Table of contents
5.1. Deportation or forcible transfer.
5.1.1. Evidence of deportation.
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.
5.1.2. Evidence of forcible transfer.
P.2. Evidence of displacement.
P.2.1. Evidence of displacement, not necessarily across a national border.
P.2.2. Evidence of transfer from one camp to another, not necessarily across a national border.
5.1.3. Evidence of displacement applicable in both deportation and forcible transfer
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 displacement 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 the creation of an infrastructure to facilitate displacement.
P.5.1. Evidence of facilitating applications for transfer or deportation.
P.5.2. Evidence of setting up agencies to facilitate displacement.
P.5.3. Evidence of setting up collection centres to oversee displacement.
P.6. Evidence of publicly announcing displacement.
P.6.1. Evidence of publicly announcing that displacement would take place.
P.6.2. Evidence of expulsion from the pattern of military attack.
P.6.3. Evidence of calling out residents’ names for future displacement.
5.2. Without grounds permitted under international law for deportation or forcible transfer.
5.2.1. Lack of reasons justifying displacement under international law.
P.7. Evidence of lack of military reasons justifying displacement under international law.
P.7.1. Evidence against military necessity based on nature of threat.
P.7.2. Evidence against military necessity based on pursuit by overwhelming forces.
P.7.4. Evidence of planning displacement events irrespective of or prior to military necessity.
P.8.1. Evidence against civilian protection or security reasons for displacement.
5.2.2. Character of actual displacement events unacceptable under international law.
P.9. Evidence showing failure to return civilians after the displacement.
P.9.1. General evidence of failure to return civilians after the displacement.
P.9.2. Evidence of destroying homes so that civilians could not return after the displacement.
P.10. Evidence of the movement of protected persons to places outside the occupied territory.
P.11.2. Evidence of the separation of families.
P.11.3. Evidence of the displacement of children without additional safeguards.
5.3. Deportation or forcible transfer by expulsion or other coercive acts.
5.3.1. Deportation or forcible transfer using physical force.
P.12. Evidence of the use of force in entering victims’ residences.
P.12.1. Evidence of the use of force in surrounding victims’ buildings.
P.12.2. Evidence of the use of force in ordering victims to leave their buildings.
P.12.3. Evidence of the general use of force and issuing orders prior to displacement.
P.12.4. Not exculpatory: Evidence of the eventual return of victims.
P.13. Evidence of the use of force during displacement from one place to another.
P.13.1. Evidence of forcibly marching victims from place to place.
P.13.2. Evidence of forcibly displacing victims using gunfire.
P.13.3. Evidence of using violence while detaining prisoners during displacement.
P.13.4. Evidence of forcing victims to live in certain locations.
5.3.2. Deportation or forcible transfer by use of coercion.
P.14. Evidence of deportation or forcible transfer using duress.
P.14.1. Evidence of displaced persons generally having no real choice but to leave.
P.14.2. Not exculpatory: Evidence that displacement was the result of agreements.
P.14.3. Not exculpatory: Evidence that victims wanted to leave.
P.15. Evidence of deportation or forcible transfer using detention.
P.15.1. Evidence that victims were detained prior to transfer.
5.3.3. Deportation or forcible transfer using threats of force.
P.16. Evidence of deportation or forcible transfer using psychological oppression.
P.16.1. Evidence of general discriminatory threat.
P.16.2. Evidence of segregating victims based on personal characteristics.
P.16.3. Evidence of cursing at or threatening victims.
P.16.4. Evidence of destruction of victims’ religious institutions.
P.16.5. Evidence of restricting victims’ freedom of movement.
P.16.6. Evidence of requiring victims to wear certain clothing or insignia.
P.16.7. Evidence of requiring victims to pledge loyalty to the displacing forces.
P.17.1. Evidence of displacement within a coherent, consistent strategy of ethnic cleansing.
P.17.2. Evidence of the existence of a larger plan of displacement.
P.17.3. Evidence that victims had widespread knowledge of other serious crimes occurring.
P.17.4. Evidence of military attacks on the area where victims reside.
P.17.5. Evidence of creating intolerable living conditions.
P.18.1. Evidence of the destruction of victims’ homes.
P.18.2. Evidence of looting or searching for valuables in victims’ homes.
P.18.3. Evidence of dismissing victims from their jobs.
P.18.4. Evidence of dismissing victims from their health insurance.
P.19. Evidence of deportation or forcible transfer through abuse of power.
Element
13. ‘Deported or forcibly transferred’is interchangeable with ‘forcibly displaced’.
5.1. Deportation or forcible transfer.
[General evidentiary comment]
5.1.1. Evidence of deportation.
Prosecutor v. Vlastimir Dordevic, Case No. IT-05-87/1-A, Judgement (AC), 27 January 2014, paras. 701, 717, 723, 729, 736, 743:
"701. In support of his argument, Dordovic frequently refers to findings in the Milutinović et al. case to show that other reasonable inferences remained open to the Trial Chamber.2145 The Appeals Chamber recalls that two reasonable triers of fact may reach different but equally reasonable conclusions on the basis of the same evidence.2146 An error cannot be established by merely pointing to the fact that other trial chambers have exercised their discretion in a different way.2147 The Appeals Chamber will however consider Dordovic’s specific submissions and determine whether the Trial Chamber’s findings were reasonable on the basis of the trial record in this case."
2145. Dorđević Appeal Brief, paras 363, 365, 366, 369, 370(ii), 372, 376; \or|ević Reply Brief, para. 113.
2146. See Krnojelac Appeal Judgement, para. 12.
2147. See Krnojelac Appeal Judgement, para. 12.
"717. In light of the above, the Appeals Chamber finds that Dordovic has failed to show that no reasonable trier of fact could have reached the same conclusion as the Trial Chamber, and as such has failed to show that the Trial Chamber erred in concluding that the crime of deportation was established in Vata/Vataj."
"723. no reasonable trier of fact could have reached the same conclusion as the Trial Chamber, and as such has failed to show that the Trial Chamber erred in concluding that the crime of other inhumane acts (forcible transfer) was established in Leocina/Leçine."
"729. For these reasons, the Appeals Chamber finds that Dordovic has failed to show that no reasonable trier of fact could have reached the same conclusion as the Trial Chamber, and as such has failed to show that the Trial Chamber erred in concluding that the crime of other inhumane acts (forcible transfer) was established in Guska/Guskë."
"736. In light of the above, the Appeals Chamber finds that Dordovic has failed to show that no reasonable trier of fact could have reached the same conclusion as the Trial Chamber, and therefore has failed to show that the Trial Chamber erred in concluding that the crime of other inhumane acts (forcible transfer) was established in Prilepnica/Prëlepnicë."
"743. In light of the above, the Appeals Chamber finds that Dordovic has failed to show that no reasonable trier of fact could have reached the same conclusion as the Trial Chamber, and therefore has failed to show that the Trial Chamber erred in concluding that the crime of other inhumane acts (forcible transfer) was established in Nosalje/Nosaljë."
Prosecutor v. Vujadin Popovic, Case No. IT-05-88-A, Judgement (AC), 30 January 2015, paras. 772-775, 779-783:
"772. The Appeals Chamber recalls that one of the elements of the nexus requirement for crimes against humanity is “the commission of an act which, by its nature or consequences, is objectively part of the attack”.2246 The Trial Chamber’s finding that “the flight of the men from Zepa, some across the Drina River, was the direct result and continuation of the attack against the civilian populations of Srebrenica and Zepa” was based on the following two considerations: (1) the men had faced the same living conditions and the same military attacks as the others in the enclave; and (2) the VRS had consistently refused to permit any able-bodied man – civilian or soldier – to be transferred out of the enclave together with the rest of the population.2247 The Appeals Chamber observes that the Trial Chamber’s reasoning covers both civilians and non-civilians."
2246. Mrkšic and Sljivancanin Appeal Judgement, para. 41.
2247. Trial Judgement, para. 784.
"773. The Trial Chamber’s factual findings, as recalled above, show that approximately one week passed between the fall of Žepa and the departure of civilians on buses, on one hand, and the crossing of the Drina River by able-bodied men from the Žepa enclave, on the other hand. Meanwhile, the able-bodied men of Žepa, including the soldiers, fled from the enclave into the surrounding woods. Furthermore, there were negotiations between the warring sides as to the fate of the men and evidence indicates that fighting continued in the Žepa area. The Appeals Chamber notes that the Trial Chamber found that there were civilians among the able-bodied men fleeing Zepa2248 but made no such finding specifically with regard to the men crossing the Drina River.2249 Indeed, the Trial Chamber referred to evidence indicating that there may not have been any civilians among the men who crossed the Drina River. 2250 The Appeals Chamber recalls that there is no requirement nor is it an element of a crime against humanity that the victims of the underlying crime be civilians or predominantly civilians, provided the acts form part of a widespread or systematic attack directed against a civilian population.2251 In the case of the men who crossed the Drina River, it is unclear from the Trial Chamber’s findings whether these men included any civilians at all."
2248. Trial Judgement, paras 955-956.
2249. Trial Judgement, paras 732-738 & fn. 2728.
2250. Trial Judgement, para. 732, para. 736 & fn. 2723, para. 737 & fn. 2727.
2251. See supra, para. 569.
"774. In light of the passage of time since the departure of civilians from Žepa, the ensuing events, and, especially, the absence of findings that any civilians crossed the Drina River,2252 the Appeals Chamber is of the view that no reasonable trier of fact could have reached, as the only reasonable inference, the conclusion that the nexus requirement was met. The Appeals Chamber therefore finds that the Trial Chamber erred. While remaining cognisant of the fact that Miletić was convicted for forcible transfer as a crime against humanity, not as a war crime, the Appeals Chamber further notes that forcible displacement of enemy soldiers is not prohibited under international humanitarian law.2253"
2252. See supra, para. 773.
2253. Cf. Henckaerts and Doswald-Beck, Customary International Humanitarian Law, Vol. I, Rule 129, pp. 457- 462.
"775. The Appeals Chamber therefore grants sub-ground 6.2 of Miletic’s appeal. As a result, subgrounds 1.2, 6.1, and 10.12 of Miletic’s appeal, which also concern his liability for the men who crossed the Drina River, are moot. The Appeals Chamber reverses his convictions for the forcible transfer of the men who crossed the Drina River under Counts 6 and 7.2254"
2254. Trial Judgement, paras 1002-1004, 1720-1722, 1728-1731, 2108, Disposition, Miletić section.
"779. At the outset, the Appeals Chamber considers it necessary to clarify a key aspect of Miletic’s argument. Miletic submits that the Trial Chamber erred when holding that the actions against the civilians in the column constituted a crime against humanity.2265 In this regard, Miletic refers to the Trial Chamber’s findings on the forcible transfer of the civilian component of the column.2266 In other words, what Miletic really argues is that the Trial Chamber erred when holding that the actions against the civilian component of the column amounted to forcible transfer."
2265. Miletic’s Appeal Brief, paras 209, 212.
2266. Miletic’s Appeal Brief, para. 204 & fn. 405, para. 212 & fn. 430, referring to Trial Judgement, paras 928-930. See also Miletic’s Reply Brief, paras 73-74.
"780. The Appeals Chamber observes that the Trial Chamber found that “[t]he factors that contributed to and constituted the plan to forcibly displace the Bosnian Muslim population were already in place by the evening of 11 July when the column began to move out of the Srebrenica enclave”.2267 The Trial Chamber further held that it was the military attack on the Srebrenica enclave which compelled the departure of the population from Srebrenica, including the civilian men who later formed the civilian component of the column.2268 The Appeals Chamber observes that while the Trial Chamber held that the acts carried out against these men in the column constituted part of a widespread and systematic attack against the civilian population of the Srebrenica enclave,2269 the Trial Chamber relied on the prior acts that caused these civilians to leave Srebrenica – in particular the military attack on the enclave – to hold that the crime of forcible transfer was committed against the civilian part of the column.2270 Miletić fails to recognise the distinction between the prior acts against the enclave, which formed the basis of the impugned holding, and the ensuing acts against the column, on which the impugned holding was not based."
2267. Trial Judgement, para. 926.
2268. Trial Judgement, paras 926, 929.
2269. Trial Judgement, para. 783.
2270. See Trial Judgement, paras 926-931.
"781. With regard to the impugned holding it is therefore irrelevant if the column was a legitimate military target, if the civilians in the column could be considered as combatants, if their proximity to the soldiers was in violation of international humanitarian law, if the column itself had military objectives and presented a military threat, or if the acts against the column fell within Miletic’s ordinary responsibilities. His argument on the link between the attack against the civilian population and the acts directed against the column is similarly beside the point. With regard to the distinction between the military and the civilian component of the column, the Trial Chamber held that the civilians were subjected to forcible transfer, as they had no other choice but to leave, while the members of the military component were not, as they had the choice to stay and fight, to surrender or to retreat.2271 It is therefore irrelevant to the impugned holding whether Miletic or the BSF could distinguish between civilians and combatants within the column. It is also irrelevant to the impugned holding whether the decision regarding how to flee, namely in a column, was made by Bosnian Muslim authorities, as it does not affect the Trial Chamber’s finding that the civilians had to flee. Consequently, the Appeals Chamber dismisses all of these arguments."
2271. Trial Judgement, paras 926-930.
"782. Miletic’s submission that the Prosecution’s argument that the forcible transfer was caused by the acts of the BSF prior to the formation of the column was neither set out in the Indictment nor maintained during the trial is based on paragraph 48(e) of the Indictment under Count 6 (persecution as a crime against humanity).2272 The Appeals Chamber recalls in this regard “that it is Count 7, and not Count 6, which is relevant to Miletic’s impugned conviction for inhumane acts (forcible transfer) as a crime against humanity”.2273 The Appeals Chamber therefore dismisses this submission."
2272. See Miletic’s Reply Brief, para. 74 & fn. 107.
2273. See supra, para. 39.
"783. With regard to Miletic’s argument that he was prevented by the Presiding Judge from presenting his defence on the formation of the column, the Appeals Chamber notes that whereas the right to cross-examine a witness is provided for in Article 21(4)(e) of the Statute, the Trial Chamber has control over the examination of witnesses under Rule 90(F) of the Rules. The Appeals Chamber observes that during the relevant cross-examination, the Presiding Judge commented that events in Orahovac and Bratunac had little relevance to Miletic. 2274 However, he also stated that his comment should not be taken as any kind of interference and that counsel for Miletic should feel free to ask questions.2275 Furthermore, the Appeals Chamber notes that counsel’s question related to the formation of the column and whether a decision was made in that regard.2276 As shown above, these issues are irrelevant to the present ground of appeal. Accordingly, the Appeals Chamber dismisses this argument."
2274. PW-110, T. 819 (private session) (25 Aug 2006).
2275. PW-110, T. 819-820 (private session) (25 Aug 2006).
2276. PW-110, T. 814 (private session) (25 Aug 2006).
"7P.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. Vlastimir Dorđević, Case No. IT-05-87/1-A, Judgement (AC), 27 January 2014, paras. 533, 535-536:
"533. The Appeals Chamber observes that the Trial Chamber recognised the territorial sovereignty of the FRY and the lack of a de jure border between Montenegro and Kosovo.1766 In reaching its conclusion that a de facto border existed between Montenegro and Kosovo, the Trial Chamber considered: (i) the degree of autonomy enjoyed by Kosovo; (ii) Montenegro’s status as a republic within the FRY; and (iii) the existence of "an armed conflict between forces of the FRY and Serbia on one hand and the KLA on the other".1767 The Trial Chamber also considered that the displacement of Kosovo Albanians from Kosovo to Montenegro would have the same effect of "serious hardship" as the displacement across a state border, and that the displacement of Kosovo Albanians out of Kosovo would have made it easier for FRY and Serbian authorities to control Kosovo."
"535.[…] The Appeals Chamber has found no support in customary international law for the proposition that a de facto border can be found within the confines of a sovereign state even where a certain degree of autonomy is exercised by portions of that state. Accordingly, the Trial Chamber’s finding that a de facto border existed based on the degree of autonomy enjoyed by Kosovo’s or Montenegro’s status as a republic within the state of the FRY finds no support in customary international law.1774
536. In addition, the other factors considered by the Trial Chamber do not support a finding on the existence of a de facto border in customary international law. The Appeals Chamber does not intend to diminish the importance of the "serious hardship"1775 placed upon Kosovo Albanians forcibly displaced from Kosovo to Montenegro, as considered by the Trial Chamber, nor does it deny the presence of an armed conflict or the conclusion by the Trial Chamber that the displacement of Kosovo Albanians from Kosovo would have made it easier for FRY and Serbian authorities to control Kosovo.1776 However, the Appeals Chamber finds no basis in customary international law, including in any of the materials considered by the Stakić Appeal Judgement or in the Partly Dissenting Opinions of Judge Schomburg and Judge Shahabuddeen, to infer the presence of a de facto border in these circumstances. "1777
1766 See Trial Judgement, para. 1683.
1767 Trial Judgement, para. 1683.
1768 Trial Judgement, para. 1683.
1774 See Trial Judgement, para. 1683.
1775 Trial Judgement, para. 1683.
1776 See Trial Judgement, para. 1683.
1777 See supra, para. 535.
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, paras. 474, 480:
"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. <link http www.legal-tools.org doc _blank>Prosecutor v. Radislav Krstić, Case No. IT-98-33-T, Judgement (TC), 2 August 2001, 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 Schirach’s 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."
"480. In many of the incidents alleged by the Prosecution, the detainees taken out of the KP Dom were never heard from again. With respect to these incidents, the Chamber is not able to determine that the detainees were in fact displaced across a national border, and is therefore not satisfied that they were in fact deported or expelled."
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 Ro‘aj 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."
Prosecutor v. Jovica Stanišić and Franko Simatovic, Case No. IT-03-69-T, Judgement (TC), 30 May 2013, para. 1070:
“1070. Since the forcibly displaced persons were transferred to “no-man’s land” between the warring factions, the Trial Chamber considers that they did cross a de facto border.”
Prosecutor v. Jovica Stanišić and Franko Simatovic, Case No. IT-03-69-T, Judgement (TC), 30 May 2013, paras. 1074, 1076, 1079, 1106, 1108:
“1074. The Trial Chamber recalls its findings that from at least June 1992, Serb authorities transferred over 1,200 Muslim and Croat civilians to Batković camp and other locations, where they detained them. The detainees were held in horrible conditions. Some detainees were beaten, killed, forced to perform degrading sexual acts and forced to perform manual labour. Some of the detainees from Batković camp were exchanged to Croatia in early 1993. The Trial Chamber notes that the people transferred and exchanged were Muslims and Croats and concludes that their ethnicity thus corresponds to the charges in the Indictment.”
“1076. Considering that some of the victims were exchanged to Croatia, the Chamber finds that they crossed a de jure border. With regard to the remaining people, although the Trial Chamber has not received any evidence as to where they were exchanged, it considers that the only logical conclusion is that they were exchanged to an area where the opposing side to the Serb authorities was in control.”
“1079. The Trial Chamber finds beyond a reasonable doubt that in the aftermath of the takeover of Bijeljina, those constituting the Serb authorities committed the crime of deportation as a crime against humanity.”
“1106. The Trial Chamber recalls its finding in chapter 3.5.2 that at the end of May 1992, at Radojica Božović’s orders to expel the local Muslim population, members of the Unit in Doboj put Muslims from Bukovaćke Čivčije onto seven buses and transferred four of these buses to Muslim-held territory behind the Bosna Bridge border, where the Muslims were exchanged for Serbian prisoners. From the three remaining buses some able-bodied Muslim men were separated and taken to the Usora factory, whereas women and children from these buses were later exchanged. The Trial Chamber notes that the people who were put on buses and exchanged were Muslims and that their ethnicity corresponds to the charges in the Indictment.”
“1108. The Trial Chamber notes that the Muslims from the first four buses were transferred to Muslim-held territory behind the Bosna Bridge border. Consequently, the Trial Chamber finds that these Muslims crossed a de facto border. As to the Muslim women and children from the other three buses, although the Trial Chamber has not received any evidence as to where they were exchanged, it considers that the only logical conclusion is that they were exchanged to an area where the opposing side to the Serb authorities was in control. The Trial Chamber therefore finds that they crossed a de facto border. With regard to the Muslim men who were separated, the Trial Chamber considers that they were taken to Usora factory, still in Doboj municipality. As such the Trial Chamber is unable to conclude that they crossed a de facto or de jure border.”
B. Evidentiary comment:
5.1.2. Evidence of forcible transfer.
Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-T, Judgement – Volume 1 (TC), 31 March 2016, paras. 193, 195:
''193. […] In the opinion of the majority, the Prosecutor failed to fulfil this obligation, simply limiting himself to general assertions which do not account for the specific evidence received by the judges. Under these circumstances, the majority is unable to dismiss the argument of the Defence - echoed by many of the witness testimonies 148 - which explains that the civilians fled the combat zones to find shelter in the localities occupied by members of the same ethnic or religious group; that the buses that were provided in this context were not part of operations to forcibly transfer the population, but rather acts of humanitarian assistance to non-combatants fleeing the zones where they no longer felt safe.''
''148. VS-1022, T(E) 9524 to 9525, 9528 to 9530 (closed session); P696 under seal, para. 16.''
''195. The Chamber, in its majority, Judge Lattanzi dissenting, also notes other deficiencies in the Prosecution’s approach. It notes the specific weakness of the expert report of Ewa Tabeau. The report does not focus on the departures of Croats caused by the speech of the Accused on 6 May 1992 or, even more generally, by the abuses suffered. The expert simply presents a general overview of departures over the whole of 1992 without specifying clearly what had triggered them. The testimony of VS-061 on which the Prosecution relies to make its case has also revealed significant weaknesses. Witness VS-061 admitted more than once on cross examination the omissions he made and his biased version of the facts. Even when he was telling the truth, his testimony was not more useful to the Prosecution case. He recognises the discrepancies between the Croats who registered to obtain baptism or marriage certificates and the proven departures of those same individuals.151 He acknowledges that certain departures of Croats were the result of perfectly regular arrangements made with Serbian refugees who wanted to exchange their homes in Croatia for a house in Hrtkovci.152 […]''
''151. VS-061, T(E) 10081-10083 (private session).
152. VS-061, T(E) 10027.''
P.2. Evidence of displacement.
P.2.1. Evidence of displacement, not necessarily across a national border.
Prosecutor v. Zdravko Tolimir, Case No. IT-05-88/2-A, Judgement (AC), 8 April 2015, paras.158-169:
''158. The Appeals Chamber notes that in finding that the population transfers from the Srebrenica and Žepa enclaves were forced, the Trial Chamber cited the well-settled principle of international humanitarian law that “forced displacement is not justified in circumstances where the humanitarian crisis that caused the displacement is itself the result of the accused’s unlawful activity”.458 The Trial Chamber reasoned that the transfer of the population from both the Srebrenica and Žepa enclaves was forced because the Bosnian Serb Forces had imposed such living conditions on the civilians of those enclaves so that their only genuine choice was to leave in order to survive.459 The Appeals Chamber notes in this regard the Trial Chamber’s finding that the conditions faced by those seeking shelter in Srebrenica from 11 to 13 July 1995 were catastrophic.460 The Trial Chamber found that in the months and days leading up to the busing of Srebrenica’s civilian population out of the enclave, severe convoy restrictions, terror, and attacks from the Bosnian Serb Forces essentially forced the civilian population to leave the enclave.461''
458 Trial Judgement, para. 810, citing Krajišnik Appeal Judgement, para. 208, n. 739; Stakić Appeal Judgement, para. 287.
