Table of contents:
5. The perpetrator forcibly transferred one or more persons.5
P.1. Evidence of victims crossing a national border.
P.1.1. Evidence of taking victims across a national border.
P.1.2. Evidence of exchanging victims across a national border.
P.2.1. Evidence of transfer, not necessarily across a national border.
P.2.2. Evidence of transfer from one camp to another, not necessarily across a national border.
P.3. Evidence of transporting victims out of an area.
P.3.1. Evidence of procuring transportation for victims out of an area.
P.3.2. Evidence of monitoring transportation of victims out of an area.
P.3.3. Evidence of ordering transportation of victims out of an area.
P.3.4. Evidence of convoys carrying victims out of the area.
P.3.5. Evidence of that the transfer was not a provisional measure.
P.4. Evidence of transfer gathered from population dynamics.
P.4.1. Evidence of total numbers of victims displaced.
P.4.2. Evidence of numbers of victims of certain ethnicities displaced.
P.5. Evidence of publicly announcing transfer.
P.5.1. Evidence of publicly announcing that transfer would take place.
P.5.2. Evidence of calling out residents names for future transfer.
P.6. Evidence of the creation of an infrastructure to facilitate transfer.
P.6.1. Evidence of the creation of an infrastructure to facilitate transfer.
P.6.2. Evidence of facilitating applications for transfer.
P.6.3. Evidence of setting up agencies to facilitate transfer.
P.6.4. Evidence of setting up collection centres to oversee transfer.
P.7. Evidence of use of force in transfer.
P.8. Evidence of forcible transfer using duress, trauma or coersion.
P.8.2. Evidence of transferred persons having no real choice but to leave.
P.8.3. Evidence of the destruction of person or persons homes.
P.9. Not sufficient: Evidence of mere transfer.
Element:
5. The perpetrator forcibly transferred one or more persons.5
P.1. Evidence of victims crossing a national border.
P.1.1. Evidence of taking victims across a national border.
A. Legal source/authority and evidence:
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 474:
"474. Deportation requires the displacement of persons across a national border, to be distinguished from forcible transfer which may take place within national boundaries.1429 This Trial Chamber does not accept as persuasive the only previous decision of this Tribunal which states to the contrary, and it notes that this decision did not follow fully litigated trial proceedings.1430 The Trial Chamber thus rejects the Prosecution submission that the mere fact that the detainees were taken out of the KP Dom, wherever else they may have been transferred to, constituted deportation.1431"
"1429. Krstić Trial Judgment, par 531; Article 49 of the Fourth Geneva Convention refers to deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country and Article 70 refers to a prohibition on the deportation of nationals of the occupying power from the occupied territory. In the Nuremburg Judgment, it was stated that not only in defiance of well-established rules of international law, but in complete disregard of the elementary dictates of humanity [w]hole populations were deported to Germany for the purposes of slave labour upon defense works, armament production and similar tasks connected with the war effort (p 227) and Von Schirachs conviction for deportation as a crime against humanity was for his part in the deportation of Jews from Vienna to the ghettos of the East (pp 317-319); United States of America v Erhard Milch, Trials of War Criminals before the Nuernberg Military Tribunals under Control Council Law No 10 (1952) Vol 2, Concurring Opinion by Judge Phillips, p 865; International Law has enunciated certain conditions under which the fact of deportation of civilians from one nation to another during times of war becomes a crime; United States of America v Alfried Krupp et al, Trials of War Criminals before the Nuernberg Military Tribunals under Control Council Law No 10 (1952) Vol 9, part 2, pp 1432-1433; United States of America v Friedrich Flick et al, Trials of War Criminals before the Nuernberg Military Tribunals under Control Council Law No 10 (1952) Vol 6, p 681, ILC Draft Code 1996, Article 18, commentary (13): Whereas deportation implies expulsion from the national territory, the forcible transfer of population could occur wholly within the frontiers of one and the same state; Henckaerts, Deportation and Transfer of Civilians in Time of War, Vanderbilt Journal of Transnational Law, Vol 26, 1993, p 472 (with respect to Article 49 of Geneva Convention IV); Presumably, a transfer is a relocation within the occupied territory, and a deportation is a relocation outside the occupied territory; Bassiouni, Crimes Against Humanity in International Criminal Law (1999) p 312; Hall, Crimes against humanity para. 1(d) in Triffterer (ed) Commentary on the Rome Statute of the International Criminal Court (1999), p 136, with respect to the two terms used in Article 7 of the Rome Statute: Unfortunately, the Statute does not expressly distinguish between deportation and transfer. However, given the common distinction between deportation as forcing persons to cross a national frontier and transfer as forcing them to move from one part of the country to another without crossing a national frontier, and given the basic presumption that no words in a treaty should be seen as surplus, it is likely that the common distinction was intended.
1430. In the Nikolic Rule 61 Decision, it is stated that the transfer of detainees from one camp to another within Bosnia and Herzegovina could be characterised as deportation and, accordingly, come under Article 5 of the Statute, par 23. No authority is cited for this proposition, and there was no examination of the authorities referred to in the previous footnote.
