were forced out of their homes. Witnesses
have described these evictions in different manners. One witness testified:
[t]here was intimidation. Shots were fired, threats
were uttered. For instance, my brother told me how he and his child, who
is about five or six years old, how when they came to their flat, they
had woken them up because they were still asleep, how they entered with
their automatics, pointed their rifles at them and wanted to fire them.
And they treated us arrogantly. They treated us just as arrogantly. Whoever
was slower amongst us received the blows from those soldiers either with
their feet or with a rifle.109
- The Office for Displaced Persons and Refugees of the HVO and HZ H-B issued
a decision setting 9 May 1993 as the deadline for people who had taken refuge
in Mostar following upheavals in Eastern Bosnia and Herzegoniva in abandoned
apartments (i.e. BH Muslims) to vacate them, without being given an
alternative place to live. In addition, they would not be eligible for the
humanitarian assistance given to refugees.110
This decision affected approximately 10,000 BH Muslims.111
- International observers noted that the HVO was pursuing ethnic cleansing.112
Witness Falk Simang, a member of the KB, described how the KB drove BH Muslims
from their houses and flats and how they gathered them and transported them
mostly to the Velez Stadium.113
- Witnesses described how they were awoken by gunfire, and how columns of
people started passing through the city.114
Hundreds of people were taken to the Velez Stadium. Most of them ended up
at the Heliodrom,115 west of Mostar
in Rado c, which became the main HVO detention centre in the area. In total,
between 1, 500 and 2,500 Muslim civilians were rounded up and detained at
the Heliodrom detention centre on that day.116
- International observers testified that they had the opportunity to see
and speak to prisoners at the Heliodrom.117
They had been arrested without being given a reason and did not know why they
were detained.118 The position of the
BH Croatian authorities was that people had been moved there for their own
security. International observers testified that the majority of the detainees
were of BH Muslim ethnicity, and since no BH Croats were detained, it could
not be justified on security grounds.119
Witnesses also referred to the fact that there were old men and underage boys
in the Heliodrom.120
- Following international pressure, the detained women and children were
released after a few days. On 12 May 1993, a cease-fire agreement was signed
between the HVO and ABiH providing the release of all prisoners.121
Not all prisoners were released. Another meeting on 18 May 1993 was attended
by the President of the Republic of Croatia, Franjo Tu|man, and the President
of Bosnia and Herzegovina, Alija Izetbegovic, as well as high level international
representatives.122 General Morillion
of UNPROFOR was permitted to visit the Heliodrom. Following his visit, a large
part of the male BH Muslim prisoners were released.123
- The harassment of BH Muslims by forcing them out of their apartments and
detaining them became common and widespread from 9 May throughout the autumn
of 1993.124 Many of the BH Muslims,
who were taken to the Heliodrom on 9 May 1993 and subsequently released, returned
and found that their apartments had been emptied of valuables and movable
property.125
- Following 9 May 1993, the fighting between the HVO and the ABiH was hard
and bitter. The Bulevar, a main street in Mostar separated the two forces.
Fighting for each meter and each building, both sides were constantly on guard
against attacks and shooting from the other side.126
The opposing forces took up positions within shouting distance of each other.
- BH Muslims crossed over to the Eastern side of Mostar in large numbers.127
A reliable estimate of the total number of expelled persons is difficult.128
The population of East Mostar increased after 29 June 1993 from approximately
30,000 to 55,000.129 The humanitarian
situation on the Eastern side of Mostar was horrific. There was no running
water, electricity and food.130 The
Eastern side was completely encircled. The bombardment was constant. An ECMM
report from June 1993 describes how the HVO is trying to have total control
of Mostar and aiming “at cleaning all non-Croats from the West”.131
- The siege of East Mostar continued until the beginning of 1994, which is
the period the Indictment is concerned with.
3. Rastani- the attack on 22 September 1993132
- The village of Rastani is situated north of the town of Mostar and is located
on the West Bank of the Neretva River. It consists of small hamlets of houses,
silos and a hydroelectric dam located on the Neretva River and is essentially
a suburb of Mostar.133 The ethnic composition
of the village of Rastani was mainly BH Serb and BH Muslim in approximately
equal number, with one BH Croat household.134
One BH Muslim part of the village consisted of a hamlet of a few houses called
“ Dumporove kuce” or “Dumpor” houses.135
- There had been a series of conflicts over control of Rastani between the
ABiH and the HVO, possibly due to the strategic location of the hydroelectric
dam. At the end of August 1993, the HVO gained control over Rastani.136
On 20 September 1993, the ABiH regained control over the village.137
- The HVO launched a successful counter attack to capture Rastani on 22 September
1993 and 23 September 1993.138 Houses
were burning. This involved the most intense shelling in the region in 1993.139
The HVO used artillery fire from the area overlooking Rastani such as Djubrani,
as part of the attack to regain Rastani.140
4. The impact of the conflict
- Thousands of Muslim civilians were forced to leave their homes in Sovici,
Doljani and West Mostar. The attacks also resulted in a large number of both
prisoners of war and civilian prisoners who were held at different detention
centres in the area. The main detention centre was the Heliodrom, which at
times held thousands of prisoners. The Heliodrom was a former JNA barracks
composed of several buildings and hangars. The Ljubuski prison became infamous
because “special” prisoners were held there. The evidence shows that prisoners
were moved around between places and detention centres. For example, the ABiH
soldiers who surrendered or were captured in Sovici and Doljani were brought
to the Ljubuski prison on 18 April 1993 and were later moved to the Heliodrom.
The detainees at the Ljubuski prison included men involved in the fighting
in Sovici, Doljani and the Jablanica area,141
from the Vranica building in Mostar142
who had surrendered or had been otherwise captured.143
There were also non-combatants detained in Ljubuski Prison.144
- Prisoners from the Heliodrom were taken to perform labour in different
locations, but mainly on the frontline in Mostar. Other places where prisoners
were held were the MUP Station and the Tobacco Station in Siroki Brijeg. Soldiers
captured in Rastani were detained at the MUP Station in autumn 1993.145
Most of the captured men from the Vranica building were transferred from the
Tobacco Institute in Mostar to the MUP Station in Siroki Brijeg around 10
May 1993.146
C. Individual criminal responsibility and superior
responsibility
1. The law
- It is alleged in the Indictment that Mladen Naletilic and Vinko Martinovic
are responsible for the crimes charged pursuant to both Article 7(1) and Article
7(3) of the Statute.147
(a) Individual criminal responsibility under Article
7(1) of the Statute
- Article 7(1) of the Statute provides that:
[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.
- “Planning” means that, “one or several persons contemplate designing the
commission of a crime at both the preparatory and execution phases”.148
The existence of a plan can also be proved by circumstantial evidence.149
An accused held responsible for having committed a crime will not be found
responsible for planning such crime.150
- “Instigating” has been defined as “prompting another to commit an offence”151
either through an act or an omission.152
The actus reus requires a clear contribution to the act of the other
person, but it needs not to be shown that the offence would not have been
perpetrated without the participation of the accused.153
The requisite mens rea is that the accused intended to provoke or induce
the commission of the crime, or was aware of the substantial likelihood that
the commission of a crime would be a probable consequence of his acts. 154
- “Ordering” “implies a superior-subordinate relationship between the person
giving the order and the one executing it”.155
A formal superior-subordinate relationship is not required, but it must be
established that the accused possessed the authority to order.156
The order does not need to be given in any particular form and can be explicit
or implicit.157 That the order was given
can be proved through circumstantial evidence.158
It is not necessary that the order be given directly to the individual conducting
it.159
- “Committing” means physically and personally perpetrating a crime or engendering
a culpable omission in violation of a rule of criminal law.160
There can be several perpetrators regarding the same crime as long as each
of them fulfils the requisite elements of the crime.161
- “Aiding and Abetting” is defined as rendering a substantial contribution
to the commission of a crime. The contribution can consist of practical assistance,
encouragement or moral support.162 It
is not necessary to prove that a cause-effect relationship existed between
the participation and the commission of the crime.163
The participation may happen before, during or after the commission of a crime.164
Aiding and abetting can also be committed through an omission as long as the
omission had a significant effect on the commission of the crime and was accompanied
by the necessary mens rea.165
An individual’s position of superior authority does not suffice to conclude
from his mere presence on the scene of the crime, that he encouraged or supported
the crime. However the presence of a superior can be perceived as an important
indicium for encouragement or support.166
Regarding concomitant behaviour, the Furundžija Trial Chamber held
that the accused had assisted another accused in the commission of a rape
because he was continuing with the interrogation of the victim while being
raped.167 Concerning the mens rea
it is required that the aider and abettor must have known, in the sense
of being aware, that he was assisting in the commission of the crime.168
It has to be shown that he was aware of the essential elements of the crime,
which also means the necessary mens rea on the part of the principal.169
The abettor need not have known the precise crime being committed as long
as he was aware that one of a number of crimes would be committed, including
the one actually perpetrated.170
(b) Command or superior responsibility under Article
7(3) of the Statute
- Article 7(3) of the Statute provides that:
[t]he fact that any of the acts referred to in articles
2 to 5 of the present Statute was committed by a subordinate does not
relieve his superior of criminal responsibility if he knew or had reason
to know that the subordinate was about to commit such acts or had done
so and the superior failed to take the necessary and reasonable measures
to prevent such acts or to punish the perpetrators thereof.
- The Chamber follows the Celebici Trial Judgement, which has set
out the essential elements to establish command responsibility:
(i) the existence of a superior-subordinate relationship
(ii) the superior knew or had reason to know that the criminal act was
about to be or had been committed; and
(iii) the superior failed to take the necessary and reasonable measures
to prevent the criminal act or punish the perpetrator thereof.171
- The basis of the superior-subordinate relationship is the power of the
superior to control the actions of his subordinates. The Celebici Trial
Chamber concluded that:
it is necessary that the superior have [sic] effective
control over the persons committing the underlying violations of international
humanitarian law, in the sense of having the material ability to prevent
and punish the commission of these offences. With the caveat that such
authority can have a de facto as well as a de jure character,
the Trial Chamber accordingly shares the view expressed by the International
Law Commission that the doctrine of superior responsibility extends to
civilian superiors only to the extent that they exercise a degree of control
over their subordinates which is similar to that of military commanders.172
- The crucial question is therefore the actual possession or non-possession
of power to control. Even if a formal appointment is an important aspect for
command or superior authority, de facto control in the absence of de
jure authority can be satisfactory for the assessment of superior responsibility.173
This applies to many contemporary conflicts, in which only de facto, self
-proclaimed governments with their de facto armies and paramilitary
groups take part.174 The capacity to
sign orders is indicative of some authority, but in order to ascertain the
actual powers of control of the superior it is also necessary to consider
the substance of the documents signed and if they were complied with.175
Both de facto and de jure superiors need to have effective control,
which means significant ability to prevent and punish criminal behaviour,
to be held responsible for the crimes of their subordinates. 176
- Although the doctrine of superior responsibility was at first intended
for military commanders only, it is now established that it attaches also
to civilian superiors in positions of authority.177
What is decisive is the power of effective control for which the mere proof
of substantial influence is not sufficient.178
- Even a rank-less individual commanding a small group of men can have superior
responsibility.179 When the subordinate
perpetrator was under the command of two superiors, both of them may be held
responsible for the same crime.180
- Superior responsibility under Article 7(3) of the Statute does not impose
strict liability for superiors. It requires that the superior “knew or had
reason to know ”.
- The superior’s actual knowledge can be established by direct or circumstantial
evidence.181 In the absence of direct
evidence the superior’s actual knowledge can not be presumed.182
Nevertheless the Aleksovski Trial Chamber stated that an individual’s
command position per se is at least an important indicium that
he knew about the crimes committed by his subordinates.183
However, the significance of this indicium depends on additional factors
such as the ones provided by the Celebici and Blaskic Trial
Judgements in a non-exclusive list, based on the Final Report of the Commission
of Experts:
the number, type and scope of the illegal acts; the
time during which the illegal acts occurred; the number and type of troops
involved; the logistics involved, if any; the geographical location of
the acts; the speed of the operations; the modus operandi of similar
illegal acts; the officers and staff involved; and the location of the
commander at the time.184
- Considering geographical and temporal circumstances, this means that the
more physically distant the superior was from the commission of the crimes,
the more additional indicia are necessary to prove that he knew of
the crimes. On the other hand, if the crimes were committed next to the superior’s
duty-station this suffices as an important indicium that the superior
had knowledge of the crimes, even more if the crimes were repeatedly committed.185
- The fact that a military commander will most probably be part of an organised
structure with reporting and monitoring systems can facilitate the showing
of actual knowledge. For de facto commanders in more informal military
structures and for civilian superiors the standard of proof is higher.186
- The Chamber finds that a superior “had reason to know” when the following
criteria as adopted by the Celebici Trial Chamber are met:
a superior can be held criminally responsible only if
some specific information was in fact available to him which would provide
notice of offences committed by his subordinates. This information need
not be such that it by itself was sufficient to compel the conclusion
of the existence of such crimes. It is sufficient that the superior was
put on further inquiry by the information, or, in other words, that it
indicated the need for additional investigation in order to ascertain
whether offences were being committed or about to be committed by his
subordinates.187
- To interpret “had reason to know”, the Celebici Trial Chamber considered
the phrasing of Article 86(2) of the Additional Protocol I. The provision
states that superiors can be held criminally or disciplinarily responsible
if “they knew, or had information, which should have enabled them to conclude
in the circumstances at the time, that the SsubordinateC was committing or
was going to commit such a breach”. The Celebici Trial Chamber also
noted that the drafters of Article 86(2) of the Additional Protocol I explicitly
rejected the wording “should have had knowledge”.188
The Celebici Appeals Chamber upheld the Trial Chamber’s finding, stating
that the superior need not to know about the offences of his subordinates,
but needs to have “some general information in his possession, which would
put him on notice of possible unlawful acts by his subordinates”.189
The Celebici Appeals Chamber clarified that “available” and “in the
possession of” are used equivalently and do not require that the superior
“actually acquainted himself with the information”.190
- The superior must have failed to take the necessary or reasonable measures
to prevent the crimes or to punish the perpetrator thereof. The Chamber agrees
with the finding made by the Blaskic Trial Chamber that
it is a commander’s degree of effective control, his
material ability, which will guide the Trial Chamber in determining whether
he reasonably took the measures required either to prevent the crime or
to punish the perpetrator.191
- Only feasible measures in the power of a superior are required. The determination
is made on a case by case basis.192
(c) Concurrent application of Articles 7(1) and
7(3) of the Statute
- The Kordic Trial Chamber found that superior responsibility is an
indirect form of responsibility because it is not the answer to a direct involvement
of a superior in the commission of a crime but to his failure to prevent or
punish such crimes.193 Accordingly,
it held that when a superior not only knew or had reason to know about the
crimes of his subordinates but also planned, instigated, ordered or otherwise
aided and abetted in the planning, preparation or execution of these crimes,
the application of Article 7(1) of the Statute is more appropriate to characterise
his responsibility.194
- The Krnojelac Trial Chamber stated that as it is inappropriate to
convict under both heads of responsibility for the same conduct, the Trial
Chamber has the discretion to choose which is the most appropriate one.195
- The Blaskic Trial Chamber was in favour of a concurrent application
of Articles 7(1) and 7(3) of the Statute in cases, where subsequent crimes
have been committed. The Chamber was of the view that the failure to punish
past crimes can not only be subject of superior’s responsibility under Article
7(3) of the Statute but can also be the basis for a liability under Article
7(1) of the Statute for either “aiding and abetting” or “instigating” the
commission of further crimes.196
- The Chamber follows the finding of the Krnojelac Trial Chamber by
choosing between Article 7(1) and Article 7(3) of the Statute the most appropriate
form of responsibility. As held by the Celebici and Aleksovski Appeal
Judgements the form of responsibility, which was not chosen, must be considered
as aggravating circumstance, because the final sentence should reflect the
totality of the culpable conduct.197
2. The general command structure in the Croatian
Defence Council (HVO)
- The HVO chain of command in 1993 consisted of a political figure at the
top as supreme commander, who at the time was Mate Boban, the President of
the HZ H- B.198 The Defence Department
of the HZ H-B was headed by the Minister of Defence Bruno Stojic, who was
subordinate to the supreme commander.199
Under the Defence Department was the HVO Main Staff, commanded by the Chief
of the HVO Main Staff and for some time in 1993 also by a commander.200
During different periods in 1993, Zarko Tole, Milivoj Petkovic, Slobodan Praljak
and Ante Roso headed or commanded the HVO Main Staff.201
In late 1992, four operative zones were formed under the HVO Main Staff.202
They consisted of the Central Bosnia operative zone (Vitez) commanded by Tihomir
Blaskic, the Northwest Herzegovina operative zone (Orasje) commanded by Zeljko
S iljeg, the Southwest Herzegovina operative zone (Tomislavgrad) commanded
first by Miljenko Lasic and then by Obradovic and the Southeast Herzegovina
operative zone (Mostar) commanded by Miljenko Lasic.203
The Chief of the HVO Main Staff gave the orders – usually in agreement with
the Defence Department - to the operative zone commanders. There were two
chains of command. The general chain of command was brigade commander, battalion
commander, company commander, and commander of a unit. The other chain of
command was related to the frontlines, where it was the HVO Main Staff, operative
zone commander, commander of a particular area at the frontline and units
that were subordinated to the area commander. These units mostly consisted
of shifts provided by the Brigades.204
- Attached to the Defence Department were the Military Police.205
In the military command structure they were positioned parallel to the HVO
Main Staff except for situations in which the Military police units were deployed
in military operations and were given operational orders. 206
- Outside the chain of command of the HVO regular units, there were professional
units and units for special assignments. These units were attached to the
HVO Main Staff through the Defence Department.207
There were four professional units: the Convicts’ Battalion (“KB”), the Baja
Kraljevic unit, the Ludvig Pavlovic unit, and the Ante Bruno Busic unit.208
The units for special assignments were the so-called Anti-Terrorist-Groups
(ATG), which were structurally sub-units of other units. The normal chain
of command for these units was that the HVO Main Staff called on them when
needed.209 For an express need, the
HVO Main Staff could call an ATG, however, the ATG units mostly worked for
their mother units or locally at the municipal levels, because they had few
members.210 When the professional or
ATG units arrived at the frontline the commander of the particular area at
the frontline told them what their specific tasks were.211
The ATG units did not operate independently at the frontline,212
but were under the command of the area commander until they had finished their
assignments.213 The professional units
attached themselves to the area commander but stayed under the direct command
of the HVO Main Staff.214 The execution
of the task assigned to the professional units was within the discretion of
their commanders.215 When not engaged
in combat the professional units lived in barracks whereas the members of
the ATG units went home.216
- While ATG units and professional units had the above-described different
characteristics the expression “ATG” happened to be also used for professional
units.217
3. The Convicts’ Battalion (KB)
(a) Introduction
- The KB was set up by Mladen Naletilic, called “Tuta”218,
on 1 June 1991.219 According to the
Defence witnesses it was called “Convicts’ Battalion” because it was organised
by people who had been politically persecuted during the communist regime.220
The KB and Mladen Naletilic, who was a very well known person in Mostar and
Siroki Brijeg, got a lot of credit during the conflict with the Serbs for
the liberation of Mostar in 1992.221
Mladen Naletilic was seen as a war hero in whom the people believed.222
He had enormous authority and influence with effect beyond the KB.223
- After the restructure of the HVO at the end of 1992 and the beginning of
1993, the KB became a so-called professional or independent unit put into
action for special combat purposes.224
As such it was under the direct command of the HVO Main Staff.225
The KB had its headquarters in the Tobacco Station in Siroki Brijeg.226
Attached to the KB were several ATG units.227
The expression “KB” was not only used to describe the mother unit located
in Siroki Brijeg, but also - as an umbrella name - the mother unit together
with the joined ATG sub-units.228 Members
of the KB wore patches indicating to which part of the KB they belonged.229
- In May 1992, the KB Siroki Brijeg had about 40 to 50 members.230
After the successful operation in Mostar in June 1992, it became popular and
the number of men in the unit increased to 80 to 100.231
In the following time, the KB grew even stronger, also through ATG units that
were joining it.232 According to a KB
salary list dated November 1993, the KB Siroki Brijeg was composed of 282
soldiers and about ten ATG units.233
The number of members of the ATG units ranged from approximately 20 to 80
soldiers. The KB Siroki Brijeg and the ATG units altogether counted 846 soldiers.234
(b) Mladen Naletilic’s command position
- The Prosecution alleges that Mladen Naletilic was the highest level commander
of the KB during the relevant time of the Indictment.235
- The Naletilic Defence disputes that Mladen Naletilic was commander of the
KB in 1993 and 1994. It agrees that Mladen Naletilic was one of the founders
of the KB in 1991 and was its commander during the so-called liberation of
Mostar from the Serbs in 1992.236 The
Naletilic Defence argues that Mladen Naletilic retired from the KB in the
fall of 1992 and was not a soldier with any rank at the time relevant to the
Indictment.237 Instead, it is submitted
that in 1993 he was Vice-Mayor in the Siroki Brijeg Municipal council, i.e.
