Table of contents
5.1. Imprisonment of one or more persons.
P.1. Evidence of confinement in an enclosed space with prevention of movement to other spaces.
P.1.1. Evidence of victims being locked in cells.
P.1.2. Evidence of victims being detained in guarded garages.
P.1.3. Evidence of victims being detained in locked or guarded storage rooms.
5.2. Other severe deprivations of physical liberty of one or more persons.
5.2.1. Evidence of other deprivations of physical liberty.
P.2. Evidence of general infringements on physical freedom.
P.3. Evidence of confinement in established or makeshift camps or detention centres.
P.3.1. Evidence of confinement in a camp.
P.3.2. Evidence of confinement in a detention centre.
P.3.3. Evidence of confinement in an office building.
P.3.4. Evidence of confinement in a school.
P.3.5. Evidence of confinement in a veterinary station.
P.3.6. Evidence of confinement in military barracks.
P.3.7. Evidence of confinement in a stadium.
P.3.8. Evidence of confinement in a warehouse.
P.3.9. Evidence of confinement in a cinema.
P.4. Evidence of confinement in homes or cities.
P.4.1. Evidence of house arrest.
P.4.2. Evidence of restriction to a closed village or city.
5.2.2. Evidence of the severity of other deprivations of physical liberty.
P.5. Evidence that the other deprivations of physical liberty were "severe."
P.5.1. Evidence concerning the length of detention.
P.5.2. Evidence concerning the conditions of detention.
P.5.3. Evidence that victims were cut off from the outside world.
P.5.4. Evidence that detention was part of a series of repeated detentions.
5.3.1. Evidence pertaining to arrest.
P.6. Evidence of the conditions of victimsarrest.
P.6.1. Evidence of large-scale arrests or round-ups.
P.6.2. Evidence of the lack of valid arrest warrants or failure to present valid arrest warrants.
P.6.3. Evidence of a failure to inform victims of the reasons for arrest or detention.
P.6.4. Evidence of beatings at the time of arrest.
P.7. Evidence that a victim chose to be detained because of security risks.
Element
5.1.Imp risonment of one or more persons.
P.1. Evidence of confinement in an enclosed space with prevention of movement to other spaces.
P.1.1. Evidence of victims being locked in cells.
A. Legal source/authority and evidence
Prosecutor v. Blagoje Simić et al., Case No. IT-95-17/1-T, Judgement (TC), 17 October 2003, para. 536:
"536. Prosecution witnesses testified that they were detained in cells,Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 112:
"112. The Trial Chamber is of the view that any form of arbitrary physical deprivation of liberty of an individual may constitute imprisonment under Article 5(e) as long as the other requirements of the crime are fulfilled.Prosecutor v. Blagoje Simić et al., Case No. IT-95-17/1-T, Judgement (TC), 17 October 2003, para. 536:
"536. Prosecution witnesses testified that they were detained in cells,Prosecutor v. Blagoje Simić et al., Case No. IT-95-17/1-T, Judgement (TC), 17 October 2003, para. 541:
"541. Detainees were held in several rooms at the TO, one large and one small, and were also held in a room referred to as a storage room, where they were guarded.Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-T, Judgement (TC), 31 March 2003, para. 642:
"642. [ ] In defining imprisonment, the
Judgement held that "any form of arbitrary physical deprivation of liberty of an individual may constitute imprisonment under Article 5(e) of the Statute as long as the other requirements of the crime are fulfilled".Krnojelac Trial Judgement
, para 112."Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 115:
"115. To establish the crime of imprisonment as a crime against humanity under Article 5(e) of the Tribunals Statute, the Trial Chamber accordingly finds that the following elements must be established in the circumstances of the present case:
1. An individual is deprived of his or her liberty.
2. The deprivation of liberty is imposed arbitrarily, that is, no legal basis can be invoked to justify the deprivation of liberty.Prosecutor v. Blagoje Simić et al., Case No. IT-95-17/1-T, Judgement (TC), 17 October 2003, para. 666:
"666. The Trial Chamber finds that family members of some of the men detained in other facilities, including the SUP and TO in Bosanski Samac, or who had been exchanged, were detained in Zasavica.Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, paras. 299, 774:
"299. [ ] The International Law Commission further indicates that arbitrary imprisonment is contrary to Article 9 of the Universal Declaration of Human Rights and to Article 9 of the International Covenant on Civil and Political Rights ("ICCPR")Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 116:
"116. The Trial Chamber is satisfied that, between 10 April 1992 and the beginning of June 1992, large-scale arrests of non-Serb civilian men, mostly of Muslim ethnicity, were carried out throughout Foca and its environs. Subsequent to their arrest, the men were transferred to the KP Dom."
Prosecutor v. Zejnil Delalic et al., Case No. IT-96-21-T, Judgement (TC), 16 November 1998
, para. 1130:"1130. It is clear that a considerable number of prisoners were detained in the Celebici prison-camp between the period of April and December 1992. [ ]"
[B. Evidentiary comment:]
P.3.2. Evidence of confinement in a detention centre.
A. Legal source/authority and evidence:
Prosecutor v. Blagoje Simić et al., Case No. IT-95-17/1-T, Judgement (TC), 17 October 2003, para. 534:
"534. Defence witnesses testified that in the initial days after war broke out in Bosanski Samac, people were detained in detention facilities within the Municipality of Bosanski Samac and in other areas that included the SUP, TO, primary and secondary schools, Zasavica, Crkvina, Brcko, and Bijeljina.Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, para. 781:
"781. A third Vitez detention centre was established in the SDK building, a block of offices in Vitez. [ ]"
Prosecutor v. Tihomir Blakić, Case No. IT-95-14-T, Judgement (TC)
, 3 March 2000, para. 680:"680. The indictment alleges that from January 1993 to January 1994, Bosnian Muslims were detained by the HVO in [ ] the SDK offices in Vitez, Kiseljak barracks, Rotilj village and the houses of GaciceProsecutor v. Blagoje Simić et al., Case No. IT-95-17/1-T, Judgement (TC), 17 October 2003, paras. 534, 549, 654, 664, 668:
"534. Defence witnesses testified that in the initial days after war broke out in Bosanski Samac, people were detained in detention facilities within the Municipality of Bosanski Samac and in other areas that included the SUP, TO, primary and secondary schools, Zasavica, Crkvina, Brcko, and Bijeljina.Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 794:
"794. [ ] The men aged between 16 and 60 years were separated from the women and children
Prosecutor v. Tihomir Blakić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000
, paras. 413, 680, 695:"413. Some inhabitants were transferred to the school in DubravicaProsecutor v. Zoran Kuprekić et al., Case No. IT- 95-16-T, Judgement (TC), 14 January 2000, para. 280:
"280. Those persons who survived the attack on Ahmici were moved to a prison camp which had been set up in Dubravica school, where they were mistreated and used, inter alia, to dig trenches in contravention of the laws of war.Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, para. 780:
"780. The prosecution case is that a detention centre was established in this station and was used for the first few days of the conflict in Vitez. Evidence was given by Fuad Zeco, Director of the Station, who was taken there by HVO soldiers on the morning of 16 April, having been arrested in his home.
Prosecutor v. Tihomir Blakić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000
, paras. 680, 694:"680. The indictment alleges that from January 1993 to January 1994, Bosnian Muslims were detained by the HVO in [ ] Vitez veterinary station, Dubravica primary school, the SDK offices in Vitez, Kiseljak barracks, Rotilj village and the houses of GaciceProsecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-A, Judgement (AC), 17 December 2004, para. 629:
"629. Witness AN testified that on 12 June 1993 the village of Tulica was attacked, following which he and a number of others were put onto a truck and taken to the Kiseljak barracks, where he was put in a cell together with approximately thirty -five people.Prosecutor v. Blagoje Simić et al., Case No. IT-95-17/1-T, Judgement (TC), 17 October 2003, para. 667:
"667. [ ] Lt. Col. Stevan Nikolic then contacted Captain Petrovic, and they agreed to the transfer, where detainees were loaded onto trucks with the assistance of Makso S imeunovic, Savo Cancarevic and Mihajlo Topolovac, and taken to the JNA barracks in Brcko.Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, para. 790:
"790. In April and June 1993 two facilities were used by the HVO for the purpose of detaining Muslims from the villages around Kiseljak town, namely the barracks and municipal buildings in the town. The prisoners were initially detained in the barracks where they were kept in overcrowded and unhygienic conditions, their valuables having been taken from them.
