Table of contents
P.32. Evidence inferred from an utterance, a document, or a deed.
P.32.1. Evidence that the perpetrator had attended meetings during which displacement was discussed.
P.32.2. Evidence of the perpetrators presence during the forcible displacement.
P.32.3. Evidence of the perpetrator ordering or planning forcible displacement.
P.33. Evidence inferred from a circumstance.
Element
8.c. [Mental element for Element 3] [Circumstance of deportation or forcible transfer without grounds permitted under international law:] The perpetrator was aware that the deportation or forcible transfer was without grounds permitted under international law.
P.32. Evidence inferred from an utterance, a document, or a deed.
P.32.1. Evidence that the perpetrator had attended meetings during which displacement was discussed.
A. Legal source/authority and evidence:
Prosecutor v. Radislav Krstić, Case No. IT-98-33-T, Judgement (TC), 2 August 2001, paras. 339 340, 422, 436:
"339. General Krstic attended two of the three meetings convened by General Mladic at the Hotel Fontana dealing with issues relating to the fate of the civilian population from Srebrenica. The first meeting he attended was held on 11 July 1995 at 2300 hours and the second on 12 July 1995 at 1000 hours.Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-T, Judgement (TC), 17 January 2005, para. 758:
"758. The Trial Chamber further finds that Colonel Blagojevic knew of the assistance rendered by members of his brigade, and that the acts undertaken by them assisted in the commission of forcible transfer. As discussed above, Colonel Blagojevic, as a commander involved in the Krivaja 95 operation, knew the objective and result of that operation: the elimination of the Srebrenica enclave. This objective necessarily entailed removing the Bosnian Muslim population from that area. Over the course of 12-14 July, Colonel Blagojevic, through his presence at the IKM, in Srebrenica town and in Bratunac, would have seen for himself the manifestation of that objective as busload after busload of Bosnian Muslim women, children and elderly travelled from Potocari to Kladanj through Bratunac, and then the temporary detention of the Bosnian Muslim men in Bratunac pending their transfer out of the area. He further knew of the role played by members of his brigade in this operation. Colonel Blagojevic knew that the forcible transfer was carried out on discriminatory grounds, as the objective of the forcible transfer was to remove the Bosnian Muslims from that part of Bosnia."
Prosecutor v. Radislav Krstić, Case No. IT-98-33-T, Judgement (TC), 2 August 2001, paras. 354, 422, 465, 609:
"354. The Trial Chamber finds that General Krstic was in Potocari for between an hour and two hours in the afternoon of 12 July 1995 and that he was present with other VRS officers, including General Mladic, overseeing the bussing of the Bosnian Muslim women, children and elderly. The Trial Chamber rejects the evidence given by General Krstic that he was only present for a few minutes at the Potocari checkpoint and that he had no knowledge of anything that was occurring in Potocari involving the Srebrenica refugees. As a result of his presence in Potocari on the afternoon of 12 July 1995, General Krstic must have known of the appalling conditions facing the Bosnian Muslim refugees and the general mistreatment inflicted by VRS soldiers on that day."
"422. The Prosecutions case against General Krstic was based on layer upon layer of circumstantial evidence as well as critical pieces of direct evidence, which reveals his developing knowledge of, and participation in, the executions. Although, on 11 or 12 July 1995, he had been appointed as Commander of the new VRS operation against Zepa, General Krstic remained informed of events occurring back in Srebrenica. General Krstic attended two meetings at the Hotel Fontana with General Mladic, relating to the fate of the Bosnian Muslim civilians from Srebrenica. Furthermore, he was involved in organising the transport of the Bosnian Muslim civilians from Potocari and, on 12 July 1995, was present in Potocari while the transportation operation was being carried out. General Krstic remained fully informed of matters relating to the Bosnian Muslim column, including the capture and detention of the prisoners."
"465. General Krstic was in Potocari for between an hour and two hours in the early afternoon of 12 July 1995, and he was present with other VRS officers, including General Mladic, overseeing the bussing of the Bosnian Muslim women, children and elderly. As a result of his presence in Potocari, General Krstic must have known of the appalling conditions facing the Bosnian Muslim refugees and the general mistreatment inflicted by VRS soldiers on that day (para. 354)."
