Table of contents
P.27. Evidence inferred from an utterance, a document, or a deed.
P.27.1. Evidence that the perpetrator intended for victims never to return to the area.
P.27.3. Evidence of the perpetrator making public statements calling for victims to leave an area.
P.27.4. Evidence that the perpetrator had previously espoused displacement.
P.28. Evidence inferred from a circumstance.
P.28.1. Evidence that the perpetrator frequented an area near where forcible displacement occurred.
P.28.2. Evidence that the perpetrator supported ideology necessitating forcible displacement.
P.29.1. Evidence of military attacks on the area where victims reside.
P.29.2. Not sufficient: Evidence that perpetrator meant to forcibly transfer in order to detain.
Element
8.b.i. [Mental element for Element 3] [Consequence of deporting or forcibly transfer] The perpetrator meant to cause to be deported or forcibly transferred without grounds permitted under international law, one or more persons to another State or location, by expulsion or other coercive acts; OR
P.27. Evidence inferred from an utterance, a document, or a deed.
Prosecutor v. Jovica Stanišić and Franko Simatovic, Case No. IT-03-69-T, Judgement (TC), 30 May 2013, paras. 1065, 1231, 1234:
“1065. The Trial Chamber will now consider the mens rea of those constituting each of the aforementioned groups and Mauzer, The Trial Chamber considers the nature of the acts of those constituting paramilitary groups, particularly the SDG and the local MUP and the circumstances in which they were carried out. With regard to Mauzer the Trial Chamber has considered his statements threatening the Muslim population remaining in Bijeljina with expulsion after the take-over with expulsion. The Trial Chamber therefore finds that those constituting the aforementioned groups, and Mauzer had the intent to forcibly displace the Muslims.”
“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.”
“1234. With regard to the mens rea of those constituting the formations referred to above, as well as the individuals mentioned, the Trial Chamber finds that the character of the acts themselves and circumstances under which they were carried out, provide the basis for the Trial Chamber’s inference that they acted with the required intent.”
P.27.1. Evidence that the perpetrator intended for victims never to return to the area.
A. Legal source/authority and evidence:
Prosecutor v Milomir Stakić, Case No. IT-97-24-T, Judgment (TC), 31 July 2003, para. 687:
"687. The Trial Chamber agrees with the Trial Chamber in the Prosecutor v. Mladen Naletilic and Vinko Martinovic that the intent of the perpetrator must be that the victim is "removed, which implies the aim that the person is not returning." Naletilic and Martinovic Trial Judgement, para. 520 and 1362."
http//www.legal-tools.org/doc/f2cfeb/Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-T, Judgement (TC), 31 March 2003, para. 520:
"520. The Prosecution needs to prove the intent to have the person (or persons) removed, which implies the aim that the person is not returning.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."
Prosecutor v. Jovica Stanišić and Franko Simatovic, Case No. IT-03-69-T, Judgement (TC), 30 May 2013, paras. 1201, 1204:
“1201. The Trial Chamber recalls its findings in chapter 3.8.2 that in late April or early May 1992, the SDG, the White Eagles and the reserve police attacked the village of Divič and that at least 1,000 Muslims fled towards the nearby village of Jošanica following the attack. Those who tried to return in May 1992 were turned away by the mentioned forces. The Trial Chamber notes that the people who fled Divič following the attack on the village were Muslims and concludes that their ethnicity thus corresponds to the charges in the Indictment.”
“1204. If doubt would exist about the mens rea of those constituting the forces that attacked Divič, whether they intended to forcibly displace those who fled the village, the subsequent turning away of those who tried to return to Divič would remove such doubts. The Trial Chamber finds that those constituting these same forces thereby confirmed that they intended by their conduct to forcibly displace those who fled.”
[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. 147, 615:
"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. Further, it was General Mladic who initiated the meetings at the Hotel Fontana when he made it abundantly clear that he wanted the Bosnian Muslims out of the area. On 12 July 1995, as the bus convoys were being organised, General Mladic was heard to say during an intercepted conversation:
They’ve all capitulated and surrendered and we’ll evacuate them all – those who want to and those who don’t want to.316
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.317 All of these factors, against the backdrop of the terror campaign waged by the VRS against the refugees in Potocari, make it clear that the Bosnian Serbs wanted the area cleansed of Bosnian Muslims."
"316. P 445 (conversation intercepted by the ABiH between General Mladic and an unidentified person).
317. Kingori, T. 1886-1887."
"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."
