Table of contents
P.20. Evidence of lawful presence under national and international law.
6.1.2. Evidence of the lawful presence of nationals of the area from which they were deported.
P.21. Evidence of citizenship.
P.22. Evidence of lengthy residence in the area.
P.22.1. Evidence that victims had resided in an area for decades and generations.
P.23. Evidence that foreign nationals had a right to reside in an area under international law.
P.24.1. Evidence that foreign nationals were collectively displaced.
Element
6.1. [Text missing]
Prosecutor v. Jovica Stanišić and Franko Simatovic, Case No. IT-03-69-T, Judgement (TC), 30 May 2013, paras. 1020, 1075:
“1020. Having considered the aforementioned acts, the Trial Chamber finds that the Croats were transferred against their will or without genuine choice, and as such were forcibly displaced. Considering that the Croats were inhabitants of Erdut town and, absent any indication to the contrary, the Trial Chamber therefore finds that they were lawfully present there.”
“1075. Considering the aforementioned acts, the Trial Chamber finds that the Muslims and Croats were transferred and exchanged against their will or without genuine choice. As such the Trial Chamber finds that they were forcibly displaced. The Trial Chamber finds, having considered that the Muslims were inhabitants of Bijeljina, and absent any indication to the contrary, that they were lawfully present there.”
P.20. Evidence of lawful presence under national and international law.
A. Legal source/authority and evidence:
Gerhard Werle, Principles of International Criminal Law (2005), p. 241:
"The crime requires that the civilians involved be residing legally in the territory from which they are deported or forcibly transferred. The standard for the lawfulness of their residence is set by international law. A forcible measure on the basis of a national law contravening international law, such as the deportation of a citizen,159 is therefore impermissible."160
"159. C.K. Hall, in O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court (1999), Art. 7, marginal nos. 98.
160. International Covenant on Civil and Political Rights, Art. 12(4) provides: ‘No one shall be arbitrarily deprived of the right to enter his own country.’ See also Art. 3 of Protocol No. 4 of the European Convention for the Protection of Human Rights and Fundamental Freedoms: ‘(1) No one shall be expelled, by means either of an individual or of a collective measure, from the territory of the State of which he is a national. (2) No one shall be deprived of the right to enter the territory of the State of which he is a national.’ See also Art. 22(5) American Convention on Human Rights: ‘No one can be expelled from a territory of the state of which he is a national or be deprived of the right to enter it.’"
Kriangsak Kittichaisaree, International Criminal Law, p. 109:
"The proviso "without grounds permitted by international law" qualifies the conduct or perpetration, whereas "lawfully present" qualifies the condition in which the deportee or transferee finds himself in a territory. Although the lawfulness or otherwise of the presence is determined by national law, that national law must also be measured against the yardstick of international law. In other words, lawful presence cannot be terminated by national law in violation of applicable rules of international law."
[B. Evidentiary comment:]
6.1.2. Evidence of the lawful presence of nationals of the area from which they were deported.
P.21. Evidence of citizenship.
P.22. Evidence of lengthy residence in the area.
P.22.1. Evidence that victims had resided in an area for decades and generations.
A. Legal source/authority and evidence:
Prosecutor v Milomir Stakić, Case No. IT-97-24-T, Judgment (TC), 31 July 2003, para. 677:
"677. The protected interests behind the prohibition of deportation are the right and expectation of individuals to be able to remain in their homes and communities without interference by an aggressor, whether from the same or another State. The Trial Chamber is therefore of the view that it is the actus reus of forcibly removing, essentially uprooting, individuals from the territory and the environment in which they have been lawfully present, in many cases for decades and generations, which is the rationale for imposing criminal responsibility and not the destination resulting from such a removal."
[B. Evidentiary comment:]
2.1.1. Evidence of the lawful presence of foreign nationals in the area from which they were deported.
P.23. Evidence that foreign nationals had a right to reside in an area under international law.