Prosecutor v. Tihomir Blakić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000
, paras. 680, 690:"680. The indictment alleges that from January 1993 to January 1994, Bosnian Muslims were detained by the HVO in [ ] Kiseljak barracks, Rotilj village and the houses of GaciceProsecutor v. Blagoje Simić et al., Case No. IT-95-17/1-T, Judgement (TC), 17 October 2003, para. 665:
"665. The Trial Chamber finds that a group of Croat women and children were taken to Crkvina in mid-May 2003. They were detained in facilities in Crkvina, together with men and the elderly, in places that included the Youth Centre,Prosecutor v. Blagoje Simić et al., Case No. IT-95-17/1-T, Judgement (TC), 17 October 2003, para. 665:
"665. The Trial Chamber finds that a group of Croat women and children were taken to Crkvina in mid-May 2003. They were detained in facilities in Crkvina, together with men and the elderly, in places that included the Youth Centre,Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 794:
"794. [ ] According to Witness F, after the surrender the civilian Muslim population was ordered to gather and marched between HVO soldiers to four or five hangars or warehouses in the compound of the Nova Trgovina company where about 5,000 were detained. [ ] The women and children remained in the hangars, guarded by the HVO military police.
Prosecutor v. Tihomir Blakić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000
, para. 688:"688. During the first half of 1993, male Muslim civilians, particularly from Busovaca municipalityProsecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, para. 777:
"777. The Vitez Cinema is part of a complex variously called "the Cinema", "Cultural Centre" or "Workers University". During the war this complex housed the headquarters of the Viteska Brigade. Parts of it (first the basement, then the cinema hall) were also used after 16 April 1993, for the detention of some 200-300 Muslim men of all ages, who had been rounded up.Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-T, Judgement (TC), 31 March 2003, para. 645:
"645. The BH Muslim civilian population of Sovici was taken by the HVO soldiers to a hamlet of houses that were not destroyed called the Junuzovici houses and were made to stay there.Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, para. 793:
"793. Muslims were still detained in Rotilj in September 1993. On 28 September a Canbat officer, Captain Liebert, visited Rotilj and found 600 people there who had been displaced from all over the municipality: they were living in about 20 houses and conditions were poor and over-crowded.
Prosecutor v. Tihomir Blakić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000
, para. 697:"697. The village of Gacice lies in the municipality of Vitez approximately two kilometres from the town of VitezProsecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-A, Judgement (AC), 17 December 2004, para. 640:
"640. The Appeals Chamber concludes that a reasonable trier of fact could have found that cordoning off Rotilj, preventing civilians from leaving the village, when the civilians were not detained in the village for their own safety, constitute imprisonment and unlawful confinement of civilians, Counts 21 and 22 (Kordic)."
Prosecutor v. Blagoje Simić et al., Case No. IT-95-17/1-T, Judgement (TC), 17 October 2003, para. 475:
"475. On 21 May 1992, the Crisis Staff issued a "Decision on a general ban on leaving the territory of the Serbian Municipality of Bosanski Samac". The Decision stated: "No individual is to leave the territory of the Serbian Municipality of Bosanski Samac without a special permit."Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, paras. 792 793:
"792. Rotilj, as has already been noted, is a village in the Kiseljak municipality , lying a few kilometres to the west of Kiseljak town itself. It is situated in a valley, a natural bowl or basin, in the hills, with one small road leading in and out.
Prosecutor v. Tihomir Blakić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000
, para. 691:"691. In addition, from April 1993 until January 1994Prosecutor v. Blagoje Simić et al., Case No. IT-95-17/1-T, Judgement (TC), 17 October 2003, para. 663:
"663. [ ] Detainees were held at the TO for varying periods of time, and some were held there for months at a time.Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-T, Judgement (TC), 31 March 2003, para. 642:
"642. [ ] The Chamber further found that "prolonged and routine imprisonment and confinement" constituted persecution.
Krnojelac Trial Judgement
, para 438."Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 119:
"119. The [ ] None of the detainees was shown an arrest warrant at the time of their initial detention or informed orally of the reason for their arrest.Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-A, Judgement (AC), 20 February 2001, para. 328:
"328. It was contended by Delic that detention in the present case was justified under international law because "[t]he government is clearly entitled to some reasonable time to determine which of the detainees is a danger to the States security".Prosecutor v. Blagoje Simić et al., Case No. IT-95-17/1-T, Judgement (TC), 17 October 2003, para. 94:
"94. When discussing "confinement under inhumane conditions", the Kvocka Trial Chamber found that:
Confinement in camps under inhumane conditions can be included under sub-clauses (e) and (i) prohibiting "imprisonment" and "other inhumane acts" and also meets the definition of a persecutory act.Kvocka Trial Judgement, para. 189."
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, paras. 774, 777, 790, 795:
"774. [ ] There was much evidence of the poor conditions in the camp and the mistreatment of prisoners: the cells were small and over-crowded, hygiene was very poor and the food was inadequate.
Prosecutor v. Tihomir Blakić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000
, paras. 681, 693:"681. The detainees were allegedly used as human shields, beaten, forced to dig trenches and subjected to physical and mental violence, threats and inhuman treatment, in particular by being confined in cramped or overcrowded facilities and being deprived of sufficient food and water. Some of them were reportedly killed or wounded while being forced to dig trenches in the Kiseljak, Vitez and Busovaca municipalitiesProsecutor v. Blagoje Simić et al., Case No. IT-95-17/1-T, Judgement (TC), 17 October 2003, para. 743:
"743. Several Prosecution witnesses gave evidence that there was very little contact with family members from outside in the detention facilities in Bosanski Samac.Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, para. 779:
"779. The Chess Club was in a building, not far from the Cinema. It was not used extensively for the purposes of detention. [ ] Edib Zlotrg was detained there;Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-T, Judgement (TC), 31 March 2003, para. 642:
"642. [ ] The Chamber further found that "prolonged and routine imprisonment and confinement" constituted persecution.
Krnojelac Trial Judgement
, para 438."[B. Evidentiary comment:]
5.3.1. Evidence pertaining to arrest.
P.6. Evidence of the conditions of victimsarrest.
P.6.1. Evidence of large-scale arrests or round-ups.
A. Legal source/authority and evidence:
Prosecutor v. Blagoje Simić et al., Case No. IT-95-17/1-T, Judgement (TC), 17 October 2003, paras. 562, 654:
"562. Witness M stated that the day after his escape, in late June 1992, military trucks took the families of all those who managed to escape to Zasavica. The truck went from house to house picking up women and children and elderly people of Bosnian Muslim and Bosnian Croat ethnicity, with only the clothes they had on.Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 116:
"116. The Trial Chamber is satisfied that, between 10 April 1992 and the beginning of June 1992, large-scale arrests of non-Serb civilian men, mostly of Muslim ethnicity, were carried out throughout Foca and its environs. Subsequent to their arrest, the men were transferred to the KP Dom."
Prosecutor v. Tihomir Blakić, Case No. IT-95-14-T, Judgement (TC)
, 3 March 2000, para. 413:"413. [ ] According to the Commission on Human Rights, "approximately 150 Muslims were rounded up and detained for sixteen days in the Braca Ribara school in Dubravica. [ ]"
[B. Evidentiary comment:]
P.6.2. Evidence of the lack of valid arrest warrants or failure to present valid arrest warrants.
A. Legal source/authority and evidence:
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 119:
"119. The Trial Chamber is satisfied that none of the non-Serb men was arrested on the basis of a valid arrest warrant. None of the detainees was shown an arrest warrant at the time of their initial detention or informed orally of the reason for their arrest.Prosecutor v. Blagoje Simić et al., Case No. IT-95-17/1-T, Judgement (TC), 17 October 2003, para. 658:
"658. [ ] Those arrested were not told the reason for their arrest,Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-T, Judgement (TC), 31 March 2003, para. 650:
"650. The Chamber has already found, that BH Muslim civilians were transported to the Velez Stadium in Mostar and then taken to the Heliodrom.Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 119:
"119. The Trial Chamber is satisfied that none of the non-Serb men was arrested on the basis of a valid arrest warrant. None of the detainees was shown an arrest warrant at the time of their initial detention or informed orally of the reason for their arrest.Prosecutor v. Zejnil Delalic et al., Case No. IT-96-21-T, Judgement (TC), 16 November 1998,paras. 1126, 1133:
"1126. [ ] The Prosecution further contends that the confinement of civilians in the Celebici prison-camp was unlawful on the basis that most of the detainees were never informed as to why they had been arrested, and that their confinement was never properly and regularly reviewed in accordance with the provisions of Geneva Convention IV.Prosecutor v. Blagoje Simić et al., Case No. IT-95-17/1-T, Judgement (TC), 17 October 2003, para. 658:
"658. [ ] Those arrested were not told the reason for their arrest,Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-A, Judgement (AC), 17 December 2004, para. 621:
"621. Witness Buffini [ ] testified that the two generals agreed that all the prisoners were free to go as of that moment, and were able to walk out of the cinema, should they choose to do so. But that only six of the detainees chose to leave since all the others did not feel confident enough to leave and "feared that as soon as they left the cinema, they would either be shot or attacked by HVO troops in the local area. So they actually stayed."Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 114:
"114. Having considered these instruments, the Trial Chamber is of the view that, under Article 5(e) of the Tribunals Statute, a deprivation of an individuals liberty will be arbitrary and, therefore, unlawful if no legal basis can be called upon to justify the initial deprivation of liberty. If national law is relied upon as justification, the relevant provisions must not violate international law.Prosecutor v. Zejnil Delalic et al., Case No. IT-96-21-T, Judgement (TC), 16 November 1998,paras. 568, 1130:
"568. While there is no requirement that the particular activity in question must be judged as criminal under national law before a State can derogate from the rights of protected civilians under article 5, it is almost certain that the condemned activity will in most cases be the subject of criminal punishment under national lawProsecutor v. Blagoje Simić et al., Case No. IT-95-17/1-T, Judgement (TC), 17 October 2003, paras. 64, 684:
"64. The Trial Chamber in Kordic concluded that imprisonment in Article 5 (e) of the Statute should be understood as arbitrary imprisonment, defined as "deprivation of liberty of the individual without due process of law, as part of a widespread or systematic attack directed against the civilian population".Kordic Trial Judgement, para. 302.