1431. Prosecution Pre-Trial Brief, par 349."
Prosecutor v. Radislav Krstić, Case No. IT-98-33-T, Judgement (TC), 2 August 2001, para. 521:
"521. Both deportation and forcible transfer relate to the involuntary and unlawful evacuation of individuals from the territory in which they reside. Yet, the two are not synonymous in customary international law. Deportation presumes transfer beyond State borders, whereas forcible transfer relates to displacements within a State.1172"
"1172. See in particular the commentary on the ILC Draft Code, p. 122 Whereas deportation implies expulsion from the national territory, the forcible transfer of population could occur wholly within the frontiers of one and the same State."
B. Evidentiary comment:
P.1.2. Evidence of exchanging victims across a national border.
A. Legal source/authority and evidence:
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, paras. 482 - 483:
"482. On at least one occasion, detainees were taken across a national border. A group of approximately 55 men were taken for exchange in Montenegro around 30 August 1992, but the bus on which they were being transported was intercepted in Niksic, Montenegro, by Pero Elez, a Bosnian-Serb soldier, who sent the group back to the KP Dom. The group was then divided in two with approximately 20 younger men being taken away, possibly to Gorazde, and never seen again. The remaining group of 35 men, of which two witnesses in this case were part,1464 was taken to be exchanged in Roaj in Montenegro.1465"
"1464. FWS-54 and FWS-172.
1465. FWS-54 (T 783-785, 811-812); FWS-66 (T 1119-1120, 1150); FWS-86 (T 1535-1542); FWS-08 (T 1807); Dr Amir Berberkic (T 3814-3816); RJ (T 3904, 3907); FWS-69 (T 4095-4096); FWS-172 (T 4575-4578); FWS-109 (T 2425); FWS-119 (T 1968-1969)."
"483. The Chamber is satisfied that this group of 35 men was displaced across a national border to Montenegro."
[B. Evidentiary comment:]
P.2.1. Evidence of transfer, not necessarily across a national border.
A. Legal source/authority and evidence:
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 476:
"476. The Trial Chamber considers it to be well established that forcible displacements of people within national boundaries are covered by the concept of forcible transfer.1439"
"1439. Krstić Trial Judgment, pars 531-532; Commentary on the ILC Draft Code, p 122."
Prosecutor v. Radislav Krstić, Case No. IT-98-33-T, Judgement (TC), 2 August 2001, paras. 531 - 532:
"531. The Bosnian Muslim women, children and elderly assembled at Potocari were forcibly transferred to Kladanj, an area in the territory of Bosnia-Herzegovina controlled by the ABiH, in order to eradicate all trace of Bosnian Muslims in the territory in which the Bosnian Serbs were looking to establish their own State. However, Bosnia-Herzegovina was the only State formally recognised by the international community at the time of the events. Since the Srebrenica civilians were displaced within the borders of Bosnia-Herzegovina, the forcible displacement may not be characterised as deportation in customary international law."
"532. The Chamber therefore concludes that the civilians assembled at Potocari and transported to Kladanj were not subjected to deportation but rather to forcible transfer. This forcible transfer, in the circumstances of this case, still constitutes a form of inhumane treatment covered under Article 5."
[B. Evidentiary comment:]
P.2.2. Evidence of transfer from one camp to another, not necessarily across a national border.
A. Legal source/authority and evidence:
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 477:
"477. The Trial Chamber is satisfied that groups of detainees were transferred from the KP Dom to other camps in Bosnia and Herzegovina, including the camps at Kula,1441 Kalinovik1442 and Rudo.1443 However, as the detainees were not displaced across a national border, the Trial Chamber is not satisfied that the detainees were deported or expelled."
"1441. Ahmet Hadzimusic (T 1974, 1983, 2009, 2014); Rasim Taranin (T 1700, 1737, 1740); FWS-139 (T 412); FWS-111 (T1283); FWS-162 (T 1409); FWS-08 (T 1794); FWS-138 (T 2097); FWS-144 (T 2323); FWS-109 (T 2409); FWS-71 (T 2894, 2916); FWS-146 (T 3083); FWS-73 (T 3291, 3318, 3418); Dr Amir Berberkic (T 3970); FWS-249 (Ex P 161 T 4488); FWS-89 (T 4710); Muhamed Lisica (T 4987); Lazar Stojanovic (T 5711).
1442. Dzevad Lojo (T 601); FWS-182 (T 1648); FWS-104 (T 2194); FWS-144 (T 2296);
Dr Amir Berberkic (T 3970); FWS-69 (T 4148); FWS-137 (T 4750).
1443. FWS-66 (T 1133); FWS-08 (T 1767); Dzevad S Lojo (T 2591); FWS-146 (T 3079-3080); Lazar Divljan (T 6009)."
[B. Evidentiary comment:]
P.3. Evidence of transporting victims out of an area.
P.3.1. Evidence of procuring transportation for victims out of an area.