Prosecutor v. Jovica Stanišić and Franko Simatovic, Case No. IT-03-69-T, Judgement (TC), 30 May 2013, paras. 914, 920, 1097, 1188, 1228:
“914. Witness JF-026 testified that after 9 April 1992, the provisional government in Zvornik withheld the payment of pensions to non-Serbs.2020 According to the Adjudicated Facts, on 10 April 1992, the provisional government of Zvornik instructed all persons with tenancy rights in socially owned apartments, as well as all owners of immovable property including private houses and businesses, to return and lay claim to those properties before 15 May 1992, or face loss of title to the municipality. 2021 On 5 May 1992, the provisional government established a “real estate exchange agency” authorized to execute exchanges of real estate between residents of Zvornik municipality and other municipalities.2022 According to a decision of the Assembly of the Serbian municipality of Zvornik, as of mid-March 1992, real estate was to be traded only between the ethnic Serbs.2023 In early June 1992, Serbs were seen moving into the villages in Zvornik municipality where Muslims had been evicted. Some of them had been ordered to do so by the provisional government of the Serb municipality of Zvornik.2024 Witness JF-026 was not aware of any instance of signing over property of Muslims, but he testified that the Crisis Staff and the provisional government disposed of immovable property left behind by Muslims who had left Zvornik.2025”
2020. P1700 (Witness JF-026, witness statement, 16 December 2008), para. 18; P1701 (Witness JF-026, Milošević transcript, 23 and 26 May 2003, 5 June 2003), pp. 21821-21822, 21895-21896.
2021. Adjudicated Facts IV, fact 321.
2022. Adjudicated Facts IV, fact 322.
2023. P2144 (Decision regarding the Ban on Sale of Real Estate Properties, signed by Jovo Mijatović, 15 March 1992).
2024. Adjudicated Facts IV, fact 330.
2025. P1701 (Witness JF-026, Milošević transcript, 23 and 26 May 2003, 5 June 2003), p. 21909.
“920. The Trial Chamber further finds, on the basis of the Adjudicated Facts, Decision on the ban on real estate sale (P2144), and the evidence of Witness JF-026, that as of March and April 1991, the Serb authorities in Zvornik introduced several discriminatory measures aimed at marginalising the non-Serb population in the municipality.”
“1097. The Trial Chamber will now consider the mens rea of those constituting each of the aforementioned groups. With regard to the mens rea of those constituting the JNA, Serb police, the Unit in Doboj, White Eagles, and Predo’s Wolves, the Osinjska Brigade and Serb authorities the Trial Chamber has considered the nature of the aforementioned acts and the circumstances under which they were carried out. With regard to the mens rea of the Serb persons who fired Muslims and Croats from their jobs and blew up their businesses around March-April 1992, the Trial Chamber has considered that these actions were designed to deprive Muslims and Croats of their means of subsistence thereby compelling them to leave the town. The Trial Chamber finds that those constituting the JNA, Serb police, the Unit in Doboj, White Eagles, Predo’s Wolves, and Serb persons had the required intent. With regard to those constituting the Osinjska Brigade and Serb authorities the Trial Chamber is unable to conclude that they had the required intent. The Trial Chamber will not consider this part of the incident further.”
“1228. With regard to the mens rea, the Trial Chamber will now consider the intent of those constituting each of the aforementioned groups. The Trial Chamber has considered the nature of the acts of the Serb paramilitary units, the local Serbs, the soldiers and the SDG, and the circumstances under which they were carried out. As for the SDG, Trial Chamber further considers the evidence of the mens rea in relation to this incident not in isolation but also considers its finding that those constituting this group acted in relation to other incidents in Zvornik municipality with the required mens rea for deportation and forcible transfer. The Trial Chamber therefore finds that those constituting the SDG had the intent to forcibly displace the Muslims. With regard to those constituting the Serb authorities, the Trial Chamber has considered that they forced the Muslims to leave their employment, thus leaving them without means of survival, and therefore finds that they had the intent to forcibly displace the Muslims. However, in relation to those constituting the Serb paramilitary units, the local Serbs and the soldiers, the majority, Judge Picard dissenting, having considered their actions, is unable to conclude that they had the intent to forcibly displace the Muslims.
“1188. In conclusion, the Trial Chamber finds beyond a reasonable doubt that those constituting the Serb police, Zvornik TO, the JNA, the SDG, the Yellow Wasps, Gogić’s group, Šešelj’s men, the White Eagles, the Vukovar group, the Serb reserve police, the Serb authorities in Zvornik, and Vuk Drašković’s SPO committed the crime of deportation as a crime against humanity.”
[B. Evidentiary comment:]
P.27.3. Evidence of the perpetrator making public statements calling for victims to leave an area.
A. Legal source/authority and evidence:
Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, para. 574:
"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."
[B. Evidentiary comment:]
P.27.4. Evidence that the perpetrator had previously espoused displacement.
A. Legal source/authority and evidence:
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.28. Evidence inferred from a circumstance.
Prosecutor v. Jovica Stanišić and Franko Simatovic, Case No. IT-03-69-T, Judgement (TC), 30 May 2013, paras. 1000, 1007, 1013, 1022, 1135:
“1000. The Trial Chamber will now consider the mens rea of those constituting each of the aforementioned groups. The Trial Chamber considers the nature of the acts of those constituting 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, and the circumstances under which they were carried out. With regard to those constituting the JNA and the SAO Krajina TO, the Trial Chamber further considers the evidence of the mens rea in relation to this incident not in isolation but also considers its finding that those constituting these groups acted in relation to other incidents in the SAO Krajina with the required mens rea for deportation and forcible transfer. The Trial Chamber therefore finds that those constituting 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) had the intent to forcibly displace Croats and other nonSerbs.”