Krnojelac Trial
Judgement, para. 112.Krnojelac Trial
Judgement, para. 113.Krnojelac Trial
Judgement, para. 115.""684. The Trial Chamber finds that the Bosnian Croat, Bosnian Muslims and other non -Serbs detained in the detention facilities above, namely at the SUP, TO, primary and secondary schools, Brcko, and Bijeljina, were deprived of their liberty arbitrarily. The evidence has clearly established that there was no legal basis which could be relied upon to justify their deprivation of liberty under national or international law. [ ]"
, paras. 646, 651:"646. The Chamber has already found there was a widespread or systematic attack against civilians in Sovici.Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, paras. 114, 115, 122, 438:
"114. Having considered these instruments, the Trial Chamber is of the view that, under Article 5(e) of the Tribunals Statute, a deprivation of an individuals liberty will be arbitrary and, therefore, unlawful if no legal basis can be called upon to justify the initial deprivation of liberty."
"115. To establish the crime of imprisonment as a crime against humanity under Article 5(e) of the Tribunals Statute, the Trial Chamber accordingly finds that the following elements must be established in the circumstances of the present case:
1. An individual is deprived of his or her liberty.
2. The deprivation of liberty is imposed arbitrarily, that is, no legal basis can be invoked to justify the deprivation of liberty.Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-A, Judgement (AC), 17 December 2004, para. 116:
"116. The Appeals Chamber agrees with the Trial Chambers finding "that the term imprisonment in Article 5(e) of the Statute should be understood as arbitrary imprisonment, that is to say, the deprivation of liberty of the individualProsecutor v. Blagoje Simić et al., Case No. IT-95-17/1-T, Judgement (TC), 17 October 2003, para. 64:
"64. The Trial Chamber in Kordic concluded that imprisonment in Article 5 (e) of the Statute should be understood as arbitrary imprisonment, defined as "deprivation of liberty of the individual without due process of law, as part of a widespread or systematic attack directed against the civilian population".Kordic Trial Judgement, para. 302.
Krnojelac Trial
Judgement, para. 112.Krnojelac Trial
Judgement, para. 113."Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, paras. 110, 113:
"110. In the jurisprudence of the Tribunal, imprisonment as a crime against humanity has been considered on one occasion only.Kordic and Cerkez Trial Judgment, pars 292-303.
Kordic and Cerkez Trial Judgment
, par 302. Unlike the instant case, imprisonment under Article 5 was charged in connection with unlawful confinement under Article 2, both charges referring to the same act, the alleged illegal detention of Bosnian Muslims, par 273.Kordic and Cerkez Trial Judgment
, par 303.""113. For the purpose of Article 5(e), the deprivation of an individuals liberty is arbitrary if it is imposed without due process of law. Relevant international instruments do not adopt a common approach to the issue of when a deprivation of liberty is or becomes arbitrary.Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, para. 302:
"302. The Trial Chamber concludes that the term imprisonment in Article 5(e) of the Statute should be understood as arbitrary imprisonment, that is to say, the deprivation of liberty of the individual without due process of law, as part of a widespread or systematic attack directed against a civilian population."
[B. Evidentiary comment:]
A. Legal source/authority and evidence:
Prosecutor v. Blagoje Simić et al., Case No. IT-95-17/1-T, Judgement (TC), 17 October 2003, paras. 657, 685:
"657. The Trial Chamber concludes that the arrests of groups of women, children and elderly, who were subsequently detained in Zasavica and Crkvina were arbitrary, with no lawful basis. They were arrested because they were non-Serbs, not because there was a reasonable suspicion that they had committed any offences, or for reasons of their safety."
"685. The Trial Chamber is satisfied that non-Serb persons were arrested and detained because of their non-Serb ethnicity and political affiliations. The overwhelming majority of those detained were Bosnian Croats and Bosnian Muslims civilians. The Trial Chamber finds that the arrest and detention of the non-Serb civilian population in Bosanski Samac was carried out on a discriminatory basis, as the Bosnian Muslim and Bosnian Croat population was targeted specifically, while their Serb neighbours were on the whole left unharmed. In addition, members of the SDA and HDZ, Bosnian Muslim and Croat political parties were arrested and detained, while again, members of the Serb parties were not."
, paras. 646, 657:"646. The Chamber has already found there was a widespread or systematic attack against civilians in Sovici.Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, paras. 41, 118, 438:
"41. The illegal arrest and imprisonment of non-Serb civilian males was carried out on a massive scale and in a systematic way. Hundreds of Muslim men, as well as a few other non-Serb civilians, were detained at the KP Dom without being charged with any crime.Prosecutor v. Zejnil Delalic et al., Case No. IT-96-21-T, Judgement (TC), 16 November 1998, paras. 583, 1126, 1133 1134:
"583. For the reasons set out above, it is the opinion of this Trial Chamber that the confinement of civilians during armed conflict may be permissible in limited cases, but has in any event to be in compliance with the provisions of articles 42 and 43 of Geneva Convention IV. The security of the State concerned might require the internment of civilians and, furthermore, the decision of whether a civilian constitutes a threat to the security of the State is largely left to its discretion. However, it must be borne in mind that the measure of internment for reasons of security is an exceptional one and can never be taken on a collective basis. [ ]"
"1126. The Prosecution contends that the confinement of numerous civilians in the Celebici prison-camp was unlawful under international humanitarian law. According to the Prosecution, the population of detainees in the Celebici prison-camp was not limited to individuals who had been armed or participated in military activities. It thus submits that many of those detained could not reasonably have been suspected of participating in any activities that could have justified their confinement under the provisions of Geneva Convention IV. The Prosecution accordingly contends that the confinement of civilians in the Celebici prison-camp was a collective measure aimed at a specific group of persons, based only on their ethnic background, and not a legitimate security measure. [ ]Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-T, Judgement (TC), 31 March 2003, para. 657:
"657. The Chamber is satisfied that detention of BH Muslim civilians at Ljubuski was unlawful and grounded on a discriminatory basis. The confinement of prominent members of the BH Muslim community was conducted systematically, undermining the vitality and the possibility of physical and moral resistance of that part of the population. It only concerned the BH Muslim part of the population."
[B. Evidentiary comment:]
A. Legal source/authority and evidence:
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 118:
"118. The evidence establishes that no consideration was given to age, state of health or civilian status. The detainees ranged in age from 15 years to almost 80 years. There were many elderly persons among the detained, and there was a substantial group of ill, wounded, physically handicapped and mentally disturbed persons among the detained men."
[B. Evidentiary comment:]
P.9. Evidence that detention resulted from the exercise of fundamental rights and freedoms.
A. Legal source/authority and evidence:
U.N. Working Group on Arbitrary Detention, "Individual Complaints, Urgent Appeals, Deliberations", para. I:
"According to the methods of work of the Group, deprivation of liberty is arbitrary if a case falls into one of the following three categories:
[ ]
B) When the deprivation of liberty results from the exercise of the rights or freedoms guaranteed by articles 7, 13, 14, 18, 19, 10 and 21 of the Universal Declaration of Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22, 25, 26 and 27 of the International Covenant on Civil and Political Rights (Category II); [ ]"
P.10. Evidence that detention was not absolutely necessary.