A. Legal source/authority and evidence:
Prosecutor v. Milomir Stakić, Case No. IT-97-24-T, Judgment (TC), 31 July 2003, para. 698:
"698. In a television interview with British Channel 4 by the end of 1992, the Accused explained that a good number of [the detainees in the Trnopolje camp] wish to leave this area.1366 The Accused elaborated:
"525. Defence witness NW testified, in relation to the transfer on 4 May 1993 that "there were talks with civilians. They had no objections".Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 49:
"49. The expulsion, exchange or deportation of non-Serbs, both detainees at the KP Dom and those who had not been detained, was the final stage of the Serb attack upon the non-Serb civilian population in Foca municipality. Initially there was a military order preventing citizens from leaving Foca.159 However, most of the non-Serb civilian population was eventually forced to leave Foca. In May 1992, buses were organised to take civilians out of town,160 and around 13 August 1992 the remaining Muslims in Foca, mostly women and children, were taken away to Rozaje, Montenegro.161 "
"159. Ex D 40, Zoran Mijovic.
160. Ekrem Zekovic (T 3615); Juso Taranin (T 3030-3041).
161. FWS-104 (T 2198-2199)."
Prosecutor v. Radislav Krstić, Case No. IT-98-33-T, Judgement (TC), 2 August 2001, paras. 293, 344, 431:
"293. When the plan to transport the Bosnian Muslim population out of Potocari was devised, the Drina Corps were called upon to procure the buses. Drina Corps personnel were also present in Potocari, overseeing the transportation operation, knowing full well that the Bosnian Muslims were not exercising a genuine choice to leave the area."
"344. The Trial Record also indicates that General Krstić played a principal role in organising the buses for the evacuation throughout the day of 12 July 1995. A radio intercept, at 0735 hours on 12 July 1995, shows General Krstić ordering Lieutenant Colonel Krsmanovic, the Drina Corps Transport Officer, to procure 50 buses from Pale, Visegrad, Rogatica, Sokolac, Han Pijesak, Vlasenica, Milici, Bratunac and Zvornik.910 Later intercepts show Colonel Krsmanovic working throughout the day on the organisation of the buses.911 At 12:10, a conversation was intercepted in which General Krstić ordered Colonel Krsmanovic to start moving the buses.912 Shortly thereafter, General Mladic was also recorded conversing with an unidentified person about the movement of the buses. That person told General Mladic that the buses had left ten minutes earlier.913 At 1305 hours, General Krstić was heard talking to Lt. Colonel ?obot, the Personnel and Mobilisation Officer for the Drina Corps Rear Services. General Krstić asked how many buses were on the road, and ?obot answered, "Twenty." General Krstić then asked to be connected to the Vlasenica Brigade and requested Colonel Kosoric, the Drina Corps Chief of Intelligence, who was not there. The evidence shows that Colonel Kosoric was also involved in organising buses for Potocari.914 General Krstić then told "Savo" from the Vlasenica Brigade to secure the road "up to the tunnel thats where theyll be disembarking."915 In the context of the events happening contemporaneously with this conversation, the Trial Chamber accepts that General Krstić was speaking of the Bosnian Muslim women, children and elderly from Potocari. Survivors who were amongst those transported from Potocari speak of going through a tunnel along the road from Luke to Kladanj when they left the buses and continued their journey towards Bosnian Muslim held territory on foot.916 Several other intercepts also appear to connect General Krstić with the organisation of transport for Potocari.917 These intercepts, showing General Krstićs involvement in the organisation and planning of transferring the civilian population from Potocari, are consistent with the organisational role expected of the Chief of Staff of a Corps engaged in an operation such as the transport of tens of thousands of people out of Potocari."
"910. P 435, Butler, T. 4827-4828
911. P 404 fn.130; and P 438.
912. P 440.
913. P 404 fn 132; and P 445.
914. See the discussion supra paras. 143.
915. P 446; Butler, T. 4839-4840.
916. See generally, Butler, T. 4842.
917. See for example, P 359, and Butler T. 4831-4832 (showing General Krstić involved with the issue of fuel); P 440, and P 443 (referring to fuel and stating that "Krsto" (a shortened name for General Krstić, (See Butler T. 4834) ordered it). P 448 (intercept at 1848 hours on 12 July 1995 between two Main Staff personnel and referring to "Krle" who the Prosecutions military expert, Butler, believes to be a reference to General Krstić given the context of the conversation. Butler, T. 4848)."
"431. The Drina Corps was instrumental in procuring the buses and other vehicles that, on 12 and 13 July 1995, were used to transport the Bosnian Muslim women, children and elderly out of the Potocari compound, as well as the fuel needed to accomplish that task (para. 142)."
[B. Evidentiary comment:]
P.3.2. Evidence of monitoring transportation of victims out of an area.
A. Legal source/authority and evidence:
Prosecutor v. Radislav Krstić, Case No. IT-98-33-T, Judgement (TC), 2 August 2001, paras. 293, 432, 464:
"293. When the plan to transport the Bosnian Muslim population out of Potocari was devised, the Drina Corps were called upon to procure the buses. Drina Corps personnel were also present in Potocari, overseeing the transportation operation, knowing full well that the Bosnian Muslims were not exercising a genuine choice to leave the area."