“the HVO civil branch”.238 The Naletilic
Defence further submits that by early 1993, Mario Hrkac called “Cikota,” and
Ivan Andabak were the commanders of the KB.239
- Witnesses Ralf Mrachacz and Falk Simang, who were members of the KB Siroki
Brijeg,240 witness Q, who was a member
of the Vinko Skrobo ATG241 and witness
T, who was a member of the Krusko ATG,242
all testified that Mladen Naletilic was the overall or supreme commander of
the KB.243 Many details were described
that constitute strong indicia for Mladen Naletilic’s overall command
position. Mladen Naletilic was called “general” or “boss” by members of the
KB.244 Mladen Naletilic assigned the
military identity cards to members of the KB Siroki Brijeg and Baja Kraljevic
ATG245 and conducted the military briefings.246
Either Mladen Naletilic or his deputies “Cikota” who was commander of the
troop based in Siroki Brijeg,247 or
“Lija ” who was commander of the Baja Kraljevic ATG248
chaired daily morning meetings. These were sort of roll calls, held mostly
at the Tobacco Station in Siroki Brijeg.249
Mladen Naletilic or the people around him brought the money to pay the soldiers250
who called their unit “Tuta ekipa”, which means “Tuta’s unit” or “brigade”.251
Witness Ralf Mrachacz also testified about two orders, given by “Tuta” in
front of the units, regarding military discipline. According to these orders,
members of the KB, who committed a criminal act against civilians would be
punished and foreigners who deserted and went to the other side had to be
shot.252 Witness Ralf Mrachacz also
stated that in military operations they were directly subordinate to Mladen
Naletilic. In his absence, “Cikota” and “Lija” would give orders.253
- Numerous documents indicate Mladen Naletilic’s superior command position
in the KB in 1993. These include communications from the HZ H-B Minister of
Defence Bruno Stojic, the Chief of the HVO Main Staff Ante Roso and the Head
of the security sector of the HVO Main Staff, Marijan Biskic, addressed to
the commander of the KB Mladen Naletilic, Tuta, in November and December 1993.254
- Several witnesses described Ivan Andabak as Mladen Naletilic’s deputy.255
Ivan Andabak also introduced himself as “Tuta’s deputy” to some of the witnesses.256
Documents corroborate Ivan Andabak’s position. He dealt on behalf of Mladen
Naletilic with correspondence, signed payment requests and KB membership certificates
over Mladen Naletilic’s name.257
- The Chamber is satisfied that Mladen Naletilic was the highest level commander
of the KB in 1993 and 1994. The Chamber further finds that Mario Hrkac called
“ Cikota” and Ivan Andabak were commanders subordinate to Mladen Naletilic
as the overall or supreme commander.258
(c) The units of the KB
- The following enumeration and description of units belonging to the KB
only deals with such units, which are relevant to the Indictment.259
(i) The mother unit KB Siroki Brijeg
- Mario Hrkac, called “Cikota”, was commander of the KB Siroki Brijeg until
his death on 20 April 1993.260 After
Mario Hrkac death Ivan Andabak became the operative commander of the KB Siroki
Brijeg.261 According to Defence witnesses,
in addition to Ivan Andabak, Zeljko Vukoja was operative commander of the
KB Siroki Brijeg.262 As overall commander
of the KB, Mladen Naletilic had his office at the KB headquarters in the Tobacco
Station in Siroki Brijeg.263
(ii) Vinko Martinovic and the Vinko Skrobo
ATG or Mrmak264 ATG
- The Prosecution alleges that the Vinko Skrobo ATG was a sub-unit of the
KB, whose commander Vinko Martinovic was a subordinate of Mladen Naletilic.265
- During the Prosecution case the Martinovic Defence disputed that Vinko
Martinovic, called “Stela”, was the commander of the Vinko Skrobo ATG. It
changed its position during the Defence case and now admits Vinko Martinovic’s
command position.266 The Martinovic
Defence does not dispute that the Vinko Skrobo ATG headquarters was situated
in Kalemova Street in Mostar267 and
that it held one part of the front line in the Sector Mostar Town Defence.268
- The Martinovic Defence alleges that Vinko Martinovic was “not a military
commander in the sense envisaged in terms of traditional notions of command
responsibility.” 269 It is argued that
Vinko Martinovic “was a civilian, who […] voluntarily participated in a form
of civil defence”, that “he had not been subjected to rigorous military training
or risen through the ranks of a military hierarchy,” and that “he was not
part of a detailed chain of command in a regular army falling under a state
structure”.270 It is therefore submitted
that the proper test to establish his command responsibility is the one applicable
in the case of a civilian or quasi-military commander. It is argued that this
test has to be stricter than the one in the case of soldiers in a regular
army.271 The Martinovic Defence further
alleges that Vinko Martinovic had no power to effectively control the soldiers
of his unit comparable to a military commander except while they were with
him at the front line.272
- The Chamber is satisfied that the Vinko Skrobo ATG was part of the KB.273
Vinko Martinovic himself testified in 1997 during criminal court proceedings
against Mladen Naletilic in the County Court of Zagreb that he was a member
of the KB, headed by Mladen Naletilic, and that he was within the KB commander
of the Vinko Skrobo ATG.274 Witnesses
Allan Knudsen and Q, both members of the Vinko Skrobo ATG, testified that
Vinko Skrobo ATG was a sub-unit of the KB.275
In addition, the Vinko Skrobo ATG patch demonstrated that it was part of the
KB.276
- The Chamber further finds that the Vinko Skrobo ATG as part of the KB was
a component of the HVO, a well-structured army with a clear chain of command.277
As the HZ H-B was a de facto government, Vinko Martinovic as commander
in the HVO held a command position in a de facto army. Thus, Vinko
Martinovic has to be considered as a regular military commander whose command
responsibility is determined on the basis of his possession of de facto
control over the members of the Vinko Skrobo ATG.
- According to several defence witnesses, the Vinko Skrobo ATG was formed
by Vinko Martinovic.278 While the evidence
is not consistent as to exactly when the Vinko Skrobo ATG was formally established,
the Chamber finds that Vinko Martinovic was the commander of a group of soldiers,
who held positions at the confrontation line next to the Health Centre, at
least from mid-May 1993.279
- Vinko Martinovic’s subordinates were Dubravko Pehar called “Dubi” who was
the deputy commander of the Vinko Skrobo ATG,280
Ernest Takac called “Brada” who was a group leader of the Vinko Skrobo ATG,281
Nino Pehar called Dolma,282 Drazen Galic,283
Marin Culjak,284 Semir Bosnjic, called
“Sema”,285 Dinko Knezovic,286
Otto Wild,287 Zdenko Zdena and Zdravko
Buhovac, called Hecko.288
(iii) The Baja Kraljevic ATG
- There is no dispute that the Baja Kraljevic ATG, stationed at the Heliodrom,289
was commanded by Predrag Mandic called “Lija”. From the end of June or beginning
of July 1993, Stanko Sopta was the deputy commander until he subsequently
was appointed commander of the 3rd HVO Brigade in October 1993.290
- The Prosecution alleges that the Baja Kraljevic ATG was a subordinate unit
of the KB.291
- The Naletilic Defence argues that the Baja Kraljevic unit was a professional
unit and was not part of the KB. It took its orders from the HVO Main Staff.292
It is further alleged that the only connection that existed between the Baja
Kraljevic and the KB was that members of the KB Siroki Brijeg moved to the
Baja Kraljevic unit, when it was founded.293
- The Chamber is satisfied that the Baja Kraljevic ATG was part of the KB.
This conclusion is based on both documents294
and reliable witness testimonies. According to the member of the KB witness
Ralf Mrachacz, there were two troops that were directly subordinate to Mladen
Naletilic. One was a unit based in Siroki Brijeg and commanded by “Cikota”
and the other one was based at the Heliodrom and commanded by “Lija”.295
Witness Ralf Mrachacz stated that these two units formed the core of the KB,
which further units (i.e. ATG units) then joined.296
Witness Falk Simang stated that when he and another German mercenary arrived
in Mostar in February 1993, they were introduced to two commanders called
“Lija”297 and “Baja”. “Lija” informed
them that they had to be introduced to “General Tuta ” who would have the
final say as to whether they would become members of their units. Once “Tuta”
had accepted them, they were returned to Mostar and had to fill in a form
that recorded their personal data in “Lija’s” office at the Heliodrom.298
Also witness Falk Simang’s testimony shows that Predrag Mandic, called “Lija”,
and his ATG as well as the Benko Penavic ATG commanded by Mario Milicevic,
called “Baja ”, were under the command of Mladen Naletilic.299
- The Chamber finds that the Baja Kraljevic ATG had a special position amongst
the ATG units. It enjoyed a degree of independence and was an elite unit unlike
the Vinko Skrobo ATG and the Benko Penavic ATG. Rather, the Baja Kraljevic
ATG held the position of a professional unit, called by the HVO Main Staff
when needed, because it was not just an ATG attached to the KB but was one
of the original KB units constituting the core KB.300
(iv) The Benko Penavic ATG
- The Benko Penavic ATG was stationed in Mostar and was commanded by Mario
Milicevic, called “Baja”.301 Witness
S gave evidence that he learned on 8 May 1993 from “Baja” himself that he
would be one of the commanders of an ATG, which was named Benko Penavic ATG.302
The Chamber is satisfied that the Benko Penavic ATG was formally established
around 9 May 1993.303
- The headquarters of the Benko Penavic ATG was situated at the Rondo in
Mostar 304 and its area of responsibility
at the frontline was adjacent to the south of the Vinko Skrobo ATG.305
- The Chamber is satisfied that, as submitted by the Prosecution,306
the Benko Penavic ATG belonged to the KB.307
According to witness AC, a Muslim member of the Benko Penavic ATG, Mladen
Naletilic appointed “Baja” to lead the Benko Penavic ATG.308
Witness AC further testified that “Baja” told him that the Benko Penavic ATG
was under “Tuta’s authority” and that he, “Baja”, had to convince “Tuta” to
be allowed to admit witness AC into his unit, because he was a Muslim.309
- At the end of 1993, Mario Milicevic became commander of a newly created
ATG of the KB called “Zeljko Bosnjak”.310
(v) The Krusko ATG
- The Samir Kafedzic Krusko ATG was first stationed at the Heliodrom and
from October 1993 in Mostar.311 It was
an ATG with about 90 members including all ethnic groups312
that was commanded by Jusuf Prazina, a Muslim, called “Juka”.313
When Jusuf Prazina disappeared in October 1993, his deputy commander Božo
Sain replaced him.314
- The Chamber finds that the Krusko ATG was also a sub-unit of the KB315
as submitted by the Prosecution.316
Witness T, a member of the Krusko ATG, testified that members of the Krusko
ATG wore a camouflage uniform with a patch saying “ATG KB Krusko”.317
He also gave evidence that Jusuf Prazina had told him that Mladen Naletilic
was his commander318 and that both signed
a permit in April 1993 that allowed him to travel freely in Bosnia and Herzegovina
and to Croatia.319
(vi) Further Members of the KB
- Further members of the KB were Juka Prazina,320
Vedran Bijuk called “Splico”,321 Robert
Medic called “Robo”, “Roba”, “Robi” and “Robia”,322
Zeljko Bosnijak;323 Boro Pusic,324
Miroslav Kolobara called “Droba”,325
Robert Kolobaric,326 Romeo Bla‘evic,327
Ivica Kraljevic,328 and Ivan Hrkac called
“Cikota”329 who was the brother of Mario
Hrkac called “Cikota”.330
(d) Conclusion
- It has been established that throughout the relevant time of the Indictment
Mladen Naletilic was the overall commander of the KB and the attached ATG
units. However, to find Mladen Naletilic responsible under Article 7 (3) of
the Statute for crimes committed by members of the KB it has to be established
for every incident charged in the Indictment that he knew or had reason to
know of the crime and that he had the material ability to prevent it or punish
the perpetrators thereof.
4. Command position of the accused in the individual
operations
(a) Sovici and Doljani
- The Prosecution alleges that Mladen Naletilic was the “overall on-the-ground
commander” of the HVO forces in the attack against Sovici/Doljani that started
on 17 April 1993.331
- The Naletilic Defence does not dispute that the KB Siroki Brijeg and the
Baja Kraljevic ATG engaged in the action in Sovici/Doljani in April 1993.332
It argues that Mladen Naletilic was neither overall commander in the military
operation in Sovici/Doljani nor was present in Sovici on 17 and 18 April 1993
or in Doljani after 19 April 1993.333
The Naletilic Defence claims that Mladen Naletilic spent the Easter holidays
with his children from 12 April (Easter Monday) until 19 April 1993 at a friend’s
house in Risovac.334 The Naletilic Defence
further alleges that a commander of the Sector was supposed to be the overall
commander while Mladen Naletilic was not “Sector commander or any commander”.335
- Defence witness NL did not know about Mladen Naletilic whereabouts on 15
and 16 April 1993 as he left the house for Siroki Brijeg on 12 April and did
not return to Risovac before late afternoon on 16 April 1993.336
He testified that Mladen Naletilic was with him in Risovac on 17 and 18 April
1993. He further stated that soldiers came by and told them what was going
on. According to defence witness NL, two members of the KB came in the late
afternoon of 19 April 1993 and informed Mladen Naletilic that a soldier of
the KB had been killed. Mladen Naletilic allegedly left with them and returned
around seven p.m. to go with Defence witness NL to Siroki Brijeg. Defence
witness NL did not know Mladen Naletilic’s whereabouts from the evening of
19 April 1993 when they left Risovac. He only saw him again at the funeral
of the member of the KB Boro Barbaric, called “Boka”,337
on 21 April and at the funeral of Mario Hrkac, called “Cikota”, on 22 April
1993.338
- The Chamber is satisfied that Mladen Naletilic commanded the Sovici/Doljani
operation, which was – as already stated339
- part of the larger operation to take Jablanica. It has been established
that Mladen Naletilic was present in Sovici/Doljani at the time relevant to
the Indictment and led the attack on Sovici/Doljani, not only heading the
KB Siroki Brijeg and the Baja Kraljevic ATG, but also the other troops involved.
- The house in Risovac where Mladen Naletilic claims to have stayed is situated
between Sovici and Doljani, which are about six kilometres apart from each
other,340 and about 13 kilometres from
Doljani.341 The Chamber is satisfied
that Risovac is sufficiently close to Sovici and Doljani that had Mladen Naletilic
in fact been staying there, it would not have prevented him from taking part
in the Sovici/Doljani operation.
- Even if Mladen Naletilic was with Defence witness NL in Risovac on 17 April
1993,342 he would have had the possibility
to give orders to his men through his Motorola or to the soldiers who came
by the house of NL during these two days. A number of witnesses also gave
evidence that when the attack started on 17 April 1993, the shelling mainly
came from Risovac.343
- The Chamber is satisfied that Mladen Naletilic was in Sovici on 18 April
1993 at least for some time. Several witnesses testified that they saw Mladen
Naletilic at the Sovici school on 18 April 1993344
and that his men were among the soldiers who took the prisoners from the school
to buses and escorted them to Ljubuski.345
Witness Y testified that on 18 April 1993, a man who introduced himself as
“Mladen Naletilic, Tuta”, came out of the house of Jure Groznica, called “Juka”,346
which was located in a part of Sovici called Srednja Mahala.347
According to witness Y, Mladen Naletilic was accompanied by Stipe Pole, commander
of the 3rd Mijat Tomic Battalion, “Cikota” and Ivan Andabak, who then interrogated
witness Y at the Sovici school.348
- The Chamber rejects that Mladen Naletilic was with Defence witness NL in
Risovac until the late afternoon on 19 April 1993. According to the Rados
Diary,349 which was written by a member
of the HVO 3rd Mijat Tomic Battalion who was present at the HVO headquarters
at the fish farm in Doljani during the whole Sovici/Doljani operation, “Tuta
arrived almost exactly at noon” at the HVO headquarters on 19 April 1993.350
The Chamber finds that the diary reflects the accurate time of Mladen Naletilic’s
arrival at Doljani on 19 April 1993 as this evidence is very precise in describing
the first time Mladen Naletilic came to the fish farm leaving an impression
of great authority.351
- Two members of the KB gave evidence that the KB Siroki Brijeg and the Baja
Kraljevic ATG headed by Mladen Naletilic took part in the Sovici/Doljani operation.
Witness Ralf Mrachacz who drove a supply truck,352
testified that Mladen Naletilic was in charge of the action in Sovici/Doljani
as he saw Mladen Naletilic at the headquarters, the fishfarm.353
As a result of the death of “Cikota”, the witness described the operation
as divided into two actions.354 Thus,
he stated that after “Cikota” had fallen during the first action in Doljani,
Mladen Naletilic prior to the second action gave the order to make no prisoners.355
KB member witness Falk Simang also maintained that Mladen Naletilic commanded
the KB Siroki Brijeg and the Baja Kraljevic ATG in the Sovici/Doljani operation.356
He further stated that “Cikota” fell on the first day of their assignment
in Doljani and that Mladen Naletilic ordered that the complete KB had to withdraw
to Siroki Brijeg for the funeral.357
He also testified that captured Muslims in uniform were interrogated by Mladen
Naletilic and Ivan Andabak at the headquarters next to a fish basin.358
This statement of witness Falk Simang was confirmed by other witnesses who
gave more specific evidence that Mladen Naletilic interrogated captured ABiH
soldiers at the fishfarm on 20 April 1993.359
Witness Falk Simang also corroborated witness Ralf Mrachacz’s testimony that
after they had returned from “Cikota”’s funeral, Mladen Naletilic ordered
that no prisoners were to be taken. The witness further claimed that Mladen
Naletilic ordered the complete cleansing of Doljani.360
- The witness testimonies of the KB members are further corroborated by the
Rados Diary. It mentions the commanders of the KB Siroki Brijeg and the Baja
Kraljevic ATG, “Cikota” and “Lija”, as members of Tuta’s team during the Sovici/Doljani
operation. It further states that Mladen Naletilic kept calling “Cikota” and
“Lija” while issuing orders concerning the firing at Doljani on 20 April 1993.361
This evidence demonstrates in particular Mladen Naletilic’s command authority
during the military operation in Sovici/Doljani as leader of the KB Siroki
Brijeg and the Baja Kraljevic ATG.