"609. The Trial Chamber has similarly concluded that General Krstic was fully aware of the ongoing humanitarian crisis at Potocari as a result of his presence at the hotel Fontana meeting, on 11 July at 2300 hours, where General Mladic and Colonel Karremans of Dutchbat discussed the urgency of the situation, and, at the meeting on 12 July, when General Mladic decided that the VRS would organise the evacuation of the Bosnian Muslim women, children and elderly. Following this meeting, General Krstic was present himself at Potocari, for one to two hours, thus he could not help but be aware of the piteous conditions of the civilians and their mistreatment by VRS soldiers on that day.1359"
"1359. Supra paras. 340, 354."
Prosecutor v. Duko 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 "
"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:]
P.32.3. Evidence of the perpetrator ordering or planning forcible displacement.
A. Legal source/authority and evidence:
Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, paras. 575, 582:
"575. Furthermore, the Accuseds 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.Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-T, Judgement (TC), 31 March 2003, para. 532:
"532. The transfer was conducted by soldiers under the command of Mladen Naletili c. Mladen Naletilic further had knowledge of the transfer as he was involved in the planning of it and did nothing to prevent or to punish. The Chamber is satisfied that Mladen Naletilic is responsible under Article 7(3) of the Statute. The Chamber finds that the responsibility of Mladen Naletilic is most accurately described under Article 7(1) of the Statute as that of a commander who planned the operation in Sovici and Doljani."
Prosecutor v. Radislav Krstić, Case No. IT-98-33-T, Judgement (TC), 2 August 2001, para. 608:
"608. The evidence establishes that General Krstic, along with others, played a significant role in the organisation of the transportation of the civilians from Potocari. Specifically, the Trial Chamber has concluded that, on 12 July, General Krstic ordered the procurement of buses and their subsequent departure carrying the civilians from Potocari. At some later stage, he personally inquired about the number of buses already en route. The Trial Chamber has also found that General Krstic ordered the securing of the road from Luke to Kladanj up to the tunnel where the people on the buses were to disembark. It has further been established that General Krstic knew that this was a forcible, not a voluntary, transfer.1358"
"1358. Supra paras. 340, 344."
[B. Evidentiary comment:]
P.33. Evidence inferred from a circumstance.
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. 758:
"758. The Trial Chamber further finds that Colonel Blagojevic knew of the assistance rendered by members of his brigade, and that the acts undertaken by them assisted in the commission of forcible transfer. As discussed above, Colonel Blagojevic, as a commander involved in the Krivaja 95 operation, knew the objective and result of that operation: the elimination of the Srebrenica enclave. This objective necessarily entailed removing the Bosnian Muslim population from that area. Over the course of 12-14 July, Colonel Blagojevic, through his presence at the IKM, in Srebrenica town and in Bratunac, would have seen for himself the manifestation of that objective as busload after busload of Bosnian Muslim women, children and elderly travelled from Potocari to Kladanj through Bratunac, and then the temporary detention of the Bosnian Muslim men in Bratunac pending their transfer out of the area. He further knew of the role played by members of his brigade in this operation. Colonel Blagojevic knew that the forcible transfer was carried out on discriminatory grounds, as the objective of the forcible transfer was to remove the Bosnian Muslims from that part of Bosnia."
Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, para. 582:
"582.The Trial Chamber is satisfied that the Accused was aware that his public statements and the decisions of the ARK Crisis Staff on disarmament and on setting up the Agency substantially assisted in the commission of deportation and forcible transfer of non-Serbs. The crimes of deportation and forcible transfer were an integral part of the Strategic Plan, which the Accused espoused throughout in the awareness that it could only be implemented through force and fear, and the implementation of which he coordinated in his position as President of the ARK Crisis Staff.Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-T, Judgement (TC), 31 March 2003, paras. 554, 556, 564:
"554. The Chamber is satisfied that Vinko Martinovic had command responsibility pursuant to Article 7(3) of the Statute. Members of his unit, including Ernest Takac and "Dolma" participated in the unlawful transfer and Vinko Martinovic knew about their behaviour and did nothing to prevent it, but rather participated in it. Vinko Martinovic is responsible under Article 7(3) of the Statute. The responsibility of Vinko Martinovic is most appropriately described under Article 7 (1) of the Statute."