459 Trial Judgement, para. 809.
460 Trial Judgement, paras 805-810.
461 Trial Judgement, paras 806-810.
''159. In reaching this conclusion, the Trial Chamber relied, inter alia, on Prosecution Exhibit 990, a letter dated 9 July 1995 from the Presidency of the Srebrenica municipality to General Delić and President Izetbegović.462 The Trial Chamber cited Prosecution Exhibit 990 in support of its finding that following the arrival of the VRS in Srebrenica on 9 July 1995, chaos and panic prevailed and the civilian authorities in Srebrenica were left with “the last unpopular step to save the population”, which was to enter into negotiations with the VRS to open a corridor for the population to leave to the nearest free territory.463 To the extent that Tolimir challenges the Trial Chamber’s evaluation of this exhibit, the Appeals Chamber recalls that it will not interfere with a trial chamber’s assessment of the probative value of a piece of evidence or a testimony, absent arguments establishing an error by the trial chamber.464 Tolimir merely disagrees with the Trial Chamber’s assessment of the exhibit and fails to show any error on the part of the Trial Chamber.465''
462 Trial Judgement, para. 805, citing, inter alia, Trial Judgement, para. 223.
463 Trial Judgement, para. 223, n. 857.
464 See supra, para. 11.
465 Dordević Appeal Judgement, para. 20.
''161. The Appeals Chamber observes that the Trial Chamber did not cite Defence Exhibit 538 in the Trial Judgement and recalls that a trial chamber need not refer to the testimony of every witness or every piece of evidence on the trial record, “as long as there is no indication that the Trial Chamber completely disregarded any particular piece of evidence”.468 Such disregard is shown “when evidence which is clearly relevant to the findings is not addressed by the Trial Chamber’s reasoning”.469''
468 Popović et al. Appeal Judgement, paras 306, 340; Dordević Appeal Judgement, para. 864, n. 2527; Limaj Appeal Judgement, para. 86, citing Kvočka et al. Appeal Judgement, para. 23.
469 Popović et al. Appeal Judgement, paras 306, 340; Dordević Appeal Judgement, para. 864, n. 2527; Limaj Appeal Judgement, para. 86; Kvočka et al. Appeal Judgement, para. 92.
''162. Defence Exhibit 538 shows that the BiH authorities requested the VRS to authorise and facilitate the transfer of civilians out of Srebrenica. However, it also shows that such proposals were only made after reports of General Mladić’s threats to destroy the UNPROFOR base in Potočari and to attack the civilian refugees had reached the representatives of the Bosnian Muslims in Potočari and the BiH authorities in Sarajevo. Viewed as a whole, Defence Exhibit 538 does not lend credence to Tolimir’s allegation that the BiH authorities initiated the transfer of the refugees out of Potočari. The Appeals Chamber is satisfied that the Trial Chamber reasonably found that the BiH authorities requested the Bosnian Serb Forces’ authorisation for the transfer because they were concerned for the safety of the Bosnian Muslim refugees in Potočari. Defence Exhibit 538 therefore does not undermine, but in fact supports, the Trial Chamber’s finding that the civilian population of Srebrenica was forced out of the enclave as a consequence of the living conditions imposed upon them and the threats against their safety by the VRS. Tolimir has failed to show that the Trial Chamber erred in this regard.''
''163. With regard to Tolimir’s argument that the Trial Chamber failed to consider in its entirety Defence Exhibit 174, a coded UNPROFOR cable sent by the Special Representative to the UN Secretary-General, Yasushi Akashi, to UN Secretary-General Kofi Annan on 11 July 1995,470 the Appeals Chamber notes that the Trial Chamber explicitly considered Tolimir’s argument that Defence Exhibit 174 demonstrated that: (i) the population wanted to leave the Srebrenica enclave; and (ii) that their evacuation was facilitated by UNPROFOR rather than the VRS.471 According to the Trial Chamber, Defence Exhibit 174 indicates that UNPROFOR sought the VRS’ authorisation of the departure of the civilians from Srebrenica in order to avoid a continuing humanitarian catastrophe.472 In the same context, and contrary to Tolimir’s argument, the Trial Chamber also cited Prosecution Exhibit 1008, a transcript of a video recording of a meeting between Bosnian Serb leaders and Srebrenica Bosnian Muslim representatives at Hotel Fontana.473 The Trial Chamber found that Tolimir’s argument was not supported by either of the said exhibits, reasoning that if the displacement is the result of a humanitarian crisis caused by the accused’s activities, such displacement is forced.474 Tolimir fails to show that the Trial Chamber’s assessment of these exhibits was erroneous or one that no reasonable trier of fact could have made.''
470 Appeal Brief, para. 199.
471 Trial Judgement, para. 810.
472 Trial Judgement, para. 810.
473 Trial Judgement, para. 810, n. 3317.
474 Trial Judgement, para. 810.
''164. As to Tolimir’s contention that the Trial Chamber erred in fact by relying selectively and uncritically on the evidence of unreliable witnesses, such as Prosecution Witness and UNMO officer Joseph Kingori,475 in finding that the movements of the Bosnian Muslim civilians in Srebrenica were “a reaction to an already-existing problem caused by the [Bosnian Serb Forces]”,476 the Appeals Chamber notes that the Trial Chamber placed considerable reliance on the evidence of Joseph Kingori throughout the Trial Judgement.477 It is well-established that trial chambers exercise broad discretion in determining the weight to attach to the evidence of any witness.478 The Appeals Chamber also observes that Tolimir fails to point to any evidence that would undermine the Trial Chamber’s reliance on this witness. In the view of the Appeals Chamber, Tolimir fails to show that the Trial Chamber abused its discretion by relying on Kingori’s evidence.''
475 Appeal Brief, para. 201.
476 Trial Judgement, para. 810, citing T. 16 September 2010 pp. 5533-5534.
477 See Trial Judgement, paras 180, 197, 210, 219-220, nn. 642, 649-650, 723, 784, 830, 837.
478 Popović et al. Appeal Judgement, para. 131; Dordević Appeal Judgement, para. 781; Šainović et al. Appeal Judgement, para. 152.
''165. Regarding Tolimir’s challenge to the Trial Chamber’s finding that during a meeting at Hotel Fontana, Mladić threatened to shell the UN compound in Potočari if NATO strikes against the VRS continued, the Appeals Chamber notes that the finding was based on the direct evidence of Prosecution Witness Evert Rave who attended the meeting, as well as two UNMO reports describing the meeting.479 The Appeals Chamber is not persuaded by Tolimir’s argument that Prosecution Exhibit 1008, a transcript of the video recording of the meeting, does not evidence such a warning.480 The Appeals Chamber notes that – contrary to Tolimir’s contention – a threat of this type is recorded in Prosecution Exhibit 1008, where the transcript states that Mladić said to Colonel Karremans: “But if you keep on bombing, they [the Dutch soldiers] won’t be hosts for a long time […] We know how to bomb too”.481 In the Appeals Chamber’s view, a reasonable trier of fact could have concluded that this evidences a threat to shell the UN compound. It is this threat that is reported in the two UNMO reports cited as support by the Trial Chamber.482 Tolimir also fails to address the testimony of Rave that Mladić’s threats were made off-camera.483 Tolimir’s arguments are thus dismissed.''
479 Trial Judgement, para. 247, nn. 980, 981, citing Prosecution Exhibits 678 (UNMO report dated 11 July 1995) and 608 (fax sent by Karremans to UNPROFOR on 12 July 1995). The Appeals Chamber notes that Tolimir claims that this finding is based on Prosecution Exhibit 1436, which he describes as a DutchBat report. However, Prosecution Exhibit 1436 is a Drina Corps Command request dated 19 July 1995. The Appeals Chamber understands Tolimir to be challenging the reliability of Prosecution Exhibits 678 and 608.
480 Appeal Brief, para. 201.
481 Prosecution Exhibit 1008, p. 21.
482 Trial Judgement, para. 247, nn. 980-981, citing Prosecution Exhibit 678, Prosecution Exhibit 608.
483 Trial Judgement, n. 981
''166. As to Tolimir’s contention that the Trial Chamber ignored Defence Exhibit 192, a purported interview of General Rupert Smith dated January 2000, which, in his view, suggests that UNPROFOR commanders sometimes submitted false reports,484 the Appeals Chamber notes that the Trial Chamber did not address or cite Defence Exhibit 192 in the Trial Judgement. In this instance, the Appeals Chamber is of the view that Defence Exhibit 192 was not clearly relevant to the issue of whether Mladić made a threat to attack the UN compound in Potočari, as Smith denied having made that statement. 485 Tolimir fails to show that the Trial Chamber abused its discretion in the assessment of the evidence. His argument in this regard is dismissed.''
484 Appeal Brief, para. 201, citing Defence Exhibit 192 (Interview with General Rupert Smith dated 12 January 2000).
485 T. 24 March 2011 pp. 11816-11818.
''167. Turning to Tolimir’s argument that the Trial Chamber failed to sufficiently take into account Defence Exhibits 54, 55, 60, and 363, which, according to him, show that the authorities in Žepa sought to evacuate the civilian population on their own volition both before and during the attack by the VRS,486 the Appeals Chamber notes that the Trial Chamber expressly considered these exhibits in its analysis. In particular, the Trial Chamber examined Defence Exhibit 54, a letter from BiH President Alija Izetbegović to the President of Žepa, Mehmed Hajrić, dated 19 July 1995, in light of Tolimir’s submission “that the ‘evacuation’ of the Bosnian Muslim population was ‘planned secretly by the BH Federation leadership’ and was ‘kept secret in order to accuse the VRS of attacking the civilian population and driving them out’”.487 The Trial Chamber found that: (i) prior to the meeting held on 19 July 1995 the “War Presidency had agreed internally to try to make arrangements with the VRS for the ‘evacuation of the civilian population’” from Žepa;488 and (ii) another letter from Izetbegović to ABiH Commander Rasim Delić on 18 July 1995 contained instructions for a contingency plan for the retreat from Žepa.489 The Trial Chamber found that the fact that “the BiH authorities were discussing a possible evacuation scenario for the Bosnian Muslim population at this time was the direct result of VRS restrictions on the enclave […] and VRS military activities which terrorised the civilian population”.490''
486 Appeal Brief, para. 202, citing Defence Exhibits 363 (Draft Plan for the Evacuation of the Population of Žepa), 54 (letter from Alija Izetbegović to the President of Žepa, Mehmed Hajrić, 19 July 1995), 60 (Cover Letter Attached to the Draft Plan for the Evacuation of the Population from Žepa), 55 (Military Narrative Entitled “The Fall of Žepa”), paras 108-110). The Appeals Chamber notes that Defence Exhibit 60 is identical to the first page of Defence Exhibit 363.
487 Trial Judgement, para. 1036.
488 Trial Judgement, para. 617, n. 2668. See also Trial Judgement, para. 829, n. 3378.
489 Trial Judgement, para. 617, n. 2668 (citing Defence Exhibit 106 (Letter from Alija Izetbegović to ABiH Commander Rasim Delić dated 18 July 1995)); Trial Judgement, para. 1036, citing Defence Exhibit 106.
490 Trial Judgement, para. 1036.
''168. Moreover, the Trial Chamber expressly considered Defence Exhibit 363, the draft plan for the evacuation of the population of Žepa (which also encompasses Defence Exhibit 60, the covering letter to the plan)491 and found that it was not incompatible with its conclusion that the departure of the population out of Žepa was the consequence of the VRS’s actions and thus not voluntary.492 The Appeals Chamber is also satisfied that the Trial Chamber duly considered Defence Exhibit 55, the Military Narrative by Viktor Bezruchenko entitled “The Fall of Žepa”, including the excerpts cited by Tolimir, in making findings about the appeal of the Žepa Bosnian Muslims to the BiH government to agree to a POW exchange.493 In the view of the Appeals Chamber, it was within the discretion of the Trial Chamber to determine that this evidence was not incompatible with its findings about the forcible nature of the population displacement. Similarly, the 24 July 1995 evacuation agreement does not demonstrate, as Tolimir suggests, that the population transfer was voluntary, considering the VRS’s actions leading up to it.''
491 Trial Judgement, para. 1037, n. 4092.
492 Trial Judgement, para. 1037.
493 See Trial Judgement, para. 638.
''169. In light of the above, the Appeals Chamber dismisses Tolimir’s arguments regarding the Trial Chamber’s findings on the forcible nature of the transfer of the civilian populations out of the Srebrenica and Žepa enclaves.''
Prosecutor v. Jovica Stanišić and Franko Simatovic, Case No. IT-03-69-T, Judgement (TC), 30 May 2013, paras. 1058, 1061, 1102, 1105:
“1058. The forcibly displaced Muslims left the town of Bijeljina but the Trial Chamber has been unable to establish where they ended up. As such the Trial Chamber is unable to conclude that those displaced crossed a de facto or de jure border.”
“1061. In conclusion, the Trial Chamber finds beyond a reasonable doubt that those constituting the SDG, a local paramilitary group under Mirko Blagojević, the TO, and the Bijeljina SDS committed the crime of forcible transfer as a crime against humanity.”
“1102. The Trial Chamber has not received any evidence as to where those who were forcibly displaced ended up and is thus unable to conclude that they crossed a de facto or de jure border, or even that they moved to an area under non-Serb control within Doboj municipality.”
“1105. In conclusion, the Trial Chamber finds beyond a reasonable doubt that those constituting a unit of the White Eagles committed the crime of forcible transfer as a crime against humanity.”
A. Legal source/authority and evidence:
Prosecutor v. William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang, Case No. ICC-01/09-01/11, Decision on the confirmation of charges (PTC), 23 January 2012, para. 252:
"252. The Chamber observes that Witness 4, who was on the ground during the attack on Turbo town, personally saw groups of people heading to the local police station to take refuge and to flee from the attackers. At a later stage, the witness declared that he visited the IDP camp set up in the police compound, which hosted about 5000 Kikuyus. This information is corroborated by Witness 2, who also saw the displaced persons in Turbo town police station."
<link http www.legal-tools.org doc _blank>
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. <link http www.legal-tools.org doc _blank>Prosecutor v. Radislav Krstić, Case No. IT-98-33-T, Judgement (TC), 2 August 2001, 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.
Prosecutor v. Zdravko Tolimir, Case No. IT-05-88/2-A, Judgement (AC), 8 April 2015, paras. 171-173:
''171. Having considered the Trial Chamber’s findings regarding the locations from and to where civilians were displaced as a whole,498 the Appeals Chamber is satisfied that the Trial Chamber was convinced beyond a reasonable doubt that the civilians were forcibly displaced to other areas of BiH, for example, Kladanj, which in the Trial Chamber’s view did not constitute an area across a de jure or de facto border.499 Although the Trial Chamber did not make an express finding that the civilian populations of Srebrenica and Žepa were displaced within national boundaries, it is clear that the Trial Chamber found that the civilian populations were transferred to areas within the national boundaries of BiH.''
498 See Trial Judgement, paras 827-828.
499 Trial Judgement, paras 817, 826, 832.
''172. As support for his argument that locations within the RS were across a de facto or de jure border from BiH, Tolimir refers to evidence suggesting that the RS had its own constitution, makes general statements about the RS’s independent character without any references to evidence in support, and relies on Rule 2 of the Rules, which defines “State” as “a self-proclaimed entity de facto exercising governmental functions, whether recognised as a State or not”.''
''173. The Appeals Chamber has previously held that displacement of civilian populations across constantly changing frontlines does not constitute the crime of deportation under customary international law, but may still amount to forcible transfer.500 Evidence of the RS having a constitution is irrelevant to the issue of whether there was a de facto border between BiH and the RS. Further, Tolimir’s reference to Rule 2 of the Rules is irrelevant to determining the substantive customary international law on forcible transfer. The Appeals Chamber finds that Tolimir has failed to show that the Trial Chamber committed a legal error when it implicitly found that the civilian population of Srebrenica and Žepa did not cross a de facto border. In light of the above, Tolimir’s arguments fail.''
500 See Stakić Appeal Judgement, paras 302-303, 321.
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:]
5.1.3. Evidence of displacement applicable in both deportation and forcible transfer
Prosecutor v. Jovica Stanišić and Franko Simatovic, Case No. IT-03-69-T, Judgement (TC), 30 May 2013, paras. 160-162:
“160. Above, the Trial Chamber has reviewed evidence of Babić, Anna-Maria Radić, and the Radić Report on Expelled Persons in Croatia which it considers consistent with the Adjudicated Facts III 207-208 and 210-212, which relate to the SAO Krajina as a whole. Below, the Trial Chamber will review the Adjudicated Facts and evidence in relation to specific actions which allegedly amount to deportation and forcible transfer in the SAO Krajina. These actions include alleged attacks, killings, arbitrary arrest and detention, burnings of Catholic churches and mosques, forced labour, torture, harassment, use of human shields, looting, rape and other forms of sexual abuse, as well as the threat of further persecutory acts. As set out in chapter 2, the Trial Chamber will examine whether the Adjudicated Facts and evidence on specific actions are consistent with the Adjudicated Facts set out above in relation to the SAO Krajina as a whole, or whether they contradict and rebut the above Adjudicated Facts.”
“161. The Trial Chamber will further examine the dates on and conditions under which people fled from specific areas. Where appropriate, the Trial Chamber will make findings on those conditions and the perpetrators who brought about those conditions through their actions when such actions are not covered by (and thus additional to) the Adjudicated Facts above in relation to the SAO Krajina as a whole.”
“162. The Trial Chamber has taken judicial notice of many Adjudicated Facts and received a large amount of evidence in relation to actions in the SAO Krajina. In order to set out its analysis of this material clearly, the Trial Chamber will address three areas of the SAO Krajina separately. First, the Trial Chamber will review the Kostajnica region, in the northeast of the SAO Krajina; second, the Saborsko region, in the north-west of the SAO Krajina; and third, the Knin region, in the south of the SAO Krajina. These areas correspond with the three regions identified by Babić (namely, near Kostajnica, Plaški, and Knin, respectively) as having been attacked in a similar manner. The Trial Chamber emphasizes that addressing these three regions separately is a purely practical means employed in order to deal with the number of actions, locations, and dates arising from the Adjudicated Facts and evidence before it. The Trial Chamber remains mindful that to fully appreciate the conditions under which persons left the SAO Krajina, it must review the conditions which prevailed in the whole of the SAO Krajina. Thus, following its review of the three regions, the Trial Chamber will make findings on deportation and forcible transfer in the SAO Krajina as a whole, in the last section of this chapter.388”
388. Findings on deportation and forcible transfer in the entire SAO Krajina 1991-1995.
Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-T, Judgement – Volume 1 (TC), 31 March 2016, para. 5:
"5. The first pillar is the allegation that the Accused was associated with the crimes by virtue of his participation in a JCE, which also included local and national authorities, such as the President of the Republic of Serbia, Slobodan Milošević, military leaders and their deputies, as well as paramilitaries and volunteer units called “Chetniks” and “Šešeljevci”. In addition to war propaganda and incitement to hatred against non-Serbs, Vojislav Šešelj’s main role was distinguished by his involvement in the recruitment and organisation of volunteers, who were sent into the field and integrated into units of the “Serbian Forces”, who are claimed to have carried out attacks and sieges during the conflict in several municipalities in Croatia and Bosnia and Herzegovina. […] It is also alleged that they forcibly displaced non-Serb civilians and deported them, waging a campaign of ethnic cleansing against them. […] These same “Serbian Forces” were said to have imposed restrictive and discriminatory measures, in collaboration with the local Serbian authorities, as part of a system of persecution aimed at expelling the non-Serb civilian population."
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:
<link http www.legal-tools.org doc _blank>The Prosecutor v. Vlastimir Dordević, Case No. IT-05-87/1, Judgement (TC), 23 February 2011, para. 1624:
1624. The Chamber has also made a finding that on 28 March 1999 police arrived in the forest, to which residents of Celina/Celin? had fled, separated the women and children from the men, marched both groups to Celina/Celin? and further down the main road connecting\akovica/Gjakov? with Prizren following which the men were ordered by the police onto trucks and driven to Zur/Zhur on the border with Albania where their identification documents were demanded and the men were told to walk towards the border. The men crossed the border and were taken to a refugee camp in Kuk?s, Albania. The Chamber is satisfied that the offence of deportation has been established with respect to these events. The Chamber notes, in particular that the men were lawfully in the area, and forcibly displaced by Serbian forces across the border with Albania, and, as evidenced by the specific orders to the men to go to Albania and by the provision of transportation, the Serbian forces acted with the requisite intent. In the Chamber’s finding, this displacement was not carried out on a ground permitted under international law.
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 Krstic 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 Krstic 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 Krstic 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 Krstic was heard talking to Lt. Colonel ?obot, the Personnel and Mobilisation Officer for the Drina Corps Rear Services. General Krstic asked how many buses were on the road, and ?obot answered, "Twenty." General Krstic 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 Krstic then told "Savo" from the Vlasenica Brigade to secure the road "up to the tunnel…that’s where they’ll be disembarking."915 In the context of the events happening contemporaneously with this conversation, the Trial Chamber accepts that General Krstic 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 Krstic with the organisation of transport for Potocari.917 These intercepts , showing General Krstic’s 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 Krstic involved with the issue of fuel); P 440, and P 443 (referring to fuel and stating that "Krsto" (a shortened name for General Krstic, (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 Prosecution’s military expert, Butler, believes to be a reference to General Krstic 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)."
Prosecutor v. Jovica Stanišić and Franko Simatovic, Case No. IT-03-69-T, Judgement (TC), 30 May 2013, paras. 1041-1042:
“1041. The Trial Chamber recalls its findings in chapter 3.2.6 that after the take-over of Vukovar, in November 1991, a group of men and women were transported on buses by the JNA to Croatia and Serbia. On some of the buses, the men were threatened and forced to sing “Chetnik” songs. The Trial Chamber notes that the men and women who were transported from Vukovar were predominantly Croats and concludes that their ethnicity thus corresponds to the charges in the Indictment.”
“1042. Having considered the aforementioned facts, the Trial Chamber finds that the Croats were transported against their will or without genuine choice and as such were forcibly displaced. Considering that the Croats were inhabitants of Vukovar town and, absent any indication to the contrary, the Trial Chamber therefore finds that they were lawfully present there.”
[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 Krstic 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)."
Prosecutor v. Jovica Stanišić and Franko Simatovic, Case No. IT-03-69-T, Judgement (TC), 30 May 2013, paras. 786-787:
“786. The Trial Chamber has received evidence from Witness JF-008 regarding one incident about Croats leaving from Dragalovci. Witness JF-008 testified that exchanges of detainees mainly occured from 1993 to 1995. In September 1995, he observed 12 buses, carrying approximately 50-60 Croats each, depart from Dragalovci; they carried people to the Republic of Croatia. The Catholic Banja Luka Bishopric and local Doboj authorities organized this move, which the witness testified was for security reasons as there was an expected mass migration of Serb refugees from Croatia into Bosnia-Herzegovina following Operation Storm.1719”
1719. P257 (Witness JF-008, witness statement, 15 April 2009), paras 25, 30-31; Witness JF-008, T. 3596, 3599-3600.
“787. Based on the testimony of Witness JF-008, the Trial Chamber finds that in September 1995, in view of the large number of Serb refugees that were expected to arrive, local Doboj authorities and the Catholic Banja Luka Bishopric organized the moving of 600-720 Croats from Dragalovci to the Republic of Croatia. The Trial Chamber will further consider these incidents in relation to Counts 1, 4, and 5 of the Indictment in chapter 4, below.”
[B. Evidentiary comment:]
P.3.3. Evidence of ordering transportation of victims out of an area.