"432. Drina Corps Command officers and units were present in Potocari monitoring the transportation of the Bosnian Muslim civilians out of the area on 12 and 13 July 1995 (para. 144)."
"464. General Krstić ordered the procurement of buses for the transportation of the Bosnian Muslim population out of Potocari on 12 and 13 July 1995, issued orders to his subordinates about securing the road along which the busses would travel to Kladanj and he generally supervised the transportation operation (para. 347)."
[B. Evidentiary comment:]
P.3.3. Evidence of ordering transportation of victims out of an area.
A. Legal source/authority and evidence:
Prosecutor v. Radislav Krstić, Case No. IT-98-33-T, Judgement (TC), 2 August 2001, para. 464:
"464. General Krstić ordered the procurement of buses for the transportation of the Bosnian Muslim population out of Potocari on 12 and 13 July 1995, issued orders to his subordinates about securing the road along which the busses would travel to Kladanj and he generally supervised the transportation operation (para. 347)."
[B. Evidentiary comment:]
P.3.4. Evidence of convoys carrying victims out of the area.
A. Legal source/authority and evidence:
Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, paras. 557, 570:
"557. The Trial Chamber is satisfied beyond reasonable doubt that a number of deportations to Karlovac and forcible transfers to Travnik originating in the ARK took place during the period relevant to the Indictment. Convoys passed through Banja Luka1425 in the direction of Travnik;1426 at least one such convoy contained women, children and elderly Bosnian Muslims and Bosnian Croats.1427 At least 5,000 people a year were transported by the Agency in the direction of Travnik alone.1428"
"1425. Muharem Krzic, T. 1488-1494 ; Amir Dzonlic, T. 2420. See also ex. P449 Report from Banja Luka Party of Democratic Action to the UN, 30 September 1992.
1426. Amir Dzonlic, T. 2404, gave evidence that he heard that a few convoys from Prijedor and Bosanski Novi had passed through Banja Luka in the direction of Travnik and remember[s] that one of these convoys fared very badly at the Koricanske Stijene near Travnik. They came from the direction of Prijedor and went through Banja Luka and they were killed over there.
1427. BT-13, T. 4726 (closed session ).
1428. Amir Dzonlic, T. 2401."
"570. In the Municipality of Bosanski Petrovac, a mass departure of Bosnian Muslims from the area occurred on 13 September 1992, including a column of seven buses with a special police patrol escorting them that departed from the village of Bisanci, in the direction of Travnik.1470 A smaller convoy of two buses had also left and gone via Mt. Vlasic to Travnik prior to this particular convoy.1471"
"1470. Ahmet Hidic, T. 16276-16278. See also ex. P1848, "Radio Bosanski Petrovac broadcast regarding moving out of Muslims from Bosanski Petrovac", 13 September 1992. The convoy was in fact turned back, as passage was not allowed through Karinovac. The people then returned to Bosanski Petrovac: ex. P1849, "Report on escort and security provided for the convoy of Bosnian Muslims on 13 September 1992"; Jovo Radojko, T. 20200-20202.
1471. Ahmet Hidic, T. 16277-16278 ."
[B. Evidentiary comment:]
P.3.5. Evidence of that the transfer was not a provisional measure.
A. Legal source/authority and evidence:
"1362. The Commentary to the Geneva Convention IV holds "[unlike] deportation and forcible transfer, evacuation is a provisional measure", p 280. The Chamber sees this as indicative of that deportation and forcible transfer are not by their nature provisional, which implies an intent that the transferred persons should not return."
[B. Evidentiary comment:]
P.4. Evidence of transfer gathered from population dynamics.
P.4.1. Evidence of total numbers of victims displaced.
A. Legal source/authority and evidence:
Prosecutor v. Milomir Stakić, Case No. IT-97-24-T, Judgment (TC), 31 July 2003, paras. 706, 711:
"706. On 2 July 1993, Kozarski Vjesnik ran an article called Who are we and how many which reported the unofficial census results for Prijedor municipality from a recent census in the municipalities of the Republika Srpska. The article states that of the 65,551 inhabitants in the municipality 53,637 were Orthodox, 6,124 Muslim and 3,169 Catholic.1382 The Trial Chamber is of the opinion that the above figures, undisputed by the Defence, show how horrifically effective the SDS-induced deportation campaign of the non-Serb population was. Not only was the total population in the municipality reduced by almost 60% but the Muslim and Croat ethnical groups were also decimated by 87.6% and 49.8%, respectively."
"1382. Exh. S229."
"711. ECMM representative accompanying the CSCE Rapporteurs mission wrote in his personal notes that the Muslim population is not wanted, and is being systematically kicked out by whatever method (that( [sic] is available. The massive scale on which these deportations were carried out, also from the very centre of Prijedor town close to the Accuseds office in the Municipal Assembly building, clearly supports the finding that the Accused himself was instrumental in the plan to expel the non-Serb population."
Christopher Hall, "Article 7: Crimes Against Humanity", in Otto Triffterer (ed), Commentary on the Rome Statute of the International Criminal Court (1999), p. 162:
"The forcible transfer of population within national frontiers appears to require the movement of a number of persons, or at least the intent to force such movement, rather than the unlawful transfer of a single individual, unless it was part of a systematic transfer."