“1007. With regard to the mens rea of those constituting the JNA and the SAO Krajina TO, the Trial Chamber finds that the character of the acts themselves and circumstances under which they were carried out, provide the basis for the Trial Chamber’s inference that they acted with the required intent.”
“1013. With regard to the mens rea of those constituting the SAO Krajina Police and local Serbs, the Trial Chamber considers the nature of the acts and the circumstances under which they were carried out. The Trial Chamber further considers the evidence of the mens rea in relation to this incident not in isolation but also considers its finding that those constituting these groups acted in relation to another incident with the required mens rea for deportation and forcible transfer in the same area between April 1991 and April 1992.”
“1022. With regard to the mens rea of those constituting the TO the Trial Chamber finds that the character of the acts themselves and circumstances under which they were carried out, provide the basis for the Trial Chamber’s inference that they acted with the required intent.”
“1135. In relation to those of the 140 Muslims and Croats who were not detained prior to their exchange, the Trial Chamber will first consider the mens rea of those constituting the Unit in Doboj, Šešelj’s men, the local Serb authorities, which included those constituting the Doboj SJB and the local SDS, as well as the forces that attacked Doboj and Gornja Grapska, which included those constituting the JNA, Serb men from Ozren wearing JNA uniforms, the police, Serb paramilitaries, White Eagles and Predo’s Wolves. The Trial Chamber has considered the nature of the acts and the circumstances under which they were carried out. The Trial Chamber further considers the evidence of the mens rea in relation to this incident not in isolation but also considers its finding that those constituting these groups acted in relation to other incidents in Doboj municipality with the required mens rea for deportation and forcible transfer. The Trial Chamber finds that those constituting the aforementioned groups had the intent to forcibly displace the Muslims and Croats.”
P.28.1. Evidence that the perpetrator frequented an area near where forcible displacement occurred.
A. Legal source/authority and evidence:
Prosecutor v Milomir Stakić, Case No. IT-97-24-T, Judgment (TC), 31 July 2003, paras. 711-712:
"711. After having visited Prijedor municipality, including the Trnopolje camps, an 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( 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."
"712. In conclusion the Trial Chamber is convinced that the Accused intended to deport the non-Serb population from Prijedor municipality and that, based on this intent, he not only committed the crime of deportation as a co-perpetrator, but also planned and ordered this crime. The Trial Chamber consequently finds the Accused guilty of the crime of deportation, a crime against humanity under Article 5(d) of the Statute."
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…"
[B. Evidentiary comment:]
P.28.2. 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, 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.29.1. Evidence of military attacks on the area where victims reside.
Prosecutor v. Jovica Stanišić and Franko Simatovic, Case No. IT-03-69-T, Judgement (TC), 30 May 2013, para. 1001:
“1001. The Trial Chamber considers the nature of the acts of those constituting the “Dvor na Uni Special Purpose Unit” and the Unit and the circumstances under which they were carried out. The Trial Chamber has in particular considered the 26 July 1991 combat report of Mišo Popović, the reports of the same day by Rade Božić and Boža Novaković, reports dated between 26 and 31 July 1991 by Dragan Oluić and Borjan Vučković and several members of the “Republic of Serbia SAO Krajina Special Purpose Unit”, as well as Captain Dragan’s speech of 31 July 1991, which all indicate that there was heavy combat between the Serb forces and the Croat forces in these villages during the relevant period. The Trial Chamber therefore allows for the reasonable possibility that the attack was solely directed at the Croatian forces and was not intended to forcibly displace the inhabitants. Therefore, the Trial Chamber is unable to conclude that those constituting the “Dvor na Uni Special Purpose Unit” and the Unit had the required intent.”
P.29.2. Not sufficient: Evidence that perpetrator meant to forcibly transfer in order to detain.
A. Legal source/authority and evidence:
http//www.legal-tools.org/doc/f2cfeb/Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-T, Judgement (TC), 31 March 2003, paras. 536 – 537:
"536. Most of the BH Muslim civilians were transported to the Velez Stadium in Mostar, from where many were taken to the Heliodrom. The women and children who were detained at the Heliodrom were released after a few days, pursuant to the cease- fire agreement entered into between the ABiH and the HVO. Many of the persons detained at the Heliodrom who were released, were subsequently detained again."
"537. The Chamber is not satisfied that these acts constitute unlawful transfer under Article 2(g) of the Statute, even though the persons, technically speaking, were moved from one place to another against their free will. They were apprehended and arrested in order to be detained and not in order to be transferred. Therefore, the requisite intent is not established. These arrests and movements to the Heliodrom on 9 May 1993 is further considered under unlawful confinement detention as persecution."
[B. Evidentiary comment:]