A. Legal source/authority and evidence:
Prosecutor v. Milutinović et al., Case No. IT-05-87-T, Judgement (TC) Vol II, 26 February 2009, para. 795:
"795. […] The Chamber also finds that MUP forces expelled some Kosovo Albanians from their homes in Vucitrn/Vushtrria town and instructed them to go to the cemetery, where many of them boarded buses that were meant to take them to Macedonia."[…]
Prosecutor v. Radislav Krstić, Case No. IT-98-33-T, Judgement (TC), 2 August 2001, para. 464:
"464. General Krstic 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. Milutinović et al., Case No. IT-05-87-T, Judgement (TC) Vol II, 26 February 2009, para. 943:
"943. The Trial Chamber finds, based on eye-witness testimony from Abdylhaqim Shaqiri, confirmed in part by Dušan Gavranić, that VJ reservists ordered the residents of Prilepnica/P?rlepnica to leave the village on 6 April 1999. A convoy of approximately 3,000 people left but, after having crossed the provincial boundary, members of the police ordered them to return to Prilepnica/P?rlepnica. On the testimony of the same witness the Chamber finds that on 13 April members of the VJ ordered the residents of Prilepnica/P?rlepnica to leave the village and that, once again, a convoy of around 3,000 people was formed and was escorted by police to the Macedonian border.[…]"
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:
<link http www.legal-tools.org doc f2cfeb _blank>Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-T, Judgement (TC), 31 March 2003, n. 1362:
"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 displacement gathered from population dynamics.
Prosecutor v. Jadranko Prlić, Case No. IT-04-74-T, Judgement (TC), 29 May 2013, paras. 333-355:
“333. Ewa Tabeau considered that the municipality in which enrolment in the Voter Registers occurred served as a good indicator for identifying the municipalities where the voters lived at the time of registration in 1997-1998.770 However, she acknowledged that enrolment in the Voter Registers was voluntary and that the Voter Registers therefore represented only a sampling of the overall post-war population.771 After studying the Voter Registers of 1997-1998, Ewa Tabeau established a consolidated database for those two years and identified matches between the data from the Census of 1991, obtaining a sample of 2,125,999 persons recorded both in the Voter Registers of 1997-1998 and in the Census of 1991.772 Ewa Tabeau considered that the combined database constituted a sufficiently broad and reliable sample of the population over 18 years of age for her analysis of the population movements of individuals originally from "Herceg-Bosna” between 1991 and 1997- 1998.773”
770. P 09836, p. 88.
771. P 09836, p. 89; Ewa Tabeau, T(F), pp. 21956 and 21957.
772. P 09836, pp. 88 and 89; Ewa Tabeau, T(F), pp. 21484, 21485 and 21511. Ewa Tabeau stated that matching these two sources was facilitated by the fact that only those persons surveyed in 1991 could sign up for the Voter Registers in 1997-1998.
773. P 09836, pp. 4 and 89; Ewa Tabeau, T(F), p. 21497.
“334. The Chamber points out that Tabeau Report 3 deals with an analysis of three variables: the place of residence in 1991, the place of residence in 1997-1998 and ethnic affiliation.774 Ewa Tabeau recalled that the Census of 1991 contained data on the ethnicity and place of residence of the individuals in 1991 whereas the Voter Registers contained information only on the place of residence of the voters registered in 1997-1998.775 Consequently, Ewa Tabeau combined the two sources to obtain a single database including the 3 variables, on the basis of which she constructed her statistical analysis.776 Excluded from this database were inter alia persons born after 1980, inasmuch as they were by definition not included in the Voter Registers in 1997-1998.777”
774. P 09836, p. 94.
775. P 09836, p. 94.
776. P 09836, p. 94; Ewa Tabeau, T(F), pp. 21482-21486.
777. P 09836, pp. 33, 89, 95 and 96. Ewa Tabeau, T(F), pp. 21478, 21479, 21485, 21507 and 21508. This combination had the following results: concerning the 2,125,999 persons (2.13 million) recorded both in the Voter Registers of 1997-1998 and in the Census of 1991, 231,610 persons were domiciled in “Herceg-Bosna” in 1991 and of these 231,610 persons domiciled in “Herceg-Bosna” in 1991, 142,204 were identified in the Voter Registers of 1997-1998 as domiciled in Bosnia and Herzegovina or abroad and 118,792 of them had expressed the desire to vote in “Herceg-Bosna” in 1997-98.
“335. Ewa Tabeau studied the 142,204 persons listed in the Census of 1991 as domiciled in “Herceg-Bosna” and also appearing in the Voter Registers of 1997-1998, whether domiciled in “Herceg-Bosna”, in other regions of BiH or abroad in 1997- 1998, in order to determine whether they had changed domicile between 1991 and 1997-1998,778 and to assess the changes in the ethnic composition of the municipalities of “Herceg-Bosna” between 1991 and 1997-1998.779”
778. P 09836, pp. 24 and 25; Ewa Tabeau, T(F), pp. 21484-21486.
779. P 09836, pp. 36-59.
“336. Ewa Tabeau first studied the ethnic distribution of the population of each municipality in what she defined as “Herceg-Bosna” between 1991 and 1997-1998.780 She thus compared the ethnic distribution of the 231,610 individuals domiciled in “Herceg-Bosna” in 1991 to the ethnic distribution of the 118,792 persons in the Voter Registers in 1997-1998 in “Herceg-Bosna” whom she considered domiciled in “Herceg-Bosna” in 1997-98.781”
780. P 09836, pp. 37-41.
781. P 09836, pp. 88, 95 and 96. Ewa Tabeau, T(F), pp. 21478, 21479 and 21485. Ewa Tabeau considered the municipality in which the enrolment in the Voter Register took place to be such a reliable indicator for identifying the municipality where a voter was living in 1997-1998 that she defined that municipality as the place of residence in 1997-1998.
“337. Ewa Tabeau concluded that the changes in the ethnic composition observed in the municipalities of “Herceg-Bosna” between 1991 and 1997-1998 suggested that substantial movements of population occurred in this area at the time of the conflict in “Herceg-Bosna” between 1991 and 1994.782”
782. P 09836, pp. 32 and 33.
“338. Ewa Tabeau then studied the dynamics of the changes of residence between 1991 and 1997-1998 of the 142,204 persons domiciled in “Herceg-Bosna” according to the Census of 1991 and likewise appearing in the Voter Registers of 1997-1998, whether these persons were domiciled in “Herceg-Bosna”, in other regions of BiH or abroad in 1997-1998.783 Ewa Tabeau added that she had used a statistical, not a legal, definition of the terms “refugees” and “internally displaced persons” in her Tabeau Report 3.784 Thus, every person residing in 1997-1998, in a municipality different from the one where they resided in 1991 was characterised by Ewa Tabeau as an “internally displaced person”785 and any person residing abroad in 1997-1998 who lived in BiH in 1991 was characterised by Ewa Tabeau as a “refugee”.786 The Chamber notes that Ewa Tabeau included in the category of “refugees” persons already residing abroad – even temporarily – in 1991 and considered that, independent of the date on which the persons left BiH, they had not returned to BiH prior to 1998, potentially because of the conflict.787 Ewa Tabeau said that the choice of the terms “refugees” and “internally displaced persons” was explained by the fact that the objective of Tabeau Report 3 was to measure the consequences of a conflict on the population movements in a given territory and that more neutral terms such as “internal migration” or “external migration” failed to capture the connection between such movements and the conflict.788”
783. P 09836, pp. 24 and 25; Ewa Tabeau, T(F), pp. 21484, 21485 and 21504.
784. P 09836, pp. 10 and 11; Ewa Tabeau, T(F), pp. 21502-21505, 21530-21534.
785. P 09836, p. 10; Ewa Tabeau, T(F), pp. 21502, 21502-21504, 21533 and 21534.
786. P 09836, pp. 9, 11 and 24; Ewa Tabeau, T(F), pp. 21502-21505.
787. P 09836, pp. 9, 5 and 24; Ewa Tabeau, T(F), pp. 21502-21505. See also in this respect pages 77 to 87 of Tabeau Report 3, inasmuch as they provide additional details concerning the statistical use of persons residing abroad.
788. Ewa Tabeau, T(F), pp. 21929 and 21930.
“339. While indicating that she had not taken into account the potential causes of the population movements between 1991 and 1997-1998, Ewa Tabeau stated that the typical causes of migration, such as employment, housing or education, did not factor in during the conflict and that the observed phenomenon of migration she described as “very unusual” was attributable to the conflict in BiH.789 During her testimony, Ewa Tabeau also relied on the data in the database on the refugees and displaced persons established jointly by the UNHCR and the government of Bosnia-Herzegovina in 1999 and 2000790 which were used to provide context for her statistical analysis.791”
789. P 09836, pp. 10, 11 and 34; Ewa Tabeau, T(F), pp. 21548-21551, 21556 and 21557.
790. P 09836, pp. 4, 5 and 91-93; Ewa Tabeau, T(F), pp. 21469.
791. Ewa Tabeau, T(F), pp. 21487, 21552 and 21553
“340. Ewa Tabeau then calculated the ethnic distribution of all the persons identified as “internally displaced persons” and “refugees”, that is 61,487 persons out of the sample of 142,204 persons analysed and concluded that 43.4 % were Muslims, 25.6 % Croats, 23.8 % Serbs and 7.3 % a different ethnicity.792”
792. P 09836, pp. 42 to 46; Ewa Tabeau, T(F), pp. 21524-21528 and 21539-21545.
“341. Ewa Tabeau estimated the minimum number of “internally displaced persons” and “refugees” originally from “Herceg-Bosna” to be 61,487 but stated that the figure of 101,107793 constituted a more thorough estimate of this population, whose precise number remained unknown.794 Relying on the “proportional” method, Ewa Tabeau then applied the observed ethnic distribution in the sample of 61,487 persons representing the minimum number of “internally displaced persons” and “refugees” originally from Herceg-Bosna to the sample of 101,107 persons constituting, in her view, a more thorough estimate of this population.795”
793. P 09836, p. 24.
794. P 09836, pp. 33 and 47-51.
795. P 09836, pp. 47-51. Ewa Tabeau concluded that the ethnic distribution of the 101,107 “refugees” and “internally displaced persons” from Herceg-Bosna was as follows: 26,304 Serbs, 40,266 Muslims, 25,147 Croats and 9,391 others.
“342. Lastly, Ewa Tabeau estimated that the total number of refugees” and “internally displaced persons” in all of BiH amounted to 1,306,377 persons.796 Ewa Tabeau concluded that non-Croats – Muslims, Serbs and others – were the ones most affected by the conflict inasmuch as they constituted the largest share of the internally displaced persons” and “refugees”.797”
796. P 09836, pp. 52-54. Ewa Tabeau also applied the proportional method to identify the ethnic makeup of the “refugees” and “internally displaced persons” within the territory of BiH.
797. P 09836, p. 34.
“343. The Prlić Defence compared Tabeau Report 3 with Section I of the Radovanović Report in which Svetlana Radovanović criticised Tabeau Report 3 and emphasised the deficiencies of Ewa Tabeau’s sources which contain numerous errors and resort to unconventional statistical methods for conducting an analysis of this sort, and in particular, criticised the use of the data matching method and the nature of the findings of Tabeau Report 3.798”
798. 1D 03110, pp. 8 and 28-32; Svetlana Radovanović, T(F), pp. 34863, 34864, 34870, 34871, 34880- 34881 and 34918; P 10758, Svetlana Radovanović, T(F), pp. 35088-35093.
“344. Svetlana Radovanović indicated that she had never seen an expert report whose objective was an evaluation of the structure of a population and the number of refugees and for which the Voter Registers constituted the primary source.799 Svetlana Radovanović specifically added that since registration for the Voter Registers was voluntary, this clearly affected the reliability of that source.800”
799. 1D 03110, pp. 8 and 21; Svetlana Radovanović, T(F), pp. 34870-34873, 35011, 35012, 35016 and 35017.
800. Svetlana Radovanović, T(F), pp. 34875 and 34950.
“345. Svetlana Radovanović likewise criticised the corrections made by Ewa Tabeau to the data from the Census of 1991 and the Voter Registers of 1997-1998, which she described as “arbitrary” and which, in her view, skewed the sources and made resorting to the proportional method impracticable, inasmuch as the accuracy of the sources is a prerequisite for applying this method.801”
801. 1D 03110, pp. 23 and 24.
“346. Svetlana Radovanović then pointed out a problem in relation to the dates of the sources used – the Census of 1991 and the Voter Registers of 1997-98 – indicating that Ewa Tabeau was drawing conclusions about the population movement between 1991 and 1994, even though she admitted that there was no data in existence for the said period.802”
802. 1D 03110, pp. 7 and 8.
“347. Furthermore, Svetlana Radovanović criticised the data matching method Ewa Tabeau used to consolidate data from the Census of 1991 and data from the Voter Registers for 1997-1998 in order to obtain a single database.803 Svetlana Radovanović considered it wrong, from a methodological standpoint, to match data from two sources which do not contain the same type of information.804 Moreover, as far as determination of ethnicity is concerned, Svetlana Radovanović pointed out that the statement of ethnicity at the time of the Census of 1991 was made on a voluntary basis and that ethnicity remained a subjective criterion.805”
803. 1D 03110, pp. 28-31; Svetlana Radovanović, T(F), pp. 35036 and 35037; P 09836, pp. 63 and 94. The Census of 1991 contained information on the ethnicity and the place of residence in 1991 of the persons surveyed whereas the Voter Registers contained information on the place of residence of the voters registered in 1997-1998.
804. 1D 03110, pp. 28-31; Svetlana Radovanović, T(F), pp. 34910; P 09836, p. 94.
805. Svetlana Radovanović, T(F), pp. 34910-34914.
“348. Finally, Svetlana Radovanović strongly criticised Ewa Tabeau‟s use of the socalled “proportion” method.806”
806. 1D 03110, p. 9; Svetlana Radovanović, T(F), pp. 35086-35093. Svetlana Radovanović said that the proportional method was used incorrectly by Ewa Tabeau.
“349. According to Svetlana Radovanović, Ewa Tabeau‟s findings concerning the changes in the ethnic structure of the population analysed showcase mistaken conclusions and are not introduced appropriately.807 In her view, Ewa Tabeau was unable to demonstrate at what moment between 1991 and 1997-1998 the demographic changes she observed had taken place but nonetheless concluded that significant changes had occurred in the ethnic composition of the municipalities of “HercegBosna” during the conflict from 1991 to 1994, even though she acknowledged that no data was available for that period.808”
807. 1D 03110, p. 9; Svetlana Radovanović, T(F), pp. 34907 and 34908.
808. 1D 03110, pp. 9 and 14.
“350. Insofar as the changes in residence of the persons constituting the population analysed by Ewa Tabeau are concerned, Svetlana Radovanović disputed the use of the terms “refugee” and “internally displaced person”, recalling that there was no statistical definition for these concepts and that Ewa Tabeau had treated any change in residence between 1991 and 1997-1998 as a forcible removal without any consideration to the other sources of migration, such as economic migration.809 According to Svetlana Radovanović, the fact that Ewa Tabeau considered that even economic migrants prior to 1991 were to be treated as “refugees”, inasmuch as, without the conflict, persons expatriated and living abroad before 1991 might perhaps have returned to BiH in 1997-1998, was sheer speculation.810 Svetlana Radovanović also criticised the overall estimate of the total number of “refugees” and “internally displaced persons” proposed by Ewa Tabeau for the territory she calls “HercegBosna” and the territory of BiH as a whole.811”
809. 1D 03110, pp. 9 and 18-19; Svetlana Radovanović, T(F), p. 34948.
810. P 03110, p. 9.
811. P 03110, p. 9.
“351. After carefully reviewing the two reports and hearing Ewa Tabeau and Svetlana Radovanović, the Chamber observes that Tabeau Report 3 provides statistics on the ethnic composition of the population of eight municipalities of Bosnia and Herzegovina – Ĉapljina, Gornji Vakuf, Jablanica, Ljubuški, Mostar, Prozor, Stolac and Vareš – which form for purposes of Ewa Tabeau‟s analysis, the area she calls “Herceg-Bosna”,812 and identifies the minimum number of “internally displaced persons” and “refugees” originally from these municipalities for the period 1991 to 1998.813 The Chamber likewise notes that Ewa Tabeau drew conclusions concerning the population movements which took place during the conflict in BiH between 1991 and 1994.814”
812. P 09836, pp. 1 and 6. “For the purposes of this study, the Herceg-Bosna area is defined as consisting of the municipalities listed below. Except for Mostar and Stolac, all other municipalities remained unchanged (pre- and post-war municipalities are the same). Mostar was split into 8 smaller PostDayton municipalities and Stolac in 2”; Ewa Tabeau, T(F), p. 21467.
813. P 09836, p. 4; Ewa Tabeau, T(F), pp. 21497 and 21498.
814. P 09836, pp. 32 and 33.
“352. The Chamber observes that Ewa Tabeau has acknowledged that Tabeau Report 3 was based on the analysis of information available for the years 1991 and 1997-1998, whereas the Indictment covers a period between November 1991 to April 1994. 815 Her explanation for this was that there were no sources for the years 1991 and 1994.816”
815. P 09836, p. 5; Ewa Tabeau, T(F), pp. 21467 and 21468.
816. P 09836, p. 5.
“353. The Chamber also notes that Ewa Tabeau’s use of the term “Herceg-Bosna” in Tabeau Report 3 does not match the borders of the area commonly referred to as “Herceg-Bosna”, as more specifically defined in paragraph 22 of the Indictment.817”
817. P 09836, p. 6; Ewa Tabeau, T(F), pp. 21467; Indictment, para. 22: “According to Article 2 of the 18 November 1991 Decision on the Establishment of the HZ H-B, Herceg-Bosna consisted of the following municipalities in the territory of BiH: Jajce, Kreševo, Busovaĉa, Vitez, Novi Travnik, Travnik, Kiseljak, Fojnica, Kakanj, Vareš, Kotor Varoš, Tomislavgrad, Livno, Kupres, Bugojno, Gornji Vakuf, Prozor, Konjic, Jablanica, Posušje, Mostar, Široki Brijeg, Grude, Ljubuški, Ĉitluk, Ĉapljina, Neum, Stolac and parts of Skender Vakuf (Dobretići) and Trebinje (Ravno). By virtue of Article 4 of the same Decision, the municipality of Ţepĉe was added to Herceg-Bosna in about October 1992.”
“354. In addition, the Chamber notes that Ewa Tabeau considered all the changes of residence between 1991 and 1997-1998 to be forcible displacements yet acknowledged that she possessed no information on the causes of these displacements.818 In this regard, the Chamber observes that Ewa Tabeau characterised as a “refugee” any person changing their country of residence between 1991 and 1997-1998 and as an “internally displaced person” any person changing their place of residence within the borders of BiH between 1991 and 1997-1998, despite having no information whatsoever as to what caused the changes of residency.819”
817. P 09836, p. 6; Ewa Tabeau, T(F), pp. 21467; Indictment, para. 22: “According to Article 2 of the 18 November 1991 Decision on the Establishment of the HZ H-B, Herceg-Bosna consisted of the following municipalities in the territory of BiH: Jajce, Kreševo, Busovaĉa, Vitez, Novi Travnik, Travnik, Kiseljak, Fojnica, Kakanj, Vareš, Kotor Varoš, Tomislavgrad, Livno, Kupres, Bugojno, Gornji Vakuf, Prozor, Konjic, Jablanica, Posušje, Mostar, Široki Brijeg, Grude, Ljubuški, Ĉitluk, Ĉapljina, Neum, Stolac and parts of Skender Vakuf (Dobretići) and Trebinje (Ravno). By virtue of Article 4 of the same Decision, the municipality of Ţepĉe was added to Herceg-Bosna in about October 1992.”
818. P 09836, pp. 10 and 11; Ewa Tabeau, T(F), pp. 21950-21953.
819. P 09836, pp. 10 and 11; Ewa Tabeau, T(F), pp. 21929, 21930 and 21950-21953.
“355. The Chamber observes that both experts admitted it was impossible to determine the precise dates of the changes in residence of the population or the reasons for the departures because there are no relevant sources.820 As a consequence, the Chamber observes that the periods covered by the sources used in Tabeau Report 3, namely the Census of 1991 and the Voter Registers of 1997-1998, provide data for the years 1991 and 1997-1998 but none for the period covered by the Indictment.821 Accordingly, the Chamber holds that the use of sources too removed in time from the temporal scope of the Indictment, the complete lack of information on the dates of the changes of residency between 1991 and 1997-1998, the underlying reasons explaining the population movements during this period and the statistical methods Ewa Tabeau used preclude the Chamber from assigning any probative value to Tabeau Report 3.”
820. P 09836, p. 5; Ewa Tabeau, T(F), p. 21552.
821. P 09836, p. 5.
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 Rapporteur’s 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 Accused’s 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), 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."
Prosecutor v. Jovica Stanišić and Franko Simatovic, Case No. IT-03-69-T, Judgement (TC), 30 May 2013, paras. 486-487:
“486. According to the Radić Report on Expelled Persons in Croatia, in 1991, as established by the 1991 census, the population of the county of Vukovar-Srijem consisted of 55,628 Croats, 37,968 Serbs, 283 Muslims, and 2,436 Hungarians on a total of 111,781 persons., The population of the county of Osijek-Baranja consisted of 31,546 Croats, 22,130 Serbs, 191 Muslims, and 10,196 Hungarians on a total of 74,210 persons. The population of Erdut consisted of 3,493 Croats, 5,165 Serbs, and 562 Hungarians, out of a total of 10,197 persons.1036”
1036. P551 (Report on the Expelled Population of the Republic of Croatia in 1991), pp. 48-49.
“487. According to the same report, 32,457 persons left the county of Osijek-Baranja between 1991 and 1995 for Croatia. 29,343 persons left the county of Vukovar-Srijem (excluding Vukovar town) during this period, and 21,314 left Vukovar town. Of these 83,114 persons in total, more than half (at least 44,557) left prior to 20 October 1991 (VukovarSrijem: 20,593; Osijek-Baranja: 23,964), and around three-quarters (at least 59,355) left prior to 18 November 1991 (Vukovar town: 14,798). 10,875 persons left the two counties (excluding Vukovar town) between 20 October 1991 and 1 May 1992 (Vukovar-Srijem: 6,268; Osijek-Baranja: 4,607). 5,478 persons left Vukovar town between 18 November 1991 and 1 May 1992. 2,589 persons left the aforementioned areas in the remainder of 1992 (Vukovar-Srijem: 1,311; Osijek-Baranja: 1,278).1037”
1037. P551 (Report on the Expelled Population of the Republic of Croatia in 1991), p. 75.
[B. Evidentiary comment:]
P.4.2. Evidence of numbers of victims of certain ethnicities displaced.
A. Legal source/authority and evidence:
ICC, The Prosecutor v. Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali, ICC-01/09-02/11, Decision on the confirmation of charges (PTC), 23 January 2012, para. 249:
"249. In respect of Naivasha, Witness OTP-2 states that 9,000 people found refuge at the Naivasha Police Station, while people also fled to and gathered at the nearby prison grounds. The witness, who visited the police station at the time, explains that the persons displaced were of Luo, Luhya and Kalenjin ethnic origin. They were "insisting that they wanted to go to their rural homes" in Nyanza Province, as they "felt that they couldn’t stay [in Naivasha], they felt that ... it was not safe for them to live in Naivasha again". Witness OTP-2 explains that over the course of the three weeks following the attack, many people were ferried to Nyanza province from the police station and the prison grounds, while the remaining were finally resettled to "Kedong ranch at the flower farms".
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 Goražde.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)."
