Case No.IT-98-34-T

IN THE TRIAL CHAMBER

Before:
Judge Liu Daqun
Judge Maureen Clark
Judge Fatoumata Diarra

Registrar:
Mr. Hans Holthuis

Judgement of:
31 March 2003

PROSECUTOR
v.
Mladen NALETILIC, aka “TUTA”
And
Vinko MARTINOVIC, aka “STELA”

___________________________

JUDGEMENT

___________________________

The Office of the Prosecutor:

Mr. Kenneth Scott
Mr. Douglas Stringer
Mr. Vassily Poriouvaev
Mr. Roeland Bos

Counsel for the Accused:

Mr. Kresimir Krsnik
Mr. Christopher Meek
For Mladen Naletilic

Mr. Branko Seric
Mr. Zelimir Par
For Vinko Martinovic

 

I. INTRODUCTION

  1. 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

  2. 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.

  3. 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

  4. 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.

  5. 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.

  6. 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

  7. 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

  8. 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

  9. 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.

  10. 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.

  11. 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

  12. 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

  13. 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

  14. 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.

  15. 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.

  16. 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.

  17. 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.

  18. 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.

  19. 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

  20. 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

  21. 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.

  22. 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

  23. 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.

  24. 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.

  25. 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

  26. 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

  27. 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

  28. 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.

  29. 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

  30. 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.

  31. 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

  32. 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.

  33. 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

  34. 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

  35. 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

  36. 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

  37. 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

  38. 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

  39. 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

  40. 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

  41. 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.

  42. 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

  43. 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

  44. 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

  45. 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

  46. 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

  47. 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

  48. 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

  49. 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.

  50. 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

  51. 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

  52. 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

  53. 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

  54. 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

  55. 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

  56. 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

  57. 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

  58. 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.

  59. “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

  60. “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

  61. “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

  62. “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

  63. “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

  64. 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.

  65. 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

  66. 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

  67. 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

  68. 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

  69. 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

  70. 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 ”.

  71. 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

  72. 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

  73. 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

  74. 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

  75. 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

  76. 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

  77. 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

  78. 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

  79. 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

  80. 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

  81. 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)

  82. 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

  83. 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

  84. 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

  85. 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

  86. 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

  87. 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

  88. 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

  89. The Prosecution alleges that Mladen Naletilic was the highest level commander of the KB during the relevant time of the Indictment.235

  90. 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

  91. 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

  92. 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

  93. 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

  94. 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

  95. 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

  96. 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

  97. 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

  98. 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

  99. 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

  100. 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

  101. 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.

  102. 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

  103. 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

  104. 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

  105. The Prosecution alleges that the Baja Kraljevic ATG was a subordinate unit of the KB.291

  106. 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

  107. 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

  108. 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

  109. 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

  110. 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

  111. 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

  112. 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

  113. 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

  114. 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

  115. 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

  116. 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

  117. 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

  118. 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

  119. 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

  120. 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.

  121. 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.

  122. 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

  123. 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

  124. 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

  125. 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

  126. 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.

  127. 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

  128. 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

  129. 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

  130. 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

  131. 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.

  132. 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

  133. 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

  134. 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

  135. 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

  136. 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

  137. 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

  138. 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

  139. 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

  140. 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

  141. 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

  142. 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

  143. 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

  144. 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

  145. 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

  146. 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.

  147. 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

  148. 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.

  149. 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

  150. 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

  151. 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.

  152. 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

  153. 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

  154. 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

  155. 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.

  156. 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.

  157. 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.

  158. 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.

  159. 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

     

  160. 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.

  161. 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

  162. 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

  163. 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

  164. 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

  165. 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

  166. The Chamber finds that the KB commanded by Mladen Naletilic took part in the operation in Rastani on 22 and 23 September 1993.

  167. 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

  168. 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

  169. 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

  170. 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

  171. 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.

  172. 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

  173. 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

  174. 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.

  175. 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

  176. 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

  177. 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

  178. 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

  179. 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

  180. 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

  181. 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

  182. 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

  183. 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

  184. 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

  185. 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

  186. 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

  187. 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.

  188. 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)

  189. 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

  190. 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

  191. 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.

  192. 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

  193. 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

  194. 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

  195. 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

  196. 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

  197. 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.

  198. 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.

  199. 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

  200. 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

  201. 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

  202. 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

  203. 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

  204. 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

  205. 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

  206. 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

  207. 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.

  208. 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

  209. 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

  210. 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.

  211. 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.

  212. 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

  213. 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

  214. 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.

  215. 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

  216. 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

  217. To determine whether the authority of the occupying power has been actually established, the following guidelines provide some assistance:
  218. - 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

  219. 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

  220. 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

  221. 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

  222. 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.

  223. 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.

  224. 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

  225. 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

  226. 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

  227. 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.

  228. 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.

  229. 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.

  230. 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.

  231. 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.

  232. 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

  233. 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

  234. 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

  235. 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

  236. 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

  237. 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

  238. 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

  239. 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

  240. 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

  241. 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.

  242. 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.

  243. 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.

  244. 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.

  245. 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

  246. 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

  247. 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

  248. 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

  249. 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

  250. The general requirements under Articles 2, 3 and 5 of the Statute apply to these crimes.660

    (c) Unlawful labour

  251. 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.

  252. 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

  253. 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.

  254. 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.

  255. 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

  256. 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

  257. 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

  258. 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

  259. 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.

  260. 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

  261. 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.

  262. 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

  263. 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

  264. 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

  265. 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

  266. 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

  267. 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

  268. 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

  269. 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

  270. 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.

  271. 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

  272. 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.

  273. 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.

  274. 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

  275. 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.

  276. 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

  277. 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.

  278. 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

  279. 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

  280. 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

  281. 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

  282. 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

  283. 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

  284. 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

  285. 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

  286. 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.

  287. 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.

  288. 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.

  289. 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

  290. 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.

  291. 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.

  292. 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

  293. 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

  294. 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

  295. 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

  296. 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

  297. 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

  298. 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

  299. 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.

  300. 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

  301. 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

  302. 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

  303. 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.

  304. 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 ).

  305. 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

  306. 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

  307. 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

  308. 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

  309. 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).

  310. 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

  311. 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.

  312. 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.

  313. 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.

  314. 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.

  315. 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

  316. 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

  317. 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

  318. 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.

  319. 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

  320. 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

  321. 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

  322. 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

  323. 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.

  324. 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

  325. 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

  326. 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.

  327. 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

  328. 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

  329. 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

  330. 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

  331. 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

  332. 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

  333. 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

  334. 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

  335. 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).