"556. The Chamber has found that Vinko Skrobo ATG was involved in the unlawful transfer on 13 and 14 June 1993 and that Mladen Naletilic was in an a command position in relation to this unit.1414 The Chamber finds that based on the regular occurrence of such transfers Mladen Naletili c knew or had reasons to know and did nothing to prevent or punish."
"1414. See supra paras 91-94 and 100."
"564. Vinko Martinovic had command responsibility pursuant to Article 7(3) of the Statute since members of his unit participated in the unlawful transfer and Vinko Martinovic knew about their behaviour and did nothing to prevent it and on occasion actively participated. The responsibility of Vinko Martinovic is most appropriately described as committing unlawful transfer pursuant to Article 7(1) of the Statute."
Prosecutor v. Radislav Krstić, Case No. IT-98-33-T, Judgement (TC), 2 August 2001, paras. 335, 422:
"335. Despite efforts to distance himself from Krivaja 95, particularly the second phase involving the capture of Srebrenica, the Trial Chamber is left without doubt that General Krstic was no ordinary participant in these events. Regardless of whether or not he was completely sidelined upon the arrival of General Mladic, it is clear that General Krstic was fully informed of the conduct of the operation. Given his position as Deputy Commander/Chief of Staff of the Drina Corps and his prominent role in the drafting and execution of Krivaja 95, the Trial Chamber finds that General Krstic must have known the VRS military activities against Srebrenica were calculated to trigger a humanitarian crisis, eventually leading to the elimination of the enclave. He thus played a leading role in the events that forced the terrorised civilian population of Srebrenica to flee the town in fear of their lives and move toward Potocari, setting the stage for the crimes that followed. From his vantage point at the FCP in the hills of Pribicevac, he had an unobstructed view of the impact of the shelling upon the terrorised Bosnian Muslim residents of Srebrenica town.888 It is inconceivable that a commander so actively involved in the campaign would not have been aware of such an obvious cause and effect relationship between the shelling and the exodus of residents from Srebrenica that was apparent to virtually all UN military personnel in the area.889
889. See the discussion supra paras. 122-125."
"422. The Prosecutions case against General Krstic was based on layer upon layer of circumstantial evidence as well as critical pieces of direct evidence, which reveals his developing knowledge of, and participation in, the executions. Although, on 11 or 12 July 1995, he had been appointed as Commander of the new VRS operation against Zepa, General Krstic remained informed of events occurring back in Srebrenica. General Krstic attended two meetings at the Hotel Fontana with General Mladic, relating to the fate of the Bosnian Muslim civilians from Srebrenica. Furthermore, he was involved in organising the transport of the Bosnian Muslim civilians from Potocari and, on 12 July 1995, was present in Potocari while the transportation operation was being carried out. General Krstic remained fully informed of matters relating to the Bosnian Muslim column, including the capture and detention of the prisoners."
Prosecutor v. Duko 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:]
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. 758:
"758. The Trial Chamber further finds that Colonel Blagojevic knew of the assistance rendered by members of his brigade, and that the acts undertaken by them assisted in the commission of forcible transfer. As discussed above, Colonel Blagojevic, as a commander involved in the Krivaja 95 operation, knew the objective and result of that operation: the elimination of the Srebrenica enclave. This objective necessarily entailed removing the Bosnian Muslim population from that area. Over the course of 12-14 July, Colonel Blagojevic, through his presence at the IKM, in Srebrenica town and in Bratunac, would have seen for himself the manifestation of that objective as busload after busload of Bosnian Muslim women, children and elderly travelled from Potocari to Kladanj through Bratunac, and then the temporary detention of the Bosnian Muslim men in Bratunac pending their transfer out of the area. He further knew of the role played by members of his brigade in this operation. Colonel Blagojevic knew that the forcible transfer was carried out on discriminatory grounds, as the objective of the forcible transfer was to remove the Bosnian Muslims from that part of Bosnia."
Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, para. 582:
"582. The Trial Chamber is satisfied that the Accused was aware that his public statements and the decisions of the ARK Crisis Staff on disarmament and on setting up the Agency substantially assisted in the commission of deportation and forcible transfer of non-Serbs. The crimes of deportation and forcible transfer were an integral part of the Strategic Plan, which the Accused espoused throughout in the awareness that it could only be implemented through force and fear, and the implementation of which he coordinated in his position as President of the ARK Crisis Staff.1485 He was also aware of the intent of the municipal authorities, the police and the army to deport and forcibly transfer the non-Serb population."
Prosecutor v. Radislav Krstić, Case No. IT-98-33-T, Judgement (TC), 2 August 2001, para. 335:
"335. Despite efforts to distance himself from Krivaja 95, particularly the second phase involving the capture of Srebrenica, the Trial Chamber is left without doubt that General Krstic was no ordinary participant in these events. Regardless of whether or not he was completely sidelined upon the arrival of General Mladic, it is clear that General Krstic was fully informed of the conduct of the operation. Given his position as Deputy Commander/Chief of Staff of the Drina Corps and his prominent role in the drafting and execution of Krivaja 95, the Trial Chamber finds that General Krstic must have known the VRS military activities against Srebrenica were calculated to trigger a humanitarian crisis, eventually leading to the elimination of the enclave. He thus played a leading role in the events that forced the terrorised civilian population of Srebrenica to flee the town in fear of their lives and move toward Potocari, setting the stage for the crimes that followed. From his vantage point at the FCP in the hills of Pribicevac, he had an unobstructed view of the impact of the shelling upon the terrorised Bosnian Muslim residents of Srebrenica town.888 It is inconceivable that a commander so actively involved in the campaign would not have been aware of such an obvious cause and effect relationship between the shelling and the exodus of residents from Srebrenica that was apparent to virtually all UN military personnel in the area.889
889. See the discussion supra paras. 122-125."
[B. Evidentiary comment:]
A. Legal source/authority and evidence:
, paras. 556, 558, 566:"556. The Chamber has found that Vinko Skrobo ATG was involved in the unlawful transfer on 13 and 14 June 1993 and that Mladen Naletilic was in an a [sic] command position in relation to this unit.1414 The Chamber finds that based on the regular occurrence of such transfers Mladen Naletili c knew or had reasons to know and did nothing to prevent or punish."
"1414. See supra paras 91-94 and 100."
"558. The Chamber finds on the basis of Military Police reports1421 considered in the context of witness ACs testimony of the regularity of such operations that Mladen Naleitlic knew or had reason to know of this activity. The regular occurrence of such transfers was sufficient to put Mladen Naletilic on notice. Mladen Naletilic choose to do nothing to prevent or to punish but rather communicated to his subordinates that he endorsed the behaviour. Therefore, the Chamber is satisfied that Mladen Naletilic is responsible as a commander under Article 7(3) of the Statute."
"1431. See supra paras 91-94, 100."
[B. Evidentiary comment:]
A. Legal source/authority and evidence:
, para. 566:"566. The Chamber found that Vinko Martinovic and the Vinko Skrobo ATG participated in unlawful transfer on 29 September 1993. Mladen Naletilic was in command of this unit.1431 The Chamber is further satisfied that Mladen Naletilic knew or had reasons to know. Mladen Naletilic was put on notice by the regularity of such transfers, as discussed above, his deputy Ivan Anderbak was informed about this specific event and did nothing to prevent or to punish. The Chamber finds that such conduct was condoned by the leadership of KB. Mladen Naletilic is responsible under Article 7(3) of the Statute."
"1431. See supra paras 91-94, 100."
[B. Evidentiary comment:]