Prosecutor v. Jovica Stanišić and Franko Simatovic, Case No. IT-03-69-T, Judgement (TC), 30 May 2013, paras. 158-159:
“158. According to the Radić Report on Expelled Persons in Croatia, 100,155 persons left the counties of Karlovac, Lika-Senj, Šibenik-Knin, Sisak-Moslavina, and Zadar between 1991 and 1995.383 Anna-Maria Radić, an employee for the Government of Croatia since 1994,384 testified that the data showed the number of displaced persons in different “peak time” periods of displacement, demonstrating the “waves” of displaced persons.385 Almost half of the aforementioned 100,155 persons (48,910) left the counties Sisak-Moslavina, Zadar, and Šibenik-Knin prior to 20 September 1991. Around a fifth of the total 100,155 persons (20,529) left the same counties between 20 September 1991 and 1 May 1992. A further fifth of the total (19,798) had left Karlovac and Lika-Senj counties prior to 16 November 1991 and 2,341 persons left between 16 November 1991 and 1 May 1992. 1,764 persons left the aforementioned five counties in the remainder of 1992. 4,246 persons left in 1993; 2,036 left in 1994; and a final 531 left in 1995.386”
383. P551 (Report on the Expelled Population of the Republic of Croatia in 1991), p. 75.
384. Anna-Maria Radić, T. 5861-5864, 5879; P549 (Curriculum Vitae of Anna-Maria Radić), pp. 1-2.
385. Anna-Maria Radić, T. 5876.
386. P551 (Report on the Expelled Population of the Republic of Croatia in 1991), p. 75.
“159. In relation to ethnicity, the Radić Report on Expelled Persons in Croatia provides that of the total number of persons who fled to Croatia from the counties of Karlovac, Lika-Senj, Šibenik-Knin, Sisak-Moslavina, and Zadar, around 98 per cent were Croats, 0.5 per cent were Muslims, and a small fraction were Hungarians, while a little over 1 per cent were Serbs.387”
387. P551 (Report on the Expelled Population of the Republic of Croatia in 1991), pp. 75, 80. The Trial Chamber notes that the table on page 80 of the report does not provide an explicit time frame. Comparing the totals provided in the table on page 80 to those on page 75, the Trial Chamber understands the table on page 80 to relate to the period 1991-1997.
[B. Evidentiary comment:]
P.5. Evidence of the creation of an infrastructure to facilitate displacement.
P.5.1. Evidence of facilitating applications for transfer or deportation.
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."1385
"1385. Exh. S248."
[B. Evidentiary comment:]
P.5.2. Evidence of setting up agencies to facilitate displacement.
A. Legal source/authority and evidence:
Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, para. 580:
"580. Finally, the Trial Chamber is satisfied that the Accused aided and abetted the crime of forcible transfer of non-Serbs, by setting up through the ARK Crisis Staff’s decision of 12 June 1992,1483 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.1484"
"1483. Ex. P241, "Decision of the ARK Crisis Staff", 12 June 1992. See also Ex. P227, "Conclusions of the ARK Crisis Staff", 26 May 1992. See also VI.D. supra.
1484. 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.5.3. Evidence of setting up collection centres to oversee displacement.
A. Legal source/authority and evidence:
Prosecutor v. Duško 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.6. Evidence of publicly announcing displacement.
P.6.1. Evidence of publicly announcing that displacement 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:
"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.6.2. Evidence of expulsion from the pattern of military attack.
Prosecutor v. Jovica Stanišić and Franko Simatovic, Case No. IT-03-69-T, Judgement (TC), 30 May 2013, paras. 155-157:
“155. Milan Babić, who was the Prime Minister of the SAO Krajina,372 stated that clashes between the Krajina police and the Croatian police forces carried on until the end of August or early September 1991, when the JNA began its offensive against Croatia.373 Using heavy artillery, the JNA advanced the front lines, forcing the Croatian armed forces and the non-Serb population to retreat from the territories.374 The JNA attacked together with other armed formations under its control, namely the TO units, the Krajina police, the paramilitary units of the parallel structure, and other units commanded by the DB of Serbia.375 Cleansing and destruction forced tens of thousands of Croats to flee.376 Houses and other buildings were destroyed in combat operations, and property was subsequently looted and torched; those who stayed behind, mostly the elderly, were killed or detained.377”
372. P1878 (Milan Babić, Slobodan Milošević transcript, 18-22, 25-26 November, and 2-4, 6, and 9 December 2002), p. 12965; P1880 (Death Certificate of Milan Babić).
373. P1877 (Milan Babić, Martić transcript, 15-17, 20-21 February, and 2-3, and 6 March 2006), pp. 1512, 1515.
374. P1878 (Milan Babić, Slobodan Milošević transcript, 18-22, 25-26 November, and 2-4, 6, and 9 December 2002), p. 13064.
375. P1878 (Milan Babić, Slobodan Milošević transcript, 18-22, 25-26 November, and 2-4, 6, and 9 December 2002), p. 13064.
376. P1878 (Milan Babić, Slobodan Milošević transcript, 18-22, 25-26 November, and 2-4, 6, and 9 December 2002), p. 13550.
377. P1878 (Milan Babić, Slobodan Milošević transcript, 18-22, 25-26 November, and 2-4, 6, and 9 December 2002), pp. 13064, 13066.
“156. Babić stated that the pattern of attack introduced at the Plitviće Lakes was followed by the Serbs in their subsequent attacks, until November 1991: first the police, the volunteer units, or the units under the DB of Serbia would engage in provocative shootings, and then, following a response from the Croatian police, the JNA, would step in, creating a buffer zone.378 According to Babić, the villages of Dubica, Cerovljani, and Baćin in the Kostajnica region, Saborsko, Poljanak, and Lipovača in the region of Plaški, and Škabrnja, Nadin, and Bruška, close to Knin, were all attacked in this manner.379 The pattern of the Serb attack in the SAO Krajina was also followed in Bosnia-Herzegovina, including in the municipalities of Sanski Most, Bijeljina, and Zvornik.380”
378. P1877 (Milan Babić, Martić transcript, 15-17, 20-21 February, and 2-3, and 6 March 2006), p. 1507; P1878 (Milan Babić, Slobodan Milošević transcript, 18-22, 25-26 November, and 2-4, 6, and 9 December 2002), pp. 13065-13066, 13091; P1879 (Milan Babić, Krajišnik transcript, 2-4, and 7 June 2004), p. 3388.
379. P1878 (Milan Babić, Slobodan Milošević transcript, 18-22, 25-26 November, and 2-4, 6, and 9 December 2002), p. 13065.
380. P1878 (Milan Babić, Slobodan Milošević transcript, 18-22, 25-26 November, and 2-4, 6, and 9 December 2002), p. 13081; P1879 (Milan Babić, Krajišnik transcript, 2-4, and 7 June 2004), p. 3411.
“157. Babić stated that large numbers of Croats were expelled from the territory of Croatia in the course of the armed conflict in 1991.381 According to him, the JNA, the TO, and units under the control of the police, including SAO Krajina police units, were responsible for the expulsion.382”
381. P1879 (Milan Babić, Krajišnik transcript, 2-4, and 7 June 2004), p. 3340.
382. P1879 (Milan Babić, Krajišnik transcript, 2-4, and 7 June 2004), pp. 3340-3341.
P.6.3. Evidence of calling out residents’ names for future displacement.
A. Legal source/authority and evidence:
Prosecutor v. Duško 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:]
5.2. Without grounds permitted under international law for deportation or forcible transfer.
5.2.1. Lack of reasons justifying displacement under international law.
P.7. Evidence of lack of military reasons justifying displacement under international law.
P.7.1. Evidence against military necessity based on nature of threat.
Prosecutor v. Vlastimir Dorđević, Case No. IT-05-87/1-A, Judgement (AC), 27 January 2014, paras. 734-735:
"734. The Trial Chamber considered Dorđević’s argument at trial that villagers were moved out of Prilepnica/Prelepnice for their own safety, but concluded that there was no evidence to support the conclusion that the displacement of Kosovo Albanians or "the mining of the village was to be carried out on a ground permitted under international law"2205 It considered that Serbian forces threatened to mine the village and that only the Kosovo Albanian and Roma population left the village while "Serb resident families stayed in Prilepnica/Prelepnice"2206 While displacements may be justified to ensure the security of the civilian population,2207 had genuine safety concerns existed, the five or six Serb families living in Prilepnica/Prelepnice would similarly have been evacuated.2208 The Appeals Chamber therefore finds that the Trial Chamber reasonably excluded the inference that genuine safety concerns existed for the civilian population.
735. Further, the Appeals Chamber understands Dorđević’s contention that the KLA was in the vicinity and that those in the village may have offered resources and support to suggest that the placement of the mines was legitimate, thereby permitting the displacement of 3,000 inhabitants under IHL and showing that the Trial Chamber’s finding was not reasonable.2209 Dorđević’s provides no support for his contention. The Appeals Chamber notes that even if there were evidence of civilians offering resources or support to the KLA, this would not automatically change the protection afforded to them. Further, even if some of the villagers were KLA members, in light of the reasons discussed above, this would not have justified the displacement of 3,000 Kosovo Albanian and Roma villagers from Prilepnica/Perlepnice."2210
2205 Trial Judgement, para. 1658.
2206 Trial Judgement, paras 1022, 1024.
2207 Stakić Appeal Judgement, paras 284-285, citing Additional Protocol II, Article 17.
2208 See Trial Judgement, paras 1015, 1017.
2209 See Dorđević Appeal Brief, para. 370(i).
2210 See supra, paras 704-705.
A. Legal source/authority and evidence:
Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, para. 556:
"556. With the exception of one incident in Celinac,1422 the Trial Chamber is not satisfied that Bosnian Serb authorities carried out the total or partial evacuation of the Bosnian Muslims and Bosnian Croats either for the security of these populations1423 or for imperative military reasons. All the evidence points to this conclusion without the shadow of a doubt. In addition, the Trial Chamber notes that decisions to either of the said effects would have required that "persons thus evacuated shall be transferred back to their homes as soon as hostilities in the area in question have ceased"1424, which did not happen in the present case. The Trial Chamber further notes that Bosnian Muslims and Bosnian Croats had a right to continue residing in their respective towns and villages. The Trial Chamber is thus satisfied beyond reasonable doubt of the unlawful nature of transfers carried out to this end."
"1422. See Vahid Mujkanovic, ex. P1980, 92bis statement, 01106086-01106094. People from the villages of Mehovci and Basici were expelled following attacks in mid-August 1992 targeting villages mostly inhabited by Bosnian Muslims and Bosnian Croats, after which they organised themselves and asked to leave Celinac: BT-90, T. 17094-17097 (closed session ). See also ex. P2000, ‘1st KK daily combat report to SerBiH Army Main Staff , 16 Augut 1992’. They were told to form a column in the direction of Banja Luka. However, for security reasons, the Bosnian Serb military police told them not to proceed, and to remain in Celinac until further notice: BT-90, T. 17097-17100 (closed session). The Accused ordered that they be taken by bus to the Celinac elementary school where, under the protection of special police, approximately 500 Bosnian Muslims and Bosnian Croats were protected against danger, including retaliations , and were kept until their release between seven and fifteen days later: BT-90, T. 17100, 17176-17182 (closed session); Mehmed Talic, T. 24149-24150. He also gave evidence that they stayed at the elementary school for approximately fifteen days, after which they returned to their homes and lived a normal life, T. 24151-24153 .
1423. For evidence of purported evacuations in Bosanski Petrovac, see Jovo Radojko, T. 20363. For evidence of purported evacuations in Bosanska Krupa, see Jadranko Saran, T. 17235 -17236; ex. P2098, ‘Bosanska Krupa War Presidency decision regarding the evacuation of the remaining Muslim population’, 22 May 1992; see para. 551 supra .
1424. Article 49 of Geneva Convention IV. The Commentary of Geneva Convention IV (p. 280) also notes that ‘Evacuation must not involve the movement of protected persons to places outside the occupied territory, unless it is physically impossible to do otherwise. Thus, as a rule, evacuation must be to reception centres inside the territory.’ Article 17 of Additional Protocol II also lists the security of the population and imperative military reasons as the only reasons that could justify the evacuation of the civilian population."
<link http www.legal-tools.org doc f2cfeb _blank>Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-T, Judgement (TC), 31 March 2003, para. 526:
"526. The remaining question is whether the transfer was a lawful evacuation. The civilians were transferred from Sovici during the night between 4 and 5 May 1993. On 18 April 1993 they were forced by armed soldiers to leave their houses. They were then held under armed guard in crowded housing with approximately seventy people to each house. No imperative military reasons existed."
Prosecutor v. Radislav Krstić, Case No. IT-98-33-T, Judgement (TC), 2 August 2001, para. 527:
"527. In this case no military threat was present following the taking of Srebrenica. The atmosphere of terror in which the evacuation was conducted proves, conversely, that the transfer was carried out in furtherance of a well organised policy whose purpose was to expel the Bosnian Muslim population from the enclave. The evacuation was itself the goal and neither the protection of the civilians nor imperative military necessity justified the action."
Francis Deng, "Guiding Principles on Internal Displacement", 11 February 1998, U.N. Doc. E/CN.4/1998/53/Add.2.
"Principle 6
[…]
2. The prohibition of arbitrary displacement includes displacement:
(b) In situations of armed conflict, unless the security of the civilians involved or imperative military reasons so demand;"
[B. Evidentiary comment:]
P.7.2. Evidence against military necessity based on pursuit by overwhelming forces.
A. Legal source/authority and evidence:
Prosecutor v. Radislav Krstić, Case No. IT-98-33-T, Judgement (TC), 2 August 2001, para. 526:
"526. In addition to the security of the population, the Geneva Convention also allows for evacuations based on "imperative military reasons". In terms of military necessity, two World War II cases are relevant. General Lothar Rendulic was accused of violating Article 23(g) of the 1907 Hague Regulations, which prohibits the destruction or seizure of the enemy’s property, "unless such destruction or seizure [is] imperatively demanded by the necessities of war". Retreating forces under his command engaged in scorched earth tactics, destroying all facilities that they thought might aid the opposing army. In addition, Rendulic ordered the evacuation of civilians in the area. Rendulic raised the defence of "military necessity", since his troops were being pursued by what appeared to be overwhelming Soviet forces. The U.S. Military Tribunal at Nuremberg concluded that, even though Rendulic may have erred in his judgement as to the military necessity for evacuating the civilians, his decisions were still justified by "urgent military necessity" based on the information in his hands at the time.1176"
"1176. Wilhelm List and others, US military Tribunal, Nuremberg (" the Hostages Trial"), Law Reports of Trials of War Criminals, Vol. VIII, case No. 47, p. 69 (1948): ‘It is our considered opinion that the conditions as they appeared to the defendant at the time were sufficient, upon which he could honestly conclude that urgent military necessity warranted the decision made. This being true, the defendant may have erred in the exercise of his judgement but he was guilty of no criminal act’."
[B. Evidentiary comment:]
A. Legal source/authority and evidence:
Prosecutor v. Radislav Krstić, Case No. IT-98-33-T, Judgement (TC), 2 August 2001, para. 526:
"526. By contrast, Field Marshall Erich von Manstein was convicted by a British military tribunal of "the mass deportation and evacuation of civilian inhabitants" of the Ukraine. Von Manstein argued that the evacuation was warranted by the military necessity of preventing espionage and depriving the enemy of manpower.Prosecutor v. Radislav Krstić, Case No. IT-98-33-T, Judgement (TC), 2 August 2001, para. 526-527:
"526. By contrast, Field Marshall Erich von Manstein was convicted by a British military tribunal of "the mass deportation and evacuation of civilian inhabitants" of the Ukraine. Von Manstein argued that the evacuation was warranted by the military necessity of preventing espionage and depriving the enemy of manpower.1177 This was not found to be a legitimate reason for the evacuation of the population or the destruction of their property.1178 In addition, the judge advocate1179 noted that the Prosecution’s evidence showed that "far from this destruction being the result of imperative necessities of the moment, it was really the carrying out of a policy planned a considerable time before, a policy which the accused had in fact been prepared to carry out on two previous occasions and now was carrying out in its entirety and carrying out irrespective of any question of military necessity".1180
"1177. Von Lewinski (called von Manstein), British Military Court at Hamburg (Germany), Dec. 19, 1949, in 16 Annual Dig. and Reports of Public International Law Cases 509, 521 (1949): "In a country so thickly populated as the Ukraine it was necessary for the security of the troops to remove the population from the battle or the combat zone. To do otherwise would have been to invite espionage. The evacuation of this zone was therefore mere military security. Further, it was necessary to deprive the enemy of labour potential as the enemy put every able-bodied man into the army and utilised women and even small children. They could not allow them to fall into the hands of the enemy".
1178. Id. at 522-23. Indeed, the judge advocate went so far as to suggest that deportation of civilians could never be justified by military necessity, but only by concern for the safety of the population. Id. at 523. This position, however, is contradicted by the text of the later Geneva Convention IV, which does include "imperative military reasons", and the Geneva Convention is more authoritative than the views of one judge advocate.
1179. The British military tribunals did not issue reasoned opinions, so the law reports contain the submissions of the judge advocates, who advised the court on the law after the presentation of the prosecution and defence.
1180. Von Lewinski (von Manstein), op. cit. p. 522-23."
"527. In this case no military threat was present following the taking of Srebrenica . The atmosphere of terror in which the evacuation was conducted proves, conversely , that the transfer was carried out in furtherance of a well organised policy whose purpose was to expel the Bosnian Muslim population from the enclave. The evacuation was itself the goal and neither the protection of the civilians nor imperative military necessity justified the action."
[B. Evidentiary comment:]
P.8.1. Evidence against civilian protection or security reasons for displacement.
A. Legal source/authority and evidence:
Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, para. 556:
"556. With the exception of one incident in Celinac,1422 the Trial Chamber is not satisfied that Bosnian Serb authorities carried out the total or partial evacuation of the Bosnian Muslims and Bosnian Croats either for the security of these populations1423 or for imperative military reasons. All the evidence points to this conclusion without the shadow of a doubt. In addition, the Trial Chamber notes that decisions to either of the said effects would have required that "persons thus evacuated shall be transferred back to their homes as soon as hostilities in the area in question have ceased"1424, which did not happen in the present case. The Trial Chamber further notes that Bosnian Muslims and Bosnian Croats had a right to continue residing in their respective towns and villages. The Trial Chamber is thus satisfied beyond reasonable doubt of the unlawful nature of transfers carried out to this end."
"1422. See Vahid Mujkanovic, ex. P1980, 92bis statement, 01106086-01106094. People from the villages of Mehovci and Basici were expelled following attacks in mid-August 1992 targeting villages mostly inhabited by Bosnian Muslims and Bosnian Croats, after which they organised themselves and asked to leave Celinac: BT-90, T. 17094-17097 (closed session ). See also ex. P2000, ‘1st KK daily combat report to SerBiH Army Main Staff , 16 Augut 1992’. They were told to form a column in the direction of Banja Luka. However, for security reasons, the Bosnian Serb military police told them not to proceed, and to remain in Celinac until further notice: BT-90, T. 17097-17100 (closed session). The Accused ordered that they be taken by bus to the Celinac elementary school where, under the protection of special police, approximately 500 Bosnian Muslims and Bosnian Croats were protected against danger, including retaliations , and were kept until their release between seven and fifteen days later: BT-90, T. 17100, 17176-17182 (closed session); Mehmed Talic, T. 24149-24150. He also gave evidence that they stayed at the elementary school for approximately fifteen days, after which they returned to their homes and lived a normal life, T. 24151-24153 .
1423. For evidence of purported evacuations in Bosanski Petrovac, see Jovo Radojko, T. 20363. For evidence of purported evacuations in Bosanska Krupa, see Jadranko Saran, T. 17235 -17236; ex. P2098, ‘Bosanska Krupa War Presidency decision regarding the evacuation of the remaining Muslim population’, 22 May 1992; see para. 551 supra .
1424. Article 49 of Geneva Convention IV. The Commentary of Geneva Convention IV (p. 280) also notes that ‘Evacuation must not involve the movement of protected persons to places outside the occupied territory, unless it is physically impossible to do otherwise. Thus, as a rule, evacuation must be to reception centres inside the territory.’ Article 17 of Additional Protocol II also lists the security of the population and imperative military reasons as the only reasons that could justify the evacuation of the civilian population."
Prosecutor v. Radislav Krstić, Case No. IT-98-33-T, Judgement (TC), 2 August 2001, para. 527:
"527. In this case no military threat was present following the taking of Srebrenica. The atmosphere of terror in which the evacuation was conducted proves, conversely, that the transfer was carried out in furtherance of a well organised policy whose purpose was to expel the Bosnian Muslim population from the enclave. The evacuation was itself the goal and neither the protection of the civilians nor imperative military necessity justified the action."
Gerhard Werle, Principles of International Criminal Law (2005), p. 241:
"In every case, the transfer of the persons involved from a specific territory must be impermissible under international law. Thus, for example, deportation and other coercive measures necessary to protect national security, public order or public health are not included in the definition of the crime.155"
"155. See also International Covenant on Civil and Political Rights, Art. 12(3); European Convention for the Protection of Human Rights and Fundamental Freedoms, Protocol No. 4, Art. 2(3); American Convention on Human Rights, Art. 22(3) and (4); African (Banjul) Charter on Human and Peoples’ Rights, Art. 12(2)."
Francis Deng, "Guiding Principles on Internal Displacement", 11 February 1998, U.N. Doc. E/CN.4/1998/53/Add.2.
"Principle 6
[…]
2. The prohibition of arbitrary displacement includes displacement:
(c) In cases of large-scale development projects, which are not justified by compelling and overriding public interests;
(d) In cases of disasters, unless the safety and health of those affected requires their evacuation;[…]"
[B. Evidentiary comment:]
5.2.2.C haracter of actual displacement events unacceptable under international law.
P.9. Evidence showing failure to return civilians after the displacement.
P.9.1. General evidence of failure to return civilians after the displacement.
A. Legal source/authority and evidence:
Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, para. 556:
"556. With the exception of one incident in Celinac,1422 the Trial Chamber is not satisfied that Bosnian Serb authorities carried out the total or partial evacuation of the Bosnian Muslims and Bosnian Croats either for the security of these populations1423 or for imperative military reasons. All the evidence points to this conclusion without the shadow of a doubt. In addition, the Trial Chamber notes that decisions to either of the said effects would have required that "persons thus evacuated shall be transferred back to their homes as soon as hostilities in the area in question have ceased"1424, which did not happen in the present case. The Trial Chamber further notes that Bosnian Muslims and Bosnian Croats had a right to continue residing in their respective towns and villages. The Trial Chamber is thus satisfied beyond reasonable doubt of the unlawful nature of transfers carried out to this end."
<link http www.legal-tools.org doc f2cfeb _blank>Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-T, Judgement (TC), 31 March 2003, para. 526:
"526. The remaining question is whether the transfer was a lawful evacuation. The civilians were transferred from Sovici during the night between 4 and 5 May 1993. On 18 April 1993 they were forced by armed soldiers to leave their houses. They were then held under armed guard in crowded housing with approximately seventy people to each house. No imperative military reasons existed. When a genuine evacuation takes place, there is an obligation to bring the population back when the hostilities have ended. No attempts to return them were made. In fact most of their houses were torched after 18 April 1993."
[B. Evidentiary comment:]
P.9.2. Evidence of destroying homes so that civilians could not return after the displacement.
A. Legal source/authority and evidence:
<link http www.legal-tools.org doc _blank>Prosecutor v. William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang, Case No. ICC-01/09-01/11, Decision on the confirmation of charges (PTC), 23 January 2012, para. 267:
267. The Chamber notes that Witness 6 was in Nandi Hills before moving to Kapsabet town. The witness reported that as a consequence of the acts of looting and burning "Kikuyus [were] seeking refuge in the police station"." This information is corroborated by other pieces of evidence, consistently reporting that people started fleeing from Nandi Hills town due to acts of burning and looting, which were targeting members of non-Kalenjin communities believed to be PNU supporters.
<link http www.legal-tools.org doc f2cfeb _blank>Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-T, Judgement (TC), 31 March 2003, para. 526:
"526. The remaining question is whether the transfer was a lawful evacuation. The civilians were transferred from Sovici during the night between 4 and 5 May 1993. On 18 April 1993 they were forced by armed soldiers to leave their houses. They were then held under armed guard in crowded housing with approximately seventy people to each house. No imperative military reasons existed. When a genuine evacuation takes place, there is an obligation to bring the population back when the hostilities have ended. No attempts to return them were made. In fact most of their houses were torched after 18 April 1993."
[B. Evidentiary comment:]
P.10. Evidence of the movement of protected persons to places outside the occupied territory.
A. Legal source/authority and evidence:
"1371. Commentary to Geneva Convention IV, p 280."