- The documentary evidence considered in its entirety proves that Mladen
Naletilic strategically planned and conducted the attack on Sovici/Doljani
as commander of all troops deployed for this purpose. The Chamber is satisfied
that the units acting in concert under Mladen Naletilic’s command included,
in addition to the KB Siroki Brijeg and the Baja Kraljevic ATG, the 3rd Mijat
Tomic Battalion of the HVO Brigade Herceg Stjepan, commanded by Stipe Pole,
and the 4th Posusje Battalion of the HVO Brigade Kralj Tomislav, commanded
by Ivan Bago.362
- An order, dated 15 April 1993, shows that Mladen Naletilic was involved
in the planning of the attack.363 Pursuant
to an agreement with Miljenko Lasic, commander of the Southeast Herzegovina
operative zone, “co-ordinator for Herzeg-Bosna, Mladen Naletilic Tuta” and
“representatives of the Main Staff, colonel Ivan Andabak” Ivan Bago, commander
of the 4th Posusje Battalion,364 ordered
for the same day troops to be deployed at Sovicka Vrata, which is approximately
2.5 km away from Risovac.365 This evidence
is corroborated by a report, dated 16 April 1993, by Zeljko Siljeg, commander
of the Northwest Herzegovina operative zone, about the co-ordination with
Mladen Naletilic through the Posusje unit on Sovicka Vrata.366
There is a report, dated 20 April 1993, by HVO Officer Stanko Maric, military
spokesman of the HVO headquarters,367
informing Tuta, Mico (Miljenko Lasic),368
and Slavko (Slavko Puljic)369 that SPABAT
and ECMM were on their way to Sovici/Doljani.370
- A report of a member of the HVO 3rd Mijat Tomic Battalion describes Mladen
Naletilic’s overall command position in the Sovici/Doljani operation:
Mr. Tuta commanded the overall operation in this area
(Risovac, Sovici and Doljani ) in which troops from elsewhere also took
part, such as, for instance, the Convicts battalion, the Poskok battalion,
the Grdani, the Posusje mortarmen, and others.371
- This is corroborated by two reports of international observers from April
1993, concluding that Mladen Naletilic was leading the HVO forces in the attack
against Sovici/Doljani.372 The reports
refer to HVO sources, according to which
the offensive launched against Slatina […] and Doljani
[…] aims to push on through to Jablanica. The offensive is directed by
a person of substantial political, economic and military influence, someone
who is tired of signatures […] and political treaties. Hence he has no
wish to uphold the cease-fire agreement struck between the Armija
BiH […] and the HVO […]. This person is known as Tuta and has chosen
two collaborators he had with him in Operation Bura - namely Ivan
Andavak and Brigadier Lasic.373
- Mladen Naletilic’s overall command position is further depicted in the
Rados Diary. It notes, that when Mladen Naletilic arrived with his team at
the HVO headquarters on 19 April 1993
[t]hey immediately sat at the table with a map in front
of them and started making a detailed plan. Tuta took everyone’s comments
into account, but the main decisions were his. The only other two who
were consulted were Mico Lasic and Slavko Puljic ; the others would only
make suggestions […] they needed to mop up in Doljani. Then it started.
A thunderous roar of fire from mortars, Bofors, two-barrelled guns and
the like.374
The Rados Diary demonstrates that Mladen Naletilic was also at the HVO
headquarters on 20 April 1993, “issuing orders quickly and with authority”
while getting help from Miljenko Lasic and “other higher commanders whose
opinions were taken into account”.375
Again, it is described that the fighting then started and that “Tuta was
issuing orders” while observing the situation. As a result “the houses in
Doljani were on fire.”376 The Rados
Diary furthermore states that Mladen Naletilic ordered someone from Posusje
to take over the command, when he left for the burial of Cikota in the evening
on 20 April 1993.377 This statement
taken together with witness Falk Simang's testimony that Mladen Naletilic
ordered the complete KB to withdraw to Siroki Brijeg for the funeral, confirms
that Mladen Naletilic was not only in command of the KB Siroki Brijeg and
the Baja Kraljevic ATG but also of all the troops deployed for the Sovici/Doljani
operation. If this were otherwise, there would have been no reason for someone
else to take over the command when Mladen Naletilic left with the KB.
- According to the Rados Diary, Miljenko Lasic was in command of “the operations
”378 as well as Zeljko Siljeg from the
direction of Prozor.379 Reading the
Rados Diary in context, it can be concluded that “the operations” mean all
operations that were part of the larger operation to take Jablanica.380
Miljenko Lasic and Zeljko Siljeg as commanders of the Southeast and Northwest
Herzegovina operative zones were in charge of the whole operation to take
Jablanica.381 As operative zone commanders,
Zeljko Siljeg and Miljenko Lasic were both direct subordinates of the HVO
Main Staff, in the same way as was Mladen Naletilic as the commander of a
professional unit.382 The documentary
evidence shows that all three men were planning the Sovici/Doljani operation383,
but that it was only Mladen Naletilic who took the final decisions as to how
to carry it out.384 The Chamber is therefore
satisfied that Mladen Naletilic played the central command role in the Sovici/Doljani
operation, which was part of the larger operation to take Jablanica.385
(b) Mostar
(i) The command structure of the HVO in Mostar
- Prior to 30 June 1993, the units in the city of Mostar were under the command
of the South Eastern Herzegovina operative zone (Mostar).386
The commander of the Mostar Municipal Headquarters was Miljenko Lasic and
its deputy commander was Petar Zelenika.387
- For the short time from 12 May to 30 June 1993, the city of Mostar was
divided into three sectors. Sector one was under the command of Zdenko Gavran,
an officer of the 2nd HVO Brigade; sector two was under the command of Zlatan
Mijo Jelic,388 commander of the first
light assault Battalion of the HVO Military Police,389
and sector three was under the command of Fadil Haljicic, an operations officer
belonging to the 3rd HVO Brigade. The sector commanders were commanding all
units deployed in their area of responsibility and were themselves subordinate
to their Brigade commanders and the operative zone.390
- According to Defence witness NB this structure was not considered effective.391
At the beginning of July 1993 the Southeast Herzegovina operational zone or
operative zone Mostar392 was therefore
reorganised and subdivided into three sectors that was Sector North, Sector
Mostar Town Defence and Sector South. The order was issued by the Chief of
the HVO Main Staff Milivoj Petkovic in agreement with the Head of the Defence
Department Bruno Stojic.393 The command
over Sector North was given amongst others to “M. Naletilic” and “M. Andric
”. The command over the Sector Mostar Town Defence was given to Miljenko Lasic394
with amongst others Zlatan Mijo Jelic.395
The command over Sector South was given to Nedjeljko Obradovic and Ivan Primorac.396
The order further determined that all commanders were directly subordinated
to the HVO Main Staff until the completion of the assigned tasks.397
- At the beginning of September 1993, the order of July was replaced by a
new division of the Southeast operational zone into Sector North commanded
by Ivan Primorac,398 Sector Mostar Town
Defence commanded by Zlatan Mijo Jelic with Colonel Milan Stampar amongst
others as Chief of Staff of the sector, and Sector South commanded by Nedjeljko
Obradovic.399
- From July 1993 onwards, the HVO units deployed in the Sector Mostar Town
Defence were the Vinko Skrobo ATG, the Benko Penavic ATG, the 4th and 9th
Battalion of the 3rd HVO Brigade,400
commanded by Ivan Primorac from October 1992 until 20 July 1993,401
and the 2nd Battalion of the 2nd HVO Brigade.402
- Vinko Skrobo’s area of responsibility was at the Bulevar next to the Health
Centre, which was a polyclinic of a length of about 200 metres.403
Adjacent to the South of Vinko Skrobo’s area of responsibility was the one
of the Benko Penavic ATG,404 which was
at Dr. Aleksic’s house on the other side of the street.405
It was followed by the area of responsibility of the 4th HVO Battalion Tihomir
Mi sic.406 In the Santiceva Street,
which continues towards the north, different units alternated. It was an area
belonging to the 2nd Battalion of the 2nd HVO Brigade.407
(ii) Mladen Naletilic’s command position in
the operations in Mostar relevant to the Indictment
- The Prosecution alleges that Mladen Naletilic took “a leading role in the
HVO attack in West Mostar that began on 9 May 1993” and which was part of
“the broader HVO campaign designed to force all Muslims, combatant or civilian,
out of Mostar ”.408 It is submitted
that he “was actively involved in the planning and preparation of the operation
to expel all Muslims from West Mostar”.409
- The Naletilic Defence disputes generally that Mladen Naletilic was commander
of the KB or that he held any military position during the relevant time of
the Indictment and argues that the Prosecution presented only vague and hearsay
evidence regarding Mladen Naletilic’s role in Mostar.410
The Naletilic Defence further submits that Mladen Naletilic “was not involved
in any way in the events concerning the Mostar confrontation line […] as a
soldier, commander or in any other capacity”, ‘‘nor was Vinko Martinovic subordinated
to him.”411
- The Chamber is satisfied that Mladen Naletilic was one of the leading commanders
in the attacks on Mostar.
a. The attack on 9 May 1993
- Many witnesses placed Mladen Naletilic in the attack on Mostar on 9 and
10 May 1993. Witness AC, a Muslim member of the Benko Penavic ATG, gave evidence
that Mario Milicevic called “Baja,” told him after a meeting with Mladen Naletilic
on 8 May 1993 that on 9 May 1993 at around five a.m. a war would break out
between Muslims and Croats and that some parts of the city would be “ethnically
cleansed ” of Muslims.412 Baja further
told him that the Benko Penavic ATG would be a unit under Mladen Naletilic’s
authority and that they would take part in the ethnic cleansing of Muslim
civilians in Mostar.413 Witness AC stated
that Mladen Naletilic had control over the most part of the Mostar forces
while accepting that he would not know if Mladen Naletilic had control over
all the battalions in the city of Mostar.414
- Witness F, a Muslim member of the HVO 4th Battalion, testified that on
9 May 1993 members of the HVO 4th Battalion together with “Tuta’s and Juka’s
men” were taking out Muslims from their flats.415
Witnesses WW and GG gave evidence that Vinko Martinovic, Ernest Takac and
Nino Pehar, called “Dolma,” were amongst the soldiers who took them out of
their apartments and that Vinko Martinovic was in charge of the operation.416
- Several witnesses testified that after the attack of the Vranica building
on 9 May 1993 there were negotiations to surrender with the commander of the
Krusko ATG, Jusuf Prazina, called Juka. After the surrender they were gathered
next to the Vranica building at the School of Economics awaited by Jusuf Prazina
and amongst other members of the KB Zeljko Bosnijak. The BH Muslim men who
were suspected of being ABiH soldiers were then taken to the Tobacco Institute.417
At the Tobacco Institute, Mladen Naletilic and other high HVO and HZ H-B representatives
like the Mostar operational zone commander Miljenko Lasic, his deputy Petar
Zelenika 418, the Minister of Interior
of HZ H-B Branko Kvesic, the Minister of Defence of the RBiH at the time Bozo
Rajic,419 the commander of the 4th HVO
Battalion at the time Mladen Misic,420
and the commander of the 3rd HVO Brigade, Ivan Primorac, were awaiting the
BH Muslim prisoners.421 Juka Prazina
handed the BH Muslim prisoners over to Mladen Naletilic.422
Witness E was released by Mladen Naletilic who furnished witness E with a
piece of paper granting him free passage.423
Two other former BH Muslim prisoners testified before the Chamber, that Mladen
Naletilic and Mladen Misic wanted to execute them, but that Jusuf (Juka) Prazina
and Miljenko Lasic opposed this since they were needed for an exchange. Eventually,
Mladen Naletilic ordered that they be brought to Siroki Brijeg.424
- Witnesses Ralf Mrachacz and Falk Simang testified that the KB425
took part in the operation in Mostar on 9 May 1993.426
Both witnesses were assigned to the artillery (Bofors) above Mostar and Mladen
Naletilic announced the targets to fire at through his Motorola.427
According to witness Ralf Mrachacz Mladen Naletilic had command authority
over the KB during all operations in Mostar.428
- The Chamber rejects Defence witness NP’s testimony that Mladen Naletilic
did not command any units involved in the attack on Mostar on 9 and 10 May
1993429 as this evidence is inconsistent
with the testimonies of the numerous other witnesses.
- The Chamber is satisfied that several units of the KB took part in the
military operation in Mostar on 9 and 10 May 1993. The Chamber is further
satisfied that Mladen Naletilic ordered members of the KB to fire artillery
at Mostar and ordered in the presence of high representatives of the military
and civilian HVO that the captured BH Muslim soldiers were to be brought to
Siroki Brijeg. The Chamber therefore finds that Mladen Naletilic was one of
the commanders in charge of the operation.
b. The attack on 17 September 1993
- There is some documentary evidence to connect Mladen Naletilic with the
attempt to advance the HVO position on 17 September 1993. A SIS report, dated
22 September 1993,430 describes that
on 16 September 1993 Mladen Naletilic called the commanders of three ATG units,
Franjo Coric, commander of the 4th Tihomir Misic Battalion at the time, and
Zlatan Mijo Jelic, commander of the Sector Mostar Town Defence, to Siroki
Brijeg. The commander of the Southeast Herzegovina operative zone Miljenko
Lasic together with Zlatan Mijo Jelic went to Siroki Brijeg the same evening.
On the morning of 17 September 1993, a meeting was held by all the commanders
of the units planned for the operation in the sector. The command in the area
from the Grammar school to Hum was assigned to Mario Milicevic after it had
first been offered to Vinko Martinovic, who did not accept. According to the
report, the operation relied on the planning of the combat groups (ATG) that
were also the Vinko Skrobo ATG and the Benko Penavic ATG. After delays, the
attack started at exactly noon on 17 September 1993.431
The Chief of the HVO Main Staff, Zarko Tole, did not know of or had approved
the start of the combat operation.432
The report complains of the non-existing command of the Sector Mostar Town
Defence,433 as that Sector had attacked
without the approval from or the knowledge of the HVO Main Staff.
- According to witnesses Falk Simang and Ralf Mrachacz, members of the KB
headed by Mladen Naletilic took part in the attack on 17 September 1993. The
witnesses were again assigned to the artillery (Bofors) and got orders from
Mladen Naletilic.434 Before taking up
position with the Bofors, Mladen Naletilic furnished them with a map and instructions
as to what to target.435 The participation
of the KB in this attack is confirmed by a document, signed by Ivan Andabak
over the name and title of Mladen Naletilic as “Commander of the Convicts’
Battalion”, which indicates that he requested 20 prisoners from the Military
Police in Ljubuski, urgently needed for the “Convicts’ Battalion” the day
before the attack.436
- The Chamber finds that Mladen Naletilic at least together with the Southeast
Herzegovina operational zone Commander Miljenko Lasic and the Commander of
the Sector Mostar Town Defence Zlatan Mijo Jelic437
played an important role in the planning and operation of the attack on 17
September 1993.
c. The superior-subordinate relationship
- As the law requires actual power to control for superior responsibility
it has to be determined whether Mladen Naletilic, while being one of the commanders
in charge of an operation, had effective control over the ATG units involved
in the operation.
- The Prosecution argues that while the Vinko Skrobo ATG was deployed at
the confrontation line in Mostar, it remained part of the KB and as such was
under the responsibility of Mladen Naletilic.438
- The Naletilic Defence argues that the Vinko Skrobo ATG, the Benko Penavic
ATG and all other units deployed at the Mostar confrontation line were subordinated
to the command of the Sector Mostar Town Defence and that Mladen Naletilic
had no authority over them.439
- The Chamber finds that the Vinko Skrobo ATG and the Benko Penavic ATG as
all units deployed in the city of Mostar were under the command of the Southeast
Herzegovina operative zone, which was the Sector Mostar Town Defence from
July 1993.440 Defence witness NO testified
that the commander of the Sector Mostar Town Defence set the tasks for these
local sub-units and had daily briefings with their commanders.441
According to Defence witness NO, the commander of the Sector Mostar Town Defence
while being the direct superior of Vinko Martinovic, was under the command
of the Chief of the HVO Main Staff and the Southeast Herzegovina operative
zone.442
- However, for the attack on 17 September 1993 it has been established that
Mladen Naletilic, Miljenko Lasic and Zlatan Mijo Jelic acted without the approval
of the HVO Main Staff, therefore ignoring the HVO command structure set out
by the HVO Main Staff. The SIS officer who wrote the report on the events
of 17 September 1993 claimed that “the command of the Town Defence Sector
does not exist, in other words, it does not function”.443
The situation was also commented on by the Chief of the SIS Centre as reflecting
“the alarming situation in commanding and co-ordinating our units at all levels”.444
In addition, as Mladen Naletilic was commanding a professional unit called
for special tasks, the command in operations for which the HVO Main Staff
had called him could have been assigned to him notwithstanding the regular
command structure in the Southeast Herzegovina operative zone. For that reason,
the Chamber finds that the command structure set out by the HVO Main Staff
cannot be considered as the only reliable source regarding the actual command
structure. The Chamber has therefore to assess the entire factual evidence
to find the actual command.
- Mladen Naletilic was one of the commanders in charge of the attacks on
9 May and 17 September 1993. The evidence shows that Mladen Naletilic commanded
the KB Siroki Brijeg and the Krusko ATG on 9 May 1993. There is a lack of
evidence connecting Mladen Naletilic to Vinko Martinovic on 9 May 1993.445
The Chamber has received satisfying evidence of Mladen Naletilic’s commanding
role with Sector Mostar Town Defence Commander Zlatan Mijo Jelic in the 17 September
1993 attack. Mladen Naletilic planned the operation and commanded the artillery
manned by members of the KB Siroki Brijeg. However, there is insufficient
evidence that Mladen Naletilic commanded the Vinko Skrobo ATG, the Benko Penavic
ATG or Zlatan Mijo Jelic in regard to this operation.
- The questionis therefore whether Mladen Naletilic had effective control
over the ATG uniton the sole basis that he was the overall commander of the
KB.
- The Chamber finds that despite the command structure set out by the HVO
Main Staff for the Sector Mostar Town Defence and the fact that it has been
established that Mladen Naletilic was only one of the commanders in charge
of the attacks, who was not necessarily commanding the ATG units during the
attacks, the ATG units were at all time sub-units of the KB.446
Documentary evidence supports that Mladen Naletilic as overall commander of
the KB was continuously in command of the ATG units.447
The Vinko Skrobo ATG and the Benko Penavic ATG are described as units that
enjoyed a “special status” amongst the units deployed in Mostar.