[B. Evidentiary comment:]
P.4.2. Evidence of numbers of victims of certain ethnicities displaced.
A. Legal source/authority and evidence:
Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, para. 570:
"570. In the Municipality of Bosanski Petrovac, a mass departure of Bosnian Muslims from the area occurred on 13 September 1992, including a column of seven buses with a special police patrol escorting them that departed from the village of Bisanci, in the direction of Travnik.1470 A smaller convoy of two buses had also left and gone via Mt. Vlasic to Travnik prior to this particular convoy.1471 Over a three-day period, more than 900 Bosnian Muslim men, women and children moved from the Petrovac area in the direction of Bihac and Travnik.1472 Approximately 2,500 Bosnian Muslim men, women and children were also transported to Travnik on 24 September 1992, following a public announcement made by the military police that all Bosnian Muslims would be transferred there.1473"
"1470. Ahmet Hidic, T. 16276-16278 . See also ex. P1848, "Radio Bosanski Petrovac broadcast regarding moving out of Muslims from Bosanski Petrovac", 13 September 1992. The convoy was in fact turned back, as passage was not allowed through Karinovac. The people then returned to Bosanski Petrovac: ex. P1849, "Report on escort and security provided for the convoy of Bosnian Muslims on 13 September 1992"; Jovo Radojko, T. 20200-20202.
1471. Ahmet Hidic, T. 16277-16278 .
1472. Ibid.
1473. Jovo Radojko, T. 20203-20209 . Ahmet Hidic, T. 16271-16283 gave evidence that they had to walk the last 20 km to Travnik."
Prosecutor v. Milomir Stakić, Case No. IT-97-24-T, Judgment (TC), 31 July 2003, para. 706:
"706. On 2 July 1993, "Kozarski Vjesnik" ran an article called "Who are we and how many" which reported the unofficial census results for Prijedor municipality from a recent census in the municipalities of the Republika Srpska. The article states that of the 65,551 inhabitants in the municipality 53,637 were Orthodox, 6,124 Muslim and 3,169 Catholic.1382 The Trial Chamber is of the opinion that the above figures, undisputed by the Defence, show how horrifically effective the SDS-induced deportation campaign of the non-Serb population was. Not only was the total population in the municipality reduced by almost 60% but the Muslim and Croat ethnical groups were also decimated by 87.6% and 49.8%, respectively. The new census showed that Prijedor municipality had been transformed into a virtually purely Serb municipality with 96.3% Serbs. The common goal to create a Serb municipality had finally been achieved."
"1382. Exh. S229."
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 49:
"49. The expulsion, exchange or deportation of non-Serbs, both detainees at the KP Dom and those who had not been detained, was the final stage of the Serb attack upon the non-Serb civilian population in Foca municipality. Initially there was a military order preventing citizens from leaving Foca.159 However, most of the non-Serb civilian population was eventually forced to leave Foca. In May 1992, buses were organised to take civilians out of town,160 and around 13 August 1992 the remaining Muslims in Foca, mostly women and children, were taken away to Rozaje, Montenegro.161 On 23 October 1992, a group of women and children from the municipality, having been detained for a month at Partizan Sports Hall, were deported by bus to Gorade.162 In exhumations conducted in the Foca area, 375 bodies were identified by the State Commission for the Tracing of Missing Persons. All but one of these were Muslim. The remaining one was a Montenegrin who had been married to a Muslim.163 In late 1994, the last remaining Muslim detainees at the KP Dom were exchanged, marking the end of the attack upon those civilians and the achievement of a Serbian region ethnically cleansed of Muslims. By the end of the war in 1995, Foca had become an almost purely Serb town. Foca was renamed "Srbinje" after the conflict, meaning "Serb town".164"
"159. Ex D 40, Zoran Mijovic.
160. Ekrem Zekovic (T 3615); Juso Taranin (T 3030-3041).
161. FWS-104 (T 2198-2199).
162. Ex P 291; See also Osman Subasic (Ex P 286, pp 4111-4112).
163. Amor Masovic (T 4239).
164. FWS-96 (Ex P 186, p 2499)."
[B. Evidentiary comment:]
P.5. Evidence of publicly announcing transfer.
P.5.1. Evidence of publicly announcing that transfer would take place.
A. Legal source/authority and evidence:
Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, para. 570:
"Over a three-day period, more than 900 Bosnian Muslim men, women and children moved from the Petrovac area in the direction of Bihac and Travnik.1472 Approximately 2,500 Bosnian Muslim men, women and children were also transported to Travnik on 24 September 1992, following a public announcement made by the military police that all Bosnian Muslims would be transferred there.1473"
"1472. Ibid. [Refers to 1471. Ahmet Hidic, T. 16277-16278.]
1473. Jovo Radojko, T. 20203-20209 . Ahmet Hidic, T. 16271-16283 gave evidence that they had to walk the last 20 km to Travnik."
[B. Evidentiary comment:]
P.5.2. Evidence of calling out residents names for future transfer.