[B. Evidentiary comment:]
A. Legal source/authority and evidence:
Prosecutor v. Radislav Krstić, Case No. IT-98-33-T, Judgement (TC), 2 August 2001, para. 615:
"615. The object of the joint criminal enterprise implemented at Potocari on 12 and 13 July was firstly the forcible transfer of the Muslim civilians out of Srebrenica. That General Krstic had the intent for this crime is indisputably evidenced by his extensive participation in it. Furthermore, the humanitarian crisis that prevailed at Potocari was so closely connected to, and so instrumental in, the forcible evacuation of the civilians that it cannot but also have fallen within the object of the criminal enterprise. When General Krstic marched triumphantly into Srebrenica alongside General Mladic on 11 July, he saw the town completely empty and soon found out, at least by the evening, that a huge number of the inhabitants had fled to Potocari and were crowded together in the UN compound and surrounding buildings. Although, by his own claim, he was the organiser of the military operation on Srebrenica, he had taken no action to provide food or water, nor to guarantee the security of the civilians inhabitants of the town. The Trial Chamber finds that General Krstic subscribed to the creation of a humanitarian crisis as a prelude to the forcible transfer of the Bosnian Muslim civilians. This is the only plausible inference that can be drawn from his active participation in the holding and transfer operation at Potocari and from his total declination to attempt any effort to alleviate that crisis despite his on the scene presence."
Article 49(3), Geneva Convention IV:
"The Occupying Power undertaking such transfers or evacuations shall ensure, to the greatest practicable extent, that proper accommodation is provided to receive the protected persons, that the removals are effected in satisfactory conditions of hygiene, health, safety and nutrition, and that members of the same family are not separated."
[B. Evidentiary comment:]
P.11.2. Evidence of the separation of families.
P.11.3. Evidence of the displacement of children without additional safeguards.
5.3. Deportation or forcible transfer by expulsion or other coercive acts.
5.3.1. Deportation or forcible transfer using physical force.
P.12. Evidence of the use of force in entering victims’ residences.
Prosecutor v. Milutinović et al., Case No. IT-05-87-T, Judgement (TC) Vol II, 26 February 2009, para. 432:
"432. […]The Chamber further finds that the VJ shelled the village, after which MUP forces entered and looted and burned houses. Kosovo Albanian villagers fled to the woods and thereafter hid in Sejdi Batusha’s house.[…]"
P.12.1. Evidence of the use of force in surrounding victims’ buildings.
A. Legal source/authority and evidence:
<link http www.legal-tools.org doc f2cfeb _blank>Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-T, Judgement (TC), 31 March 2003, para. 550:
"550. At around four in the afternoon witness WW saw cars driving in and surround the buildings in the area where she lived with her husband.1405 A HVO soldier entered her apartment. He checked their ID cards and asked them to leave.Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-T, Judgement (TC), 31 March 2003, paras. 524, 540, 544:
"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.1367 The BH Muslim civilians of Sovici were forced or threatened by force by HVO soldiers to leave their homes. Witness X described how she and her family were afraid of the HVO, and sought refuge and safety in the home of their neighbour, but the HVO soldiers came and forced her and her family to leave the house while the neighbour could stay.1368 The HVO themselves considered the civilians to be detained from 23 April 1993.1369"
"1367. Naletilic Final Brief, p 26. Further, the Defence is stating that the accused had nothing to do with the situation in the school.
1368. Witness X, T 3312.
1369. Exhibit PP 333, a report sent to Slobodan Bozic, at the Defence Department of the HVO, asking for instructions of what to do with the 422 prisoners."
"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.1388"
"1388. Witness P, T 2280-2281; exhibit PP 456."
"544. The only witness testifying about having being transferred to East Mostar was Defence witness MF. He testified that unknown soldiers came to his apartment on the Western side of Mostar and forced him and his family to the eastern side of Mostar.1393 He returned to his apartment 22 days later. This does not mitigate the fact that he and his family were involuntary transferred to East Mostar. Soldiers collected them in their apartment, accompanied them to the front line and directed them to cross over to the East Side.1394 The Chamber is satisfied that these were unlawful transfers."
"1393. Witness MF, T 14165.
1394. Witness MF, T 14177."
[B. Evidentiary comment:]
P.12.3. Evidence of the general use of force and issuing orders prior to displacement.
A. Legal source/authority and evidence:
<link http www.legal-tools.org doc _blank>The Prosecutor v. Francis Kirimi Muthaura, Uhuru Muigai Kenyattta and Mohammed Hussein Ali, Case No. ICC-01/09-02/11, Decision of confirmation of charges (PTC), 23 January 2012, para. 244:
244. In the view of the Chamber, the evidence establishes that the destruction of homes in residential areas, the brutality of the killings and injuries, the rape of perceived ODM supporters, and the public announcements to the effect that "all Luos must leave", amounted to coercion, which caused the attacked residents of Nakuru and Naivasha to leave their homes and seek shelter in IDP camps.
Prosecutor v. Radislav Krstić, Case No. IT-98-33-T, Judgement (TC), 2 August 2001, paras. 148, 530:
"148. On 17 July 1995, in the face of growing international condemnation, Major Franken, the Deputy Commander of Dutch Bat, met with a VRS delegation to discuss the situation of wounded Bosnian Muslims in the area of the former enclave. During the meeting , he and the unofficial Bosnian Muslim representative Mr. Mandzic, who was also present, were told to sign a declaration specifying that the transfer of the Bosnian Muslim civilians from Potocari was voluntary, supervised and escorted by UNPROFOR and carried out by the VRS without any irregularities.319 …When he testified before the Trial Chamber, Major Franken described his forced assent to the declaration as "worthless".321 In reality, he said General Mladic "ordered the population to go to Kladanj, period".322 General Krstic, during an interview with the OTP shortly after his arrest, acknowledged that it was a forced movement of the population, although he denied that he was involved.323"
"319. P 47, Franken, T. 2054-2056, 2059-2062, Mandzic, T. 1007-1016.
320. Franken, T. 2062.
321. Franken, T. 2062.
322. Franken, T. 2060.
323. P 399, p. 32. During his testimony before the Trial Chamber, however, General Krstic maintained that the movement of the Bosnian Muslim women, children and elderly from Potocari was an "evacuation". Krstic, T. 6217 and 6295-6296."
"530. … 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."
[B. Evidentiary comment:]
P.12.4. Not exculpatory: Evidence of the eventual return of victims.
A. Legal source/authority and evidence:
Prosecutor v. Milutinović et al., Case No. IT-05-87-T, Judgement (TC) Vol II, 26 February 2009, para. 887:
"887. […] The fact that people might have returned to Priština/Prishtina several times during this time period, as submitted by the Lazarević Defence, also does not affect the Trial Chamber’s conclusions in this regard."
<link http www.legal-tools.org doc f2cfeb _blank>Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-T, Judgement (TC), 31 March 2003, para. 544:
"544. The only witness testifying about having being transferred to East Mostar was Defence witness MF. He testified that unknown soldiers came to his apartment on the Western side of Mostar and forced him and his family to the eastern side of Mostar.1393 He returned to his apartment 22 days later. This does not mitigate the fact that he and his family were involuntary transferred to East Mostar. Soldiers collected them in their apartment, accompanied them to the front line and directed them to cross over to the East Side.1394 The Chamber is satisfied that these were unlawful transfers."
1394. Witness MF, T 14177."
[B. Evidentiary comment:]
P.13. Evidence of the use of force during displacement from one place to another.
Prosecutor v. Jovica Stanišić and Franko Simatovic, Case No. IT-03-69-T, Judgement (TC), 30 May 2013, paras. 492, 1033-1034:
“492. Witness JF-032 provided evidence in relation to the overall attack on Erdut and Dalj on 1 August 1991. Witness JF-032, a former police officer from the SAO SBWS,1048 testified that the attack on Dalj began on 1 August 1991, at 4 a.m., and was organised by the JNA Colonel Garevski, and carried out by the TO units from Borovo Selo managed by Jovica Vučenović, Ilija Kojić, Marko Lončarević, and the Dalj Defence Staff Commander.1049 The witness testified that the attack was well co-coordinated with the JNA, which arrived from the direction of Serbia across the Bogojevo bridge at 4.10 a.m.1050 One group of the JNA vehicles drove towards Erdut, which was attacked on the same day, and the other went directly to Dalj, to provide assistance to the TO.1051 According to the witness, the primary goal of the attack was to eliminate the ZNG and the MUP from Dalj, and to force local Croats out of Dalj and Erdut, in the direction of Aljmaš.1052 The Croatian army and police transported Croats to Osijek along the Drava River, but many Croats were driven out forcefully by the TO members, or by their own neighbours.1053 The witness testified that Marko Lončarević, a former policeman in Dalj who organised coordination and cooperation with the JNA, participated in the attack and his group destroyed the Dalj police building, killing many people.1054 The operation ended at noon, and a big celebration in Borovo Selo followed.1055”
1048. P401 (Witness JF-032, witness statement, 17 May 1999), pp. 1-2; P402 (Witness JF-032, Slobodan Milošević transcript, 29-31 January 2003), pp. 15119, 15217, 15291; Witness JF-032, T. 4672-4673 4743, 4795.
1049. P401 (Witness JF-032, witness statement, 17 May 1999), p. 5; P402 (Witness JF-032, Slobodan Milošević transcript, 29-31 January 2003), pp. 15147, 15152-15154, 15160, 15191, 15269, 15276, 15336-15337, 15359; Witness JF-032, T. 4778.
1050. P401 (Witness JF-032, witness statement, 17 May 1999), p. 5; P402 (Witness JF-032, Slobodan Milošević transcript, 29-31 January 2003), pp. 15153-15154, 15269, 15271-15272, 15276, 15340-15341.
1051. P401 (Witness JF-032, witness statement, 17 May 1999), p. 5; P402 (Witness JF-032, Slobodan Milošević transcript, 29-31 January 2003), p. 15153.
1052. P401 (Witness JF-032, witness statement, 17 May 1999), p. 5.
1053. P402 (Witness JF-032, Slobodan Milošević transcript, 29-31 January 2003), pp.15154, 15156, 15271, 15274, 15283, 15363; Witness JF-032, T. 4778.
1054. P401 (Witness JF-032, witness statement, 17 May 1999), p. 5.
1055. P401 (Witness JF-032, witness statement, 17 May 1999), p. 5; P402 (Witness JF-032, Slobodan Milošević transcript, 29-31 January 2003), p. 15154.
“1033. The Trial Chamber recalls its findings in chapter 3.2.6 that on 1 August 1991, the inhabitants of Dalj were driven out forcefully by TO members in the direction of Aljmaš. The Trial Chamber notes Witness JF-032’s evidence that the purpose of the attack was to force local Croats out of Dalj. The Trial Chamber further notes that a significant number of these people were Croats and concludes that their ethnicity thus corresponds to the charges in the Indictment.”
“1034. Having considered the aforementioned acts, the Trial Chamber finds that the Croats were driven out against their will or without genuine choice and as such, were forcibly displaced. Considering that the Croats were inhabitants of Dalj and, absent any indication to the contrary, the Trial Chamber therefore finds that they were lawfully present there.”
P.13.1. Evidence of forcibly marching victims from place to place.
A. Legal source/authority and evidence:
<link http www.legal-tools.org doc e1ae55 _blank>Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, paras. 549-550:
"549. Once the HVO soldiers had taken control of the village, they took the residents of Gacice (247 Muslim civilians) on a forced march towards Vitez and forced them to sit opposite the Hotel Vitez as human shields, for about three hoursProsecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-T, Judgement (TC), 31 March 2003, paras. 550:
"550. At around four in the afternoon witness WW saw cars driving in and surround the buildings in the area where she lived with her husband.1405 A HVO soldier entered her apartment. He checked their ID cards and asked them to leave.1406 Outside the building BH Muslims from the neighboring buildings had been rounded up.1407 Ernest Takac and Pehar called "Dolma" participated in the operation.Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-A, Judgement (AC), 17 September 2003, paras. 231-233:
"231. The testimony of FWS-54, one of the 35 detainees, illustrates the atmosphere of fear and constraint that prevailed in the KP Dom. The Trial Chamber noted that on 8 August 1992, about 20 days before being moved, "FWS-54 was beaten by a KP Dom guard named Pilica Blagojevic as punishment for giving a fellow detainee an extra slice of bread contrary to orders. As a result of the beating, FWS-54 was seriously bruised and lost a few teeth. After the beating, he was locked up in solitary confinement for three or four days."376 Furthermore, relying on the testimony of FWS-54, the Trial Chamber found that on five occasions in June or July 1992, detainees were called outside and were severely beaten. Other detainees heard the cries and moans of the victims.377"
"376. Judgment, para. 219, footnotes omitted.
377. Ibid., para. 274."
"232. None of the detainees returned.378 Witness FWS-54 heard the sound of the beating dying down, and then heard gunshots being fired and a vehicle leaving.379 The Trial Chamber considers that this episode must have increased FWS-54’s fear."
"378. Ibid., para. 274.
379. Ibid., para. 274."
"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."
[B. Evidentiary comment:]
P.13.4. Evidence of forcing victims to live in certain locations.
A. Legal source/authority and evidence:
ICC, The Prosecutor v. Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali, ICC-01/09-02/11, Decision on the confirmation of charges (PTC), 23 January 2012, para. 244-245:
"244. In the view of the Chamber, the evidence establishes that the destruction of homes in residential areas, the brutality of the killings and injuries, the rape of perceived ODM supporters, and the public announcements to the effect that "all Luos must leave", amounted to coercion, which caused the attacked residents of Nakuru and Naivasha to leave their homes and seek shelter in IDP camps.
245. The evidence establishes that residents of Nakuru belonging to ethnic groups perceived as supporting the ODM were displaced to the Afraha Stadium as a result of the Mungiki attack. The evidence includes summaries of statements of two non-ICC witnesses who reported having been displaced from their homes by the attackers, and the KNCHR report states specifically that "[t]he Luo community camped at the Afraha Stadium in Nakuru".
<link http www.legal-tools.org doc e1ae55 _blank>Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, paras. 549-550:
"549. Once the HVO soldiers had taken control of the village, they took the residents of Gacice (247 Muslim civilians) on a forced march towards Vitez and forced them to sit opposite the Hotel Vitez as human shields, for about three hours 1227 . Afterwards, they were taken back to the village and made to live in the seven houses which remained standing. Subsequently, those same people were taken in lorries and driven by force out of the village by the HVO 1228 ."
"1227. See discussion below.
1228. Witness Hrustic, PT p. 4825-4826."
"550. The Trial Chamber finds that these events amount to devastation without any military necessity and forcible transfers of civilians."
[B. Evidentiary comment:]
5.3.2. Deportation or forcible transfer by use of coercion.
P.14. Evidence of deportation or forcible transfer using duress.
P.14.1. Evidence of displaced persons generally having no real choice but to leave.
A. Legal source/authority and evidence:
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-A, Judgement (AC), 17 September 2003, para. 233:
"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."
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 475:
"475. Deportation is illegal only where it is forced.1432 "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".1433 The essential element is that the displacement be involuntary in nature,1434 where the relevant persons had no real choice.1435"
"1432. Article 49, Geneva Convention IV; See also Krstic Trial Judgment, par 528.
1433. Krstic Trial Judgment, par 529; See also Report of the Preparatory Commission for the International Criminal Court, Finalised Draft Text of the Elements of the Crimes, UN Doc. PCNICC/2000/INF/3/Add.2, 6 July 2000, p 11. The Trial Chamber accepts the argument submitted in the Prosecution Pre-Trial Brief, par 346.
1434. The Commentary to the Geneva Convention IV, Article 49, states that the Article was drafted in such a way as to authorise voluntary transfers while prohibiting forcible transfers, thus implying that any forcible transfer must be involuntary.
1435. In this sense it is similar to the crime of rape, where apparent consent induced by force or threat of force is not considered to be real consent: <link http www.legal-tools.org doc fd881d _blank>Kunarac Trial Judgment, par 453."
Prosecutor v. Radislav Krstić, Case No. IT-98-33-T, Judgement (TC), 2 August 2001, paras. 149, 293:
"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."
"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."
Prosecutor v. Jovica Stanišić and Franko Simatovic, Case No. IT-03-69-T, Judgement (TC), 30 May 2013, paras. 404, 508, 526-527, 997-998, 1011, 1017-1018, 1031-1032, 1047-1048, 1081-1082, 1094-1095:
“404. The Trial Chamber finds879 that from April 1991 to April 1992, between 80,000 and 100,000 Croat and other non-Serb civilians fled the SAO Krajina (and subsequently that portion of the RSK), mainly to Croatia and (to a lesser extent) to other countries. With the exceptions of Kijevo and Cerovljani,880 these persons fled as a result of the situation prevailing in this region at the various times of their departure, which was created by a combination of: the attacks on villages and towns with substantial or completely Croat populations; the killings, use as human shields, detention, beatings, forced labour, sexual abuse, and other forms of harassment (including coercive measures) of Croat persons; and the looting and destruction of property. These actions were committed by the local Serb authorities and the members and units of the JNA (including JNA reservists), the SAO Krajina TO, the SAO Krajina Police (including Milan Martić),881 and Serb paramilitary units,882 as well as local Serbs as set out in the Trial Chamber’s findings in the sections above. The Trial Chamber will further consider this incident in relation to Counts 1, 4, and 5 of the Indictment, in chapter 4, below.”
879. On the basis of Adjudicated Facts III 207, 208, 210, and 211, the evidence of Milan Babić and exhibit P551 reviewed in the second section of this chapter (Deportation and forcible transfer from the entirety of the SAO Krajina, 1991-1995), as well as the Adjudicated Facts, and evidence reviewed in relation to the three separate regions above, and considering its findings on specific incidents in the three separate regions above.
880. In this respect, the Trial Chamber recalls its findings on the evacuations from Kijevo in August 1991 and from Cerovljani in August and early September 1991. In these instances, the Trial Chamber allows for the reasonable possibility that these persons fled out of concern for their future safety in view of the pending combat operations.
881. Including Veljko and Stevo Rađunović and Momčilo Kovačević. Members of the Plaški police and the Plaški SDB also participated in Saborsko in November 1991.
882. Including the Unit and units known as the “Dvor na Uni Special Purpose Unit”, the “Special Police Unit of the SAO Krajina Police at Dvor na Uni”, the “SAO Krajina Police Special Purpose Unit (also known as the Specialists)”, and “Captain Dragan’s men”.
“508. On the basis of the testimony of Witness C-057, Luka Šutalo, and Witness JF-017, the Trial Chamber finds that the JNA started shelling Erdut in July 1991. Following the shelling, inhabitants started to leave Erdut. On 1 August 1991, the JNA took over Erdut without resistance. At that time, Erdut was mostly deserted and some Croatian MUP members were fleeing. Based on these circumstances and the fact that at least some of the inhabitants returned after 1 August 1991, the Trial Chamber finds that most of the inhabitants of Erdut left due to the attack on the village.”
“526. Based on the evidence received, in particular the testimony of Witness JF-015, Witness JF-032, Witness C-015, and Witness JF-030, the Trial Chamber finds that the JNA, together with TO units and volunteers from Serbia attacked and took over Dalj on 1 August 1991. Croat villagers fled together with the Croatian Army and police. Based on these circumstances, the Trial Chamber finds that most of the inhabitants of Dalj left out of concern for their safety considering the ongoing combat operation.”
“527. In addition, based on the evidence of Witness JF-032, the Trial Chamber also finds that other inhabitants were driven out forcefully by TO members in the direction of Aljmaš which, at the time, was controlled by non-Serbs. On the same basis, the Trial Chamber finds that one of the purposes of the attack was to force local Croats out of Dalj. Based on this, the Trial Chamber finds that a significant number of those people were of Croat ethnicity. The Trial Chamber will further consider the take-over of Dalj in relation to Counts 1, 4, and 5 of the Indictment, in chapter 4, below.
“997. The Trial Chamber recalls its findings in chapter 3.1.7 that from April 1991 to April 1992, between 80,000 and 100,000 Croat and other non-Serb civilians fled the SAO Krajina (and subsequently the Krajina area of the RSK). They did so as a result of the situation prevailing in the region at the time of their respective departures, which was created by a combination of: the attacks on villages and towns with substantial or completely Croat populations; the killings, use as human shields, detention, beatings, forced labour, sexual abuse, and other forms of harassment of Croat persons; and the looting and destruction of property. These actions were committed by the local Serb authorities and the members and units of the JNA (including JNA reservists), the SAO Krajina TO, the SAO Krajina Police, and Serb paramilitary units, as well as local Serbs and certain named individuals (including Milan Martić). The Trial Chamber notes that the persons fleeing were Croats and other nonSerbs and that their ethnicity thus corresponds to the charges in the Indictment.”
“998. The Trial Chamber finds that the aforementioned acts caused duress and fear of violence such that they created an environment in which the Croats and other non-Serbs in the SAO Krajina had no choice but to leave. Therefore, the Trial Chamber finds that those who left were forcibly displaced. Considering the circumstances of the forcible displacement, and absent any indication to the contrary, the Trial Chamber finds that the displaced individuals were forced to leave an area in which they were lawfully present.”
“1011. The Trial Chamber has already found that the attacks and subsequent crimes committed in the Krajina area of the RSK in 1991-1992 caused duress and fear of violence such that they created an environment in which the Croats and other non-Serbs had no choice but to leave. The Trial Chamber is satisfied that the forcible displacement of Croats and other non-Serbs in this area continued in the years 1992-1994. The Trial Chamber finds that those who left the Krajina area of the RSK between May 1992 and the end of 1994 were forcibly displaced. The Trial Chamber finds, having considered that those who were forcibly displaced were inhabitants, and absent any indication to the contrary, that the displaced individuals were forced to leave an area in which they were lawfully present.”
“1017. The Trial Chamber recalls its findings in chapter 3.2.6 that the JNA started shelling Erdut in July 1991. Following the shelling, inhabitants started to leave Erdut and on 1 August 1991, the JNA took over Erdut without resistance. At the time of the take-over, this area was mostly deserted and some Croatian MUP members were fleeing.”
“1018. The Trial Chamber considers that those who left Erdut did so out of concern for their safety in light of ongoing combat operations and that other inhabitants had left prior to the take-over. The Trial Chamber considers that there is insufficient evidence to conclude that the take-over of Erdut was conducted so as to create an environment whereby the inhabitants had no choice but to leave. Therefore, the Trial Chamber will not consider this incident further.”
“1031. The Trial Chamber recalls its findings in chapter 3.2.6 that on 1 August 1991, the JNA, together with TO units and volunteers from Serbia, attacked and took over Dalj municipality, causing the Croat villagers, as well as the Croatian Army and police to flee. The Trial Chamber notes that the people displaced as a result of the attack on Dalj were predominantly Croats and concludes that their ethnicity thus corresponds to the charges in the Indictment.”
“1032. The Trial Chamber found that those who left Dalj did so out of concern for their safety in light of ongoing combat operations. The Trial Chamber considers that there is insufficient evidence to conclude that the take-over of Dalj was conducted so as to create an environment whereby the inhabitants had no choice but to leave. Therefore, the Trial Chamber will not consider this incident further.”
“1047. The Trial Chamber recalls its findings in chapter 3.2.6 that after the JNA had taken over Ilok in early October 1991, around 8,000 persons, many of them Croat, left for Croatiaheld territory on 17 October 1991. These people had expressed a wish to leave because they had heard what happened in surrounding villages. The Trial Chamber notes that many of these people were Croat and concludes that their ethnicity thus corresponds to the charges in the Indictment.”
“1048. The Trial Chamber notes that those who left Ilok did so after a referendum was held and that the citizens expressed a wish to leave for Croatia-held territory, as the JNA had issued an ultimatum to the armed formations in Ilok to surrender and disarm and the citizens had heard of the conditions in the surrounding villages. The majority, Judge Picard dissenting, considers that there is insufficient evidence to conclude that the environment was such that the inhabitants had no choice but to leave, and as such, will not consider this incident further.”