Since these two units are listed as parts of the Convicts
Battalion, they have special status for unknown reasons. This special
status is reflected in the fact that neither the Military Police nor any
law enforcement organ is taking any measures against the members of these
units who commit crimes.448
As the special status of these two ATG units derived from being sub-units
of the KB under the command of Mladen Naletilic, it indicates that Mladen
Naletilic had the power to ensure immunity from investigation by police
authorities. Witness AC testified about an incident where the commander
of the Benko Penavic ATG Mario Milicevic called “Baja” had cleansed a village
on his own initiative. Mladen Naletilic warned him and told him that regarding
any decision including “ethnic cleansing” he had to be consulted first.449
This evidence demonstrates Mladen Naletilic’s effective control over the
Benko Penavic ATG, a unit, which was also under the command of the Sector
Mostar Town Defence.
- The Chamber is therefore satisfied that Mladen Naletilic had effective
control over the ATG units in Mostar during the operations relevant to the
Indictment.
(iii) Vinko Martinovic’s command position in
the operations in Mostar relevant to the Indictment
- As the Chamber has already found that the Vinko Skrobo ATG was not formally
established before mid-May 1993,450
Vinko Martinovic cannot be held responsible as commander for crimes committed
on 9 May 1993.
- The Martinovic Defence does not dispute generally that the Vinko Skrobo
ATG held positions next to the Health Centre.451
It alleges that Vinko Martinovic did not have any command responsibility for
what happened at the confrontation line on 17 September 1993.452
The Martinovic Defence refers to the already cited SIS report,453
which states that the
command in the area from the Grammar School to Hum was
offered to Vinko Martinovic, known as Stela, which he did not accept …
After that, Mario Milicevic, known as Baja, was appointed as the commander
…454
- This statement only shows that Vinko Martinovic did not accept additional
command authority over the other commanders, and their units, of all the other
areas of responsibility from the Grammar School to Hum during the operation
on 17 September 1993. The Chamber therefore finds that the statement does
affect his command authority over the Vinko Skrobo ATG and his area of responsibility
next to the Health Centre. There is also ample witness testimony that Vinko
Martinovic commanded the Vinko Skrobo ATG on 17 September 1993.455
- As commander of the Vinko Skrobo ATG, Vinko Martinovic can be held responsible
for crimes committed by members of his unit particularly in its area of responsibility
at the front line from mid-May 1993, as long as he knew or had reason to know
of these crimes and took no measures to prevent their commission or to punish
the unlawful behaviour of his subordinates.
(c)Rastani
- The Prosecution alleges that on 22 and 23 September 1993 “the Convicts
Battalion, under the command of the accused Naletilic, attacked ABiH forces
located in Rastani and captured the village”.456
- The Naletilic Defence argues that Mladen Naletilic did not have any role
in the conflict in Rastani on 22 and 23 September 1993 and that the KB was
not involved in the attack. The Naletilic Defence furthermore claims that
Milan Stampar was the commander in the conflict in Rastani.457
- The Chamber finds that the KB commanded by Mladen Naletilic took part in
the operation in Rastani on 22 and 23 September 1993.
- Documentary evidence shows that the KB was involved in an operation in
Rastani in mid-August 1993. Pursuant to an order of the Southeast Herzegovina
operational zone, the Commander of the Sector North Miro Andric ordered on
24 August 1993 that the “Tuta professional unit” be relieved from the Rastani
area.458 On 25 August 1993 the Commander
of the HVO Main Staff Slobodan Praljak assigned the command of the Rastani
frontline to Milan Stampar and ordered that all units in Rastani be subordinated
to him.459 The Defence now argues that
Milan Stampar was the commander of the operation on 22 and 23 September 1993.460
However, the Chamber finds that this situation does not preclude the HVO Main
Staff calling the KB as a professional special purposes unit for intervention
tasks in September to retake Rastani.461
As a professional unit, the KB had to report to Milan Stampar as the commander
of the particular area of the frontline, who would then task the KB. The commander
of the professional unit was than responsible for determining how the task
should be implemented.462 If he decided
to organise an operation, he was in charge of its execution. Thus, while the
commander of the area was responsible for the execution of the task given
by the HVO Main Staff to the area, Mladen Naletilic as the commander of the
KB professional unit was responsible for the execution of the specific task
given to him.463
- Several witnesses testified that the KB participated in the Rastani operation
on 22 and 23 September 1993. Witness VV, an ABiH soldier, gave evidence that
the HVO soldiers who captured him on 23 September 1993 in Rastani, wore insignia
that indicated that they belonged to the KB.464
He further stated that he recognised a member of the KB called “Kolobara”,
whom he identified as Marinko Kolobara.465
Witness VV testified that “Kolobara” was called through the Motorola and then
told the soldiers that the prisoners had to be taken alive to Siroki Brijeg
because “ the old man” had ordered so.466
Witness VV did not at the time know who “the old man” was, but learned later
that it was Mladen Naletilic when he was a prisoner in his headquarters in
Siroki Brijeg.467 Witness VV’s testimony
is corroborated by witness SS, a former ABiH soldier who was a prisoner at
the Heliodrom and sent to Rastani on 22 September 1993. Witness SS gave evidence
that he saw one of the groups of the KB in the Rastani village commanded by
“Kolobara”.468 Witness SS also stated
that a soldier had said that the “old man” had called on the Motorola and
ordered to bring the prisoners alive.469
Witness L, another captured ABiH soldier, testified that the soldiers, who
captured him on 23 September 1993 in Rastani, were members of an ATG from
Mostar and an ATG from Siroki Brijeg.470
He concluded that they were from the Mostar ATG because “Miro Kolobara” was
present and he later learned that he was from the Mostar ATG, when he saw
him again in the Ljubuski prison.471
He knew that some of the HVO soldiers were also from the Siroki Brijeg ATG,
because he and witness VV were brought to their headquarters, which was the
Tobacco Station in Siroki Brijeg.472
The Chamber is satisfied that the person “Kolobara” was member of the KB Miro(slav
) Kolobara.473 All three witnesses also
testified that a soldier called “Splico”, took part in the operation in Rastani.474
The Chamber finds that the person “Splico” was Vedran Bijuk, who had the nickname
“Splico” and was also member of the KB.475
- The documents corroborate the witness testimonies. According to a Central
Military Prison Report, dated 21 September 1993 and signed by the warden of
the prison Stanko Bo‘ic, 24 detainees were released on 20 and 21 September
1993 on foot of an order from Mladen Naletilic, who needed them because of
a lack of manpower at the frontline.476
A letter of the Head of the Military Police Crime Department – Mostar Centre
addressed on 29 September 1993 to the Head of the Defence Department Bruno
Stojic, complains that amongst the chosen detainees, who were all of Croatian
nationality, four were murderers.477
It further notes that the detainees were handed over the week before, because
of Mladen Naletilic’s order and that “ they all, allegedly, went off to take
part in the action to liberate Rastani”. According to the Central Military
Prison Report, dated 21 September 1993, one of the released prisoners was
Robert Kolobaric.478 A certificate,
signed by Mladen Naletilic on 8 March 1994, not only confirms that Robert
Kolobaric was a member of the KB from 20 September 1993479
to first January 1994 but also that he was “wounded in the right arm by an
enemy shell in Rastani action on 22 September 1993”.480
- A SIS record of a statement given by Ante Bradic confirms that the released
prisoners were taken to participate with the KB commanded by Mladen Naletilic
in the operation in Rastani on 22 and 23 September 1993.481
Ante Bradic claimed that he was a detainee in the Heliodrom until 21 September
1993 when he was taken with another 20 prisoners to Mladen Naletilic, who
told them that “anyone who joins the Convicts Battalion will have all disciplinary
and criminal penalties against him cancelled”. The next day, on 22 September
1993, they
were all issued Aps/automatic rifles/, uniforms and
ammunition, and that very same day we participated in an operation to
liberate the Rastani suburb […] After that operation we participated in
another one at Vrdi and Visnjica. The commander of our unit was Miro Kolobara.482
Every morning the commander went to Siroki Brijeg to see Mladen Naletilic
aka Tuta, and then passed on the orders to us … We were under the direct
command of the Convicts’ Battalion and Mladen Naletilic aka Tuta.483
- Ante Bradic’s statement is consistent with the other documents. The fact
that Ante Bradic is not listed as one of the released detainees on the Central
Military Prison Report of 21 September 1993 does not affect the reliability
of his statement. Another Central Military Prison Report of 5 January 1994484
shows that not all released detainees were listed in the Central Military
Prison Report of 21 September 1993, and for that reason the latter report
can not be seen as complete.
- On 23 September 1993, the Minister of Defence Bruno Stojic praised the
KB and its Commander Tuta
for extraordinary valour and combat skill displayed
during combat in Rastani and in the fighting for the Mostar hydroelectric
power plant.485
As the KB took part in an operation in Rastani on 24 August 1993,486
this statement on its own is not sufficient to prove the participation of
the KB in the operation in Rastani on 22 and 23 September 1993. However,
in connection with the other evidence the Chamber is satisfied that the
citation relates to the 22 and 23 September 1993, because of its temporal
link to the operation. This inference is further supported by a report of
the Southeast Herzegovina operational zone Commander Miljenko Lasic to the
HVO Main Staff, dated 23 September 1993, mentioning the great success of
the troops in Rastani on 22 and 23 September 1993. In the report Miljenko
Lasic praises “the superhuman courage of our soldiers and artillery” and
states that “this has clearly been our greatest victory over the MOS ever
since the war began two years ago”.487
- Defence witness NB’s testimony does not contradict or diminish the evidence
called by the Prosecution of the presence of the KB and Mladen Naletilic at
Rastani. Defence witness NB testified that he did not know what exactly happened
in Rastani and that only “members” of the KB were with him at a place called
Goranci, Jedrinje between the 20 and 24 September 1993.488
According to NB’s testimony it is therefore possible that another combat group
of the KB commanded by Mladen Naletilic was in Rastani at the time. 489
- The witness testimonies together with the documentary evidence have satisfied
the Chamber that the KB commanded by Mladen Naletilic took part in the Rastani
operation on 22 and 23 September 1993.
- It has not been established that Mladen Naletilic while commanding his
soldiers was actually present in Rastani during the operation. However, the
Chamber is satisfied that Mladen Naletilic was in a village above Rastani
on 23 September 1993490 and effected
command by radio communication on his Motorola.491
D. Requirements under Article 2 of the Statute
- Article 2 of the Statute deals with grave breaches of the Geneva Conventions
of 1949.492 The applicability of Article
2 of the Statute is subject to four prerequisites: an armed conflict must
exist;493 there must be a nexus between
this conflict and the crimes alleged;494
the armed conflict must be international in scope;495
and the persons or property subject of grave breaches must be defined as “protected
” in the Geneva Conventions.496
1. Armed Conflict and nexus to the alleged crimes
- According to the jurisprudence of the Tribunal, an armed conflict exists:
whenever there is a resort to armed force between States
or protracted armed violence between governmental authorities and organised
armed groups or between such groups within a State […] whether or not
actual combat takes place there.497
Once it is established that an armed conflict occurred in a territory,
the norms of international humanitarian law apply.498
It is not necessary to further establish that actual combat activities occurred
in a particular part of the territory.499
The existence of an armed conflict nexus is established if the alleged crimes
“were closely related to the hostilities”.500
- The Naletilic Defence does not dispute the armed conflict between the HVO
and the ABiH.501 It disputes the nature
of the conflict. The Martinovic Defence does not challenge the existence of
a conflict. The Chamber is not clear on which date the Martinovic Defence
agrees that the conflict started.502
- The Chamber is satisfied that an armed conflict existed during the time
relevant to the Indictment, i.e. at least between 17 April 1993 and
the end of February 1994.503
- The Chamber is satisfied that the acts with which Mladen Naletilic and
Vinko Martinovic are charged were committed in the course, and as a consequence,
of the armed conflict between the HVO and the ABiH. The victims of this conflict
were living within the relevant territory in the relevant period. Further,
both accused were members of the armed forces taking part in the hostilities.
The Chamber is thus satisfied that the nexus requirement has been met in the
present case.
2. Character of the conflict
- In the Pre-Trial Brief, the Prosecution sets out to prove the existence
of an international armed conflict in two ways: (1) through the active participation
of the Croatian Army HV in Bosnia and Herzegovina, engaged with the HVO against
the ABiH,504 and (2) through the overall
control exercised by the Republic of Croatia over the HVO throughout the conflict.505
- In this respect, the Appeals Chamber has held that an internal conflict
may be deemed international if “another State intervenes in that conflict
through its troops or […] some of the participants in the internal armed conflict
act on behalf of that other State.”506
Concerning the first of these two legal tests, namely the direct participation
of foreign troops on the territory of a State, both Defences acknowledge that
an armed conflict is international if the troops of another State intervene
in an internal armed conflict.507
- Concerning the second test, namely the exercise of an overall control by
the Republic of Croatia over the HVO, the Naletilic Defence refers to the
findings of the International Court of Justice in the Nicaragua case,508
thereby raising arguments which have previously been refuted by the Appeals
Chamber. The test defined in the Nicaragua case to determine whether,
in the absence of having a formal status as State officials, individuals were
acting de facto on behalf of a State was discussed at length by the
Appeals Chamber of this Tribunal in the Tadic case.509
Having found that the Nicaragua test of effective control would be
consonant neither with the logic of the law of State responsibility nor with
judicial and State practice, the Appeals Chamber departed from it. Instead,
it found that depending on the nature of the entity involved, one of three
tests could be used to demonstrate that participants in an internal armed
conflict acted on behalf of another State. First, there is the specific instructions
(or subsequent public approval) test for individuals or militarily unorganised
groups.510 To prove that a State had
control over organised and hierarchically structured groups, namely armed
forces or militias or paramilitary units, there is a second test. It must
be shown that the State organised, co-ordinated or planned the military actions
of the military group as well as financed, trained and equipped or provided
operational support to it.511 This is
known as the overall control test.512
The third test to demonstrate that participants in an internal conflict acted
on behalf of another State requires proof that private individuals acted “within
the framework of, or in connection with, armed forces, or in collusion with
State authorities.”513
- In the present case, as both accused were members of organised and hierarchically
structured groups, namely military units,514
the relevant test is the overall control test, which was defined as follows
by the Appeals Chamber:
control by a State over subordinate armed forces
or militias or paramilitary units may be of an overall character (and
must comprise more than the mere provision of financial assistance or
military equipment or training). This requirement, however, does not go
so far as to include the issuing of specific orders by the State, or its
direction of each individual operation. Under international law, it is
by no means necessary that the controlling authorities should plan all
the operations of the units dependent on them, choose their targets, or
give specific instructions concerning the conduct of military operations
and any alleged violations of international humanitarian law. The control
required by international law may be deemed to exist when a State (or,
in the context of an armed conflict, the Party to the conflict) has
a role in organising, coordinating or planning the military actions
of the military group, in addition to financing, training and equipping
or providing operational support to that group.515
- The Appeals Chamber has also previously disposed of the issue raised by
the Naletilic Defence of State responsibility versus individual criminal
responsibility 516 and stated that this
distinction was not relevant:
Rather, the question is that of establishing the criteria
for the legal imputability to a State of acts performed by individuals
not having the status of State officials. In the one case these acts,
if they prove to be attributable to a State, will give rise to the international
responsibility of that State; in the other case, they will ensure that
the armed conflict must be classified as international.517
- A further argument is raised by the Martinovic Defence in relation to which
entities or individuals might be found to be acting on behalf of another State.
It is formulated as follows:
only those entities or individuals acting on behalf
of a state may in fact be said to be party to that international armed
conflict. Individuals acting on behalf of a non-state entity continue
to be acting in the context of an internal armed conflict running in parallel
to the international armed conflict and cannot be held responsible in
terms of the general provisions of the Geneva Conventions.518
- The Appeals Chamber previously distinguished private individuals or unorganised
groups from organised and hierarchically structured groups, such as military
units. With respect to the latter, it held that a group might be found to
be acting on behalf of a State if it is, “as a whole”, under the overall control
of that State.519 The Chamber previously
found that the accused were members of an organised and hierarchically structured
entity, namely the HVO.520 The question
of fact that remains for the Chamber to answer is whether the HVO, as a whole,
was acting on behalf of the Republic of Croatia. The question of whether particular
members of the HVO were individually acting for a non-state entity is irrelevant.
The Chamber therefore rejects the argument of the Martinovic Defence.
- The Chamber will now analyse the evidence presented in the course of the
trial to determine whether an international armed conflict may be deemed to
have existed in the relevant context of the present case. In doing so, it
will first determine whether there is sufficient evidence to prove beyond
reasonable doubt that the armed forces of the Republic of Croatia directly
intervened on the territory of Bosnia and Herzegovina in support of the HVO
against the ABiH. The Chamber will then make its findings as to whether the
Republic of Croatia exercised an overall control over the HVO, bearing in
mind that those two tests are alternative tests.
(a) Direct intervention of the army of the Republic
of Croatia (HV)
- The question first arises as to whether during the relevant period, troops
of the army of the Republic of Croatia (HV) intervened in the conflict between
the HVO and the ABiH, in particular in the area covered by the Indictment,
namely “in Mostar, and other municipalities of Bosnia and Herzegovina”.521
The Prosecution alleges that the direct involvement of the Republic of Croatia
in the armed conflict between the HVO and the ABiH is established both by
the actual presence of troops in the area of the conflict, and by the appointment
of Croatian officers in the command of the HVO.522
- The Naletilic Defence argues that any such intervention on the part of
the Republic of Croatia occurred in 1992 and was aimed at fighting against
Serb forces rather than in the 1993 conflict between the HVO and the ABiH.523
It further argues that the Republic of Croatia did not intervene militarily
where the alleged violations occurred.524
While acknowledging that HV units participated in some operations in Bosnia
in the course of 1993, the Martinovic Defence submits that this was not the
situation in Herzegovina and that the HV was never present in any significant
numbers.525 It also suggests that the
soldiers and officers present on the territory of Bosnia and Herzegovina were
Bosnian citizens who had previously joined the HV and voluntarily returned
to the HVO after the war ended in the Republic of Croatia.526
- The Chamber heard numerous testimonies and received ample documentary evidence
showing the presence of HV soldiers and units on the territory of Bosnia and
Herzegovina in the context of the conflict between the HVO and the ABiH.