A. Legal source/authority and evidence:
Prosecutor v. Duko Tadić, Case No. IT-94-1-T, Judgement (TC), 7 May 1997, para. 387:
"387. The Trial Chamber has found beyond reasonable doubt that the accused entered the villages of Sivci and Jaskici together with other armed men as charged in paragraph 12. In Sivci, the accused took part in the removal of the men from that village, who had been separated from the women and children, to the Keraterm camp and, in Jaskici, took part in the calling-out of residents, the separation of men from women and children and the beating and removal of the men."
[B. Evidentiary comment:]
P.6. Evidence of the creation of an infrastructure to facilitate transfer.
P.6.1. Evidence of the creation of an infrastructure to facilitate transfer.
A. Legal source/authority and evidence:
Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-T, Judgement (TC), 17 January 2005, para. 216:
The Trial Chamber finds that there is sufficient evidence to establish beyond reasonable doubt that elements of the Bratunac Brigade participated in the transfer of women, children and elderly from Potocari. Specifically, the Trial Chamber finds that the Bratunac Brigade contributed vehicles and fuel to the transfer operation. (See supra section II. D. 1. (f)) Furthermore, members of the Bratunac Brigade Military Police assisted in the transfer by counting people as the buses were loaded.( See supra section II. D. 1. (f)) Captain Nikolic gave the orders to the Bratunac Brigade Military Police to go to Potocari and to count the people.(See supra section II. D. 1. (f)) Finally, elements of the Bratunac Brigade regulated traffic as the buses passed through Bratunac on their way to Konjevic Polje. (See supra section II. D. 1. (f)).
[B. Evidentiary comment:]
P.6.2. Evidence of facilitating applications for transfer.
A. Legal source/authority and evidence:
Prosecutor v. Milomir Stakić, Case No. IT-97-24-T, Judgment (TC), 31 July 2003, para. 709:
"709. Other evidence corroborates the fact that the Crisis Staff took measures to facilitate the expelling of non-Serb citizens of the Prijedor municipality. In particular, a "Kozarski Vjesnik" article dated 10 July 1992 reports that, after considering the issue of people "voluntarily applying for moving out of the municipality" the Crisis Staff "agreed on accelerating all activities which make it possible to carry out this process in an organised fashion."
[B. Evidentiary comment:]
P.6.3. Evidence of setting up agencies to facilitate transfer.
A. Legal source/authority and evidence:
Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, para. 580:
"580. the Agency for the Movement of People and Exchange in Banja Luka, which, inter alia, arranged bus travel to Travnik, and about which it has already found that it constituted an integral part of the plan to ethnically cleanse the region. (See para. 552 supra. See also VI.D., "The Role of the ARK Crisis Staff in the Implementation of the Strategic Plan", supra)".
[B. Evidentiary comment:]
P.6.4. Evidence of setting up collection centres to oversee transfer.
A. Legal source/authority and evidence:
Prosecutor v. Duko Tadić, Case No. IT-94-1-T, Judgement (TC), 7 May 1997, para. 379:
"379. Several witnesses testified to the acts alleged in subparagraph 4.1 and to the accused's role therein. There are essentially three aspects to this charge: the attack; the collection and forced transfer to detention camps; and the killings and beatings. Considerable evidence has been presented regarding the attack on Kozarac and the hamlets in the surrounding area. Many witnesses testified that the attack on Kozarac began with heavy shelling on 24 May 1992 after the expiration of an ultimatum demanding the surrender of weapons and a pledge of loyalty. Ample evidence was also presented that after the Muslims of Kozarac surrendered, beginning on 26 May 1992, long columns of civilians from the outlying areas, almost entirely non-Serb with the great majority consisting of Muslims, moved through the centre of Kozarac to collection centres where they were then separated and transferred to one of the three principal camps operating in the opstina: Omarska, Keraterm or Trnopolje."
[B. Evidentiary comment:]
P.7. Evidence of use of force in transfer.
A. Legal source/authority and evidence:
Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-T, Judgement (TC), 31 March 2003, paras. 524, 540:
"524. The Chamber rejects the argument by the Naletilic Defence that the civilians gathered spontaneously in the houses of Junuzovici, and in the school in Sovici for safety reasons. The BH Muslim civilians of Sovici were forced or threatened by force by HVO soldiers to leave their homes."
"540. 9 May 1993 became the starting date for these kind of transfer. An International Observer stated that first the transferred persons were mostly Muslims who were living in abandoned Serb flats, but by mid June 1993 the evictions had started to become more violent in character primarily targeting long-term BH Muslim residents of Mostar. The transfers were carried out well orchestrated and well organized. HVO soldiers would come to a building, shouting out that all Muslims had to leave the building and they would go from flat to flat."
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 476:
"476. The Trial Chamber considers it to be well established that forcible transfers of people within national boundaries are covered by the concept of forcible transfer."