“1081. The Trial Chamber recalls its findings in chapter 3.4.2 that numerous men, women and children, most if not all of whom were Croats and Muslims, left Bosanski Šamac town on 17 and 18 April 1992. They went to Domaljevac and Grebnice, both in Bosanski Šamac municipality, and Croatia. That they left was the result of the attack and take-over of Bosanski Šamac town, by the local Serb police, the TO, 30 members of the Unit, 18 local Serb paramilitaries, and the Fourth Detachment of the 17th Tactical Group of the JNA. The attack and take-over occurred on 17 April 1992. The attack and take-over included people being driven out of their homes, houses being searched, shooting all around and looting of houses. Local Serb authorities, including the Serb Crisis Staff arrested and detained Muslims and Croats as of 17 April 1992 and these arrests and detentions were also among the factors that made them leave the municipality. The Trial Chamber notes that most, if not all, of those who left Bosanski Šamac municipality were Muslims and Croats and concludes that their ethnicity thus corresponds to the charges in the indictment.”
“1082. The Trial Chamber considers that the aforementioned acts caused duress and fear of violence such that they created an environment in which those present had no choice but to leave. Consequently, the Trial Chamber finds that those who left Bosanski Šamac town on 17 April 1992 were forcibly displaced. The Trial Chamber finds that the Croats and Muslims were inhabitants of Bosanski Šamac, and absent any indication to the contrary, that they were lawfully present there.”
“1094. The Trial Chamber recalls its finding in chapter 3.5.2 that as a result of the take-over of Doboj town and a combination of numerous incidents, which occurred on or before 7 May 1992, namely, the dismissal of Muslims and Croats from their jobs and destruction of their businesses; the torture and sexual violence in Bukovaćke Čivčije; the artillery attacks, shelling, and destruction of a mosque and a Catholic church in Doboj town; the curfew established for Muslims and Croats; and the misappropriation of Croat and Muslim property, thousands of Croats and Muslims left Doboj town for Tešanj on or before 7 May 1992. The Trial Chamber further recalls its finding that these acts were committed by members of the JNA, Serb police, the Unit in Doboj, White Eagles, Predo’s Wolves, Osinjska Brigade, Serb authorities, and other Serb persons. The Trial Chamber notes that the people who left Doboj town were Croats and Muslims and is thus satisfied that their ethnicity corresponds to the charges in the Indictment.”
“1095. The Trial Chamber finds that the aforementioned acts caused duress and fear of violence such that they created an environment where Muslims and Croats had no choice but to leave. Consequently, the Trial Chamber finds that the thousands of Muslims and Croats that left Doboj town on or before 7 May 1992 were forcibly displaced. Having considered the fact that the forcibly displaced people were inhabitants of Doboj town, and absent any indication to the contrary, the Trial Chamber finds that they were lawfully present there.”
[B. Evidentiary comment:]
P.14.2. Not exculpatory: Evidence that displacement was the result of agreements.
A. Legal source/authority and evidence:
<link http www.legal-tools.org doc _blank>Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, para. 569.
"569. Bosnian Muslim representatives met with Bosnian Serb municipal authorities on several different occasions to discuss the movement of Bosnian Muslim populations from Bosanski Novi for security reasons, including to Karlovac.1467 The Trial Chamber is satisfied beyond reasonable doubt, however, that Bosnian Muslim and Bosnian Croat departures were carried out under duress1468 and were thus involuntary in nature,1469 despite having been carried out with the collaboration or at the insistence of Bosnian Muslim representatives."
"1467. BT-81, T. 13846-13848 (private session); BT-87, ex. P1643, 92bis statement, 00942599; Charles Kirudja, T . 14519-14521.
1468. BT-84, T. 14167.
1469. Charles Kirudja, T. 144432, 14435-14436, 14440."
<link http www.legal-tools.org doc f2cfeb _blank>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".1363 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.1364 Further, it is agreed that the civilians were in the Sovici school, but it is argued that they gathered there spontaneously for their own safety.1365"
1364. Naletilic Final Brief, p 27.
1365. Naletilic Final Brief, p 26."
"523. The Chamber is not satisfied that any such agreement on exchange was negotiated.1366 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."
"1366. The Naletilic Defence stated that such an agreement would be submitted for admission into evidence with the identification number is D1/360. However, no such document was ever presented. The evidence presented by Defence witness NW was not credible in this regard. Further, the international observers present reported nothing about an agreed transfer."
[B. Evidentiary comment:]
P.14.3. Not exculpatory: Evidence that victims wanted to leave.
A. Legal source/authority and evidence:
<link http www.legal-tools.org doc _blank>Prosecutor v. Momćilo Krajišnik, Case No. IT-00-39-T, Judgement (TC), 27 September 2006, para. 731:
"731. One such example is the forcible displacement of the Muslim population of Bosanski Novi. During May 1992, Serb forces drove Muslims from their homes in ninevillages in the Japra valley to the village of Blagaj Japra. At the same time, Muslims in the town of Bosanski Novi were being arrested. At that point, Serb authorities began "negotiations" with persons informally representing the Muslims community and UN officials, with the aim of transferring the Muslims out of the municipality. One of the Muslim representatives described these "negotiations" as a desperate attempt to receive some help to "leave this hell in Bosanski Novi where we were under siege".TPF Serb municipal authorities put forth the stance that the departure of Muslims from the municipality was on a voluntary basis. However, the Chamber excludes the possibility that the municipal authorities actually believed that this was the case. Rather, in this respect, the Serb authorities were, in the Chamber’s opinion, deliberately cynical. As another of the Muslim representatives testified, "in view of all that had happened to me before, from the arrest, the camp, the killing of my uncle, the torchings, the chaos, how can one say that we left of our own will?"TPF T This involuntary character was also clear to UN officials, who hesitated to comply with requests for assistance in the movement of the Muslim population from Serb authorities. In July, a large convoy of approximately 9,000 persons, including the displaced persons from Blagaj Japra who were at that time being detained at Mlakve stadium, set out for Croatia."
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-A, Judgement (AC), 17 September 2003, paras. 228 – 229:
"228. In the part of his testimony upon which the Trial Chamber relied, witness FWS -54 stated:
Where is 367??[…]
370. T, pp. 1725 and 1726.
371. T, p. 3868."
"229. The Trial Chamber held that "there was general evidence" that the detainees wanted to be exchanged. The Appeals Chamber examined the testimony on which the Trial Chamber relied372 and found that they were of a general nature and did not specifically refer to the 35 detainees in question. This testimony shows that the prisoners were happy about the exchanges, which gave them hope and made them keenly wish to be liberated, and that some of the detainees even went so far as to ask to be exchanged. However, the Appeals Chamber holds that this does not necessarily imply that it was a matter of "genuine choice". Yet it is the absence of genuine choice that makes displacement unlawful. Similarly, it is impossible to infer genuine choice from the fact that consent was expressed, given that the circumstances may deprive the consent of any value.373 Consequently, when analyzing the evidence concerning these general expressions of consent, it is necessary to put it into context and to take into account the situation and atmosphere that prevailed in the KP Dom, the illegal detention, the threats, the use of force and other forms of coercion, the fear of violence and the detainees’ vulnerability. Yet the Trial Chamber was content to consider the testimony in isolation."
"372. Witnesses FWS-54, T, p. 774; FWS-65, T, p. 523; Rasim Taranin, T, p.1725; FWS-109, T, p. 2399; FWS-249, T, p. 4483; RJ, T, p. 3868.
373. In the Final Record of the Diplomatic Conference of Geneva 1949, convened by the Swiss Federal Council for the Establishment of International Conventions for the Protection of War Victims, volume II, section A, held at Geneva from 21 April to 12 August 1949, it is stated that the words "against their will" which occurred in the previous draft (the so-called Stockholm text) were omitted as the Drafting Committee considered that they were valueless in view of the pressure that could be brought to bear on internees, p. 759. The Commentary to the Fourth Geneva Convention states that "the Diplomatic Conference preferred not to place an absolute prohibition on transfers of all kinds, as some might up to a certain point have the consent of those being transferred. The Conference had particularly in mind the case of protected persons belonging to ethic or political minorities who might have suffered discrimination or persecution on that account and might therefore wish to leave the country. In order to make due allowances for that legitimate desire the Conference decided to authorise voluntary transfers by implication, and only to prohibit ‘forcible’ transfers", Commentary to the Fourth Geneva Convention, p. 279."
[B. Evidentiary comment:]
P.15. Evidence of deportation or forcible transfer using detention.
P.15.1. Evidence that victims were detained prior to transfer.
A. Legal source/authority and evidence:
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-A, Judgement (AC), 17 September 2003, 236 – 237:
"236. The Trial Chamber reached the following conclusion:
"237. Given these conclusions, as well as the discriminatory character of unlawful detention and the imposition of the living conditions386 described above on non-Serb KP Dom detainees, the Appeals Chamber considers that it was not reasonable for the Trial Chamber to conclude that there was no evidence that the 35 detainees had been transferred to Montenegro on the requisite discriminatory grounds."
"386. See, for example, paragraph 193 of this Judgement."
<link http www.legal-tools.org doc f2cfeb _blank>Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-T, Judgement (TC), 31 March 2003, para. 524 – 525:
"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.1367 The BH Muslim civilians of Sovici were forced or threatened by force by HVO soldiers to leave their homes. Witness X described how she and her family were afraid of the HVO, and sought refuge and safety in the home of their neighbour, but the HVO soldiers came and forced her and her family to leave the house while the neighbour could stay.1368 The HVO themselves considered the civilians to be detained from 23 April 1993.1369"
"1367. Naletilic Final Brief, p 26. Further, the Defence is stating that the accused had nothing to do with the situation in the school.
1368. Witness X, T 3312.
1369. Exhibit PP 333, a report sent to Slobodan Bozic, at the Defence Department of the HVO, asking for instructions of what to do with the 422 prisoners."
"525. Defence witness NW testified, in relation to the transfer on 4 May 1993 that ‘there were talks with civilians. They had no objections’.1370 The Chamber refutes much of Defence witness NW’s testimony. An overall consideration of the evidence shows that the civilians did not have a ‘real choice’ and no consent was expressed to the transfer. The Chamber considers the general situation in Sovi ci [sic] following the attack is that the women, children and older men were detained for at least ten days prior to the transfer; buses were provided by the HVO for the transfer and there was a general discriminatory threat from the HVO directed against the BH Muslims in Sovici."
"1370. Defence witness NW, T 14966-14968."
Prosecutor v. Jovica Stanišić and Franko Simatovic, Case No. IT-03-69-T, Judgement (TC), 30 May 2013, paras. 590, 1068-1069:
“590. On 15 June 1992, Ljubiša (Mauzer) Savić stated that the presidency of SAO Semberija-Majevica had decided to replace Muslims in managerial positions in Bijeljina, and should “the genocide against the Serbian people” in Bosnia-Herzegovina continue, all Muslims would be fired from their jobs and expelled from the territory.1234 Mauzer also stated that the 2,500 Muslims aged between 18 and 35 who had fled Bijeljina in the aftermath of the Serb take-over would lose their jobs, and their apartments would be seized and sealed, and he advised them not to return.1235 The Bijeljina SDS compiled a list of names of wealthy Muslims.1236 Aided by Mauzer’s men, Vojkan Đurković of the Bijeljina SDS paid visits to those on the list in order to extort property from them. Some of these Muslims initially paid to be able to stay in Bijeljina. Others were detained immediately, stripped of their valuables, and transferred to “no-man’s land” between the warring factions, where they remained, sometimes for days, before being able to cross into Muslim-controlled territory.1237 The Bijeljina SDS was determined to rid the municipality of its remaining Muslims.1238 At least 52 persons of mainly Muslim ethnicity were killed by Serb forces in Bijeljina municipality in AprilSeptember 1992.1239”
1234. Adjudicated Facts IV, fact 282.
1235. Adjudicated Facts IV, fact 283.
1236. Adjudicated Facts IV, fact 285.
1237. Adjudicated Facts IV, fact 286.
1238. Adjudicated Facts IV, fact 287.
1239. Adjudicated Facts IV, fact 288.
“1068. The Trial Chamber recalls its finding in chapter 3.3.1 that in June 1992, the Bijeljina SDS, aided by Mauzer’s men, and in an effort to rid the municipality of its remaining Muslims, transferred some of Bijeljina’s Muslim residents to “no-man’s land” between the warring factions. The Trial Chamber notes that the people transferred were Muslim and concludes that their ethnicity thus corresponds to the charges in the Indictment.”
“1069. The Trial Chamber finds that as the displaced persons were detained and transferred to “no-man’s land” that they were transferred against their will or without any genuine choice, and so, were forcibly displaced. The Trial Chamber finds, having considered that the Muslims were residents, and absent any indication to the contrary, that they were lawfully present there.”
B. Evidentiary comment:
It is important to note that the ICTY Trial Chamber has previously held that the actus reus of detention is not alone enough to establish unlawful transfer. The Naletilic and Martinović Trial Chamber (para. 537) found that for detention to constitute unlawful transfer, persons must have been apprehended and arrested in order to be transferred rather than in order to be detained. The Trial Chamber found that the requisite intent for forcible transfer is not established when persons are arrested in order to be detained rather than transferred.
5.3.3. Deportation or forcible transfer using threats of force.
P.16. Evidence of deportation or forcible transfer using psychological oppression.
P.16.1. Evidence of general discriminatory threat.
A. Legal source/authority and evidence:
Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, para. 551:
"551. The Trial Chamber is satisfied beyond reasonable doubt both that the expulsions and forcible removals were systematic throughout the ARK, in which and from where tens of thousands of Bosnian Muslims and Bosnian Croats were permanently displaced,1405 and that this mass forcible displacement was intended to ensure the ethnic cleansing of the region. These people were left with no option but to escape. Those who were not expelled and did not manage to escape were subjected to intolerable living conditions imposed by the Bosnian Serb authorities,1406 which made it impossible for them to continue living there and forced them to seek permission to leave. Bosnian Muslims and Bosnian Croats were subjected to movement restrictions, as well as to perilous living conditions;1407 they were required to pledge their loyalty to the Bosnian Serb authorities1408 and, in at least one case, to wear white armbands.1409 They were dismissed from their jobs and stripped of their health insurance.1410 Campaigns of intimidation specifically targeting Bosnian Muslims and Bosnian Croats were undertaken.1411"
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-A, Judgement (AC), 17 September 2003, paras. 236 – 237:
"236. The Trial Chamber reached the following conclusion:
"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. Radislav Krstić, Case No. IT-98-33-T, Judgement (TC), 2 August 2001, para. 530:
"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.1183 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.1184"
"1183. Supra, paras. 128-130. [Refers to previous paragraphs in Krstic Trial Judgment]
1184. Supra, paras. 145 to 149."
Prosecutor v. Jovica Stanišić and Franko Simatovic, Case No. IT-03-69-T, Judgement (TC), 30 May 2013, paras. 1231-1232:
“1231. The Trial Chamber recalls its findings in chapter 3.8.2 that on or about 26 June 1992, a large number of Serb soldiers, TO members, and paramilitary units, including military scouts, White Eagles, and members of Gagić’s unit entered the village of Kozluk. Marko Pavlović, Brano/Branko Grujić, the Zvornik SDS president, and Jovan Mijatović, a member of the Zvornik crisis staff arrived with them and gave an ultimatum to the Muslim villagers to leave within an hour and a half, or they would be killed. The forces that entered the village fired weapons, burned several buildings, and injured at least one Muslim man. The forces placed 1,882 Muslims from Kozluk and Skočić onto 17 buses and transferred them, with a local Serb police escort, to Loznica in Serbia. Before leaving, these forces obliged the Muslims to sign statements surrendering their property. The Trial Chamber notes that the people who were transported from Kozluk and Skočić were Muslim and concludes that their ethnicity thus corresponds to the charges in the Indictment.”
“1232. Considering the aforementioned acts, the Trial Chamber finds that the Muslims were transported against their will or without genuine choice and as such were forcibly displaced. The Trial Chamber finds, having considered that those who were forcibly displaced were inhabitants of Kozluk and Skočić and, absent any indication to the contrary, that they were lawfully present there.”
B. Evidentiary comment:
Some ICTY jurisprudence indicates that a discriminatory element is a necessary part of the actus reus of deportation as a Crime Against Humanity (see, e.g., Tadic , Trial Judgment, para. 715; Kupresik, Trial Judgment, para. 621; Kordic and Cerkez, Trial Judgment, paras. 189, 203). Evidence of membership in a discriminatory organization was held to be insufficient to establish discriminatory intent (see Krnojelac, Trial Chamber, para. 487). However, this requirement stems from the treatment of deportation as a method of persecution as a Crime Against Humanity (see Krnojelac, Trial Judgment, para. 432). Since persecution and deportation/forced transfer are separate crimes under the Rome Statute (Arts. 7(d) and 7(h), respectively), and the Elements of Crimes for deportation and forced transfer do not require discrimination, this ICTY jurisprudence is not as relevant.
P.16.2. Evidence of segregating victims based on personal characteristics.
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.2012 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,2013
- the organised, inhumane and frequently aggressive process of separating out and removing the male members of the population2014…"
2013. See supra para. 166, and section II. D. 1. (g).
2014. See supra section II. D. 1. (e)."
<link http www.legal-tools.org doc f2cfeb _blank>Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-T, Judgement (TC), 31 March 2003, paras. 540, 560:
"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.1388"
"1388. Witness P, T 2280-2281; exhibit PP 456."
"560. Witness MM, (a resident of the Centar II area in Mostar), recalled how nine soldiers, qualifying themselves as "Stelici", entered her apartment in the evening of 29 September 1993, searching for money and gold valuables.1423 The soldiers evicted them together with other families from the same building and divided men from women, children, and elderly.1424 Women, children and elderly were put on two trucks and brought to the yard of the health centre.1425 They were all lined up and their bags were taken away from them. Witness MM testified "(t(hey [sic] told other people to turn around, and then they opened fire. At that moment, I fled".1426 She crossed over to the eastern side of Mostar."
"1423. Witness MM, T 5754-5755 (confidential).
1424. Witness MM, T 5758 (confidential).
1425. Witness MM, T 5758 (confidential). Witness MM described that she was taken in the direction of the Bulevar to what sued to be the hospital for pulmonary diseases. The Chamber is satisfied that this is the health centre, which was used by Vinko Skrobo ATG. Exhibit PP 11.28/5. She further describes how she fled to East Mostar as follows: "[w]e first went across the street, and that is where the eastern Mostar begins. We reached a neighbourhood called Cernica, below the Bulevar cross the Neretva River to the eastern side of Mostar", this further indicates that she was at the Health Centre.
1426. Witness MM, T 5755 (confidential)."
Prosecutor v. Duško Tadić, Case No. IT-94-1-T, Judgement (TC), 7 May 1997, para. 455:
"455. The Trial Chamber has already found beyond reasonable doubt that the accused played an active role in the moving of non-Serbs from the Kozarac area in columns through and out of Kozarac to assembly points and in their subsequent separation into categories by age and sex for transport to camps, including Trnopolje, all effected by force or the threat of force. Thus the Trial Chamber finds beyond reasonable doubt that the accused participated in the transfer to and in the initial confinement of non-Serbs in camps generally, and in the Trnopolje camp in particular, as charged in this subparagraph and that these acts were committed in the context of an armed conflict. However, the Trial Chamber finds that the accused did not take an active role in the continued confinement of non-Serbs in the Trnopolje camp."
[B. Evidentiary comment:]
P.16.3. Evidence of cursing at or threatening victims.
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.2012 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,2013
- the organised, inhumane and frequently aggressive process of separating out and removing the male members of the population,2014
- the evidence regarding the conditions in Potocari during the nights of 11 and, in particular, 12 July,2015
- that many VRS soldiers were cursing at the Bosnian Muslim refugees, saying that they would be slaughtered2016…"
"2012. See generally section II. D. 1.
2013. See supra para. 166, and section II. D. 1. (g).
2014. See supra section II. D. 1. (e).
2015. Camila Omanovic, KT. 1090- 91 (re 11 July), and para. 167, detailing how VRS forces were moving around the mass of Bosnian Muslim refugees separating out and removing the male members of the population, firing their weapons and shouting, the constant screams for help, id. "All this had the effect of making the remaining refugees want to leave the area as soon as possible." Camila Omanovic, KT. 1716.
2016. Bego Ademovic, KT. 1589-90."
Prosecutor v. Radislav Krstić, Case No. IT-98-33-T, Judgement (TC), 2 August 2001, para. 147:
"147. … Certainly, the Bosnian Muslim refugees were not consulted or given a choice about their final destination. An UNMO in the Srebrenica area testified to an incident he witnessed in which Serb soldiers threatened to shoot an elderly woman if she did not leave Srebrenica, despite her pleas to remain. As a result of this threat and to ensure her safety, the UNMO physically removed the woman from the Srebrenica hospital where she had been and took her to Potocari.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 homes1401 and institutions dedicated to religion.1402 This process of ethnic cleansing accelerated in October 1992, when in the municipalities of Prijedor, Kljuc and Kotor Varos, there was an active and systematic repression and expulsion of people.1403 The Trial Chamber notes that in North-Western BiH, and in the municipalities of Kljuc, Sanski Most and Bosanski Petrovac in particular, the situation significantly worsened in November 1992.1404"
"1400. See for example, para . 559 infra regarding Trnopolje; para. 558 infra regarding Manjaca Military Camp.
1401. See IX.D., "Destructions", infra.
1402. Ibid.
1403. BT-19, T. 20658, 20667 (closed session). See also ex. P2670 (under seal).
1404. BT-19, T. 20670 (closed session). See also ex. P2675 (under seal)."
Prosecutor v. Jovica Stanišić and Franko Simatovic, Case No. IT-03-69-T, Judgement (TC), 30 May 2013, para. 261:
“261. The Trial Chamber recalls its findings in chapter 3.1.4 that on 12 November 1991, in Saborsko, members of the Serb forces which attacked Saborsko shot and killed nine Croats and pointed a gun at Ana Bićanić and told her to leave or she would be killed, after which they shot at a group of persons as they ran away. The Trial Chamber considers the Adjudicated Facts and the evidence of Ana Bićanić and Witness C-1231 set out in the aforementioned chapter, establishing that after these events, the group, including Ana Bićanić and Witness C-1231, walked towards Lipice, reaching territory controlled by the HVO on 15 November 1991, to be consistent with Adjudicated Facts 207, 208 and 210, which establish the manner in which displacement of the Croat population occurred in the SAO Krajina in 1991, as reviewed above in the second section of this chapter.579 Similarly, in view of its findings above in relation to the events of 12 November 1991, the Trial Chamber considers the Adjudicated Facts and exhibit D7 that during and immediately after the attack, most of the inhabitants of Saborsko fled to Karlovac, Zagreb, and Ogulin, to be consistent with Adjudicated Facts 208 and 210.”
579. Deportation and forcible transfer from the entirety of the SAO Krajina, 1991-1995.
[B. Evidentiary comment:]
P.16.5. Evidence of restricting victims’ freedom of movement.