- In spite of the denial of political officials from the Republic of Croatia
and HZ-HB,527 personnel from the ECMM
and UNPROFOR witnessed the presence and direct intervention of HV troops in
Bosnia and Herzegovina in general, and in the area of Mostar in particular,
throughout 1993.528 The Chamber also
takes note of numerous United Nations documents condemning the presence of
HV troops in the region. As early as 1992, the United Nations Security Council
adopted resolutions demanding that all form of external interference cease
immediately, and that “all forces, in particular elements of the Croatian
Army, be withdrawn, or be subject to the authority of the Government of the
Republic of Bosnia and Herzegovina, or be disbanded or disarmed”.529
Similarly, in early 1994, the Secretary General of the United Nations informed
the Security Council that the Republic of Croatia was providing support to
the HVO and indicated in particular that:
[t]he Croatian Army (HV) has directly supported the
HVO in terms of manpower, equipment and weapons for some time… It is assessed
that in total, there is the equivalent of three Croatian Brigades of regular
Army personnel in Bosnia and Herzegovina, approximately 3,000 to 5,000.530
- This evidence is further corroborated by the testimony of many eyewitnesses,
who saw HV troops in several relevant locations.531
Those HV soldiers belonged to different units and were based in different
locations 532 and at times took part
in the crimes committed against the Muslim population.533
- While it is clear from the evidence that HV troops were directly involved
in the conflict in and around Mostar,534
this is not the case as far as the HVO attacks on Sovici/Doljani and Rastani
are concerned.535 This finding does
not have the effect that the Geneva Conventions were not applicable in Sovici/Doljani
and Rastani. There is no requirement to prove that HV troops were present
in every single area where crimes were allegedly committed. On the contrary,
the conflict between the ABiH and the HVO must be looked upon as a whole and,
if it is found to be international in character through the participation
of HV troops, then Article 2 of the Statute will apply to the entire territory
of the conflict.536
- Numerous Defence witnesses testified that the HV soldiers present in Bosnia
and Herzegovina were in fact volunteers who in their vast majority had come
from Bosnia and Herzegovina to fight in the Republic of Croatia and returned
to defend their homeland.537 The Chamber
does not accept this version of the facts. While volunteer defenders may have
accounted for some of the HV troops present in Bosnia and Herzegovina, it
is the Republic of Croatia that did in fact organise the sending of the vast
majority of them,538 while attempting
to conceal their presence by asking them, for example to replace their uniforms
and insignia for those of the HVO.539
The Chamber notes that HV troops in Bosnia and Herzegovina maintained their
rights as members of the HV, including the right to a monthly salary.540
The Chamber notes that in early 1994, while declaring that it “had no moral
right to prevent the Croatian volunteers from helping the imperilled BH Croat
community ”,541 the Government of the
Republic of Croatia admitted the presence of regular HV units, albeit limited
to the border areas, and stated that it would organise their withdrawal.542
- The Chamber thus finds that the conflict between the HVO and the ABiH in
Bosnia and Herzegovina was internationalised by the intervention of the troops
of the Republic of Croatia in the conflict.
(b) Overall control exercised by the Republic of
Croatia over the HVO
- While proof of the direct intervention of HV troops in the conflict between
the HVO and the ABiH in Bosnia and Herzegovina is sufficient to establish
that the conflict was international in character, the Chamber will, in the
interest of completeness, examine whether the second legal test is met in
the present case, namely whether the Republic of Croatia exercised overall
control over the HVO in the course of the conflict.
- There is no doubt that the Republic of Croatia enjoyed a strong connection
with the Croats of Bosnia and Herzegovina.543
Examples of such links include the fact that BH Croats could with ease obtain
Croatian passports, enjoy Croatian nationality544
and vote in elections in the Republic of Croatia.545
Several Defence witnesses testified as to the special obligation laid down
in Article 10 of the Constitution of the Republic of Croatia to look after
Croats abroad and, in particular, the Croats living in Bosnia and Herzegovina
in light of the dangers that they were facing at the time.546
In itself, this strong connection is nevertheless not sufficient to establish
that the Republic of Croatia exercised overall control over the HVO. The Prosecution
must show that the Republic of Croatia:
i) provided financial and training assistance, military
equipment and operational support, as well as;
ii) participated in the organisation, co-ordination
or planning of military operations.
- The Chamber is satisfied that the Republic of Croatia financed and provided
military equipment to the HVO in the course of its conflict with the ABiH.
The evidence shows that the provision of assistance in terms of military equipment
was considerable. In fact, the presence of large numbers of HV vehicles and
weaponry was reported on many occasions,547
thereby testifying as to de facto logistical support coming from the
Republic of Croatia. The Defence Minister Gojko Susak of the Republic of Croatia
himself stated:
if we calculate, without including anything else, only
the weapons, the number of 100 million dollars is a small number in comparison
to what we have sent to these territories.548
HVO commanders would address requests for ammunition to Gojko Susak directly.549
The testimony of Defence witnesses, that until the conflict between the
HVO and the ABiH broke out, the ABiH was also receiving military supplies
through the Republic of Croatia,550
does not affect this conclusion. Slobodan Praljak also acknowledged that
HVO troops were sent for training to the military academy of the HV.551
The personnel was managed both by the HVO and the HV command structure,552
and members of the HVO were paid directly by the government of the Republic
of Croatia.553
- The Chamber is further satisfied that the Republic of Croatia took part
in the organisation, planning or co-ordination of military operations conducted
in the context of the conflict between the HVO and the ABiH. There is no doubt
that the Republic of Croatia and the HZ-HB were pursuing the same ultimate
goals, namely the incorporation of Croatian provinces of Bosnia and Herzegovina
into a single Croatian State. In this respect, the Chamber notes the words
of President Tu|man himself during a meeting held on 22 October 1993:
[s]everal months ago, I told you about the situation and gave the tasks
to the Minister of Defence Mr SUSAK and General BOBETKO, /as regards/ our
help and our engagement in Herceg-Bosna. I told them that this was where
the future borders of the Croatian state are being resolved. That is when
I pointed out that it was very important that they defended the positions
and the territory the HVO was holding there […] The general political situation
is such today that very few of the international factors think that the
union of Bosnia and Herzegovina will survive.554
- To allow for the implementation of this common goal, the Croatian leadership
issued orders for HVO or HV troop movements555
and military strategies556 in Bosnia
and Herzegovina. It further ensured control over the HVO by appointing HV
officers at the most senior positions in the HVO command structure.557
- For the foregoing reasons, the Chamber finds that the Republic of Croatia
exercised overall control over the HVO in the context of the conflict relevant
to the present case.
3. Protected persons and property
(a) Civilians and Prisoners of war
- The Prosecution relies on Article 4 (1) of Geneva Convention IV, which
defines protected persons as “those civilians who find themselves” in the
hands of a Party to the conflict or Occupying Power of which they are not
nationals.558 It further submits that
the expression “in the hands of” should not be interpreted literally, and
that persons who find themselves in territory that is under the control of
an occupying power are protected under Article 4 (1) of the Geneva Convention
IV.559
- The Naletilic Defence submits that in order for victims to gain “protected
persons” status, it is required that the person be of a different nationality
than the perpetrators of the alleged offence.560
For its part, the Martinovic Defence argues that the conflict was political
rather than ethnic and that the victims may not be considered as protected
persons “since they were of the same nationality as the opposing forces”.561
- Article 4 of Geneva Convention IV defines as protected persons “those who,
at a given moment and in any manner whatsoever, find themselves, in case of
a conflict or occupation, in the hands of a Party to the conflict or Occupying
Power of which they are not nationals.”562
According to the Commentary to Geneva Convention IV there are two main types
of protected persons: (i) “enemy nationals” and (ii) “the whole population”
of occupied territories (excluding nationals of the Occupying Power).563
- In the Tadic Appeal Judgement, it was found that the Geneva Conventions
intend to protect civilians “who do not have the nationality of the belligerent
in whose hands they find themselves, or who are stateless persons”,564
bearing in mind that “already in 1949, the legal bond of nationality was not
regarded as crucial”. 565 In doing so,
the Appeals Chamber determined that:
Article 4 of Geneva Convention IV, if interpreted in
the light of its object and purpose, is directed to the protection of
civilians to the maximum extent possible. It therefore does not make its
applicability dependent on formal bonds and purely legal relations. […]
In granting its protection, Article 4 intends to look to the substance
of relations, not to their legal characterisation as such.566
- This approach was further confirmed in the Celebici Appeal Judgement
which stated that “formal nationality may not be regarded as determinative
in this context, whereas ethnicity may reflect more appropriately the reality
of the bonds”.567 The Chamber abides
by the consistent jurisprudence on this issue and will review, on a case by
case basis, the effective allegiance of the victims rather than their formal
nationality.
- Furthermore, the Chamber accepts the argument of the Prosecution that the
expression “in the hands of” a party or occupying power, as it appears in
Article 4 of Geneva Convention IV, refers to persons finding themselves on
the territory controlled by that party or occupying power.568
(b) Prisoners of war
- Article 4 of Geneva Convention III protects prisoners of war, i.e.
persons who have fallen into the power of the enemy569
and belong to one of the specified categories listed in Article 4.570
Article 5 of Geneva Convention III states that prisoners of war are protected
“from the time they fall into the power of the enemy and until their final
release and repatriation.”571
(c) Occupation
- Occupation is relevant in dealing with the charges of unlawful labour of
civilians (Count 5), forcible transfer of a civilian (Count 18) and destruction
of property (Count 19). The Prosecution relies on provisions of Geneva Convention IV,
which have no application in the absence of a state of occupation.572
The question therefore arises as to what constitutes occupation for the purpose
of the application of those provisions to the present case.
- In the Prosecution Final Brief, the issue of occupation is only discussed
in relation to the extensive destruction of property. It alleges that occupation,
as defined in Article 6 of Geneva Convention IV, has a wider meaning than
in Article 42 of the Hague Regulations,573
and that in line with the jurisprudence of the Tribunal, occupied territory
means “any territory under the overall control of a party to the conflict”.574
The Prosecution further stresses that “occupation remains a question of fact”.575
The Chamber agrees that the determination of the existence of a state of occupation
is a question of fact.
- The Naletilic Defence argues that occupation “is defined to exist, in contrast
to the invasion, when the enemy territory is actually placed under the authority
of the invading army”.576 The Martinovi
c Defence submits that “occupation involves more than the mere presence of
troops, but further implies that the territory is being administered by a
foreign state through the control of its troops”.577
It alleges that on this basis, the Prosecution failed to prove that the relevant
territories were occupied.578
- To support its argument, the Prosecution relies on the Blaskic Trial
Judgement, which held:
by using the same reasoning which applies to establish
the international nature of the conflict, the overall control exercised
by Croatia over the HVO means that at the time of its destruction, the
property of the Bosnian Muslims was under the control of Croatia and was
in occupied territory.579
- The Chamber notes that the jurisprudence of the Tribunal relating to the
legal test applicable is inconsistent. In this context, the Chamber respectfully
disagrees with the finding in the Blaskic Trial Judgement argued by
the Prosecution. The overall control test, submitted in the Blaskic Trial
Judgement, is not applicable to the determination of the existence of an occupation.
The Chamber is of the view that there is an essential distinction between
the determination of a state of occupation and that of the existence of an
international armed conflict. The application of the overall control test
is applicable to the latter. A further degree of control is required to establish
occupation. Occupation is defined as a transitional period following invasion
and preceding the agreement on the cessation of the hostilities. This distinction
imposes more onerous duties on an occupying power than on a party to an international
armed conflict.
- According to the Commentary to Geneva Convention IV, the section dealing
with occupied territories
represents the first attempt to codify the rules of
international law dealing with occupation since the conclusion of the
Hague Conventions of 1899 and 1907 concerning the laws and customs of
war on land. The rules set forth in Section III will supplement Section
II and III of the Regulations annexed to these Conventions, by making
numerous points clearer.580
The Chamber is of the view that while Geneva Convention IV constitutes
a further codification of the rights and duties of the occupying power,
it has not abrogated the Hague Regulations on the matter.581
Thus, in the absence of a definition of “occupation” in the Geneva Conventions,
the Chamber refers to the Hague Regulations and the definition provided
therein, bearing in mind the customary nature of the Regulations.582
- Article 42 of the Hague Regulations provides the following definition of
occupation :
[t]erritory is considered occupied when it is actually
placed under the authority of the hostile army. The occupation extends
only to the territory where such authority has been established and can
be exercised.
The Chamber endorses this definition.583
- To determine whether the authority of the occupying power has been actually
established, the following guidelines provide some assistance:
- the occupying power must be in a position to substitute its own authority
for that of the occupied authorities, which must have been rendered incapable
of functioning publicly;584
- the enemy’s forces have surrendered, been defeated or withdrawn. In this
respect, battle areas may not be considered as occupied territory. However,
sporadic local resistance, even successful, does not affect the reality of
occupation;585
- the occupying power has a sufficient force present, or the capacity to
send troops within a reasonable time to make the authority of the occupying
power felt;586
- a temporary administration has been established over the territory;587
- the occupying power has issued and enforced directions to the civilian
population ;588
- The law of occupation only applies to those areas actually controlled by
the occupying power and ceases to apply where the occupying power no longer
exercises an actual authority over the occupied area.589
As a result, the Chamber finds that it must determine on a case by case basis
whether this degree of control was established at the relevant times and in
the relevant places. There is no requirement that an entire territory be occupied,
provided that the isolated areas in which the authority of the occupied power
is still functioning “are effectively cut off from the rest of the occupied
territory”.590
- The Commentary to Geneva Convention IV makes clear that the application
of the law of occupation to the civilian population differs from its application
under Article 42 of the Hague Regulations. It states:
[i]n all cases of occupation, whether carried out by
force or without meeting any resistance, the Convention becomes applicable
to individuals, i.e. to the protected persons, as they fall into the hands
of the Occupying Power.591
- It goes on to state:
[i]t follows from this that the word “occupation”, as
used in the Article, has a wider meaning than it has in Article 42 of
the Regulations annexed to the Fourth Hague Convention of 1907. So
far as individuals are concerned, the application of the Fourth Geneva
Convention does not depend upon the existence of a state of occupation
within the meaning of Article 42 referred to above. The relations between
the civilian population of a territory and troops advancing into a territory,
whether fighting or not, are governed by the present Convention. There
is no intermediate period between what might be termed the invasion phase
and the inauguration of a stable regime of occupation.592
- The Chamber accepts this to mean that the application of the law of occupation
as it effects “individuals” as civilians protected under Geneva Convention
IV does not require that the occupying power have actual authority. For the
purposes of those individuals’ rights, a state of occupation exists upon their
falling into “the hands of the occupying power.” Otherwise civilians would
be left, during an intermediate period, with less protection than that attached
to them once occupation is established.
- Consequently, the Chamber will have recourse to different legal tests to
determine whether the law of occupation applies, depending on whether it is
dealing with individuals or with property and other matters. In the present
case, it finds that the forcible transfer (Count 18) and the unlawful labour
(Count 5) of civilians were prohibited from the moment that they fell into
the hands of the opposing power, regardless of the stage of the hostilities.
There is no further need to establish that an actual state of occupation as
defined under Article 42 of the Hague Regulations existed at the relevant
time in the relevant place. However, such a state of occupation is required
in relation to the alleged destruction of property (Count 19). In this respect,
the Chamber will apply the actual authority test, as defined above.
- The Chamber’s factual findings on the existence of a state of occupation
in the relevant areas are made in the sections dealing with the destruction
of property.593
E. Requirements under Article 3 of the Statute
- Article 3 of the Statute594 has been
interpreted as a general and residual clause covering all violations of humanitarian
law not falling under Articles 2, 4 or 5 of the Statute, and more specifically
: (i) violations of the Hague law on international conflicts; (ii) infringements
of provisions of the Geneva Conventions other than those classified as “grave
breaches ” by those Conventions; (iii) violations of common Article 3 of the
Geneva Conventions (“common Article 3”) and other customary rules on internal
conflicts, and (iv) violations of agreements binding upon the parties to the
conflict, considered qua treaty law, i.e., agreements which
have not turned into customary international law.595
- For a crime to be adjudicated under Article 3 of the Statute, two preliminary
requirements must be satisfied.596 First,
there must have been an armed conflict,597
whether internal or international in character,598
at the time the offences were allegedly committed.599
Secondly, there must be a close nexus between the armed conflict and the alleged
offence, meaning that the acts of the accused must be “closely related”600
to the hostilities. As was previously found, those requirements have been
met in the present case.601
- In view of the jurisprudence of the Tribunal, the Chamber must be satisfied
of four additional requirements: 602
(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;603
(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;604
(iv) the violation of the rule must entail, under customary
or conventional law, the individual criminal responsibility of the person
breaching the rule.
- Accordingly, some of those latter requirements may differ, depending on
the specific basis of the relevant charges brought under Article 3 of the
Statute. In the present case, while the charges alleging wanton destruction
not justified by military necessity (Count 20), plunder of public and private
property (Count 21), and seizure, destruction or wilful damage done to institutions
dedicated to religion (Count 22) arise directly out of paragraphs (b), (d)
and (e) of Article 3 of the Statute respectively, the charges of cruel treatment
(Counts 4, 11 and 16) and murder (Counts 8 and 15) are based on common Article 3.
Additionally, the unlawful labour charges (Count 5) are based on Article 51
of Geneva Convention IV and Articles 49, 50 and 52 of Geneva Convention III.
The Chamber will therefore determine whether additional requirements arise
out of the application of those extra-statutory provisions.
- Regarding the charges of cruel treatment and murder are brought under common
Article 3.605 It is now undisputed in
the jurisprudence of the Tribunal that Article 3 of the Statute covers violations
of common Article 3.606 It is also well
established that common Article 3 has acquired the status of customary international
law607, and that it applies regardless
of the internal or international character of the conflict.608
Moreover, it appears from the jurisprudence that common Article 3 of the Statute
entails individual criminal responsibility.609
Those requirements are therefore met in the present case.
- Common Article 3 imposes that victims be persons taking no active part
in the hostilities. In view of the jurisprudence, this test extends to “any
individual not taking part in hostilities”,610
and is therefore broader than that envisioned by Geneva Convention IV, under
which the status of “protected person” is only accorded in defined circumstances.611
The Chamber is satisfied that in the present case, the victims were all civilians
or prisoners of war, and as such were not or no longer taking part in the
hostilities. The Chamber therefore finds that this requirement has been met.
- For the charges specifically brought under common Article 3, the Chamber
is still to determine, on a case by case basis and in light of the evidence
presented in the case, whether the violation is serious enough to fall within
the jurisdiction of the Tribunal in general,612
and Article 3 of the Statute in particular.