A. Legal source/authority and evidence:
Human Rights Committee, General Comment No. 27, para. 4:
"4. …The question whether an alien is "lawfully" within the territory of a State is a matter governed by domestic law, which may subject the entry of an alien to the territory of a State to restrictions, provided they are in compliance with the State's international obligations. In that connection, the Committee has held that an alien who entered the State illegally, but whose status has been regularized, must be considered to be lawfully within the territory for the purposes of article 12.Prosecutor v. Radislav Krstić, Case No. IT-98-33-T, Judgement (TC), 2 August 2001, paras. 344, 352 – 353, 615:
"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"
911. P 404 fn.130; and P 438.
912. P 440."
"352. As to the conduct of General Krstic while he was in Potocari, several witnesses testified to seeing General Krstic in and around the Potocari compound conferring with other high-ranking military officers,951 including General Mladic.952 It appeared to several of these witnesses that General Krstic, as well as the other officers, were giving orders to the soldiers.953 This conclusion was based on the witnesses’ observations of the body language and the comings and goings of the officers.954 Witness F said that the officers would speak to the soldiers and then the soldiers would go off and perform tasks.955 Due to language barriers, however, none of the Dutch Bat personnel could confirm the content of the conversations between General Krstic and the soldiers."
952. Witness F, T. 1525; Kingori, T. 1848.
953. Kingori, T.1848, Witness F, T. 1523-1524.
954. Witness F, T. 1556.
955. Witness F, T. 1906, 1910."
"353. Nonetheless, it was clear to the UN and Dutch Bat observers that General Krstic and the other high ranking officers present in Potocari were:
Witness F further said that the officers he saw, including General Krstic:
"956. Kingori, T. 1887.
957. Witness F, T. 1523-1524. See also Witness F, T. 1517."
"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."
[B. Evidentiary comment:]
P.25.2. Evidence of the perpetrator supervising forcible displacement.
A. Legal source/authority and evidence:
Prosecutor v. Radislav Krstić, Case No. IT-98-33-T, Judgement (TC), 2 August 2001, para. 353:
"353. Nonetheless, it was clear to the UN and Dutch Bat observers that General Krstic and the other high ranking officers present in Potocari were:
Witness F further said that the officers he saw, including General Krstic:
957. Witness F, T. 1523-1524. See also Witness F, T. 1517."
[B. Evidentiary comment:]
P.25.3. Evidence of the perpetrator procuring transportation for forcible displacement.
A. Legal source/authority and evidence:
Prosecutor v. Radislav Krstić, Case No. IT-98-33-T, Judgement (TC), 2 August 2001, para. 344:
"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.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."
[B. Evidentiary comment:]
A. Legal source/authority and evidence:
Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, paras. 574 – 575:
"574. The Trial Chamber is however satisfied that the ARK Crisis Staff’s decisions of 28 and 29 May 1992 prompted the municipal authorities and the police, who implemented them, to commit the crimes of deportation and forcible transfer after those dates. Although the two decisions are, not disingenuously, framed in terms of voluntary compliance, to the municipal authorities and the police they could have only meant a direct incitement to deport and forcibly transfer non-Serbs from the territory of the ARK. This is the only reasonable conclusion that may be drawn when the terms of the decisions are considered in the light of the Accused’s unambiguous public statements, made repeatedly from early April 1992 onwards, calling upon the non- Serb population to leave the Bosnian Krajina and stating that only a small percentage of non-Serbs would be allowed to stay.1478"
"1478. See VIII.C.5., "The Accused’s propaganda campaign", supra."
"575. Furthermore, the Accused’s espousal of the Strategic Plan, of which the crimes of deportation and forcible transfer formed an integral part, and the implementation of which he coordinated in his position as President of the ARK Crisis Staff, and his awareness that it could only be implemented through force and fear, demonstrate that he intended to induce the commission of the crimes of deportation and forcible transfer.1479"
"1479. See VIII.C.1., "The Accused’s espousal of the Strategic Plan", supra."