A. Legal source/authority and evidence:
Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, para. 551:
"551. The Trial Chamber is satisfied beyond reasonable doubt both that the expulsions and forcible removals were systematic throughout the ARK, in which and from where tens of thousands of Bosnian Muslims and Bosnian Croats were permanently displaced,1405 and that this mass forcible displacement was intended to ensure the ethnic cleansing of the region. These people were left with no option but to escape. Those who were not expelled and did not manage to escape were subjected to intolerable living conditions imposed by the Bosnian Serb authorities,1406 which made it impossible for them to continue living there and forced them to seek permission to leave. Bosnian Muslims and Bosnian Croats were subjected to movement restrictions, as well as to perilous living conditions1407…"
"1405. For evidence regarding the forcible displacement of more than one million people throughout BiH, see BT-19, T. 20662 (closed session). See also ex. P2675 (under seal). Regarding Prijedor, Sanski Most and Bosanska Krupa, see Charles Kirudja, T. 14660. Regarding Prijedor, see Charles McLeod, T. 7325 -7326, 7388. Regarding Kotor Varos, see BT-71, T. 17649 (private session ). Regarding Bosanski Novi, see Charles Kirudja, T. 14660-14661. Regarding Prnjavor, see BT-91, T. 15860-15862; Dobrivoje Vidic, T. 23011; BT -51, ex. P1784, 92bis statement, 00635474. With regards to the driving out of at the Bosnian Muslim and Bosnian Croat residents of the Teslic region , see BT-95, T 19598-19599 (closed session); ex. P1937, ‘BBC World Broadcast Summary of a Radio BiH report that at least 10000 Teslic region residents had been driven out’. Regarding the expulsion of Bosnian Muslims and Bosnian Croats from Bosanski Petrovac, see Ahmet Hidic, T. 16272; ex. P1878, ‘Report on the events in Bosanski Petrovac from June 1992 by Bosanski Petrovac Country Club’. Regarding the expulsion of people from the Muslim villages of Basici and Mehovci in Celinac, see BT-90, T. 17095, 17097 (closed session). 1406. See IX.A., ‘Exterminaion [sic] and Wilful Killing’ supra; D., ‘Destructions’, infra. 1407. For Prijedor, see BT-1, T. 13682-13684; for Bosanski Novi, see Charles Kirudja, T. 14496; BT-84, T. 14163-14164; for Sipovo, see BT-105, T. 19111- 19112 (private session); for Bosanski Petrovac, see Jovo Radojko, T. 20361; for Celinac, see BT-90, T. 17083-17084, 17090-17092 (closed session)."
[B. Evidentiary comment:]
P.16.6. Evidence of requiring victims to wear certain clothing or insignia.
A. Legal source/authority and evidence:
Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, para. 551:
"551. The Trial Chamber is satisfied beyond reasonable doubt both that the expulsions and forcible removals were systematic throughout the ARK, in which and from where tens of thousands of Bosnian Muslims and Bosnian Croats were permanently displaced,1405 and that this mass forcible displacement was intended to ensure the ethnic cleansing of the region. These people were left with no option but to escape. Those who were not expelled and did not manage to escape were subjected to intolerable living conditions imposed by the Bosnian Serb authorities,1406 which made it impossible for them to continue living there and forced them to seek permission to leave. Bosnian Muslims and Bosnian Croats were subjected to movement restrictions, as well as to perilous living conditions;1407 they were required to pledge their loyalty to the Bosnian Serb authorities1408 and, in at least one case, to wear white armbands1409…"
"1405. For evidence regarding the forcible displacement of more than one million people throughout BiH, see BT-19, T. 20662 (closed session). See also ex. P2675 (under seal). Regarding Prijedor, Sanski Most and Bosanska Krupa, see Charles Kirudja, T. 14660. Regarding Prijedor, see Charles McLeod, T. 7325 -7326, 7388. Regarding Kotor Varos, see BT-71, T. 17649 (private session ). Regarding Bosanski Novi, see Charles Kirudja, T. 14660-14661. Regarding Prnjavor, see BT-91, T. 15860-15862; Dobrivoje Vidic, T. 23011; BT -51, ex. P1784, 92bis statement, 00635474. With regards to the driving out of at the Bosnian Muslim and Bosnian Croat residents of the Teslic region , see BT-95, T 19598-19599 (closed session); ex. P1937, ‘BBC World Broadcast Summary of a Radio BiH report that at least 10000 Teslic region residents had been driven out’. Regarding the expulsion of Bosnian Muslims and Bosnian Croats from Bosanski Petrovac, see Ahmet Hidic, T. 16272; ex. P1878, ‘Report on the events in Bosanski Petrovac from June 1992 by Bosanski Petrovac Country Club’. Regarding the expulsion of people from the Muslim villages of Basici and Mehovci in Celinac, see BT-90, T. 17095, 17097 (closed session). 1406. See IX.A., ‘Exterminaion [sic] and Wilful Killing’ supra; D., ‘Destructions’, infra. 1407. For Prijedor, see BT-1, T. 13682-13684; for Bosanski Novi, see Charles Kirudja, T. 14496; BT-84, T. 14163-14164; for Sipovo, see BT-105, T. 19111- 19112 (private session); for Bosanski Petrovac, see Jovo Radojko, T. 20361; for Celinac, see BT-90, T. 17083-17084, 17090-17092 (closed session).
1408. Those who remained in Sanski Most had to sign a loyalty oath to Serbian authorities: Besim Islamcevic, T. 7431; BT-104, T. 18531 (private session). Conversely, the police recommended to those who did not accept this loyalty, that it would be best if they moved out: Jakov Maric, T. 10840. See also BT-21, T. 8511-8513 (closed session) and ex. P218, ‘Decision of the Serb Municipality of Sanski Most Crisis Staff, 30 May 1992’. For evidence regarding the organisation and moving out of refugees in Prnjavor disloyal to the authorities of the SerBiH, see ex. P 2608, ‘Official Gazette of the Prnjavor Municipality’, 18 August 1992."
[B. Evidentiary comment:]
P.16.7. Evidence of requiring victims to pledge loyalty to the displacing forces.
A. Legal source/authority and evidence:
Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, para. 551:
"551. The Trial Chamber is satisfied beyond reasonable doubt both that the expulsions and forcible removals were systematic throughout the ARK, in which and from where tens of thousands of Bosnian Muslims and Bosnian Croats were permanently displaced,1405 and that this mass forcible displacement was intended to ensure the ethnic cleansing of the region. These people were left with no option but to escape. Those who were not expelled and did not manage to escape were subjected to intolerable living conditions imposed by the Bosnian Serb authorities,1406 which made it impossible for them to continue living there and forced them to seek permission to leave. Bosnian Muslims and Bosnian Croats were subjected to movement restrictions, as well as to perilous living conditions;1407 they were required to pledge their loyalty to the Bosnian Serb authorities1408…"
"1405. For evidence regarding the forcible displacement of more than one million people throughout BiH, see BT-19, T. 20662 (closed session). See also ex. P2675 (under seal). Regarding Prijedor, Sanski Most and Bosanska Krupa, see Charles Kirudja, T. 14660. Regarding Prijedor, see Charles McLeod, T. 7325 -7326, 7388. Regarding Kotor Varos, see BT-71, T. 17649 (private session ). Regarding Bosanski Novi, see Charles Kirudja, T. 14660-14661. Regarding Prnjavor, see BT-91, T. 15860-15862; Dobrivoje Vidic, T. 23011; BT -51, ex. P1784, 92bis statement, 00635474. With regards to the driving out of at the Bosnian Muslim and Bosnian Croat residents of the Teslic region , see BT-95, T 19598-19599 (closed session); ex. P1937, ‘BBC World Broadcast Summary of a Radio BiH report that at least 10000 Teslic region residents had been driven out’. Regarding the expulsion of Bosnian Muslims and Bosnian Croats from Bosanski Petrovac, see Ahmet Hidic, T. 16272; ex. P1878, ‘Report on the events in Bosanski Petrovac from June 1992 by Bosanski Petrovac Country Club’. Regarding the expulsion of people from the Muslim villages of Basici and Mehovci in Celinac, see BT-90, T. 17095, 17097 (closed session). 1406. See IX.A., ‘Exterminaion [sic] and Wilful Killing’ supra; D., ‘Destructions’, infra. 1407. For Prijedor, see BT-1, T. 13682-13684; for Bosanski Novi, see Charles Kirudja, T. 14496; BT-84, T. 14163-14164; for Sipovo, see BT-105, T. 19111- 19112 (private session); for Bosanski Petrovac, see Jovo Radojko, T. 20361; for Celinac, see BT-90, T. 17083-17084, 17090-17092 (closed session).
1408. Those who remained in Sanski Most had to sign a loyalty oath to Serbian authorities: Besim Islamcevic, T. 7431; BT-104, T. 18531 (private session). Conversely, the police recommended to those who did not accept this loyalty, that it would be best if they moved out: Jakov Maric, T. 10840. See also BT-21, T. 8511-8513 (closed session) and ex. P218, ‘Decision of the Serb Municipality of Sanski Most Crisis Staff, 30 May 1992’. For evidence regarding the organisation and moving out of refugees in Prnjavor disloyal to the authorities of the SerBiH, see ex. P 2608, ‘Official Gazette of the Prnjavor Municipality’, 18 August 1992."
[B. Evidentiary comment:]
P.17.1. Evidence of displacement within a coherent, consistent strategy of ethnic cleansing.
A. Legal source/authority and evidence:
Prosecutor v. Milutinović et al., Case No. IT-05-87-T, Judgement (TC) Vol II, 26 February 2009, para. 230, 944:
"230. The Chamber finds that during the Reka/Caragoj valley operation VJ and MUP forces, acting jointly, expelled Kosovo Albanian civilians from their villages, and sent many of them to Albania. This is on the basis of the evidence of Lizane Malaj and Merita Deda, who said that this practice was widespread and organised, K90, who said that the practice of removing Kosovo Albanians from their villagers was carried out by the VJ according to oral orders, and that of K73, who gave accounts of expelling villagers during the operation. It is also supported by the evidence of Martin Pnishi and Nike Peraj in relation to events at Meja and Korenica on 27 and 28 April 1999. Many of the expelled Kosovo Albanians were forced on to Albania by MUP and VJ forces, under threat of death. The Chamber is also satisfied that these removals were forcible and involved mistreatment and the taking of personal documentation from the displaced individuals. On the basis of the evidence of inter alios K73 and K90, the Chamber finds that the KLA presence in this area was not significant on 27 and 28 April 1999, and that the Reka/Caragoj valley operation was primarily directed at the Kosovo Albanian civilian population. Taking account of the evidence relating to the activities of VJ and MUP forces throughout late March and early to mid April 1999 in Đakovica/Gjakova municipality, including that of Fuat Haxhibeqiri as discussed above, the Chamber finds that these expulsions were part of a more general policy of forcibly displacing Kosovo Albanians from their villages in Đakovica/Gjakova municipality."
"944. The Trial Chamber is convinced by the evidence from Qamil Shabani and K81, confirmed by Franjo Glončak, that the VJ and MUP, reinforced by armed civilians as well as other irregular forces, were present in ?egra/Zhegra at the end of March 1999. The Chamber finds that the VJ and MUP, as well as other irregular forces, drove Kosovo Albanians from the village by the use of threats, beatings and killings, creating a climate of fear. On their way to Macedonia they were subjected to more abuse. The Chamber further believes the testimony of K81 about similar events in Vladovo/Lladova, where houses were burned and villagers killed by VJ soldiers. Kosovo Albanians fled to the mountains and eventually left for Macedonia, escorted by MUP and VJ personnel."
Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, paras. 548, 551:
"548. The Trial Chamber is satisfied beyond reasonable doubt that there was a coherent, consistent strategy of ethnic cleansing against Bosnian Muslims and Bosnian Croats by the Bosnian Serb police and other Bosnian Serb authorities.1395 This policy to forcibly displace Bosnian Muslims and Bosnian Croats from the area was carried out throughout the ARK and was implemented by several means."
"1395. See paras 77, 118 infra. For evidence regarding the strategy of ethnic cleansing of other national groups by the SDS and by the Bosnian Serb army, see BT-19, T. 20620, 20622 , 20669-20671 (closed session); ex. P2659 (under seal)."
"551. The Trial Chamber is satisfied beyond reasonable doubt both that the expulsions and forcible removals were systematic throughout the ARK, in which and from where tens of thousands of Bosnian Muslims and Bosnian Croats were permanently displaced,1405 and that this mass forcible displacement was intended to ensure the ethnic cleansing of the region. These people were left with no option but to escape. Those who were not expelled and did not manage to escape were subjected to intolerable living conditions imposed by the Bosnian Serb authorities,1406 which made it impossible for them to continue living there and forced them to seek permission to leave. Bosnian Muslims and Bosnian Croats were subjected to movement restrictions, as well as to perilous living conditions;1407 they were required to pledge their loyalty to the Bosnian Serb authorities1408 and, in at least one case, to wear white armbands.1409 They were dismissed from their jobs and stripped of their health insurance.1410 Campaigns of intimidation specifically targeting Bosnian Muslims and Bosnian Croats were undertaken.1411"
"1405. For evidence regarding the forcible displacement of more than one million people throughout BiH, see BT-19, T. 20662 (closed session). See also ex. P2675 (under seal). Regarding Prijedor, Sanski Most and Bosanska Krupa, see Charles Kirudja, T. 14660. Regarding Prijedor, see Charles McLeod, T. 7325 -7326, 7388. Regarding Kotor Varos, see BT-71, T. 17649 (private session ). Regarding Bosanski Novi, see Charles Kirudja, T. 14660-14661. Regarding Prnjavor, see BT-91, T. 15860-15862; Dobrivoje Vidic, T. 23011; BT -51, ex. P1784, 92bis statement, 00635474. With regards to the driving out of at the Bosnian Muslim and Bosnian Croat residents of the Teslic region , see BT-95, T 19598-19599 (closed session); ex. P1937, "BBC World Broadcast Summary of a Radio BiH report that at least 10000 Teslic region residents had been driven out". Regarding the expulsion of Bosnian Muslims and Bosnian Croats from Bosanski Petrovac, see Ahmet Hidic, T. 16272; ex. P1878, "Report on the events in Bosanski Petrovac from June 1992 by Bosanski Petrovac Country Club ". Regarding the expulsion of people from the Muslim villages of Basici and Mehovci in Celinac, see BT-90, T. 17095, 17097 (closed session).
1406. See IX.A., "Exterminaion and Wilful Killing" supra; D., "Destructions", infra.
1407. For Prijedor, see BT-1, T. 13682-13684; for Bosanski Novi, see Charles Kirudja, T. 14496; BT-84, T. 14163-14164; for Sipovo, see BT-105, T. 19111- 19112 (private session); for Bosanski Petrovac, see Jovo Radojko, T. 20361; for Celinac, see BT-90, T. 17083-17084, 17090-17092 (closed session).
1408. Those who remained in Sanski Most had to sign a loyalty oath to Serbian authorities: Besim Islamcevic, T. 7431; BT-104, T. 18531 (private session). Conversely, the police recommended to those who did not accept this loyalty, that it would be best if they moved out: Jakov Maric, T. 10840. See also BT-21, T. 8511-8513 (closed session) and ex. P218, "Decision of the Serb Municipality of Sanski Most Crisis Staff, 30 May 1992". For evidence regarding the organisation and moving out of refugees in Prnjavor disloyal to the authorities of the SerBiH, see ex. P 2608, " Official Gazette of the Prnjavor Municipality", 18 August 1992.
1409. Following a decision of the Municipal Crisis Staff in Prijedor, which was broadcasted via the media, BT-1, T . 13682-13684 (private session). See also Nusret Sivac, ex. P1547, T. 6719 .
1410. See IX.F., "Persecutions ", infra.
1411. In Banja Luka in 1992 , a number of identifiable vehicles regularly circulated with armed, uniformed occupants , who conducted house searches, picked people off the streets, and searched for people in restaurants and coffee bars: BT-22, T. 4413-4419, 4490; BT-9, T. 3499 (closed session); Zijahudin Smailagic, T. 1964; Amir Dzonlic, T. 2391-2392; BT-97 , T. 18006-18007 (closed session). Victims were beaten and tortured; some were arrested and never returned: BT-22, T. 4416; BT-7, T. 2953; Zijahudin Smailagic, T. 1964. All citizens of Banja Luka were very familiar with a red Combi, and one witness refers to it as a "mobile torture chamber": BT-7, T. 3122 (closed session); Muharem Krzic, T. 1488. Regarding the fact that the police and Crisis Staff should similarly have been aware of the vehicles’ notoriety, see BT-7, T. 3077, (closed session ). Regarding the pressure exerted on Bosnian Muslims and Bosnian Croats in villages around Banja Luka, see BT-7, T. 3045 (closed session); ex. P422, "1st KK Command transcription of a Decision of SerBiH Presidency on granting amnesty from criminal prosecution", 6 September 1992. A general atmosphere of fear also resulted in the involuntary departures of Bosnian Muslims and Bosnian Croats from a number of areas. Regarding Kljuc, see ex. P1100, "Video-tape from Banja Luka TV"; ex. P1045, "Crime report no.12/92 informing on crimes committed in the municipality since 27 May 1992, 28 September 1992"; ex. P1010, "Report on the work of the Klju c Crisis Committee from 15 May onwards, 1 June 1992"; Ajiz Becic, ex. P549, 92bis statement, 02109336; BT-79, T. 11591 (closed session). In Prnjavor, Bosnian Muslims and Bosnian Croats feared eviction from their homes and were subject to pressure exerted on them daily: Jasmin Odobasic, T. 15126-15127. Bosnian Muslims in Bosanski Novi suffered persecution and intimidation from Bosnian Serb armed group: Charles Kirudja, T. 14495. See also ex. P1672, "Memorandum regarding arriving refugees from Bosanski Novi", 8 July 1992."
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-A, Judgement (AC), 17 September 2003, paras. 236 – 237:
"236. The Trial Chamber reached the following conclusion:
"385. Judgment, para. 49 (the Trial Chamber uses the term "deportation" here to mean displacement within the borders of Bosnia and Herzegovina)."
"237. Given these conclusions, as well as the discriminatory character of unlawful detention and the imposition of the living conditions386 described above on non-Serb KP Dom detainees, the Appeals Chamber considers that it was not reasonable for the Trial Chamber to conclude that there was no evidence that the 35 detainees had been transferred to Montenegro on the requisite discriminatory grounds."
"386. See, for example, paragraph 193 of this Judgement."
Francis Deng, "Guiding Principles on Internal Displacement", 11 February 1998, U.N. Doc. E/CN.4/1998/53/Add.2.
"Principle 6
[…]
2. The prohibition of arbitrary displacement includes displacement:
(a) When it is based on policies of apartheid, "ethnic cleansing" or similar practices aimed at/or resulting in altering the ethnic, religious or racial composition of the affected population;"
Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-T, Judgement – Volume 1 (TC), 31 March 2016, para. 5:
"5. The first pillar is the allegation that the Accused was associated with the crimes by virtue of his participation in a JCE, which also included local and national authorities, such as the President of the Republic of Serbia, Slobodan Milošević, military leaders and their deputies, as well as paramilitaries and volunteer units called “Chetniks” and “Šešeljevci”. In addition to war propaganda and incitement to hatred against non-Serbs, Vojislav Šešelj’s main role was distinguished by his involvement in the recruitment and organisation of volunteers, who were sent into the field and integrated into units of the “Serbian Forces”, who are claimed to have carried out attacks and sieges during the conflict in several municipalities in Croatia and Bosnia and Herzegovina. […] It is also alleged that they forcibly displaced non-Serb civilians and deported them, waging a campaign of ethnic cleansing against them. […] These same “Serbian Forces” were said to have imposed restrictive and discriminatory measures, in collaboration with the local Serbian authorities, as part of a system of persecution aimed at expelling the non-Serb civilian population"
[B. Evidentiary comment:]
P.17.2. Evidence of the existence of a larger plan of displacement.
A. Legal source/authority and evidence:
<link http www.legal-tools.org doc f2cfeb _blank>Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-T, Judgement (TC), 31 March 2003, para. 529:
"529. The Chamber is satisfied that there was a plan early on in the operation to have the BH Muslim civilian population transferred from Sovici, intending to use them in exchange for BH Croat prisoners taken by the ABiH elsewhere.1373 Evidence has been led to the fact that the plan was implemented. A report1374 dated 7 May 19931375 signed by Bla z Azinovic, Herceg Stjepan Battalion, Mijat Tomic Brigade, states that the transfer was ordered by Vlado Curic referred to as "Tuta’s Commissioner". Defence witness NW confirms that the transfer referred to in the report is the transfer of the civilians from the Junuzovici houses to Gornji Vakuf relevant to the Indictment.1376"
"1373. Exhibit PP 333.
1374. Exhibit PP 368. As to its reliability See supra 1373.
1375. The date of the report was raised by Defence witness NW, as the date 7 May 1993 is written with the number 5 which has replaced the original number 4 (indicating April). However, witness NW later in his testimony admits that the transfer referred to is that of the civilians from Sovici to Gornji Vakuf, Defence witness NW, T 14991-14993. As the transfer was in May 1993, the Chamber is satisfied that the correct date of the report is 7 May 1993.
1376. Defence witness NW, T 14991-14993."
[B. Evidentiary comment:]
P.17.3. Evidence that victims had widespread knowledge of other serious crimes occurring.
A. Legal source/authority and evidence:
Prosecutor v. Vlastimir Dorđević, Case No. IT-05-87/1-A, Judgement (AC), 27 January 2014, paras. 716:
"716. Dorđević also suggests that the four men who were killed were combatants and therefore legitimately targeted.2177 He further argues that the inference that the population left out of fear cannot be sustained.2178 The Appeals Chamber considers the question of whether the four individuals were civilians or combatants to be irrelevant. The mutilated state of the bodies of the men in civilian clothing who had previously been seen alive and paraded through the village, was reasonably considered by the Trial Chamber to have contributed to instilling fear in the population, causing it to flee.2179 The Appeals Chamber also notes that the sight of the mutilated dead bodies was only one of the factors taken into account by the Trial Chamber. In particular, the Trial Chamber found that the civilian population also fled out of fear into the mountains as a result of shots being fired by Serbian forces upon their arrival in Vata/Vataj.2180 It was therefore reasonable for the Trial Chamber to conclude that the civilian population left out of fear as a result of Serbian forces opening fire upon entering Vata/Vataj, combined with the sighting of the mutilated dead bodies."
2177 See Dorđević Appeal Brief para. 366; Dorđević Reply Brief, para. 115. In concluding that the four Kosovo Albanian men were not taking any active part in hostilities when killed, the Trial Chamber considered evidence that they were Kosovo Albanians "dressed in civilian clothes and had no weapons" (Trial Judgement, paras 1138-1139). The Appeals Chamber recalls that the clothing of victims may be accepted when determining whether a particular victim was actively participating in hostilities at the time of death (see Boškoski and Tarculovski Appeal Judgement, para. 81; see supra, para. 525).
2178 See Dorđević Reply Brief, para. 115.
2179 Trial Judgement, paras 1138, 1671, 1747. The Appeals Chamber notes that Dorđević’s challenges to the Trial Chamber’s reliance on the evidence of Sada Lama for this incident will be addressed below (see infra, paras 783-790).
2180 Trial Judgement, paras 1137-1138.
<link http www.legal-tools.org doc _blank>Prosecutor v. Momćilo Krajišnik, Case No. IT-00-39-T, Judgement (TC), 27 September 2006, para. 729:
"729. […]Once Serb forces had taken over towns and villages, many Muslims and Croats were arrested and interrogated, during which they were often tortured and beaten by their captors. The terrorization of the Muslim and Croat population very often included individual killings and massacres, as described in part 5.2.2, above. News of such massacres served to further instil fear among the Muslim and Croat population. All this caused many Muslims and Croats in municipalities like Banja Luka, Bijeljina, Čelinac, Ilidža, and Sanski Most, to abandon their homes in fear for their own safety. In other municipalities, such as Bosanska Krupa, Foča, Gacko, Hadžići, Ilijaš, Prijedor, Rogatica, Trnovo, and Zvornik, it was an armed attack by Bosnian-Serb forces on the particular town or village that lead many Muslims and Croats to flee their homes, in order to avoid the killings, detention, and destruction that might follow."
Prosecutor v. Milutinović et al., Case No. IT-05-87-T, Judgement (TC) Vol II, 26 February 2009, para. 1002:
"1002. The Chamber finds that on 5 April 1999, a group of approximately 80 "paramilitaries" entered the village of Staro Selo and imposed a curfew on the village. Based on the evidence of the equipment that they had, and how they described themselves, the Chamber is satisfied that these "paramilitaries" were incorporated into the VJ as volunteers. When news spread among the village’s inhabitants that they had killed at least three people, many of them decided to leave their homes."