- With regard to the requirements arising out of the application of the Article 51
of Geneva Convention IV and Articles 49, 50 and 52 of Geneva Convention III,613
the Chamber refers to the discussion in the section dealing with unlawful
labour.614
F. Requirements under Article 5 of the Statute
- The chapeau requirements for crimes against humanity have been repeatedly
analysed in the jurisprudence of both Tribunals.615
The Appeals Chamber recently confirmed that the following elements must be
fulfilled in order to classify an act under Article 5 (a) to (i) of the Statute
as a crime against humanity:
(i) there must be an attack;
(ii) the acts of the accused must be part of the attack;
(iii) the attack must be directed against any civilian population;
(iv) the attack must be widespread or systematic;
(v) the perpetrator must know that his acts constitute part of a pattern
of widespread or systematic crimes directed against a civilian population
and know that his acts fit into such a pattern.616
- The attack has been defined as a course of conduct involving the commission
of acts of violence.617 The attack can
precede, outlast, or continue during the armed conflict, but need not be a
part of the conflict under customary international law. However, the jurisdiction
of the Tribunal pursuant to Article 5 of the Statute only comprises such acts
of an accused that were committed in “armed conflict”.618
- The acts of the accused must not be isolated but form part of the attack.619
This means that the act, by its nature or consequence, must objectively be
a part of the attack.620 The only question
with regard to the general requirements of Article 5 of the Statute that gave
raise to controversy in the jurisprudence of the Tribunal was the question
whether the acts of the accused must also be connected to some kind of policy
or plan.621 While it was held that the
acts must be undertaken “in furtherance of a policy”,622
other Trial Chambers applied a more liberal view.623
The Appeals Chamber has clarified that the existence of a policy or plan may
serve as evidence in establishing that an attack was directed against a civilian
population and that it was widespread or systematic. It does not however constitute
a separate and additional legal element of the crime as it is neither enshrined
in the Statute of the Tribunal nor a requirement under customary law.624
- The term “population” in the meaning of Article 5 of the Statute does not
imply that the entire population of a geographical entity in which an attack
is taking place must be subject to the attack. The element is fulfilled if
it can be shown that a sufficient number of individuals were targeted in the
course of an attack, or that they were targeted in such a way as to satisfy
the Chamber that the attack was in fact directed against a civilian population,
and not only against a limited number of individuals who were randomly selected.625
An attack is “directed against” a civilian population if the civilian population
is the primary object of the attack.626
The population against whom the attack is directed is considered civilian
if it is predominantly civilian.627
This means not only that the definition of civilian population includes individuals
who may at one time have performed acts of resistance and persons hors
de combat but also that the presence of a number of non-civilians cannot
refute the predominantly civilian character of a population.628
- The attack must be either widespread or systematic in nature. The element
“widespread” refers to the large-scale nature of the attack and the number
of the victims. The element “systematic” requires an organised nature of the
acts and the improbability of their random occurrence.629
- The accused must further possess the necessary mens rea. The accused
must have the intent to commit the underlying offence with which he is charged,
and he must have knowledge that there is an attack against the civilian population
and that his act comprises part of that attack.630
- The Chamber is satisfied that there was a widespread and systematic attack
against the Muslim civilian population in Mostar, Sovici and Doljani at the
time relevant to the Indictment. The attack took many forms. It started with
the collection and detention of Muslim civilians after the fierce fighting
around Sovici and Doljani and their subsequent transfer to detention centres
and, later, to territory controlled by the ABiH.631
The BH Muslim houses in the area were burnt to make sure that there would
be no return of the Muslim population.632
BH Muslim religious sites, like the mosques in the area, were systematically
destroyed.633 Detention facilities for
the BH Muslim part of the population were established all over the area.634
Detained BH Muslim civilians and BH Muslim soldiers hors de combat were
often subjected to humiliating and brutal mistreatment by soldiers who had
unfettered access to the detention facilities.635
- The campaign against the BH Muslim population in the area reached a climax
after the attack on Mostar in early May 1993, when following the hostilities,
the BH Muslim civilian population was forced out of West Mostar in concerted
actions. The evidence shows how groups of soldiers forcibly evicted BH Muslim
civilian families out of their apartments at night, throwing them literally
out on the streets and forcing them to leave everything behind.636
The terror instilled made BH Muslim civilians leave the Western part of the
city in large columns.637 The few BH
Muslim civilians who had a chance to return to their apartments at a later
stage did so only to find out that their property had been looted or destroyed.638
- The humanitarian conditions on the East bank of Mostar were appalling.
While the Muslim population was swelling due to the intense expulsions from
the West bank, water and electricity services were cut off and humanitarian
organisations were denied access for weeks. Crucial public services, such
as the hospital, were located on the West bank of Mostar and, thus, no longer
accessible to the BH Muslim civilian population.639
Architecture evocative of an oriental influence, as, for instance, the old
bridge in Mostar, was destroyed.640
The street names of West Mostar were changed after the expulsion of the BH Muslim
population.641 The evidence thus establishes
that there was a widespread and systematic attack against the Muslim part
of the civilian population in the area relevant to the Indictment. It further
establishes that this campaign had a specific aim: to transform the formerly
ethnically mixed area in and around Mostar642
into BH Croat territory, to be populated by an ethnically pure BH Croat population.
- The Chamber is satisfied that the acts committed by Mladen Naletilic and
Vinko Martinovic as charged in the Indictment comprised part of this widespread
and systematic attack against the BH Muslim civilian population in the area.
The attack on the civilian population went hand in hand with the fierce fighting
over the territory. Mladen Naletilic participated in the fighting as the commander
of the KB. Vinko Martinovic participated in the fighting as the commander
of the Vinko Skrobo ATG. Their acts directly contributed to the overall aim
of the campaign against the civilian population, namely to expel the BH Muslim
population from the area of Sovi ci, Doljani and Mostar, and thus were part
of the attack.
- The Chamber is further satisfied that Mladen Naletilic knew of the attack.
In his function as commander of the KB, Mladen Naletilic was moving between
Sovi ci, Doljani and Mostar and was present at all those locations at various
times.643 There is no reasonable possibility
that he could not have known about the situation of the Muslim civilian population
in those areas. Moreover, the Chamber is satisfied that Mladen Naletilic wilfully
pursued the goals of the attack against the Muslim civilian population in
the area and thus, also knew that his acts fit into the pattern of the attack.
Witness LL whom the Chamber received as a reliable and credible witness, testified
that Mladen Naletilic and Ivan Andabak, in the course of a dinner in Ivan
Andabak’s house, told him very frankly that it was their aim to expel the
Muslim population from the area and that they intended to set up a Republic
of Herceg -Bosna.644 The Chamber is
thus satisfied that the chapeau requirements under Article 5 of the
Statute are met with regard to Mladen Naletilic.
- The Chamber is also satisfied that Vinko Martinovic knew of the general
attack against the BH Muslim civilian population in Mostar. The headquarters
of the Vinko Skrobo ATG whose commander Vinko Martinovic was, was based in
the Kalemova street and his area of responsibility was the Bulevar, in the
centre of Mostar and right at the frontline between the East and West Bank
of Mostar. During the operations, Vinko Martinovic moved all over the town.
645 There is thus no reasonable possibility
that he could not have known about the situation of the Muslim civilian population
in Mostar. The Chamber is satisfied that Vinko Martinovic, with the knowledge
of the attack, decided to pursue the goal of the attack and that he knew that
his acts constituted part of the attack.
- The Chamber is thus satisfied that the requirements under Article 5 of
the Statute are met.
III. FINDINGS ON THE RESPECTIVE COUNTS
A. Counts 2-8: Unlawful labour and human shields
- Vinko Martinovic and Mladen Naletilic are charged with seven counts on
the basis of their alleged use of BH Muslims detainees for forced labour and
as human shields.646 The practice of
unlawful labour is cumulatively charged as inhumane act (Count 2), inhuman
treatment (Count 3) and cruel treatment (Count 4). Furthermore, the deaths
resulting from this practice are charged as murder and wilful killing (Counts 6 to 8).
This Tribunal has held that the use of detainees for certain forms of labour
and as human shields may amount to inhumane acts, inhuman treatment, cruel
treatment647 and/or murder and wilful
killing, where the elements specific to these offences are also met.
1. The law
(a) Inhuman treatment, cruel treatment and inhumane
acts
- The jurisprudence of the Tribunal shows that the offences of inhuman treatment
and cruel treatment are residual clauses under Articles 2 and 3 of the Statute
respectively.648 Materially, the elements
of these offences are the same.649 Inhuman
treatment is defined as a) an intentional act or omission, which causes serious
mental harm or physical suffering or injury or constitutes a serious attack
on human dignity,650 b) committed against
a protected person.651 Cruel treatment
is constituted by a) an intentional act or omission, which causes serious
mental or physical suffering or injury or constitutes a serious attack on
human dignity,652 b) committed against
a person taking no active part in the hostilities.653
The degree of physical or mental suffering required to prove either one of
those offences is lower than the one required for torture, though at the same
level as the one required to prove a charge of “wilfully causing great suffering
or serious injury to body or health”.654
- Similarly, Article 5(i) of the Statute (other inhumane acts) is a residual
clause, which applies to acts that do not fall within any of other sub-clause
of Article 5 of the Statute but are sufficiently similar in gravity to the
other enumerated crimes.655 Inhumane
acts are “[…] acts or omissions intended to cause deliberate mental or physical
suffering to the individual.”656 As
constituting crimes against humanity, these acts must also be widespread or
systematic.657
(b) Murder and wilful killing
- The underlying elements of the offences of murder under Article 3 and 5
of the Statute and wilful killing under Article 2 of the Statute are the same.658
These elements are:
a. death of the victim as the result of the action(s)
of the accused,
b. who intended to cause death or serious bodily injury
which, as it is reasonable to assume, he had to understand was likely
to lead to death,659
- The general requirements under Articles 2, 3 and 5 of the Statute apply
to these crimes.660
(c) Unlawful labour
- The charge of unlawful labour is also brought under Article 51 of Geneva
Convention IV and Articles 49, 50 and 52 of Geneva Convention III.661
The alleged violations of those provisions fall under Article 3 of the Statute,
and more specifically within the category, as defined by the Appeals Chamber,662
constituted by infringements of the Geneva Conventions other than those classified
as grave breaches. As such, they clearly infringe upon a rule of international
humanitarian law. Moreover, it is apparent from the jurisprudence of the Tribunal
that the Geneva Conventions as a whole, including the above-mentioned provisions,
have become part of customary international law,663
and entail the individual criminal responsibility of the offender.664
Accordingly, the Chamber finds those requirements under Article 3 of the Statute
are met in the present case. The additional requirement that the alleged offences
of unlawful labour are serious enough to fall within the scope of Article 3
of the Statute665 will be examined on
a case by case basis and in light of the evidence introduced.
- The Trial Chamber finds that additional requirements, besides that of the
existence of an international armed conflict,666
arise out of the application of the specific regime of labour as envisioned
under the Geneva Conventions. The Prosecution relies on Article 51 of Geneva
Convention IV, which governs the labour of civilians. It is clear from the
wording of this article that its application is reserved to (1) protected
persons, (2) finding themselves in occupied territories. Those two requirements
were previously examined.667 The Prosecution
further relies on Articles 49, 50 and 52668
of Geneva Convention III concerning the labour of prisoners of war.669
For those provisions to be applicable, the persons performing the labour must
be protected persons within the meaning of Article 4 of the said Convention,
in other words, prisoners of war.670
- The Prosecution stated in its Final Brief that, as a result of the difficulty
in distinguishing between civilians and prisoners of war, it “will only apply
the lower standards set by the Geneva Convention III, and consider all victims
of forced labour as prisoners of war”.671
The Martinovic Defence does not specifically address this argument but only
refers to labour by prisoners of war in its Final Brief.672
The Chamber interprets this statement by the Prosecution as an admission that
it has failed to establish the status of the victims.673
However, in light of the fact that the persons forced to undertake unlawful
labour were all detained in various detention centres, the Chamber accepts
that the victims were all protected persons within the meaning of Geneva Convention III
or IV, depending on their status either as a prisoner of war or as a civilian.
The Chamber accepts that the application of the regime laid out in Geneva
Convention III in relation to forced labour is more favourable to the accused
than the protection afforded to civilian detainees under Geneva Convention IV.
As such, the Chamber will apply the lower standard laid out in Geneva Convention
III relating to the labour of prisoners of war.
- The Prosecution relies on Articles 49, 50 and 52 of Geneva Convention III
to support the charges involving the use of prisoners of war to perform unlawful
labour. As a preliminary remark, it is apparent that not all labour is prohibited
during times of armed conflict, but that specific provisions must be respected.674
Furthermore, forced labour does not always amount to unlawful labour. Article 49
of Geneva Convention III establishes a principle of compulsory labour for
prisoners of war. The basic principle stated in Paragraph 1 of this provision
“is the right of the Detaining Power to require prisoners of war to work”.675
Nevertheless, this principle is subject to two fundamental conditions, the
first one relating to the prisoner himself, and the second one to the nature
of the work required.
- Thus, prisoners of war may be required to work provided that this is done
in their own interest,676 and those
considerations relating to their age and sex,677
physical aptitude678 and rank679
are taken into account. In this respect, it is also noteworthy that according
to Article 51 of Geneva Convention III, prisoners of war must work under “suitable
working conditions, especially as regards to accommodation, food” and “climatic
conditions.”680
- Articles 50 and 52 of Geneva Convention III define which type of labour
might be required and which might not. It is emphasised in the Commentary
that:
[t]he core of the question is still the distinction
to be made between activities considered as being connected with war operations
and those which are not.681
- Accordingly, prisoners of war may be forced to perform several forms of
labour. First, Article 50 of Geneva Convention III grants a general authorisation
for any work “connected with camp administration, installation or maintenance”,
bearing in mind that this type of work “is done by prisoners of war in their
own interest ”.682 Secondly, prisoners
of war may always be compelled to perform work in relation to agriculture,
commercial business, arts and crafts, and domestic services, regardless of
whether the “produce of their labour is intended for soldiers in the frontline
or for the civilian population of the country”.683
Thirdly, prisoners of war may be compelled to perform work in industries other
than metallurgical, machinery and chemical industries, public works and building
operations, transport and handling of stores and public utility services,
provided that those forms of labour have no military character or purpose.
While the condition that the work has no military character or purpose is
of delicate interpretation, the Commentary provides some guidance. It states
that:
[e]verything which is commanded and regulated by
the military authority is of military character,
in contrast to what is commanded and regulated by the civil authorities.684
The Commentary further suggests a flexible interpretation of the concept
of “military purpose”:
Prisoners of war may therefore be employed on all work
which […] normally serves to maintain civilian life, even if the military
authorities incidentally benefit by it. The participation of prisoners
of war in such work is prohibited, however, whenever it is done for the
sole or principal benefit of the military, to the exclusion of civilians.685
- However, other classes of labour may not be imposed on prisoners of war.
As just discussed, they first include work in industries, public works and
building operations, transport and handling of stores and public utility services
where it has a military character or purpose. Secondly, Article 50 of Geneva
Convention III expressly prohibits the forced employment of prisoners of
war in the metallurgical, machinery and chemical industries. The Commentary
emphasises the importance of this prohibition, “for in the event of a general
war, these industries will always be turned over to armaments production”.686
Thirdly, Article 52 of Geneva Convention III prohibits the use of prisoners
of war to perform unhealthy or dangerous work unless the prisoners volunteer
to undertake such work. While this provision expressly only refers to mine-lifting
as constituting dangerous labour, the Commentary provides further guidance
by distinguishing three situations: (1) work which is not dangerous in itself
but which may be dangerous by reason of the general conditions in which it
is carried out: this situation is intended to cover particularly work done
“in the vicinity either of key military objectives […] or of the battlefield”,687
(2) work which by its very nature is dangerous or unhealthy,688
and (3) work which is not in itself dangerous but which may be or may become
so if it is done in inadequate technical conditions.689
An essential aspect of this protection afforded to prisoners of war is the
responsibility that rests on the detaining authorities to ensure that the
work is performed with maximum safety.690
Finally, Article 52 of Geneva Convention III prohibits the assignment of
prisoners of war to labour, which would be deemed humiliating for a member
of the detaining forces.691
- The Chamber notes that those forms of labour may only be lawful where the
prisoner of war volunteers or consents to the work. While the possibility
for prisoners to consent is expressly formulated in Article 52 of Geneva Convention
III, there is no clear provision on the possibility for prisoners of war to
consent to perform military related work under Article 50.692
In this context, the Chamber interprets this Article and the related Commentary693
so as to aim at regulating only the forced utilisation of prisoners’ labour.
Article 50 of Geneva Convention III provides that prisoners of war may be
compelled to perform certain forms of work. Accordingly, the prohibited
act is that of compelling a prisoner of war against his or her will.
It appears from the travaux préparatoires that the decision to use
the words “compelled to” was reached after rejecting an alternative proposal
that would have excluded the possibility for prisoners of war to volunteer
to do military work.694 Such interpretation
is also in accordance with Article 52 of Geneva Convention III, which allows
prisoners to consent to perform dangerous or unhealthy labour.
- As a result of the foregoing, the Chamber will have to determine on a case
by case basis whether the forms of labour alleged in the Indictment were indeed
undertaken voluntarily or whether the detainees were compelled to do so. To
determine whether a person was not in a position to make a “real choice”695
to undertake labour in contravention of the law, the following criteria may
be considered, in accordance with previous jurisprudence: (a) the substantially
uncompensated aspect of the labour performed; (b) the vulnerable position
in which the detainees found themselves; (c) the allegations that detainees
who were unable or unwilling to work were either forced to do so or put in
solitary confinement; (d) claims of longer term consequences of the labour;
(e) the fact and the conditions of detention ;696
and (f) the physical consequences of the work on the health of the internees.697
- In order to establish the mens rea requirement for the crime of
unlawful labour, the Prosecution must prove that the perpetrator had the intent
that the victim would be performing prohibited work. The intent can be demonstrated
by direct explicit evidence, or, in the absence of such evidence, can be inferred
from the circumstances in which the labour was performed.
- For the foregoing reasons, the Chamber finds that the offence of unlawful
labour against prisoners of war may be defined as an intentional act or omission
by which a prisoner of war is forced to perform labour prohibited under Articles
49, 50, 51 or 52 of Geneva Convention III.