Prosecutor v. Duško Tadić, Case No. IT-94-1-T, Judgement (TC), 7 May 1997, para. 459:
"459. The accused's presence at the Trnopolje camp when the surviving prisoners were deported to Croatia is significant evidence with regard to the charge in this subparagraph. The question remains, however, whether when the accused was participating in the seizure and selection of non-Serbs, as established above, he knew that the majority of the prisoners who survived would be deported. His presence at the Trnopolje camp when thousands of prisoners were being removed is relevant in this regard, as is his description of himself in his work report as an "earnest SDS member and an enthusiastic supporter of the idea of creating Republika Srpska", both of which embrace the notion of an ethnically pure Serbian territory. Additionally, in his role as SDS President in Kozarac, he must have had knowledge of the SDS programme, which included the vision of a Greater Serbia. Witnesses including Witness AA provided evidence which not only showed that the accused knew of this goal but that he was an active supporter of it. Witness AA testified to an argument about politics that the accused had with Sefik Sivac shortly before the conflict in which the accused said that the area "would be a Greater Serbia, it would be theirs, and that we, Muslims, will not be there, that there will be no place for us there"."
[B. Evidentiary comment:]
P.26. Evidence inferred from a circumstance.
P.26.1. Evidence of the perpetrator’s presence during the forcible displacement.
A. Legal source/authority and evidence:
Prosecutor v. Radislav Krstić, Case No. IT-98-33-T, Judgement (TC), 2 August 2001, paras. 352 – 353:
"352. As to the conduct of General Krstic while he was in Potocari, several witnesses testified to seeing General Krstic in and around the Potocari compound conferring with other high-ranking military officers,951 including General Mladic.952 It appeared to several of these witnesses that General Krstic, as well as the other officers, were giving orders to the soldiers.953 This conclusion was based on the witnesses’ observations of the body language and the comings and goings of the officers.954 Witness F said that the officers would speak to the soldiers and then the soldiers would go off and perform tasks.955 Due to language barriers, however, none of the Dutch Bat personnel could confirm the content of the conversations between General Krstic and the soldiers."
952. Witness F, T. 1525; Kingori, T. 1848.
953. Kingori, T.1848, Witness F, T. 1523-1524.
954. Witness F, T. 1556.
955. Witness F, T. 1906, 1910."
"353. Nonetheless, it was clear to the UN and Dutch Bat observers that General Krstic and the other high ranking officers present in Potocari were:
Witness F further said that the officers he saw, including General Krstic:
957. Witness F, T. 1523-1524. See also Witness F, T. 1517."
Prosecutor v. Duško Tadić, Case No. IT-94-1-T, Judgement (TC), 7 May 1997, paras. 459, 461:
"459. The accused's presence at the Trnopolje camp when the surviving prisoners were deported to Croatia is significant evidence with regard to the charge in this subparagraph. The question remains, however, whether when the accused was participating in the seizure and selection of non-Serbs, as established above, he knew that the majority of the prisoners who survived would be deported. His presence at the Trnopolje camp when thousands of prisoners were being removed is relevant in this regard, as is his description of himself in his work report as an "earnest SDS member and an enthusiastic supporter of the idea of creating Republika Srpska", both of which embrace the notion of an ethnically pure Serbian territory. Additionally, in his role as SDS President in Kozarac, he must have had knowledge of the SDS programme, which included the vision of a Greater Serbia. Witnesses including Witness AA provided evidence which not only showed that the accused knew of this goal but that he was an active supporter of it. Witness AA testified to an argument about politics that the accused had with Sefik Sivac shortly before the conflict in which the accused said that the area "would be a Greater Serbia, it would be theirs, and that we, Muslims, will not be there, that there will be no place for us there"."
"461. Based on the presence of the accused at the Trnopolje camp when surviving prisoners were being deported, as well as his support both for the concept and the creation of a Greater Serbia, necessarily entailing, as discussed in the preliminary findings, the deportation of non-Serbs from the designated territory and the establishment of the camps as a means towards this end, the Trial Chamber is satisfied beyond reasonable doubt that the accused participated in the seizure, selection and transfer of non-Serbs to various camps and did so within the context of an armed conflict and that while doing so, he was aware that the majority of surviving prisoners would be deported from Bosnia and Herzegovina."