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.2012 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,2013"
2013. See supra para. 166, and section II. D. 1. (g)."
P.17.4. Evidence of military attacks on the area where victims reside.
A. Legal source/authority and evidence:
<link http www.legal-tools.org doc _blank>The Prosecutor v. Vlastimir Dordević, Case No. IT-05-87/1, Judgement (TC), 23 February 2011, para. 1618, 1625:
1618. The Chamber is satisfied that the residents of Bela Crkva/Bellac?rk? who were not killed were forced to leave their village by the acts of the Serbian forces. The Chamber is satisfied that this displacement was not carried out under a ground permitted under international law and that the displaced persons were lawfully present in the area. Considering further that the Serbian forces opened fire on the village without there being any military necessity for that, that they explicitly ordered the women and children to leave, that they shot and killed a large number of men, the Chamber is satisfied that the Serbian forces acted with the requisite intent. The offence of forcible transfer has been established. While there is some evidence that some men from Bela Crkva/Bellac?rk? who had been forced out of their village eventually crossed the border into Albania, the evidence does not deal specifically with the circumstances in which they left Kosovo nor is there evidence to establish whether the women and children left Kosovo. In the view of the Chamber, their deportation has not been established.
1625. The Chamber was satisfied that on 2 April 1999 a plane flew over the village of Nogavac/Nagavc and bombs were dropped. The Chamber was unable to make a finding on the evidence what force bombed Nogavac/Nagavc on 2 April. Following the bomb detonations a fire started, many people were wounded and houses damaged. On the following day, out of fear of another attack, the 20,000 displaced Kosovo Albanians from the neighbouring villages of Mala Hoca/Ho??-e-Vog?l, Brestovac/Brestoc, Zociste/Zoqisht?, Opterusa/Opterush? and Celina/Celin? who had gathered in Nogavac/Nagavc fled to the Albanian border. At the border Serbian police took the identification documents of people in the convoy and the license plates of their vehicles before they crossed over into Albania. In the Chamber’s finding, it has not been established on the evidence that the people gathered in Nogavac/Nagavc were forcibly displaced by acts of Serbian forces. In the Chamber’s finding, the bombing on Nogavac/Nagavc was a significant factor in the people’s decision to leave the village. There is no convincing evidence that this bombing was caused by Serbian forces. There is no evidence that Serbian forces used aeroplanes to bomb villages in Kosovo during the period 24 March until 20 June 1999. In the circumstances, the Chamber is not satisfied that the offences of deportation and forcible transfer have been established with respect to Nogavac/Nagavc.
Prosecutor v Milan Martić, Case No. IT-95-11-T, Judgement (TC), 12 June 2007, paras. 427-428:
"427. From August 1991 and into early 1992, forces of the TO and the police of the SAO Krajina and of the JNA attacked Croat-majority villages and areas, including the villages of Hrvatska Kostajnica, Cerovljani, Hrvatska Dubica, Bacin, Saborsko, Poljanak, Lipovača, [kabrnja and Nadin. The displacement of the non-Serb population which followed these attacks was not merely the consequence of military action, but the primary objective of it. This conclusion is supported by the evidence of a generally similar pattern to the attacks. The area or village in question would be shelled, after which ground units would enter. After the fighting had subsided, acts of killing and violence would be committed by the forces against the civilian non-Serb population who had not managed to flee during the attack. Houses, churches and property would be destroyed in order to prevent their return and widespread looting would be carried out. In some instances the police and the TO of the SAO Krajina organised transport for the non-Serb population in order to remove it from SAO Krajina territory to locations under Croatian control. Moreover, members of the non-Serb population would be rounded up and taken away to detention facilities, including in central Knin, and eventually exchanged and transported to areas under Croatian control.
428. The Trial Chamber considers the evidence to establish beyond reasonable doubt that the systematic acts of violence and intimidation carried out, inter alia, by the JNA, the TO and the Milicija Krajine against the non-Serb population in the villages created a coercive atmosphere in which the non-Serb population did not have a genuine choice in their displacement. Based on this evidence, the Trial Chamber concludes that the intention behind these acts was to drive out the non-Serb population from the territory of the SAO Krajina. In this respect, the Trial Chamber recalls that the forces in question also undertook direct actions to remove those who had not fled to territories under Croatian control. The Trial Chamber also recalls that in spite of this intention to remove the non-Serb population from the territory of the SAO Krajina, in some instances the non-Serb population left their homes temporarily as a result of the acts of violence and intimidation and subsequently returned."
Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, paras. 549, 566:
"549. Military operations were carried out against towns and villages that were not military targets. Bosnian Serb forces carried out attacks in Prijedor, Sanski Most, Bosanski Novi, Kljuc, Teslic, and Kotor Varos, among others.1396 Such military operations were undertaken with the specific purpose to drive Bosnian Muslim and Bosnian Croat residents away.1397 The evidence shows that the displacement of persons was not simply the consequence of military action, but the aim of it.Prosecutor v. Radislav Krstić, Case No. IT-98-33-T, Judgement (TC), 2 August 2001, paras. 147, 292:
"147. Overwhelming evidence presented during the course of the Trial, however, demonstrates that, in July 1995, the Bosnian Muslim population of Srebrenica was not faced with a genuine choice as to whether to leave or to remain in the area. The shelling of Srebrenica, particularly on 10 and 11 July 1995, and the burning of Bosnian Muslim homes was calculated to terrify the population and make them flee the area with no hope of return…"
"292. The Drina Corps was not oblivious to the overall VRS strategy of eliminating the Srebrenica enclave. This had always been the long-term Drina Corps objective in the area. Although Krivaja 95 started out as a limited operation, it quickly accelerated to a plan for taking over Srebrenica town when the opportunity presented itself on the evening of 9 July 1995. From that point, the Drina Corps continued to shell the enclave intensively with the intent to cause the Bosnian Muslim civilians to flee the area. The Drina Corps was also fully cognisant of the catastrophic humanitarian situation of the Bosnian Muslim refugees in Potocari and the fact that Bosnian Serb forces were terrorising the population there."
Prosecutor v. Jovica Stanišić and Franko Simatovic, Case No. IT-03-69-T, Judgement (TC), 30 May 2013, para. 1202:
“1202. The Trial Chamber considers that the attack on the village of Divič caused duress and fear of violence such that it created an environment where there was no choice but to leave. Therefore, the Trial Chamber finds that those who left were forcibly displaced. The Trial Chamber finds, having considered that those who were forcibly displaced were inhabitants of Divič and absent any indication to the contrary, therefore that they were lawfully present there.”
[B. Evidentiary comment:]
P.17.5. Evidence of creating intolerable living conditions.
A. Legal source/authority and evidence:
<link http www.legal-tools.org doc _blank>Prosecutor v. Momćilo Krajišnik, Case No. IT-00-39-T, Judgement (TC), 27 September 2006, para. 729:
"729. The displacement of Muslims and Croats occurred in a similar way in all the above mentioned municipalities. Serb municipal authorities and Serb forces created severe living conditions for Muslims and Croats which aimed, and succeeded, in making it practically impossible for most of them to remain. The measures undertaken increased in severity by time, starting with dismissals from employment, house searches, and the cutting off of water, electricity, and telephone services […]"
Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, para. 551:
"551. The Trial Chamber is satisfied beyond reasonable doubt both that the expulsions and forcible removals were systematic throughout the ARK, in which and from where tens of thousands of Bosnian Muslims and Bosnian Croats were permanently displaced,1405 and that this mass forcible displacement was intended to ensure the ethnic cleansing of the region. These people were left with no option but to escape. Those who were not expelled and did not manage to escape were subjected to intolerable living conditions imposed by the Bosnian Serb authorities,1406 which made it impossible for them to continue living there and forced them to seek permission to leave. Bosnian Muslims and Bosnian Croats were subjected to movement restrictions, as well as to perilous living conditions;1407 they were required to pledge their loyalty to the Bosnian Serb authorities1408 and, in at least one case, to wear white armbands.1409 They were dismissed from their jobs and stripped of their health insurance.1410 Campaigns of intimidation specifically targeting Bosnian Muslims and Bosnian Croats were undertaken.1411"
"1405. For evidence regarding the forcible displacement of more than one million people throughout BiH, see BT-19, T. 20662 (closed session). See also ex. P2675 (under seal). Regarding Prijedor, Sanski Most and Bosanska Krupa, see Charles Kirudja, T. 14660. Regarding Prijedor, see Charles McLeod, T. 7325 -7326, 7388. Regarding Kotor Varos, see BT-71, T. 17649 (private session ). Regarding Bosanski Novi, see Charles Kirudja, T. 14660-14661. Regarding Prnjavor, see BT-91, T. 15860-15862; Dobrivoje Vidic, T. 23011; BT -51, ex. P1784, 92bis statement, 00635474. With regards to the driving out of at the Bosnian Muslim and Bosnian Croat residents of the Teslic region , see BT-95, T 19598-19599 (closed session); ex. P1937, "BBC World Broadcast Summary of a Radio BiH report that at least 10000 Teslic region residents had been driven out". Regarding the expulsion of Bosnian Muslims and Bosnian Croats from Bosanski Petrovac, see Ahmet Hidic, T. 16272; ex. P1878, "Report on the events in Bosanski Petrovac from June 1992 by Bosanski Petrovac Country Club ". Regarding the expulsion of people from the Muslim villages of Basici and Mehovci in Celinac, see BT-90, T. 17095, 17097 (closed session).
1406. See IX.A., "Exterminaion and Wilful Killing" supra; D., "Destructions", infra. 1407. For Prijedor, see BT-1, T. 13682-13684; for Bosanski Novi, see Charles Kirudja, T. 14496; BT-84, T. 14163-14164; for Sipovo, see BT-105, T. 19111- 19112 (private session); for Bosanski Petrovac, see Jovo Radojko, T. 20361; for Celinac, see BT-90, T. 17083-17084, 17090-17092 (closed session).
1408. Those who remained in Sanski Most had to sign a loyalty oath to Serbian authorities: Besim Islamcevic, T. 7431; BT-104, T. 18531 (private session). Conversely, the police recommended to those who did not accept this loyalty, that it would be best if they moved out: Jakov Maric, T. 10840. See also BT-21, T. 8511-8513 (closed session) and ex. P218, "Decision of the Serb Municipality of Sanski Most Crisis Staff, 30 May 1992". For evidence regarding the organisation and moving out of refugees in Prnjavor disloyal to the authorities of the SerBiH, see ex. P 2608, " Official Gazette of the Prnjavor Municipality", 18 August 1992.
1409. Following a decision of the Municipal Crisis Staff in Prijedor, which was broadcasted via the media, BT-1, T . 13682-13684 (private session). See also Nusret Sivac, ex. P1547, T. 6719 .
1410. See IX.F., "Persecutions ", infra.
1411. In Banja Luka in 1992 , a number of identifiable vehicles regularly circulated with armed, uniformed occupants , who conducted house searches, picked people off the streets, and searched for people in restaurants and coffee bars: BT-22, T. 4413-4419, 4490; BT-9, T. 3499 (closed session); Zijahudin Smailagic, T. 1964; Amir Dzonlic, T. 2391-2392; BT-97 , T. 18006-18007 (closed session). Victims were beaten and tortured; some were arrested and never returned: BT-22, T. 4416; BT-7, T. 2953; Zijahudin Smailagic, T. 1964. All citizens of Banja Luka were very familiar with a red Combi, and one witness refers to it as a "mobile torture chamber": BT-7, T. 3122 (closed session); Muharem Krzic, T. 1488. Regarding the fact that the police and Crisis Staff should similarly have been aware of the vehicles’ notoriety, see BT-7, T. 3077, (closed session ). Regarding the pressure exerted on Bosnian Muslims and Bosnian Croats in villages around Banja Luka, see BT-7, T. 3045 (closed session); ex. P422, "1st KK Command transcription of a Decision of SerBiH Presidency on granting amnesty from criminal prosecution", 6 September 1992. A general atmosphere of fear also resulted in the involuntary departures of Bosnian Muslims and Bosnian Croats from a number of areas. Regarding Kljuc, see ex. P1100, "Video-tape from Banja Luka TV"; ex. P1045, "Crime report no.12/92 informing on crimes committed in the municipality since 27 May 1992, 28 September 1992"; ex. P1010, "Report on the work of the Klju c Crisis Committee from 15 May onwards, 1 June 1992"; Ajiz Becic, ex. P549, 92bis statement, 02109336; BT-79, T. 11591 (closed session). In Prnjavor, Bosnian Muslims and Bosnian Croats feared eviction from their homes and were subject to pressure exerted on them daily: Jasmin Odobasic, T. 15126-15127. Bosnian Muslims in Bosanski Novi suffered persecution and intimidation from Bosnian Serb armed group: Charles Kirudja, T. 14495. See also ex. P1672, "Memorandum regarding arriving refugees from Bosanski Novi", 8 July 1992."
Prosecutor v Milomir Stakić, Case No. IT-97-24-T, Judgment (TC), 31 July 2003, para. 691:
"691. There is ample evidence that those who left the municipality did so under considerable pressure. Witness B explained it in the following way:
This is corroborated by a report on the work of the Prijedor Red Cross between 5 May and 30 September 1992 which notes: "There is great pressure for citizens of Muslim or Croatian nationality to leave the AR Krajina".1351"
1351. Exh. S434."
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, paras. 231, 233:
"231. The testimony of FWS-54, one of the 35 detainees, illustrates the atmosphere of fear and constraint that prevailed in the KP Dom. The Trial Chamber noted that on 8 August 1992, about 20 days before being moved, "FWS-54 was beaten by a KP Dom guard named Pilica Blagojevic as punishment for giving a fellow detainee an extra slice of bread contrary to orders. As a result of the beating, FWS-54 was seriously bruised and lost a few teeth. After the beating, he was locked up in solitary confinement for three or four days."376 Furthermore, relying on the testimony of FWS-54, the Trial Chamber found that on five occasions in June or July 1992, detainees were called outside and were severely beaten. Other detainees heard the cries and moans of the victims.377"
377. Ibid., para. 274."
"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."
[B. Evidentiary comment:]
A. Legal source/authority and evidence:
Prosecutor v. Radislav Krstić, Case No. IT-98-33-T, Judgement (TC), 2 August 2001, paras. 148, 530, 615:
"148. Yet the VRS sought to make the flight of the Srebrenica residents look like a voluntary movement…On 17 July 1995, in the face of growing international condemnation, Major Franken, the Deputy Commander of Dutch Bat, met with a VRS delegation to discuss the situation of wounded Bosnian Muslims in the area of the former enclave. During the meeting, he and the unofficial Bosnian Muslim representative Mr. Mandzic, who was also present, were told to sign a declaration specifying that the transfer of the Bosnian Muslim civilians from Potocari was voluntary, supervised and escorted by UNPROFOR and carried out by the VRS without any irregularities.319 […] When he testified before the Trial Chamber, Major Franken described his forced assent to the declaration as "worthless".321 In reality, he said General Mladic "ordered the population to go to Kladanj, period ".322 General Krstic, during an interview with the OTP shortly after his arrest, acknowledged that it was a forced movement of the population, although he denied that he was involved.323"
"319. P 47, Franken, T. 2054-2056, 2059-2062, Mandzic, T. 1007-1016.
320. Franken, T. 2062.
321. Franken, T. 2062.
322. Franken, T. 2060.
323. P 399, p. 32. During his testimony before the Trial Chamber, however, General Krstic maintained that the movement of the Bosnian Muslim women, children and elderly from Potocari was an "evacuation". Krstic, T. 6217 and 6295-6296."
"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.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 homes1401 and institutions dedicated to religion.1402"
"1400. See for example, para . 559 infra regarding Trnopolje; para. 558 infra regarding Manjaca Military Camp.
1401. See IX.D., "Destructions", infra."
[B. Evidentiary comment:]
P.18.2. Evidence of looting or searching for valuables in victims’ homes.
A. Legal source/authority and evidence:
<link http www.legal-tools.org doc f2cfeb _blank>Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-T, Judgement (TC), 31 March 2003, para. 560:
"560. Witness MM, (a resident of the Centar II area in Mostar), recalled how nine soldiers, qualifying themselves as "Stelici", entered her apartment in the evening of 29 September 1993, searching for money and gold valuables.1423 The soldiers evicted them together with other families from the same building and divided men from women, children, and elderly.1424"
1424. Witness MM, T 5758 (confidential)."
[B. Evidentiary comment:]
P.18.3. Evidence of dismissing victims from their jobs.
A. Legal source/authority and evidence:
Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, para. 551:
"551. The Trial Chamber is satisfied beyond reasonable doubt both that the expulsions and forcible removals were systematic throughout the ARK, in which and from where tens of thousands of Bosnian Muslims and Bosnian Croats were permanently displaced,1405 and that this mass forcible displacement was intended to ensure the ethnic cleansing of the region. These people were left with no option but to escape. Those who were not expelled and did not manage to escape were subjected to intolerable living conditions imposed by the Bosnian Serb authorities,1406 which made it impossible for them to continue living there and forced them to seek permission to leave. Bosnian Muslims and Bosnian Croats were subjected to movement restrictions, as well as to perilous living conditions;1407 they were required to pledge their loyalty to the Bosnian Serb authorities1408 and, in at least one case, to wear white armbands.1409 They were dismissed from their jobs and stripped of their health insurance.1410"
"1405. For evidence regarding the forcible displacement of more than one million people throughout BiH, see BT-19, T. 20662 (closed session). See also ex. P2675 (under seal). Regarding Prijedor, Sanski Most and Bosanska Krupa, see Charles Kirudja, T. 14660. Regarding Prijedor, see Charles McLeod, T. 7325 -7326, 7388. Regarding Kotor Varos, see BT-71, T. 17649 (private session ). Regarding Bosanski Novi, see Charles Kirudja, T. 14660-14661. Regarding Prnjavor, see BT-91, T. 15860-15862; Dobrivoje Vidic, T. 23011; BT -51, ex. P1784, 92bis statement, 00635474. With regards to the driving out of at the Bosnian Muslim and Bosnian Croat residents of the Teslic region , see BT-95, T 19598-19599 (closed session); ex. P1937, "BBC World Broadcast Summary of a Radio BiH report that at least 10000 Teslic region residents had been driven out". Regarding the expulsion of Bosnian Muslims and Bosnian Croats from Bosanski Petrovac, see Ahmet Hidic, T. 16272; ex. P1878, "Report on the events in Bosanski Petrovac from June 1992 by Bosanski Petrovac Country Club ". Regarding the expulsion of people from the Muslim villages of Basici and Mehovci in Celinac, see BT-90, T. 17095, 17097 (closed session).
1406. See IX.A., "Exterminaion and Wilful Killing" supra; D., "Destructions", infra. 1407. For Prijedor, see BT-1, T. 13682-13684; for Bosanski Novi, see Charles Kirudja, T. 14496; BT-84, T. 14163-14164; for Sipovo, see BT-105, T. 19111- 19112 (private session); for Bosanski Petrovac, see Jovo Radojko, T. 20361; for Celinac, see BT-90, T. 17083-17084, 17090-17092 (closed session).
1408. Those who remained in Sanski Most had to sign a loyalty oath to Serbian authorities: Besim Islamcevic, T. 7431; BT-104, T. 18531 (private session). Conversely, the police recommended to those who did not accept this loyalty, that it would be best if they moved out: Jakov Maric, T. 10840. See also BT-21, T. 8511-8513 (closed session) and ex. P218, "Decision of the Serb Municipality of Sanski Most Crisis Staff, 30 May 1992". For evidence regarding the organisation and moving out of refugees in Prnjavor disloyal to the authorities of the SerBiH, see ex. P 2608, " Official Gazette of the Prnjavor Municipality", 18 August 1992.
1409. Following a decision of the Municipal Crisis Staff in Prijedor, which was broadcasted via the media, BT-1, T . 13682-13684 (private session). See also Nusret Sivac, ex. P1547, T. 6719 .
1410. See IX.F., "Persecutions ", infra."
[B. Evidentiary comment:]
P.18.4. Evidence of dismissing victims from their health insurance.
A. Legal source/authority and evidence:
Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, para. 551:
"551. The Trial Chamber is satisfied beyond reasonable doubt both that the expulsions and forcible removals were systematic throughout the ARK, in which and from where tens of thousands of Bosnian Muslims and Bosnian Croats were permanently displaced,1405 and that this mass forcible displacement was intended to ensure the ethnic cleansing of the region. These people were left with no option but to escape. Those who were not expelled and did not manage to escape were subjected to intolerable living conditions imposed by the Bosnian Serb authorities,1406 which made it impossible for them to continue living there and forced them to seek permission to leave. Bosnian Muslims and Bosnian Croats were subjected to movement restrictions, as well as to perilous living conditions;1407 they were required to pledge their loyalty to the Bosnian Serb authorities1408 and, in at least one case, to wear white armbands.1409 They were dismissed from their jobs and stripped of their health insurance.1410"
"1405. For evidence regarding the forcible displacement of more than one million people throughout BiH, see BT-19, T. 20662 (closed session). See also ex. P2675 (under seal). Regarding Prijedor, Sanski Most and Bosanska Krupa, see Charles Kirudja, T. 14660. Regarding Prijedor, see Charles McLeod, T. 7325 -7326, 7388. Regarding Kotor Varos, see BT-71, T. 17649 (private session ). Regarding Bosanski Novi, see Charles Kirudja, T. 14660-14661. Regarding Prnjavor, see BT-91, T. 15860-15862; Dobrivoje Vidic, T. 23011; BT -51, ex. P1784, 92bis statement, 00635474. With regards to the driving out of at the Bosnian Muslim and Bosnian Croat residents of the Teslic region , see BT-95, T 19598-19599 (closed session); ex. P1937, ‘BBC World Broadcast Summary of a Radio BiH report that at least 10000 Teslic region residents had been driven out’. Regarding the expulsion of Bosnian Muslims and Bosnian Croats from Bosanski Petrovac, see Ahmet Hidic, T. 16272; ex. P1878, ‘Report on the events in Bosanski Petrovac from June 1992 by Bosanski Petrovac Country Club’. Regarding the expulsion of people from the Muslim villages of Basici and Mehovci in Celinac, see BT-90, T. 17095, 17097 (closed session). 1406. See IX.A., ‘Exterminaion and Wilful Killing’ supra; D., ‘Destructions’, infra. 1407. For Prijedor, see BT-1, T. 13682-13684; for Bosanski Novi, see Charles Kirudja, T. 14496; BT-84, T. 14163-14164; for Sipovo, see BT-105, T. 19111- 19112 (private session); for Bosanski Petrovac, see Jovo Radojko, T. 20361; for Celinac, see BT-90, T. 17083-17084, 17090-17092 (closed session).
1408. Those who remained in Sanski Most had to sign a loyalty oath to Serbian authorities: Besim Islamcevic, T. 7431; BT-104, T. 18531 (private session). Conversely, the police recommended to those who did not accept this loyalty, that it would be best if they moved out: Jakov Maric, T. 10840. See also BT-21, T. 8511-8513 (closed session) and ex. P218, ‘Decision of the Serb Municipality of Sanski Most Crisis Staff, 30 May 1992’. For evidence regarding the organisation and moving out of refugees in Prnjavor disloyal to the authorities of the SerBiH, see ex. P 2608, ‘Official Gazette of the Prnjavor Municipality’, 18 August 1992.
1409. Following a decision of the Municipal Crisis Staff in Prijedor, which was broadcasted via the media, BT-1, T . 13682-13684 (private session). See also Nusret Sivac, ex. P1547, T. 6719 .
1410. See IX.F., ‘Persecutions’, infra."
[B. Evidentiary comment:]
P.19. Evidence of deportation or forcible transfer through abuse of power.