Prosecutor v. Radislav Krstić, Case No. IT-98-33-T, Judgement (TC), 2 August 2001, paras. 531 - 532:
"531. The Bosnian Muslim women, children and elderly assembled at Potocari were forcibly transferred to Kladanj, an area in the territory of Bosnia-Herzegovina controlled by the ABiH, in order to eradicate all trace of Bosnian Muslims in the territory in which the Bosnian Serbs were looking to establish their own State. However, Bosnia-Herzegovina was the only State formally recognised by the international community at the time of the events. Since the Srebrenica civilians were displaced within the borders of Bosnia-Herzegovina, the forcible transfer may not be characterised as deportation in customary international law."
"532. The Chamber therefore concludes that the civilians assembled at Potocari and transported to Kladanj were not subjected to deportation but rather to forcible transfer. This forcible transfer, in the circumstances of this case, still constitutes a form of inhumane treatment covered under Article 5."
Prosecutor v. George Rutaganda, Case No. ICTR-97-20-T, Judgement (TC), 6 December 1999, para. 54:
"The Chamber is of the opinion that the provisions of Article 2(2)(e) of the Statute, on the forcible transfer of children from one group to another, are aimed at sanctioning [ ] any direct act of forcible physical transfer [ ]"
Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998, para. 509:
"With respect to forcibly transferring children of the group to another group, the Chamber is of the opinion that, as in the case of measures intended to prevent births, the objective is [ ] to sanction a direct act of forcible physical transfer [ ]"
P.8. Evidence of forcible transfer using duress, trauma or coersion.
A. Legal source/authority and evidence:
Prosecutor v. Radislav Krstić, Case No. IT-98-33-T, Judgement (TC), 2 August 2001, para. 568:
"The humanitarian crisis caused by the flow of refugees arriving at Potocari, the intensity and the scale of the violence, the illegal confinement of the men in one area, while the women and children were forcibly transferred out of the Bosnian Serb held territory, and the subsequent death of thousands of Bosnian Muslim civilian and military men, most of whom clearly did not die in combat, demonstrate that a purposeful decision was taken by the Bosnian Serb forces to target the Bosnian Muslim population in Srebrenica, by reason of their membership in the Bosnian Muslim group."
Prosecutor v. Alfred Musema, Case No. ICTR-96-13-T, Judgement (TC), 27 January 2000, para. 159:
"159. The Chamber is of the opinion that the provisions of Article 2(2)(e) of the Statute, on the forcible transfer of children from one group to another, are aimed at sanctioning not only any direct act of forcible physical transfer, but also any act of threat or trauma which would lead to the forcible transfer."
Prosecutor v. George Rutaganda, Case No. ICTR-97-20-T, Judgement (TC), 6 December 1999, ICTR, para. 54:
"The Chamber is of the opinion that the provisions of Article 2(2)(e) of the Statute, on the forcible transfer of children from one group to another, are aimed at sanctioning [ ] any acts of threats or trauma which would lead to the forcible transfer of children from one group to another group."
Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998, para. 509:
"With respect to forcibly transferring children of the group to another group, the Chamber is of the opinion that, as in the case of measures intended to prevent births, the objective is not only to sanction a direct act of forcible physical transfer, but also to sanction acts of threats or trauma which would lead to the forcible transfer of children from one group to another."
B. Evidentiary comment:
Despite the fact that this paragraph begins with the word "forcibly," Drost [P. N. Drost, The Crime of State: Genocide (Vol II), (1959), p. 87] contended that the acts covered do not require action by force and that administrative measures that are compellingly imposed "but obediently performed" are also covered by this paragraph (Machteld Boot, Genocide, Crimes Against Humanity, War Crimes (2002) p. 450). ICTY and ICTR jurisprudence is consistent with this statement.
P.8.2. Evidence of transferred persons having no real choice but to leave.
A. Legal source/authority and evidence:
Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-T, Judgement (TC), 17 January 2005, para. 617:
"617. The evidence establishes that the Bosnian Muslim refugees in Potocari did not have a genuine choice of whether to remain in or leave the Srebrenica enclave. This lack of a genuine choice was a result of the actions and behaviour of the officers and soldiers of the VRS towards the refugees. In particular the Trial Chamber observes the following evidence testimony:
- the widespread knowledge among the Bosnian Muslim refugees of serious crimes committed by members of the Bosnian Serb forces in Potocari,
- the organised, inhumane and frequently aggressive process of separating out and removing the male members of the population,
- the evidence regarding the conditions in Potocari during the nights of 11 and, in particular, 12 July,
- that many VRS soldiers were cursing at the Bosnian Muslim refugees, saying that they would be slaughtered "
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, paras. 233, 475:
"233. The Trial Chamber finds that living conditions in the KP Dom made the non-Serb detainees subject to a coercive prison regime which was such that they were not in a position to exercise genuine choice. This leads the Appeals Chamber to conclude that the 35 detainees were under duress and that the Trial Chamber erred in finding that they had freely chosen to be exchanged."
"475. Deportation is illegal only where it is forced. Forced is not to be interpreted in a restrictive manner, such as being limited to physical force. It may include the threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power against such person or persons or another person, or by taking advantage of a coercive environment. The essential element is that the transfer be involuntary in nature, where the relevant persons had no real choice."