[B. Evidentiary comment:]
A. Legal source/authority and evidence:
Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, para. 575:
"575. Furthermore, the Accused’s espousal of the Strategic Plan, of which the crimes of deportation and forcible transfer formed an integral part, and the implementation of which he coordinated in his position as President of the ARK Crisis Staff, and his awareness that it could only be implemented through force and fear, demonstrate that he intended to induce the commission of the crimes of deportation and forcible transfer.1479"
"1479. See VIII.C.1., "The Accused’s espousal of the Strategic Plan", supra."
Prosecutor v. Radislav Krstić, Case No. IT-98-33-T, Judgement (TC), 2 August 2001, para. 344:
"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)."
Prosecutor v. Duško Tadić, Case No. IT-94-1-T, Judgement (TC), 7 May 1997, para. 459:
"459. The accused's presence at the Trnopolje camp when the surviving prisoners were deported to Croatia is significant evidence with regard to the charge in this subparagraph. The question remains, however, whether when the accused was participating in the seizure and selection of non-Serbs, as established above, he knew that the majority of the prisoners who survived would be deported. His presence at the Trnopolje camp when thousands of prisoners were being removed is relevant in this regard, as is his description of himself in his work report as an "earnest SDS member and an enthusiastic supporter of the idea of creating Republika Srpska", both of which embrace the notion of an ethnically pure Serbian territory. Additionally, in his role as SDS President in Kozarac, he must have had knowledge of the SDS programme, which included the vision of a Greater Serbia. Witnesses including Witness AA provided evidence which not only showed that the accused knew of this goal but that he was an active supporter of it. Witness AA testified to an argument about politics that the accused had with Sefik Sivac shortly before the conflict in which the accused said that the area "would be a Greater Serbia, it would be theirs, and that we, Muslims, will not be there, that there will be no place for us there"."
[B. Evidentiary comment:]
P.26.3. Evidence that the perpetrator supported ideology necessitating forcible displacement.
A. Legal source/authority and evidence:
Prosecutor v. Duško Tadić, Case No. IT-94-1-T, Judgement (TC), 7 May 1997, paras. 459, 461:
"459. The accused's presence at the Trnopolje camp when the surviving prisoners were deported to Croatia is significant evidence with regard to the charge in this subparagraph. The question remains, however, whether when the accused was participating in the seizure and selection of non-Serbs, as established above, he knew that the majority of the prisoners who survived would be deported. His presence at the Trnopolje camp when thousands of prisoners were being removed is relevant in this regard, as is his description of himself in his work report as an "earnest SDS member and an enthusiastic supporter of the idea of creating Republika Srpska", both of which embrace the notion of an ethnically pure Serbian territory. Additionally, in his role as SDS President in Kozarac, he must have had knowledge of the SDS programme, which included the vision of a Greater Serbia. Witnesses including Witness AA provided evidence which not only showed that the accused knew of this goal but that he was an active supporter of it. Witness AA testified to an argument about politics that the accused had with Sefik Sivac shortly before the conflict in which the accused said that the area "would be a Greater Serbia, it would be theirs, and that we, Muslims, will not be there, that there will be no place for us there"."
"461. Based on the presence of the accused at the Trnopolje camp when surviving prisoners were being deported, as well as his support both for the concept and the creation of a Greater Serbia, necessarily entailing, as discussed in the preliminary findings, the deportation of non-Serbs from the designated territory and the establishment of the camps as a means towards this end, the Trial Chamber is satisfied beyond reasonable doubt that the accused participated in the seizure, selection and transfer of non-Serbs to various camps and did so within the context of an armed conflict and that while doing so, he was aware that the majority of surviving prisoners would be deported from Bosnia and Herzegovina."
[B. Evidentiary comment:]