P.10.1. Evidence that victims did not pose a security threat to the detaining forces.
A. Legal source/authority and evidence:
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-A, Judgement (AC), 17 December 2004, paras. 69 70, 72 73, 114:
"69. As the Appeals Chamber noted in Celebici, the offence of unlawful confinement of a civilian, a grave breach of the Geneva Conventions which is recognised under Article 2(g) of the Statute, is not further defined in the Statute, but clear guidance can be found in the provisions of Geneva Convention IV.Celebici Appeal Judgement, para. 320."
"70. Thus, the involuntary confinement of a civilian where the security of the Detaining Power does not make this absolutely necessary will be unlawful.Celebici Appeal Judgement, para. 320."
"72. This provision reinforces the principle behind Article 42 of Geneva Convention IV, that restrictions on the rights of civilian protected persons, such as deprivation of their liberty by confinement, are permissible only where there are reasonable grounds to believe that the security of the State is at risk.Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, para. 303:
"303. Based on the aforementioned definition, the imprisonment of civilians will be unlawful where:
Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-A, Judgement (AC), 20 February 2001, para. 322, 330:
"322. The Appeals Chamber agrees with the Trial Chamber that the exceptional measure of confinement of a civilian will be lawful only in the conditions prescribed by Article 42 [of Geneva Convention IV], and where the provisions of Article 43 are complied with.Prosecutor v. Zejnil Delalic et al., Case No. IT-96-21-T, Judgement (TC), 16 November 1998, paras. 571 572, 575, 1132 1134:
"571. Although the fundamental human rights of the persons concerned are not, generally speaking, in any danger as a result of some of the administrative measures which might be taken in relation to them, this is not necessarily so in the case of assigned residence or internment. The experience of the Second World War has shown in tragic fashion that under such conditions there is a particularly great danger of offences against the human person. Furthermore, all too often in situations of armed conflict, the mere fact of being an enemy subject has been regarded as a justification for internment. For these reasons, the relevant norms of international humanitarian law have been developed such that only absolute necessity, based on the requirements of State security, can justify recourse to these measures, and only then if security cannot be safeguarded by other, less severe means.Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, para. 284:
"284. [ ]If internment is permitted only in cases of absolute necessity, it is, to a large extent, up to the Party exercising this right to determine the activities that are prejudicial to the external or internal security of the State. However, if activities threatening the security of the State, such as subversive activities or direct assistance to the enemy, may permit a Party to intern people or place them in assigned residence but only if it has a serious and legitimate reason to think that they are members of a subversive organization - the mere fact that a person is a national of the enemy cannot be considered as threatening the security of the country where he lives.Celebici Trial Judgement, para. 577."
Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-A, Judgement (AC), 20 February 2001, para. 327:
"327. In the Appeals Chambers view, there is no necessary inconsistency between the Trial Chambers finding that the Bosnian Serbs were regarded by the Bosnian authorities as belonging to the opposing party in an armed conflictProsecutor v. Zejnil Delalic et al., Case No. IT-96-21-T, Judgement (TC), 16 November 1998, paras. 577, 1134:
"577. On the other hand, the mere fact that a person is a national of, or aligned with, an enemy party cannot be considered as threatening the security of the opposing party where he is living and is not, therefore, a valid reason for interning him or placing him in assigned residence. To justify recourse to such measures, the party must have good reason to think that the person concerned, by his activities, knowledge or qualifications, represents a real threat to its present or future security. The fact that an individual is male and of military age should not necessarily be considered as justifying the application of these measures."
"1134. The Trial Chamber is of the opinion that there is no reason to question the testimonies of these witnesses. In light of this evidence, the Trial Chamber cannot accept the Defences contention that all persons detained in the Celebici prison-camp were members of an armed rebellion against the Bosnian authorities. The Trial Chamber does not deem it necessary to decide whether all of the persons detained in the Celebici prison-camp were to be considered as "peaceful" civilians, not constituting any threat to the security of the detaining forces. [ ] As stated above, the mere fact that a person is a national of, or aligned with, an enemy party cannot be considered as threatening the security of the opposing party where he is living, and is not, therefore, a valid reason for interning him."
[B. Evidentiary comment:]
P.10.3. Evidence that victims had not participated in military activities.
A. Legal source/authority and evidence:
Prosecutor v. Zejnil Delalic et al., Case No. IT-96-21-T, Judgement (TC), 16 November 1998
,paras. 568, 1126:"568. [ ] Clearly, a civilian cannot shoot a passing enemy soldier, secrete a bomb in the enemy encampment, or otherwise directly and intentionally harm his enemy and hope to retain all the protections of the Fourth Geneva ConventionProsecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-A, Judgement (AC), 17 December 2004, paras. 608, 610, 627, 638:
"608. Witness Sulejman Kavazovic also testified that when he arrived at the SDK building on 18 April 1993, there were male prisoners "children 12 and up, and there was Nazif Arnaut, who was 64 years of age."Prosecutor v. Blagoje Simić et al., Case No. IT-95-17/1-T, Judgement (TC), 17 October 2003, paras. 537, 659:
"537. Izet Izetbegovic testified that all the detainees were civilians and that there were no soldiers.Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, paras. 117, 122:
"117. The Defence claimed that all Muslim men detained at the KP Dom were prisoners of war and that their detention was on that basis lawful. It supported this claim by emphasising that some of those detained were in possession of weapons at the time of their arrest. The Trial Chamber does not accept that this evidence creates a reasonable doubt as to the civilian status of most of the Muslim detainees held at the KP Dom. [ ] The Trial Chamber accepts, however, that, in addition to the mainly civilian population at the KP Dom, there were a small number of Muslim soldiers kept in isolation cells separately from the civilian Muslim detainees."
"122.The Trial Chamber finds that the Muslims and other non-Serbs detained at the KP Dom were deprived of their liberty arbitrarily. [ ] They were, inter alia, doctors and medical health workers, journalists, former KP Dom employees, managers, police officers and other persons of civilian status."
Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-A, Judgement (AC), 20 February 2001, para. 323:
"323. As stated above, the Trial Chamber found that the persons detained in the Celebici camp were civilian protected persons for the purposes of Article 4 of Geneva Convention IV.Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 117), and the occupations of detainees (e.g.
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002
, para. 122), the Kordic and Cerkez Appeals Chamber seemed to use a more stringent standard. The Kordic and Cerkez Appeals judgment queried simple witness testimony regarding civilian status without more probing questions, including why witnesses considered detainees to be civilians (seeProsecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-A, Judgement (AC), 17 December 2004
, paras. 603 604, 613, and 615).P.10.5. Evidence that perpetrators had no reason to suspect that victims had committed offenses.
A. Legal source/authority and evidence:
Prosecutor v. Blagoje Simić et al., Case No. IT-95-17/1-T, Judgement (TC), 17 October 2003, paras. 68, 657, 680, 683:
"68. [ ] When making findings on the charge of imprisonment in Krnojelac, the Trial Chamber considered that the detainees were not criminals under suspicion of having committed a crime or ever accused of having committed a crime under national and/or international law, and found no lawful basis for their imprisonment.
Krnojelac Trial Judgement
, para. 122.""657. The Trial Chamber concludes that the arrests of groups of women, children and elderly, who were subsequently detained in Zasavica and Crkvina were arbitrary, with no lawful basis. They were arrested because they were non-Serbs, not because there was a reasonable suspicion that they had committed any offences, or for reasons of their safety."
"680. The Trial Chamber considers that the non-Serb civilians who were detained in the camps in Zasavica, and for the short period in Crkvina, were detained arbitrarily, with no lawful basis. Non-Serb civilians were taken to the village of Zasavica where they were guarded and unable to leave. [ ] There was no reasonable suspicion that they had committed any criminal offence. They were not informed of any accusation against them, but rather forced from their homes, rounded up and taken to Zasavica where they were prevented from leaving. This treatment constitutes arbitrary deprivation of their liberty. [ ]"
"683. [ ] In addition, the interrogations were not based upon reasonable grounds that such persons had committed any criminal offences, nor were they followed by fair criminal proceedings. Although some detainees were questioned about the offence of illegal possession of weapons, as charged in the "Law on Criminal Proceeding of former Social Federative Republic of Yugoslavia",Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 122:
"122. The Trial Chamber finds that the Muslims and other non-Serbs detained at the KP Dom were deprived of their liberty arbitrarily. The evidence has clearly established that there was no legal basis which could be relied upon to justify their deprivation of liberty under national or international law. Those detained were not criminals under suspicion of having committed a crime or ever accused of having committed a crime under national and/or international law. [ ]"
[B. Evidentiary comment:]
P.10.6. Evidence of the failure to judge necessity on a case-by-case basis.