Prosecutor v. Radislav Krstić, Case No. IT-98-33-T, Judgement (TC), 2 August 2001, paras. 149; 530:
"149. The Trial Chamber finds that, on 12 and 13 July 1995, the Bosnian Muslim civilians of Srebrenica who were bussed out of Potocari were not making a free choice to leave the area of the former enclave. The Drina Corps personnel involved in the transportation operation knew that the Bosnian Muslim population was being forced out of the area by the VRS."
"530. The threats to Srebrenica residents far transcended mere fear of discrimination. The evacuation took place at the final stage of a campaign conducted to force the population to flee the enclave during a time when VRS troops were actively threatening and injuring the Bosnian Muslim civilians of Srebrenica. The negotiations between the Bosnian Muslim "representative", Nesib Mandzic, and General Mladic at the second meeting in the Hotel Fontana on 11 July attest to the intimidating conditions in which the Bosnian Muslim civilians were evacuated. The Trial Chamber has already found that, despite the attempts by the VRS to make it look like a voluntary movement, the Bosnian Muslims of Srebrenica were not exercising a genuine choice to go, but reacted reflexively to a certainty that their survival depended on their flight."
[B. Evidentiary comment:]
P.8.3. Evidence of the destruction of person or persons homes.
A. Legal source/authority and evidence:
Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-T, Judgement (TC), 17 January 2005, para. 675:
"675. Immediately before and during these massacres, the remainder of the Bosnian Muslim population of Srebrenica was forcibly transferred to Bosnian Muslim-held territory. The forcible transfer of the women, children and elderly is a manifestation of the specific intent to rid the Srebrenica enclave of its Bosnian Muslim population. The manner in which the transfer was carried out -- through force and coercion, by not registering those who were transferred, by burning the houses of some of the people, sending the clear message that they had nothing to return to, and significantly, through its targeting of literally the entire Bosnian Muslim population of Srebrenica, including the elderly and children -- clearly indicates that it was a means to eradicate the Bosnian Muslim population from the territory where they had lived."
Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, para. 550:
"550. Subsequently, most of them were confined to camps and detention centres for varying lengths of time.1400 Most of these were then deported or forcibly transferred, some of them immediately, by Bosnian Serb soldiers. The expulsion of Bosnian Muslims and Bosnian Croats was often accompanied by a widespread destruction of their homes and institutions dedicated to religion."
Akdivar and others v. Turkey, Case No. 21893/93, Judgement (Merits and Just Satisfaction), European Court of Human Rights, 16 September 1996; (1997) 23 EHRR 143, paras. 81, 88:
"81. [ ] It thus finds it established that security forces were responsible for the burning of the applicants house on 10 November 1992 and that the loss of their homes caused them to abandon their village and move elsewhere."
"88. The Court is of the opinion that there can be no doubt that the deliberate burning of the applicants' homes and their contents constitutes at the same time a serious interference with the right to respect for their family lives and homes and with the peaceful enjoyment of their possessions."
A. Legal source/authority and evidence:
Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-T, Judgement (TC), 31 March 2003, paras. 522-523:
"522. The Prosecution alleges that the accused Mladen Naletilic was in command of the forces which on the days following 19 April 1993, confined the whole of the BH Muslim civilian population of Sovici, around 450 women and children and elderly, to the hamlet Junuzovici, and forcibly transferred them subsequently to the territory of Gornji Vakuf under control of the ABiH. The Naletilic Defence does not dispute that the transfer occurred, but argues that the transfer was conducted following an agreement between the Chief of the Main Staff of the HVO, Milivoj Petkovic, and the commander of the ABiH, Sefer Halilovic."
[ ]
"523. The Chamber is not satisfied that any such agreement on exchange was negotiated. The Chamber, however, is of the view that an agreement between two military commanders or other representatives of the parties in a conflict does not have any implications on the circumstances under which a transfer is lawful. Military commanders or political leaders cannot consent on behalf of the individual."
[B. Evidentiary comment:]
P.9. Not sufficient: Evidence of mere transfer.
A. Legal source/authority and evidence:
Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-T, Judgement (TC), 17 January 2005, para. 660:
"660. In relation to forcible transfer, Judge Shahabuddeen found that mere transfer does not amount to genocide. However, he further found that transfer can constitute genocide when the consequence is dissolution of the group."
A. Legal source/authority and evidence:
Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-T, Judgement (TC), 31 March 2003, paras. 536 537:
"536. Most of the BH Muslim civilians were transported to the Velez Stadium in Mostar, from where many were taken to the Heliodrom. The women and children who were detained at the Heliodrom were released after a few days, pursuant to the cease- fire agreement entered into between the ABiH and the HVO. Many of the persons detained at the Heliodrom who were released, were subsequently detained again."
"537. The Chamber is not satisfied that these acts constitute unlawful transfer under Article 2(g) of the Statute, even though the persons, technically speaking, were moved from one place to another against their free will. They were apprehended and arrested in order to be detained and not in order to be transferred. Therefore, the requisite intent is not established. These arrests and movements to the Heliodrom on 9 May 1993 is further considered under unlawful confinement detention as persecution."