2. The findings
- Mladen Naletilic and Vinko Martinovic are both charged with inhumane acts,
inhuman treatment, cruel treatment, unlawful labour, murder and wilful killing
for allegedly forcing BH Muslim detainees from various detention centres “to
perform labour in military operations and to be used as human shields on the
Bulevar and Santiceva streets; Rastani; Stotina; and other locations along
the front line in the municipality of Mostar”,698
as well as in locations other than the front lines, where detainees are alleged
to have been forced “inter alia, to engage and participate in the following
works: building, maintenance and reparation works in private properties of
the members and commanders of the KB; digging trenches, building defences
in the positions of the KB or other HV and HVO forces; and assisting the KB
members in the process of looting houses and properties of BH Muslims”.699
(a) Detainees working for Vinko Skrobo ATG
- In paragraph 37 of the Indictment, the Prosecution alleges that between
May 1993 and January 1994, detainees from the Heliodrom and other detention
camps were taken to KB bases in Mostar for eventual transfer to the confrontation
lines where they were forced to perform military support tasks.700
Mladen Naletilic and Vinko Martinovic are alleged to have known of the danger
to which the detainees were exposed.701
Furthermore, Vinko Martinovic is specifically accused to have used detainees
for labour in military operations and as human shields along the confrontation
line in his area of responsibility.702
- The Martinovic Defence does not contest that prisoners of war detained
at the Heliodrom were regularly sent to work for the Vinko Skrobo ATG.703
However, it submits that the command of the military police issued the orders
singling out which prisoner was to work in the respective units.704
It further argues that:
[a]ll responsibility for the treatment of the prisoners
of war was in the sole jurisdiction of the Heliodrom command and the command
of the defence of Mostar, where individual units, such as Vinko Skrobo
ATG was, only executed orders from the superior commands pertaining to
prisoners of war.705
The Martinovic Defence relies on several orders for the sending of prisoners
of war to the Vinko Skrobo ATG, as well as on the testimony of the commander
of the first light assault battalion of the military police who signed such
orders.706 However, a review of those
documents, read in the light of other similar orders, shows that the Vinko
Skrobo ATG regularly, and at times daily, requested the HVO military police,
in charge of the Heliodrom detention centre, to provide detainees to perform
labour for the unit, and that these requests were mostly granted by the
commander of the first light assault battalion of the military police.707
On this basis, the Chamber is satisfied that the prisoners of war were sent
on the request and for the discretionary needs of the individual units.708
- It is also apparent that, contrary to the Martinovic Defence argument,
the military police did not bear all responsibility for the treatment of the
detainees during the time they were discharged to work in the Vinko Skrobo
ATG. The above -mentioned orders all expressly specify that the responsibility
to treat the detainees in accordance with the Geneva Conventions rested on
the member of the unit who came to pick them up, which Defence witness NO
also confirmed.709 In some cases, Vinko
Martinovic himself was that person,710
but mostly, as many former Heliodrom detainees testified before the Chamber,
the driver of Vinko Martinovic’s unit, a man named Dinko Knezovic, would come
in the morning and select a group of prisoners that would then be driven to
the headquarters of the Vinko Skrobo ATG in the Kalemova street.711
Sometimes however, other soldiers would come to pick up the prisoners.712
In light of this evidence, the Chamber concludes that the detainees were not
“singled out” or selected by the military police, but by the Vinko Skrobo
ATG itself.713 In any event, the commander
of the unit using prisoners of war to perform labour does bear a responsibility
for ensuring that the relevant provisions of the Geneva Conventions are applied
in the course of this labour.714
- Upon arrival at the headquarters, Vinko Martinovic gave orders and assigned
labour.715 The Martinovic Defence argues
that the prisoners were only made to carry out light and non-dangerous work.716
It further claims that the prisoners had their meals in the Hladovina restaurant
together with the soldiers, could move freely around the premises and, for
some jobs, were paid with cigarettes and food.717
Several Defence witnesses testified to that effect.718
- However, the Chamber is not persuaded by this version of the facts. While
it has no doubt that some of the prisoners enjoyed a privileged treatment
and a certain protection from Vinko Martinovic, either because they were friends
or family acquaintances before the war719
or because they had special skills,720
it is satisfied that this was not the case for the vast majority of the Heliodrom
detainees who were taken to work to the Vinko Skrobo ATG.721
- The Chamber heard numerous testimonies from prisoners who were forced to
perform military support tasks in extremely dangerous conditions, such as
digging trenches near the confrontation line,722
sealing exposed windows or areas with sandbags,723
or other forms of fortification labour.724
Further evidence was presented that detainees were made to carry explosives
across the confrontation line,725 or
to retrieve bodies of wounded or killed HVO soldiers.726
Former detainees, but also former members of the Vinko Skrobo ATG, testified
that the prisoners were often in direct exposure to fire from the other side
of the front -line,727 as a result of
which some were injured.728 However,
the evidence is not sufficient to establish beyond reasonable doubt that detainees
were killed in the area of responsibility of Vinko Martinovic as a direct
result of them performing labour.729
- The Chamber finds that labour performed in the headquarters of the Vinko
Skrobo ATG, such as cleaning of the premises and repairing of private vehicles,730
does not fall within the categories set out in the Geneva Conventions and
that the prisoners of war could be compelled to do such work.731
This is however not the case for the forms of labour performed on the front
line, in the circumstances described by many witnesses.732
As stated above, compelling prisoners of war to perform these forms of labour
is patently prohibited under Geneva Convention III, and in particular under
Articles 50 and 52 of the said Convention, which respectively prohibit work
of “military character or purpose”, and “unhealthy or dangerous labour”. The
labour may therefore only have been lawful if the prisoners consented to perform
it.
- The Chamber is satisfied that the opportunity to volunteer was never given
to the prisoners who performed the forms of labour described above and that
they were forced to do so. First, it appears clearly that to the exception
of those prisoners who enjoy a privileged treatment, the Heliodrom detainees
did not come forward, but were selected by the member of the unit who came
to the Heliodrom to pick them up.733
In the absence of direct evidence that the prisoners were forced to work,734
the Chamber is satisfied that the circumstances under which the detainees
were put and the nature of the labour interfered with their capacity to make
a real choice. Prisoners were under constant guard and regularly mistreated
while working for the Vinko Skrobo ATG.735
The atmosphere prevailing in and around the confrontation line was one of
fear and threats.736 The nature of the
work itself is also indicative of the fact that the prisoners did not have
a real choice.737
- The Chamber finds that with regard to the work performed in the area of
responsibility of the Vinko Skrobo ATG, the offence of unlawful labour under
Article 3 of the Statute (Count 5) is established. The Chamber is satisfied
that the injuries sustained by some of the prisoners in the course of their
work caused serious mental harm or physical suffering or injury and that therefore
the charges of inhumane acts, inhuman treatment and cruel treatment under
Articles 5(i), Article 2(b) and Article 3 of the Statute (Counts 2-4) are
proven. As it has not been proven that the detainees were killed as a direct
result of their labour, the Chamber finds that the charges of murder and wilful
killing (Counts 6-8) have not been proven.
- The Chamber finds that the responsibility of Vinko Martinovic has been
established both under Articles 7(1) and 7(3) of the Statute. Vinko Martinovic
sometimes himself ordered the prisoners to perform labour and as a result,
directly exposed them to a great risk of injury and possibly death.738
The Chamber is further satisfied that as a commander of the Vinko Skrobo ATG,
Vinko Martinovic knew that prisoners were used in his area of command to perform
unlawful labour and that he did not take any measures to prevent such practice,
or punish those responsible. The Chamber finds that Vinko Martinovic’s responsibility
is most appropriately described under Article 7(1) of the Statute.
- The Chamber is not satisfied that Mladen Naletilic was responsible under
Article 7(1) or 7(3) of the Statute. There is no evidence that he planned,
instigated, ordered, committed or otherwise aided and abetted in the planning,
preparation or execution of the offences described above. The Prosecution
has not adduced sufficient evidence to prove that Mladen Naletilic knew or
had reasons to know that detainees were used to perform unlawful labour in
the area of responsibility of the Vinko Skrobo ATG. The Prosecution relies
on the testimony of witness HH who testified that sometime in mid-July 1993,
while he was walking in a column, together with HVO soldiers and prisoners
of war, through the Liska park and towards the confrontation line, he witnessed
an exchange between Tuta and one of the prisoners named Zikret Karso.739
The Chamber does not find this evidence sufficient to establish that Mladen
Naletilic knew or had reasons to know that the prisoners were subsequently
taken to perform dangerous labour on the frontline.
(i) Incidents on 17 September 1993
a. The wooden rifles incident740
- In paragraph 41 of the Indictment, the Prosecution alleges that as part
of an offensive launched by the HV and the HVO on 17 September 1993, Vinko
Martinovi c ordered and directed the use of BH Muslim detainees for military
attack purposes in the part of the Bulevar under his command. It further submits
that several detainees were given imitation wooden rifles and military clothing
and were forced to walk alongside a tank moving towards enemy positions.
- The evidence proves that on 17 September 1993, at 12 pm, the HVO launched
an offensive operation against the ABiH on the right bank of the Neretva river,
which did not succeed in taking any grounds, and led to many casualties among
the HVO soldiers.741
- In the morning of 17 September 1993, Dinko Knezovic came to fetch approximately
30 prisoners from the Heliodrom to take them to the headquarters of the Vinko
Skrobo ATG.742 Upon their arrival, Vinko
Martinovic ordered Ernest Takac to select four prisoners, who were taken down
to the basement of the headquarters.743
There, Stela ordered them to wear camouflage uniforms.744
The prisoners also received wooden rifles.745
Three of those prisoners testified about the incident, which ensued that day.
- Witness J testified that after the four selected prisoners were given camouflage
uniforms and wooden rifles, they were ordered to clean the soldiers’ weapons.746
A while later, Ernest Takac took them to the building called the “first aid
post ”.747 Vinko Martinovic met them
there and told them about a combat operation, which was to take place at noon
and during which, after a short shelling, a tank would come from the Rondo
and stop in front of the building. It would fire a few times and the prisoners
would have to take position around the tank facing the ABiH, supposedly to
find out where their positions were.748
Vinko Martinovi c promised the prisoners that they would be freed within 48
hours if they succeeded.749 A while
later, a tank arrived from the Rondo as planned and the prisoners started
to walk toward the ABiH positions. They lay down as soon as they heard shots,750
and witness J was wounded while lying on the ground.751
However, the prisoners managed to take shelter in the basement of the building
where the ABiH was positioned.752
- Witness OO corroborated that the four prisoners were taken by Ernest Takac
to the basement of the headquarters, where Vinko Martinovic told them to dress
in camouflage uniforms and gave them instructions for the imminent operation.753
The prisoners were supposed to jump into the enemy trenches and disarm whomever
they would find there.754 As they came
out of the basement, a man called Marinko gave wooden rifles to the prisoners,
as well as bottles of oil, meant to look like Motorolas.755
A while later, Ernest Takac arrived and took them to the Health centre,756
where they remained until a T55 tank arrived, shortly before noon.757
The prisoners were then pushed by Ernest Takac to walk aside the tank that
opened fire.758 Two of them were hit
as they had almost reached the other side,759
and were helped inside the ABiH building. According to witness OO, Stela had
remained in the headquarters.760
- Witness PP was the third prisoner involved in this incident to testify
in court. However, his testimony differs in several respects from those of
his former fellow detainees. He stated that after he arrived at the Health
centre,761 he witnessed that four men
were taken to the basement. As one of the prisoners appeared to have passed
out, witness PP was ordered to come down762
by a man called Dado, whose description the Chamber believes to be fitting
Ernest Takac.763 In the basement, the
witness found himself alone with Stela who was sitting at a desk, and a man
called Dolma who instructed him to put on a uniform and go across the street
to bring back any wounded persons.764
The witness was then brought back to the other three prisoners, given a backpack
full of stones and Stela put a bottle in his pocket, which was supposed to
look like a Motorola. The three other prisoners had already been given uniforms,765
when a man brought four wooden rifles.766
The prisoners were then brought by Ernest Takac to the side of the building
of the Health centre and instructed to remove the bodies of injured or dead
soldiers.767 They had started to cross
when the tank opened fire.768 Witness
PP managed to reach the building on the other side and this is when he was
wounded.769 He lost consciousness and
was later told that he had been pulled inside the building.770
- In the meantime, 13 other prisoners had been taken to the confrontation
line and ordered by Ernest Takac to remove sandbags on two locations in order
to unblock the street so that the tank could pass through.771
While performing this labour, the prisoners were directly exposed to gunfire.
Later on, the prisoners were told to rescue a HVO soldier who had been wounded
and was lying in an exposed area. Witness I was injured when he reached the
position.772
- The Chamber takes note that the testimonies of the three prisoners involved
present some inconsistencies, in particular in relation to the sequence of
events before the witnesses were made to cross over. Nevertheless, it does
not find those discrepancies to be determinative. In particular, it notes
that the testimony of witness OO and witness J are largely consistent, while
witness PP had only a vague recollection of the details of the events.773
However, in relation to the allegation made by the Martinovic Defence that
totally different descriptions were given of the wooden rifles, the Chamber
notes that both witness OO and witness PP testified that the rifles had been
painted in black and were bearing a green strap.774
- As corroborative evidence, the Prosecution introduced the testimonies of
two former members of the Vinko Skrobo ATG, witness Q and witness Allan Knudsen,
who appear to have been related to a similar event involving prisoners using
wooden rifles on the same day.775
- Allan Knudsen testified that on the day before the attack, he was informed
that an operation would be taking place. According to him, on 17 September
1993, Stela explained to the soldiers that the aim was to take over two buildings
on the other side of the front line776
and that the operation would involve heavy artillery and the use of prisoners
carrying wooden rifles as human shields.777
The witness and the prisoners were all waiting in the Health centre for the
operation to start,778 which happened
around 11 a.m., when a T55 tank arrived and started to fire.779
At that point, the prisoners, who were wearing camouflage uniforms and carrying
wooden rifles, were ordered to run in front of the soldiers.780
While the soldiers were supposed to reach a wall, the prisoners had been instructed
to keep going forward towards the ABiH lines.781
The operation did not succeed however, and the soldiers had to withdraw back
inside the building of the Health centre.782
Allan Knudsen stated that in the midst of the action, he saw the prisoners
fall down, but that he could not ascertain whether they had been hit or killed.783
- Witness Q corroborated Allan Knudsen’s testimony to a great extent, although
his recollection was somewhat less precise. Witness Q testified that the soldiers
and the prisoners were waiting together before the order to attack was given.784
The soldiers then moved from the Health centre to a small wall while the prisoners
were running a few meters ahead of them.785
He remembers seeing three prisoners wearing camouflage jackets and carrying
wooden rifles.786 In the course of the
attack, a tank passed through where sandbags had been removed and started
to fire.787 There was violent fire from
all sides, and the witness lost sight of the prisoners.788
- Several Defence witnesses testified that there were no prisoners near the
tank or around the Health centre on that day.789
However, in light of the overwhelming credible evidence to the contrary, the
Chamber does not accept these testimonies as an accurate representation of
the events.
- The Chamber observes that the description of the wooden rifles as given
by the former soldiers differs from that given by the prisoners involved in
the action.790 While witness OO and
witness PP remembered the rifles to be painted black,791
both witness Allan Knudsen and witness Q testified that the rifles were in
natural brown wood.792 Furthermore,
witness Allan Knudsen asserted that he saw those same prisoners used as human
shields on 17 September 1993 making the wooden rifles the day before the
attack.793 This is inconsistent with
the testimony of the three prisoners who have testified. In light of these
discrepancies, the Chamber is not satisfied beyond reasonable doubt that the
prisoners and the two former members of the unit were referring to the same
incident. It finds that the testimony of the three prisoners is related to
the incident alleged in the Indictment.
- Moreover, the forensic examination of the wooden rifle produced in court
(exhibit P962) does not allow the Chamber to conclude that this specific
wooden rifle was the one used on 17 September 1993.794
However, the Chamber finds that the issue of whether this particular rifle
was the one used on 17 September 1993 does not affect its finding, based on
the testimonies heard in court, that the alleged incident did occur. It has
no doubt that wooden rifles were used on several occasions in the course of
the conflict, and does not find the authentication of a specific rifle to
be required in order to establish that the incident described in paragraph 41
of the Indictment did happen.
- Having found that the allegations set forth in paragraph 41 of the Indictment
have been established, the Chamber will now determine whether there is sufficient
evidence that the prisoners were forced to perform such labour. As was stated
above, this labour is only unlawful if prisoners are compelled to perform
it. The Martinovi c Defence seems to suggest that the prisoners accepted to
perform labour in dangerous conditions on the frontline in order to escape
to the other side.795 However, in the
present case, the Chamber is satisfied that this was not the case and that
the prisoners involved were forced to walk across the confrontation line wearing
camouflage uniforms and carrying wooden rifles in the midst of a military
operation involving heavy artillery and constant fire from both sides. The
evidence shows clearly that the prisoners were under constant guard and that
they did not have a real choice. Witness PP testified that he never heard
of a prisoner who would volunteer to recover bodies on the frontline.796
According to witness J, “all we had in our heads was death, in view of the
task given (to( us”.797 Similarly, witness
OO testified that he “was about to meet [his] death”.798
It is apparent that the fact that the prisoners managed to escape is only
the result of luck or circumstances, rather than of a plan.799
Similarly, the Chamber does not consider the promise of release within 48
hours as indicative of consent on the part of the prisoners.800
- The Chamber finds that the offence of unlawful labour under Article 3 of
the Statute (Count 5) is established in relation to the wooden rifle incident
as charged in paragraph 41 of the Indictment. It is further satisfied that
the prisoners suffered a serious mental harm and, as far as at least two of
them are concerned, serious physical suffering or injury.801
Therefore, the charges of inhumane acts, inhuman treatment and cruel treatment
under Articles 5(i), 2(b) and 3 of the Statute (Counts 2-4) are also proven
with respect to this incident.
- In respect to this event, the Chamber is satisfied that the responsibility
of the accused Vinko Martinovic has been established both under Article 7(1)
and Article 7(3) of the Statute. The Martinovic Defence asserts that “the
event with the wooden rifles did not happen in Vinko Martinovic’s unit”.802
It relies on exhibit PP 608, according to which Stela declined to take command
of the operation and Marijo Milicevic, nicknamed “Baja”, took over. However,
while the Chamber cannot conclude that Vinko Martinovic was the overall commander
of the operation, it has no doubt that he was in charge in his specific area
of responsibility on that particular day. Further evidence also confirms that
Vinko Martinovic was in command on the frontline in the area of the Health
centre on 17 September 1993,803 although
contradicting testimony was heard concerning his presence on the frontline
itself.804 The Chamber also notes that
the four prisoners in question were signed out to the Vinko Skrobo ATG.805
As far as Vinko Martinovic’s direct responsibility is concerned, the prisoners
involved in the wooden rifle incident all testified that Vinko Martinovic
himself issued the instructions to them.806
On this basis, the Chamber is satisfied that on 17 September 1993, he directly
ordered that the four selected prisoners be used as human shields in the conditions
described above. The Chamber finds that the responsibility of Vinko Martinovic
is most appropriately described under Article 7(1) of the Statute.
- The Chamber finds that Mladen Naletilic’s direct responsibility under Article
7(1) of the Statute has not been established. It has not heard any evidence
that he committed the crimes described above or that he planned, ordered,
instigated or aided and abetted in their commission. With regard to his command
responsibility under Article 7(3) of the Statute, it is apparent that Mladen
Naletilic had knowledge of, and even participated in the planning and conduct
of the operation which took place on 17 September 1993.807
However, the Chamber finds no evidence that he knew or had reasons to know
that prisoners of war were made to carry wooden rifles across the confrontation
line in the course of this operation. Mladen Naletilic’s responsibility has
thus not been established under Article 7(3) of the Statute.
b. The use as human shields and killing
of approximately 15 detainees
- In paragraph 42 of the Indictment, the Prosecution further alleges that
on 17 September 1993, “approximately fifteen prisoners and detainees were
deployed as human shields in an adjacent section of the Bulevar front line
under the command of Vinko Martinovic in order to protect attacking HVO soldiers”
and that ten of them were killed.808
- In its Decision on Motions for Acquittal, the Chamber found that “there
[waCs insufficient evidence that Aziz Colakovic, Hamdija Colakovic, Enis Pajo
died as a direct result of being used as human shields”,809
and entered a finding of no case to answer in relation to paragraph 42 of
the Indictment.810 However, pursuant
to the Chamber’s finding that “the evidence presented with regard to the incident
described in paragraph 42 may serve as a basis for the Chamber’s findings
in relation to the allegations set out in paragraphs 35-41 in the Indictment”,811
the charges have been examined in the context of the work performed within
the area of responsibility of the Vinko Skrobo ATG.812
(b) Detainees working in the Santiceva street
- In paragraph 35 of the Indictment, the Prosecution alleges that between
April 1993 and January 1994, “Mladen Naletilic, Vinko Martinovic and their
subordinates forced BH Muslim detainees from the various detention centres
under the authority of the HVO to perform labour in military operations and
to be used as human shields on the Bulevar and Santiceva streets”, which were
“the scene of intense small arms fire and artillery exchanges between the
opposing factions”.813 In the Prosecution
Pre-trial Brief, it is stated that the accused engaged in the practice of
“forcing BH Muslim prisoners to work on dangerous front-line positions in
Mostar, particularly the perilous Bulevar-Santiceva Street front-line within
the area of responsibility of the Vinko Skrobo ATG”.814
- The Chamber heard ample evidence that prisoners were taken from the Heliodrom
to perform labour in the Santiceva street.815
It is satisfied that the labour involved included military related tasks,
such as building bunkers,816 repairing
trenches,817 filling sandbags and carrying
them to the confrontation line,818 and
was performed in extremely dangerous conditions, the prisoners finding themselves
constantly in crossfire. There are clear accounts of prisoners being used
as human shields819 and injured while
working in the Santiceva street.820
- However, the Chamber rejects the allegation made by the Prosecution in
its Pre-trial Brief that this section of the front-line was within the area
of responsibility of Vinko Martinovic. The evidence adduced relating to the
area of responsibility of Vinko Martinovic proves that it excluded the Santiceva
street.821
- The Chamber finds that Mladen Naletilic’s responsibility as a commander
has not been established. The evidence proves that the Santiceva street was
under the responsibility of the 2nd HVO battalion.822
However, there is no evidence to prove the formal link of command between
the accused and this battalion. Furthermore, the only evidence that was introduced
to prove Mladen Naletilic’s knowledge of the acts described above is the testimony
of witness AB, who stated that he saw Braco Merdzo speaking with Tuta in the
Hotel Ero.823 On its own, this evidence
is not sufficient to establish Mladen Naletilic’s responsibility.