A. Legal source/authority and evidence:
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-A, Judgement (AC), 17 December 2004, para. 609:
"609. [ ] The assessment that each civilian taken into detention poses a particular risk to security of the State must be made on an individual basis. [ ]"
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 123:
"123. Although it may strictly be unnecessary in the circumstances of this case, the Trial Chamber is satisfied that there was no basis under Article 42 of the Geneva Convention IV which could be called upon to justify the deprivation of liberty of the non-Serb detainees as claimed by the Defence. A party seeking to rely upon Article 42 of the Geneva Convention IV must show with respect to each individual who has been deprived of his liberty reasonable grounds for concluding that that individual constituted a threat to the security of the depriving party. There was no consideration given to the individual circumstances of any of the non-Serb detainees by those carrying out the detentions.Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, para. 285:
"285. However, whether in the territory of the occupying power or in that of the occupied power, internment and assigned residence are exceptional measures to be taken only after careful consideration of each individual case, and never on a collective basis.Celebici Trial Judgement, para. 578."
Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-A, Judgement (AC), 20 February 2001, paras. 327, 329, 578:
"327. [ ] It is perfectly clear from the provisions of Geneva Convention IV referred to above that there is no such blanket power to detain the entire civilian population of a party to the conflict in such circumstances, but that there must be an assessment that each civilian taken into detention poses a particular risk to the security of the State. [ ]"
"329. [ ] Delic submits that "the government had the right to continue the confinement until it determined that the States security would not be harmed by release of the detainees."Prosecutor v. Blagoje Simić et al., Case No. IT-95-17/1-T, Judgement (TC), 17 October 2003, para. 657:
"657. The Trial Chamber concludes that the arrests of groups of women, children and elderly, who were subsequently detained in Zasavica and Crkvina were arbitrary, with no lawful basis. They were arrested because they were non-Serbs, not because there was a reasonable suspicion that they had committed any offences, or for reasons of their safety."
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, para. 800:
"800. The Trial Chamber finds that the underlying offences in Counts 21-36 are made out. The Bosnian Muslims were systematically subjected to arbitrary imprisonment for which there was no justification. The assertion that they were detained for security reasons, or for their own safety, is in the Chambers view, without foundation."
[B. Evidentiary comment:]
A. Legal source/authority and evidence:
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-A, Judgement (AC), 17 December 2004, para. 609:
"609. [ ] The detaining power has a reasonable time to determine whether a particular person is a civilian and further to determine whether there are reasonable grounds to believe that the security of the detaining power is threatened. [ ] The assessment that each civilian taken into detention poses a particular risk to security of the State must be made on an individual basis. The Appeals Chamber, in the
, accepted that some reasonable time is given to the detaining power to determine, which of the detainees is a threat.Celebici Appeal Judgement, para. 327."[B. Evidentiary comment:]
P.10.9. Not sufficient: Evidence that liberty was restricted by processes established by law.
A. Legal source/authority and evidence:
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 109:
"109. [ ] The right of an individual not to be deprived of his or her liberty arbitrarily is also enshrined in a number of human rights instruments, both internationalProsecutor v. Zejnil Delalic et al., Case No. IT-96-21-T, Judgement (TC), 16 November 1998,para. 565:
"565. [ ] [T]he freedom of movement of "enemy" civilians during armed conflict may be restricted, or even temporarily suppressed, if circumstances so require. Thus there is no absolute right in the Geneva Conventions to freedom of movement. However, this does not mean that there is a general suspension of this right during armed conflict either. To the contrary, the regulations concerning civilians in the territory of a party to an armed conflict are based on the concept that the individual freedom of civilians should remain unimpaired. The right in question is therefore a relative one, which may be restricted.Krnojelac Trial Judgment para. 114.
P.10.10. Exculpatory evidence: evidence that victims had engaged in espionage, sabotage, or intelligence with the enemy.
A. Legal source/authority and evidence:
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-A, Judgement (AC), 17 December 2004, para. 71:
"71. The Appeals Chamber noted further in Celebici that Article 5 of Geneva Convention IV imposes certain restrictions on the protections which may be enjoyed by certain individuals under the Convention.Celebici Appeal Judgement, para. 321."
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, para. 280:
"280. In order to assess the legality of the initial confinement, the Trial Chamber must evaluate its conformity with international humanitarian law. Although, as a rule, civilians are entitled to the rights and privileges set forth in Geneva Convention IV, there are instances in an armed conflict whereby certain of those rights may be temporarily restricted or suspended.Celebici Trial Judgement, para. 568 (footnotes omitted)."
Prosecutor v. Zejnil Delalic et al., Case No. IT-96-21-T, Judgement (TC), 16 November 1998
,paras. 566 567, 576:"566. When the ICRC draft text for the Fourth Geneva Convention was presented to the 1949 Diplomatic Conference, several delegations stated that, in cases involving spies, saboteurs or other unprivileged combatants, there should be some derogation permitted from the rights normally accorded to protected persons. Otherwise, those rights could be used to the disadvantage of a party to an armed conflictProsecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-T, Judgement (TC), 31 March 2003, para. 656:
"656. There were however also non-combatants, such as witness O, witness QQ, and witness FF, kept in detention.Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 120:
"120. The Trial Chamber is satisfied that, once detained at the KP Dom, none of the detainees was informed of the reason for his detention, the term of his detention or of any possibility of release. [ ]"
[B. Evidentiary comment:]
P.11.2. Evidence of inconsistent search and interrogation techniques.
A. Legal source/authority and evidence:
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 120:
"120. [ ] Upon entry into the KP Dom, some of the detainees were searched and registered,Prosecutor v. Blagoje Simić et al., Case No. IT-95-17/1-T, Judgement (TC), 17 October 2003, paras. 68, 592, 683:
"68. The Trial Chamber considers that the underlying conduct of interrogation and forcing non-Serb civilians to sign false and coerced statements, is relevant to the consideration of whether non-Serbs who were arrested and detained were deprived of their liberty arbitrarily, without any legal basis. [ ]"
"592. Izet Izetbegovic testified that he was detained and interrogated in Batajnica. He was handcuffed and blindfolded, and taken to a room. These restraints were then removed and he was interviewed by two or three people on three occasions. [ ]"
"683. The Trial Chamber is satisfied that interrogations of those detained were conducted under coercive and forced circumstances.Prosecutor v. Zejnil Delalic et al., Case No. IT-96-21-T, Judgement (TC), 16 November 1998, paras. 1138 1139:
"1138. Detainees were maltreated and physically abused by certain guards from the moment they were brought in until the time their statement was taken i.e. until their interview was conducted. [ ][I]n the last ten days almost every dawn brought another dead detainee"
"1139. [ ] it is clear from the evidence on record that the way interviews and interrogations were conducted by no means respected the basic procedural rights of the concerned detainees. For example, Witness D testified that he saw how one detainee during interrogation was tied with a rope which interrupted the blood circulation in his hands."
[B. Evidentiary comment:]
P.11.4. Evidence of a failure to inform victims of their procedural rights.
A. Legal source/authority and evidence:
Prosecutor v. Blagoje Simić et al., Case No. IT-95-17/1-T, Judgement (TC), 17 October 2003, para. 683:
"683. [ ] The Trial Chamber is satisfied that none of the detainees were ever advised of their procedural rights before or during their detention."
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 121:
"121. The Trial Chamber is satisfied that none of the detainees was ever actually charged, tried or convicted for any crime before being detained or while detained at the KP Dom.Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 120:
"120. The Trial Chamber is satisfied that, once detained at the KP Dom, none of the detainees was informed of the reason for his detention, the term of his detention or of any possibility of release. [ ]Prosecutor v. Blagoje Simić et al., Case No. IT-95-17/1-T, Judgement (TC), 17 October 2003, paras. 680 681:
"680. The Trial Chamber considers that the non-Serb civilians who were detained in the camps in Zasavica, and for the short period in Crkvina, were detained arbitrarily, with no lawful basis. Non-Serb civilians were taken to the village of Zasavica where they were guarded and unable to leave. They were not brought before a judge to challenge the legality of their detention, nor were any lawful criminal proceedings conducted. There was no reasonable suspicion that they had committed any criminal offence. They were not informed of any accusation against them, but rather forced from their homes, rounded up and taken to Zasavica where they were prevented from leaving. This treatment constitutes arbitrary deprivation of their liberty. [ ]"
"681. The detention of non-Serb civilians in facilities within Bosanski Samac, namely, the SUP, TO and primary and secondary schools, was also arbitrary and unlawful. [ ] The detainees in these facilities were not given any lawful reasons for their detention, and they were confined for considerable amounts of time without being charged. [ ] Those few who were subject to criminal proceedings, did not receive trials or procedures in accordance with international human rights standards, and the guarantees as set out in the Geneva Conventions.Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 121:
"121. The Trial Chamber is satisfied that none of the detainees was ever actually charged, tried or convicted for any crime before being detained or while detained at the KP Dom.Prosecutor v. Blagoje Simić et al., Case No. IT-95-17/1-T, Judgement (TC), 17 October 2003, paras. 582 583, 588, 591 592, 678 679:
"582. While at the hangar, he had neither the opportunity nor the facilities to conduct his defence. He had a lawyer assigned to him, but the lawyer did not support him. There was no prior consultation with the defence or any papers.Tadic Appeal Judgement that the expression "laws and customs of war" has evolved to encompass violations of the Geneva law at the time the alleged offence was committed (para. 133)."
"679. In many cases witnesses were deprived of all these guarantees, and in instances where some of these rights were afforded, these measures were inadequate, for example, where Hasan Subasic was assigned a lawyer, he was not able to meet with him prior to trial and was never advised of the legal issues involved.Prosecutor v. Zejnil Delalic et al., Case No. IT-96-21-T, Judgement (TC), 16 November 1998,para. 566:
"566. When the ICRC draft text for the Fourth Geneva Convention was presented to the 1949 Diplomatic Conference, several delegations stated that, in cases involving spies, saboteurs or other unprivileged combatants, there should be some derogation permitted from the rights normally accorded to protected persons. Otherwise, those rights could be used to the disadvantage of a party to an armed conflictProsecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 124:
"124. [ ]As already found by the Trial Chamber, the Accused admitted that he knew that the non-Serb detainees were detained because they were Muslim and that he knew that none of the procedures in place for legally detained persons was ever followed at the KP Dom.Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-A, Judgement (AC), 17 December 2004, paras. 73, 114:
"73. Thus the detention or confinement of civilians will be unlawful in the following two circumstances:
[ ] (ii) where the procedural safeguards required by Article 43 of Geneva Convention IV are not complied with in respect of detained civilians, even where their initial detention may have been justified.Celebici Appeal Judgement, para. 322."
"114. The Appeals Chamber notes the finding of the Trial Chamber that imprisonment of civilians is unlawful where
[ ] - the procedural safeguards required by Article 43 of Geneva Convention IV are not complied with in respect of detained civilians, even where initial detention may have been justified; [ ]"
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 114:
"114. Having considered these instruments, the Trial Chamber is of the view that, under Article 5(e) of the Tribunals Statute, a deprivation of an individuals liberty will be arbitrary and, therefore, unlawful if no legal basis can be called upon to justify the initial deprivation of liberty. If national law is relied upon as justification, the relevant provisions must not violate international law.Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, para. 303:
"303. Based on the aforementioned definition, the imprisonment of civilians will be unlawful where:
[ ] - the procedural safeguards required by Article 43 of Geneva Convention IV are not complied with in respect of detained civilians, even where initial detention may have been justified;Celebici Appeal Judgement, para. 322. The Appeals Chamber set forth this definition in the context of a discussion of the offence of unlawful confinement under Article 2 of the Statute. See also discussion above."
Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-A, Judgement (AC), 20 February 2001, paras. 322, 330:
"322. The Appeals Chamber agrees with the Trial Chamber that the exceptional measure of confinement of a civilian will be lawful only in the conditions prescribed by Article 42, and where the provisions of Article 43 are complied with.Aleksovski Appeal Judgement, para 63.
526. ICRC Commentary (GCIV) p 261: "the Convention describes internment and placing in assigned residence as exceptionally severe measures which may be applied only if they are absolutely necessary for the security of the State."
[B. Evidentiary comment:]
P.12.2. Evidence of a failure to reconsider detention as soon as possible using a court or administrative board.
A. Legal source/authority and evidence:
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-A, Judgement (AC), 17 December 2004, para. 70:
"70. Further, an initially lawful internment clearly becomes unlawful if the detaining party does not respect the basic procedural rights of the detained persons and does not establish an appropriate court or administrative board as prescribed in Article 43 of Geneva Convention IV.Celebici Appeal Judgement, para. 320."
Prosecutor v. Blagoje Simić et al., Case No. IT-95-17/1-T, Judgement (TC), 17 October 2003, para. 681:
"681. The detention of non-Serb civilians in facilities within Bosanski Samac, namely, the SUP, TO and primary and secondary schools, was also arbitrary and unlawful. Although a small number of the arrests may not have been unlawful for persons belonging to the SDA paramilitary group, in so far as their may have been a well -founded suspicion that they committed crimes during their participation in these groups, the detention of these persons became unlawful when they were subjected to continued detention without respect for their rights to liberty and security of the person, and to a fair trial. [ ] The legality of their detention was never reviewed by the Serb authorities."
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, para. 286:
"286. Civilians interned in accordance with Articles 5, 27 or 42 of Geneva Convention IV should be granted the procedural rights set forth in Article 43 of Geneva Convention IV, which reads as follows:
Any protected person who has been interned or placed in assigned residence shall be entitled to have such action reconsidered as soon as possible by an appropriate court or administrative board designated by the Detaining Power for that purpose. [ ]"
Prosecutor v. Zejnil Delalic et al., Case No. IT-96-21-T, Judgement (TC), 16 November 1998
,paras. 579 580, 583, 1135:"579. In case the internment of civilian persons can be justified according to articles 5, 27 or 42 of Geneva Convention IV, the persons so detained must still be granted some basic procedural rights. These rights are entrenched in article 43 of Geneva Convention IV which provides as follows:
"580. Article 43 supplements articles 41 and 42 by laying down a procedure which is designed to ensure that the parties to an armed conflict, which resort to measures of internment, respect the basic procedural rights of the persons concerned. As Geneva Convention IV leaves a great deal to the discretion of the detaining party in the matter of the original internment or placing in assigned residence of an individual, the partys decision that such measures of detention are required must be "reconsidered as soon as possible by an appropriate court or administrative board"."
"583. [ ] However, it must be borne in mind that the measure of internment for reasons of security is an exceptional one and can never be taken on a collective basis. An initially lawful internment clearly becomes unlawful if the detaining party does not respect the basic procedural rights of the detained persons and does not establish an appropriate court or administrative board as prescribed in article 43 of Geneva Convention IV."
"1135. Even were the Trial Chamber to accept that the initial confinement of the individuals detained in the Celebici prison-camp was lawful, the continuing confinement of these civilians was in violation of international humanitarian law, as the detainees were not granted the procedural rights required by article 43 of Geneva Convention IV. According to this provision, the decision to take measures of detention against civilians must be "reconsidered as soon as possible by an appropriate court or administrative board"."
[B. Evidentiary comment:]
P.12.3. Evidence that an administrative board investigating detention had ceased to function.
A. Legal source/authority and evidence:
Prosecutor v. Zejnil Delalic et al., Case No. IT-96-21-T, Judgement (TC), 16 November 1998
, para. 1136:"1136. The evidence before the Trial Chamber shows that the War Presidency in Konjic municipality decided to form an investigatory commission for the crimes allegedly committed by the persons confined in the Celebici prison-camp. In May 1992, the Joint Command formed such an organ for Investigations - the Military Investigations Commission. Several witnesses testified to the establishment and organisation of this Commission, which consisted of five members, [ ]. These members were representatives of the MUP and the HVO, as well as of the TO, and were appointed by their respective commanders. The evidence before the Trial Chamber shows that the Commission ceased to function as early as the end of June 1992, when its members resigned from their positions."
[B. Evidentiary comment:]
P.12.4. Evidence that an administrative board investigating detention had no actual power.
A. Legal source/authority and evidence:
Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-A, Judgement (AC), 20 February 2001, para. 329:
"329. The Trial Chamber found that a Military Investigative Commission for the crimes allegedly committed by the persons confined in the Celebici camp was established ,Prosecutor v. Zejnil Delalic et al., Case No. IT-96-21-T, Judgement (TC), 16 November 1998,paras. 1137 1139:
"1137. [ ] it is clear to the Trial Chamber that this Commission did not have the necessary power to finally decide on the release of prisoners whose detention could not be considered as being justified for any serious reason. To the contrary, the power of this Commission was limited to initiating investigations of the prisoners and conducting interviews with prisoners in order to obtain relevant information concerning other individuals suspected of armed rebellion outside the prison-camp. The members of the Commission did not have any possibility to supervise the actual release of prisoners who were suggested for release by its members."