(c) Detainees performing military tasks in Rastani
- In paragraph 43 of the Indictment, the Prosecution alleges that on 22 and
23 September 1993, in the course of the attack of Rastani under the command
of Mladen Naletilic, prisoners were used to accompany soldiers during the
attack functioning as human shields. It is alleged that they were forced to
enter and search houses where it was suspected that enemy forces had positions.
- The Naletilic Defence argues that the evidence does not show that Mladen
Naletilic was even in Rastani or that he took detainees from the Heliodrom,
forcing them to act as human shields. Even assuming that some detainees were
made to perform forced labour, there is no evidence that Mladen Naletilic
took them, or had knowledge of this.824
- Witnesses who were detained at the Heliodrom testified to the events in
Rastani on 22 and 23 September 1993. They were made to perform tasks such
as picking up bodies of dead soldiers and participating with the HVO soldiers
in search operations in the village.825
In the search operations, they were made to walk five or six metres in front
of soldiers and had to open doors and search houses when the HVO soldiers
suspected that enemy soldiers were hiding.826
On a hill overlooking Rastani, a detainee had to help assemble projectiles
and was in the close vicinity of shelling. He and another prisoner were taken
to a bunker on the northern hillside of Rastani and when the ABiH forces fired
upon the position, the prisoners were forced to remain outside exposed to
the artillery fire.827 He was then ordered
to carry food and drinks to the soldiers in Rastani where fighting was in
progress.828 The detainees saw bodies
of dead soldiers in the village and were ordered to collect them.829
They were made to carry ammunition and other gear, and mingled with the soldiers.830
- There is also testimony of witnesses who were soldiers captured by the
HVO in Rastani on 23 September 1993, who saw groups of soldiers and civilians.831
On entering Rastani, a witness encountered a civilian who had been taken out
of the Heliodrom in order to act as a scout for the HVO, but had escaped.832
One witness saw three or four civilians walking in front of the soldiers and
saw them collecting bodies of soldiers killed and wounded.833
- The labour of prisoners of war at the frontline in Rastani is dangerous
by its very nature. The detainees were exposed to shelling and gun fire in
the conflict, and participated in tasks involving transporting food and ammunition,
collecting bodies as well as search operations. Furthermore, this labour was
not undertaken voluntarily. One witness testified that he never volunteered
for labour.834 Another witness who performed
these dangerous tasks in Rastani testified that trucks arrived at the Heliodrom
every day to transport the detainees for such labour, and that they were guarded.835
Therefore, the Trial Chamber finds that the offence of unlawful labour under
Article 3 of the Statute (Count 5) has been proven.
- The Chamber further finds the circumstances in which the detainees were
used and the nature of the work they were forced to perform caused them a
serious mental suffering. The offences of inhumane acts, inhuman treatment
and cruel treatment under Articles 5(i), 2(b) and 3 of the Statute have thus
been proven (Counts 2-4 ).
- The Chamber previously found that while it has been established that Mladen
Naletilic commanded the operation on 22 and 23 September 1993 from a village
above Rastani, there was not enough evidence to prove that he was present
in the village itself.836 Furthermore,
no evidence was adduced to prove that Mladen Naletilic knew or had reasons
to know that prisoners were forced to perform unlawful labour in the course
of this operation. Hence, the Chamber finds that the responsibility of Mladen
Naletilic has not been established.
(d) Detainees performing military tasks in Stotina
- The Prosecution alleges in the Indictment that detainees were forced “to
perform labour in military operations and to be used as human shields on S…C
Stotina”.837 The Chamber only heard
one reference to such allegation in the course of the entire trial, when witness
J testified that he performed labour in various places, including Stotina.838
However, there is no evidence as to the type of labour performed, or as to
the responsibility of either of the accused in this regard. For these reasons,
the Chamber finds that the allegation as formulated in the Indictment has
not been established.
(e) Assisting KB members in the process of looting
Muslim houses and property
- Mladen Naletilic and Vinko Martinovic are both charged with having forced
BH Muslim detainees to assist KB members in the process of looting houses
and properties of BH Muslims.839 The
Prosecution specified in the Pre-trial Brief that “detainees were forced by
Martinovic to loot the homes of BH Muslims who had been evicted across the
front-line into East-Mostar ”.840
- Several witnesses testified that they were forced to participate in the
looting of houses that had been abandoned in various areas throughout West
Mostar.841 The testimonies are very
consistent as they describe how prisoners were made to carry all sorts of
goods out of apartments and load them onto a truck.842
Such goods included furniture, household appliances and television sets.843
- Geneva Convention III does not expressly prohibit the use of prisoners
for looting. However, the Chamber finds that it constitutes unlawful labour
under Article 3 (Count 5). The commission of looting being a crime in itself,
the consent of prisoners may not render the labour lawful and is therefore
irrelevant.844 However, no evidence
was introduced to establish that as a result of the labour, the detainees
suffered the required degree of mental harm or physical suffering or injury
for the offence to amount to inhumane acts, inhuman treatment or cruel treatment
(Counts 2-4).
- The Chamber is not satisfied that the responsibility of Vinko Martinovic
under Article 7(1) of the Statute has been established. There is no evidence
that he planned, committed, instigated or ordered the use of detainees to
loot private property. The mere presence of Vinko Martinovic on one occasion
as described by one witness, is not sufficient to prove that the accused participated
in the commission of the crime.845
- Regarding Vinko Martinovic’s responsibility under Article 7(3) of the Statute,
the Chamber accepts the testimonies of witnesses who stated that it was Stela’s
soldiers who forced them to assist in looting the houses of BH Muslims. Witness
F testified that he was working for Stela’s men and in particular for one
of his subordinates, a man called Zubac.846
Witness YY stated that he was selected by Ernest Takac to assist in looting
apartments that had been pre-selected.847
The Chamber is satisfied that Vinko Martinovic knew or had reasons to know
that his soldiers were forcing prisoners to perform unlawful labour. Witness AB
testified that he once saw Vinko Martinovic standing outside the apartment
with soldiers while he was carrying goods out and loading them, but he did
not hear him communicating to the soldiers.848
The Chamber is satisfied that the responsibility of Vinko Martinovic has been
established under Article 7(3) of the Statute.
- The Prosecution adduced evidence with regard to another incident that took
place around 7 July 1993. Witness SS testified that he was among the prisoners
made to turn an abandoned house849 into
the Vinko Skrobo ATG’s Headquarters.850
The Chamber is satisfied that compelling prisoners of war to turn a private
property into a military headquarters does amount to unlawful labour as it
falls under the category of labour, which is only authorised provided that
it has no military character or purpose.851
In the present case, the setting up of a military headquarters clearly has
a military purpose and would therefore only be lawful if the prisoners gave
their consent. In this respect, witness SS testified that he acted on orders
and that the prisoners were under guard while they were working. He also stated
that earlier that day, a prisoner had been severely beaten.852
The Chamber is satisfied that in these circumstances, the witness was not
in a position to refuse to perform the labour he was ordered to do.
- The Chamber finds that the offence of unlawful labour under Article 3 of
the Statute (Count 5) has been proven in relation to this incident. However,
no evidence was introduced to suggest that the prisoners suffered serious
mental harm or physical suffering or injury as a result of the labour. The
Chamber therefore finds that the offences of inhumane acts, inhuman treatment
and cruel treatment under Article 5(i), 2(b) and 3 of the Statute (Counts
2-4) have not been established.
- The Chamber is satisfied that Vinko Martinovic ordered the prisoners to
empty the apartment. Witness SS testified that Stela had previously divided
the prisoners into two groups, one of them being sent to the frontline, and
that he remained in the house while the furniture was being taken away.853
For these reasons, the Chamber finds that the responsibility of Vinko Martinovic
in relation to this incident has been established under Article 7(1) of the
Statute. The Chamber is further satisfied that Vinko Martinovic was the commander
of the perpetrators and that he knew or had reasons to know of their behaviour
but took no measures to prevent or punish them. His responsibility under Article
7(3) of the Statute is therefore established. The Chamber finds that the responsibility
of Vinko Martinovic is most appropriately described under Article 7(1) of
the Statute.
- In relation to these incidents, the Chamber heard no evidence to prove
the responsibility of Mladen Naletilic, either under Article 7(1) or under
Article 7 (3) of the Statute.
(f) Detainees working in private properties of
members and commanders of the KB
- From April 1993 to January 1994, both Mladen Naletilic and Vinko Martinovic
and their subordinates are alleged to have forced Muslim detainees to perform
“building, maintenance and reparation works in private properties of the members
and commanders of the KB”.854
(i) “Tuta’s pool” in Siroki Brijeg
- In its Final Brief, the Prosecution states that several prisoners detained
at the MUP Station by members of the KB were forced to work at the old swimming
pool of Siroki Brijeg, in close proximity to the headquarters of the KB at
the Tobacco Station.855 In the course
of the trial, several witnesses testified that after they were transferred
as prisoners to the MUP Station in Siroki Brijeg in May 1993, they were forced
to work on the former municipal pool,856
and identified the location of the said pool.857
The Chamber notes that the Indictment refers to “building, maintenance and
reparation works in private properties of the members and commanders of the
KB”.858 In support of this allegation
in its Pre-trial Brief, the Prosecution stated that the work that BH Muslim
prisoners were forced to perform included the "construction of the villa and
swimming pool for Naletilic".859 In
light of these inconsistent allegations, the Chamber feels obliged to determine,
before going into the merits of the matter, whether the accused Mladen Naletili
c was put on sufficient notice of the nature of the allegation against him.860
- In the present case, the Chamber is of the view that nothing could possibly
have put the Naletilic Defence on notice861
of what the Prosecution relied on as a material fact underpinning the charges
against the accused, namely that detainees were forced to work on the municipal
swimming pool in Siroki Brijeg. The Naletilic Defence was only appraised of
this allegation when Prosecution witnesses related this matter in court,862
and it is the view of the Chamber that it is not for the Defence to divine
the Prosecution case from the evidence presented.
- The Chamber finds that the Prosecution failed to plead appropriately the
material fact of the labour allegedly performed at the municipal swimming
pool in Siroki Brijeg and to inform the accused, in this particular respect,
of the nature of the charge held against him. Accordingly, this particular
evidence may not serve as a material basis to prove the allegations set forth
in paragraph 44 of the Indictment.
(ii) Construction of the private villa of
Mladen Naletilic
- Prosecution witness NN testified that he heard from a prisoner at the Heliodrom
that sometime in October or November 1993, he had been taken away with a group
of prisoners for about 20 days to build “Tuta’s house” in Siroki Brijeg.863
The Chamber is not satisfied that this allegation has been proven. The evidence
is not sufficiently detailed, is indirect and has not been corroborated. In
fact, it is contradicted by several testimonies relating to the construction
of Mladen Naletilic’s villa.864
(iii) Digging of a trench in the vicinity
of Mladen Naletilic’s villa
- Several witnesses testified that around July 1993, and for a period of
two to three months, they had been taken to dig an irrigation canal at Mladen
Naletili c’s villa.865 Witness BB stated
that the canal started about 500 meters from Tuta’s house but could not confirm
its purpose.866 Witness CC testified
that he heard from guards that Tuta needed water supply for his house.867
- Defence witnesses testified that the work on Mladen Naletilic’s property
was performed by a local company from Polog called MTV Garant.868
Defence witness NF adds that the site did not allow for the construction of
a water pipe connected to a main water supply,869
and that such a pipe does not exist to this date.870
The Naletilic Defence submits that the canal was dug “for the purposes of
running lines for a radio tower on top of the hill”.871
- In light of this contradicting evidence, the Chamber is not satisfied that
the digging of the trench was for a private purpose, namely the construction
of a water pipe to supply the villa. The digging of a trench constitutes labour
that prisoners of war may be compelled to perform under Article 50 of Geneva
Convention III, if it has no military character or purpose.872
The Chamber finds that the digging of the trench, whether it was for the purpose
of power supply or for an irrigation canal, had no military character or purpose.
- However, the conditions in which the labour was performed do not comply
with the required applicable standards and may therefore render the labour
unlawful. Witness BB described the conditions in which the detainees were
working as being extremely difficult, with very little food and water.873
Witness DD corroborated that the work was very arduous, the weather very hot
and that the detainees had to dig by hand and worked from morning to dusk.
He further stated that he was never paid.874
- While Defence witnesses NH and NI testified that the detainees who volunteered
to work on the radio line were compensated for their work,875
there is no evidence that they were actually paid. Defence witness NI acknowledged
that while he heard from the military police that the municipality would pay
the detainees, he does not know whether they were actually paid or not.876
The Chamber accepts the testimony of witness BB contradicting this allegation,
as further corroborated by witness DD.877
- The Chamber finds that the digging of the trench constitutes unlawful labour
under Article 3 of the Statute (Count 5) within the meaning of Geneva Convention
III as a result of the conditions in which it was performed. In light of the
fact that the detainees worked in these conditions for at least two months,
the Chamber finds that the conditions of labour constitute a sufficiently
serious violation of a rule of humanitarian law to fall within the ambit of
Article 3 of the Statute. No evidence was led to show that the prisoners suffered
serious mental harm or physical suffering or injury. The charges of inhumane
acts, inhuman treatment and cruel treatment under Articles 5(i), 2(b) and
3 of the Statute (Counts 2-4) have therefore not been proven with regard to
this incident.
- The Chamber has not received sufficient evidence to establish Mladen Naletili
c’s direct involvement under Article 7(1) of the Statute. Some of the detainees
working on the canal were held at the Tobacco Station in Siroki Brijeg, where
Mladen Naletilic had his headquarters and office.878
Although he was not personally supervising the detainees, the evidence shows
that he visited the construction site on several occasions and was seen talking
with the guards while the prisoners were working.879
Thus, the Chamber is satisfied that Mladen Naletilic knew or had reasons to
know that the detainees were subjected to conditions susceptible to render
the labour unlawful. It further infers from the fact that the work lasted
at least two months that in spite of his knowledge, he did not take any measures
to ameliorate those conditions. The Chamber is satisfied that the responsibility
of Mladen Naletilic has been established under Article 7(3) of the Statute.
(iv) Other labour performed on a private basis
for members of the KB
a. Members of the Vinko Skrobo ATG
- The Prosecution introduced into evidence a report of the SIS dated 18 November
1993.880 This report alleges that two
members of the Vinko Skrobo ATG, Miroslav and Dragan Cule, have been taking
out BH Muslim brick-layers and tile-layers from the Heliodrom to work on their
private property. No additional evidence was introduced to corroborate this
report. The Chamber finds that this allegation has not been established.
b. Other members of the KB
- The Chamber heard evidence that prisoners detained at the Tobacco Station
were taken to work on the houses of Ivan Cikota,881
and Zeljko Bosnjak.882 As such, this
form of labour is not prohibited under Geneva Convention III as it falls under
the category of domestic services which prisoners of war may be compelled
to do. The Prosecution has not established that the detainees were not paid
as a compensation for their labour. The Chamber finds that this allegation
has not been established.
(g) Detainees building defences in positions of
the KB, HV or HVO forces at locations other than the frontlines
- In the course of the trial, the Chamber heard evidence of labour performed
in Sovici. Witness PP testified that while being detained at the Heliodrom,
he was taken to work on a regular basis to places such as Buna, Santiceva
street, Sovi ci, Doljani, Risovac and Rastani. In particular, witness PP recalled
being brought by truck to Sovici in mid-August 1993;883
he was picked up in the middle of the night and arrived in Sovici early in
the morning. He and the other detainees were made to clean houses, dig trenches,
chop wood, and bury dead cattle.884
In the same period, he stated that he was taken out to dig nine graves in
Risovac, near Sovici.885
- Similarly, witness YY testified that around 18 or 20 July 1993, he was
temporarily transferred to the area of Doljani and Sovici, where he was used
to assist in the construction of fortifications, as well as in the recovery
of the dead bodies of HVO soldiers and in their burial.886
- The Chamber notes that the Indictment does not spell out the specific material
facts underpinning the charge of forced labour in Sovici. The allegation that
detainees were forced to work on the frontline only refers to locations within
the municipality of Mostar.887 As a
result, the Chamber construes the evidence of labour in Sovici as falling
within the ambit of paragraph 44 of the Indictment, dealing with labour in
“locations other than the front lines, including […] digging trenches, building
defences in the positions of the KB or other HV and HVO forces.”888
- The Chamber finds that, as they have a military character or purpose, certain
forms of labour described by the witnesses889
would only be lawful where the prisoners gave their consent. The Prosecution
has not proven that the prisoners were compelled to perform those forms of
labour. The Chamber has not heard any evidence relating to the context in
which this labour was performed, and in particular which units were in charge
of the prisoners. The responsibility of Mladen Naletilic with regard to these
incidents has not been established.
3. Summary of findings
(a) Mladen Naletilic
- The Chamber finds Mladen Naletilic guilty of unlawful labour under Articles
3 and 7(3) of the Statute for the use of detainees to dig a trench in the
vicinity of his private villa in very harduous conditions (Count 5).
(b) Vinko Martinovic
- The Chamber finds Vinko Martinovic guilty of unlawful labour, inhumane
acts, inhuman treatment and cruel treatment under Articles 2(b), 3, 5(i) and
7(1) of the Statute for ordering prisoners of war to perform labour in dangerous
conditions in the area of responsibility of the Vinko Skrobo ATG (Counts 2, 3, 4
and 5). It further finds Vinko Martinovic guilty of unlawful labour, inhumane
acts, inhuman treatment and cruel treatment under Articles 2(b), 3, 5(i) and
7(1) of the Statute for ordering four prisoners of war to walk across the
front line with wooden rifles on 17 September 1993 in his area of responsibility
(Counts 2, 3, 4 and 5). The Chamber finds Vinko Martinovic guilty of unlawful
labour under Articles 3 and 7( 3) of the Statute for the use of detainees
to assist in the looting of private property (Count 5). Finally, the Chamber
finds Vinko Martinovic guilty of unlawful labour under Articles 3 and 7(1)
of the Statute for ordering prisoners to turn a private property into the
headquarters of the Vinko Skrobo ATG (Count 5).