"1138. The evidence before the Trial Chamber further shows that the members of the Commission, after becoming aware of the conditions in the prison-camp, including the mistreatment of detainees and the continued incarceration of persons who were peaceful civilians, in June 1992 prepared a report detailing the problems and their inability to correct them."
"1139. Similarly, Witness D, in his testimony before the Trial Chamber provided the following description of the role of the Commission:
"70. Further, an initially lawful internment clearly becomes unlawful if the detaining party does not respect the basic procedural rights of the detained persons and does not establish an appropriate court or administrative board as prescribed in Article 43 of Geneva Convention IV.Celebici Appeal Judgement, para. 320."
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, para. 286:
"286. Civilians interned in accordance with Articles 5, 27 or 42 of Geneva Convention IV should be granted the procedural rights set forth in Article 43 of Geneva Convention IV, which reads as follows:
Prosecutor v. Zejnil Delalic et al., Case No. IT-96-21-T, Judgement (TC), 16 November 1998
,para. 579:"579. In case the internment of civilian persons can be justified according to articles 5, 27 or 42 of Geneva Convention IV, the persons so detained must still be granted some basic procedural rights. These rights are entrenched in article 43 of Geneva Convention IV which provides as follows:
Any protected person who has been interned or placed in assigned residence shall be entitled to have such action reconsidered as soon as possible by an appropriate court or administrative board designated by the Detaining Power for that purpose. If the internment or placing in assigned residence is maintained, the court or administrative board shall periodically, and at least twice yearly, give consideration to his or her case, with a view to the favourable amendment of the initial decision, if circumstances permit. [ ]"
[B. Evidentiary comment:]
P.12.6. Evidence of continued detention after establishing no reason for detention.
A. Legal source/authority and evidence:
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, para. 288:
"288. Finally, Article 132 of Geneva Convention IV provides:
Each interned person shall be released by the Detaining Power as soon as the reasons which necessitated his internment no longer exist."
Prosecutor v. Zejnil Delalic et al., Case No. IT-96-21-T, Judgement (TC), 16 November 1998
, paras. 581, 1138:"581. The judicial or administrative body reviewing the decision of a party to a conflict to detain an individual must bear in mind that such measures of detention should only be taken if absolutely necessary for reasons of security. Thus, if these measures were inspired by other considerations, the reviewing body would be bound to vacate them. Clearly, the procedures established in Geneva Convention IV itself are a minimum and the fundamental consideration must be that no civilian should be kept in assigned residence or in an internment camp for a longer time than the security of the detaining party absolutely demands.Prosecutor v. Blagoje Simić et al., Case No. IT-95-17/1-T, Judgement (TC), 17 October 2003, para. 94:
"94. When discussing "confinement under inhumane conditions", the Kvocka Trial Chamber found that:
P.13.1. Evidence that conditions infringed the fundamental right of persons to be treated with humanity.
A. Legal source/authority and evidence:
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, para. 282:
"282. In sum, the reservation in paragraph 4 leaves a wide margin of discretion to the belligerents with regard to the choice of measures, which can range from imposing a duty to register to the internment of civilians.Celebici Trial Judgement, para. 570."
Prosecutor v. Zejnil Delalic et al., Case No. IT-96-21-T, Judgement (TC), 16 November 1998
,para. 570:"570. However, these security measures which States are entitled to take are not specified. Once again, the Convention merely lays down a general provision and a great deal is thus left to the discretion of the parties to the conflict as regards the choice of means. It appears that these would include, for example, a mild restriction such as the duty of registering and also more stringent measures like assigned residence or internment. What is essential is that the measures of constraint adopted should not affect the fundamental right of the persons concerned to be treated with humanityProsecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, paras. 784, 800:
"784. Evidence was given that Muslim civilian prisoners were used as hostages:
(a) Prisoners from Gacice (247 civilians) were taken to the HVO headquarters in Hotel Vitez and kept there for some hours as hostages in case of ABiH shelling.Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, paras. 783, 785, 795, 800:
"783. [ ] (ii) [ ] The detainees were mistreated and would be used as human shields and for trench-digging in the area near the school and Kula. This all led the witness to protest against the mistreatment of prisoners .
Prosecutor v. Tihomir Blakić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000
, para. 681:"681. The detainees were allegedly used as human shields, beaten, forced to dig trenches and subjected to physical and mental violence, threats and inhuman treatment, in particular by being confined in cramped or overcrowded facilities and being deprived of sufficient food and water. Some of them were reportedly killed or wounded while being forced to dig trenches in the Kiseljak, Vitez and Busovaca municipalitiesProsecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, paras. 774, 778, 790, 795:
"774. [ ] There was much evidence of the poor conditions in the camp and the mistreatment of prisoners: the cells were small and over-crowded, hygiene was very poor and the food was inadequate.
Prosecutor v. Tihomir Blakić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000
, paras. 681, 693:"681. The detainees were allegedly used as human shields, beaten, forced to dig trenches and subjected to physical and mental violence, threats and inhuman treatment, in particular by being confined in cramped or overcrowded facilities and being deprived of sufficient food and water. Some of them were reportedly killed or wounded while being forced to dig trenches in the Kiseljak, Vitez and Busovaca municipalitiesProsecutor v. Blagoje Simić et al., Case No. IT-95-17/1-T, Judgement (TC), 17 October 2003, paras. 737 738:
"737. Several Prosecution witnesses gave evidence that after 17 April 1992, they were held in the SUP in overcrowded cells, sometimes with not enough room to sit .Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, paras. 774, 783, 790, 795:
"774. [ ] There was much evidence of the poor conditions in the camp and the mistreatment of prisoners: the cells were small and over-crowded, hygiene was very poor and the food was inadequate.
Prosecutor v. Tihomir Blakić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000
, paras. 681, 692:"681. The detainees were allegedly used as human shields, beaten, forced to dig trenches and subjected to physical and mental violence, threats and inhuman treatment, in particular by being confined in cramped or overcrowded facilities and being deprived of sufficient food and water. [ ]."
"1548. Second amended indictment, paras. 13-14."
"692. The prisoners of Rotilj were forced to endure particularly harsh living conditions . The village was overcrowded and the people crammed into those houses which had not been destroyed. They lacked medicines and there was insufficient water and food . The Trial Chamber points to the murders and acts of physical violence, including rape, which occurred in the village."
[B. Evidentiary comment:]
P.13.6. Evidence that victims were forced to dig trenches.
A. Legal source/authority and evidence:
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, paras. 775, 783, 795, 800:
"775. Evidence was given that the HVO forced detainees from Kaonik to dig trenches at various places. Witness I said that he was among those taken trench-digging from Kaonik and that about 26 of those taken during his time there did not return .
Prosecutor v. Tihomir Blakić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000
, paras. 681, 693, 699:"681. The detainees were allegedly used as human shields, beaten, forced to dig trenches and subjected to physical and mental violence, threats and inhuman treatment, in particular by being confined in cramped or overcrowded facilities and being deprived of sufficient food and water. Some of them were reportedly killed or wounded while being forced to dig trenches in the Kiseljak, Vitez and Busovaca municipalitiesProsecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, para. 788:
"(vi) [ ] However, Witness AT gave evidence that after the conflict of 16 April 1993, the witness requested Muslim labourers for forced labour from the Viteska Brigade. He made the request of Cerkez at least once and, on other occasions, of the duty officer. On 30 April Cerkez told the witness on the phone that Muslims could no longer be used for digging and fortification and that arrangements had to be made with the labour platoon which had been set up.Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-A, Judgement (AC), 17 September 2003, para. 47:
"47. [ ] The Trial Chamber stated that when he first arrived at the KP Dom, Krnojelac asked who was being detained and why, and the response he was given was that the prisoners were Muslims and were being detained for that reason. It went on to state that Krnojelac knew that none of the procedures in place for legally detained persons was ever followed at the KP Dom.Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-A, Judgement (AC), 20 February 2001, paras. 378 379, 38, 382-383:
"378. As is evident from the earlier discussion of the law relating to unlawful confinement , the Appeals Chamber considers that a person in the position of Mucic commits the offence of unlawful confinement of civilians where he has the authority to release civilian detainees and fails to exercise that power, where
[ ]
(ii) he knows that they have not been afforded the requisite procedural guarantees (or is reckless as to whether those guarantees have been afforded or not).Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-A, Judgement (AC), 17 September 2003, para. 47:
"47. First of all, the Appeals Chamber notes that the Trial Chamber concluded that Krnojelac knew that his acts and omissions were contributing to the system of unlawful imprisonment in place at the KP Dom.Prosecutor v. Blagoje Simić et al., Case No. IT-95-17/1-T, Judgement (TC), 17 October 2003, para. 998:
"998. [ ] While the Trial Chamber is not satisfied beyond reasonable doubt that he shared the discriminatory intent of the joint criminal enterprise to persecute non-Serb civilians through their unlawful arrest and detention, his continued participation in conducting exchanges and transferring detainees, his attendance at meetings of the Crisis Staff and with some of the other direct perpetrators in the joint criminal enterprise in Belgrade, where the role of the paramilitaries was discussed, shows that he had knowledge of the discriminatory intent towards non-Serbs who were arrested and detained in facilities in Bosanski Samac, at the SUP, TO, primary and secondary schools, and in Brcko and Bijeljina."
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002
, paras. 124, 489:"124. [ ] The Trial Chamber is also satisfied that the Accused, by virtue of his position as warden of the KP Dom, knew that the non-Serb detainees were being unlawfully detained.
Prosecutor v. Tihomir Blakić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000
, paras. 732 733:"732. General Blaskic admitted to the Trial Chamber that he knew that civilians were being detained at Dubravica primary schoolProsecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, paras. 788, 791:
"788. (vi) At a meeting of the Busovaca Joint Commission, a representative of the ICRC complained to Mario Cerkez and Franjo Nakic about the use of detainees for trench-digging: the response was a denial and the statement that this practice was against the Geneva Conventions.Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-A, Judgement (AC), 20 February 2001, paras. 378, 380, 385:
"378. As is evident from the earlier discussion of the law relating to unlawful confinement , the Appeals Chamber considers that a person in the position of Mucic commits the offence of unlawful confinement of civilians where he has the authority to release civilian detainees and fails to exercise that power, where
"652. The Chamber finds that Vinko Martinovic is responsible under Article 7(1) of the Statute in regard to the events in Mostar on 9 May 1993. [ ]Vinko Martinovic was personally involved in the rounding up of the BH Muslim civilian population of Mostar, ordering and aiding and abetting their detention at the Heliodrom. The Chamber is satisfied that he possessed the intent to discriminate against the BH Muslim part of the population in Mostar. The Chamber thus finds that he is responsible under Article 7(1) of the Statute. [ ]"
[B. Evidentiary comment:]
P.16.2. Evidence that the perpetrator issued orders for imprisonment.
A. Legal source/authority and evidence:
, para. 652:"652. The Chamber finds that Vinko Martinovic is responsible under Article 7(1) of the Statute in regard to the events in Mostar on 9 May 1993. [ ] Vinko Martinovic was in charge of the operation and was giving orders to Takac and the others.1616 [ ] Vinko Martinovic was personally involved in the rounding up of the BH Muslim civilian population of Mostar, ordering and aiding and abetting their detention at the Heliodrom. The Chamber is satisfied that he possessed the intent to discriminate against the BH Muslim part of the population in Mostar. The Chamber thus finds that he is responsible under Article 7(1) of the Statute. [ ]"
"1616. Witness WW, T 7051."
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, paras. 834:
"834. The Trial Chamber finds that in those cases where Kordic participated in the HVO attacks he intended to commit the crimes associated with them and did so. His role was as political leader and his responsibility under Article 7(1) was to plan, instigate and order the crimes. [ ] As a result the Trial Chamber finds the accused Dario Kordic liable under Article 7(1) on the following counts:
[ ]
(b) On Count 21 (imprisonment) and Count 22 (unlawful confinement of civilians) [ ]."
Prosecutor v. Tihomir Blakić, Case No. IT-95-14-T, Judgement (TC)
, 3 March 2000, para. 720:"720. [ ] [T]he Trial Chamber highlights that HVO soldiers informed some Muslims that they were being detained under order Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-A, Judgement (AC), 20 February 2001, para. 358:
"358. [ ] The Trial Chamber interpreted those orders explicitly as not constituting evidence that he exercised superior responsibility in relation to the camp.Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-A, Judgement (AC), 17 September 2003, para.111:
"111. The Appeals Chamber holds that, with regard to Krnojelacs duties, the time over which he exercised those duties, his knowledge of the system in place, the crimes committed as part of that system and their discriminatory nature, a trier of fact should reasonably have inferred from the above findings that he was part of the system and thereby intended to further it."
[B. Evidentiary comment:]
P.17. Evidence inferred from a circumstance.
P.17.1. Evidence that the perpetrator participated in imprisonment in a supervisory role.
A. Legal source/authority and evidence:
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-A, Judgement (AC), 17 December 2004, para. 1016:
"1016. The Appeals Chamber finds that Kordic is partly correct in stating that the Trial Chamber has not identified any order for detention to which he was associated. This however, does not automatically affect Kordics responsibility for the unlawful detention and imprisonment, since both Witness AC and Witness J testified about Kordics control over the detention facilities in Kaonik."
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, paras. 834, 836:
"834. The Trial Chamber finds that in those cases where Kordic participated in the HVO attacks he intended to commit the crimes associated with them and did so. His role was as political leader and his responsibility under Article 7(1) was to plan, instigate and order the crimes. In making this finding the Trial Chamber relies on the evidence already referred to in relation to persecution. As a result the Trial Chamber finds the accused Dario Kordic liable under Article 7(1) on the following counts:
[ ]
(b) On Count 21 (imprisonment) and Count 22 (unlawful confinement of civilians) in the following locations: Kaonik Prison, Vitez Cinema Complex, Veterinary Station, SDK offices, Chess Club, Dubravica Elementary School, Kiseljak municipal buildings and barracks and Rotilj village."
"836. The Trial Chamber finds that in those cases where Cerkez participated in attacks as Commander of the Viteska Brigade, he committed the crimes associated with them , intending to commit the crimes. His responsibility as Commander of the Brigade was as a co-perpetrator in crimes which he committed. As a result the Trial Chamber finds the accused, Mario Cerkez, liable under Article 7(1) on the following counts:
[ ]
(b) on Count 29 (imprisonment), Count 30 (unlawful confinement of civilians), Count 31 (inhuman treatment), Count 33 (taking civilians as hostages) and Count 35 (inhuman treatment) in relation to the following locations: Vitez Cinema Complex, Veterinary Station, SDK offices and Chess Club);"
[B. Evidentiary comment:]
A. Legal source/authority and evidence:
Prosecutor v. Blagoje Simić et al., Case No. IT-95-17/1-T, Judgement (TC), 17 October 2003, paras. 995 996:
"995. [ ] Blagoje Simic was informed of the continued arrests and detention of non-Serbs during the conflict, and was in a position to express persuasive opinions at meetings with principal actors in the joint criminal enterprise. The fact that he was contacted by Simo Zaric to release Sulejman Tihic,Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-A, Judgement (AC), 20 February 2001, paras. 342, 378:
"342. The Appeals Chamber is of the view that to establish that an individual has committed the offence of unlawful confinement, something more must be proved than mere knowing "participation" in a general system or operation pursuant to which civilians are confined. In the Appeals Chambers view, the fact alone of a role in some capacity, however junior, in maintaining a prison in which civilians are unlawfully detained is an inadequate basis on which to find primary criminal responsibility of the nature which is denoted by a finding that someone has committed a crime. Such responsibility is more properly allocated to those who are responsible for the detention in a more direct or complete sense, such as those who actually place an accused in detention without reasonable grounds to believe that he constitutes a security risk; or who, having some powers over the place of detention, accepts a civilian into detention without knowing that such grounds exist; or who, having power or authority to release detainees, fails to do so despite knowledge that no reasonable grounds for their detention exist, or that any such reasons have ceased to exist. [ ]"
"542. Prosecution Brief, para 7.12."
"378. As is evident from the earlier discussion of the law relating to unlawful confinement , the Appeals Chamber considers that a person in the position of Mucic commits the offence of unlawful confinement of civilians where he has the authority to release civilian detainees and fails to exercise that power, where
(i) he has no reasonable grounds to believe that the detainees do not pose a real risk to the security of the state;
Prosecutor v. Tihomir Blakić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000
, paras. 728:"728. The Defence contended that in January 1993 General Blaskic was isolated in Kiseljak and therefore did not know that civilians were being detained and subjected to ill-treatmentProsecutor v. Blagoje Simić et al., Case No. IT-95-17/1-T, Judgement (TC), 17 October 2003, para. 998:
"998. The Trial Chamber is not satisfied that there is sufficient evidence that Miroslav Tadic participated in the persecution of non-Serb prisoners through unlawful arrest and detention. While there is evidence that he was present at the detention facilities in Bosanski Samac, and had knowledge of their existence and conditions, he rarely entered the facilities, and visited these sites only in his role of conducting exchanges. Unlike Blagoje Simic, he did not hold a leading position in the Crisis Staff. His position as member of the Exchange Commission, did not afford him authority or influence over the arrest and detention of non-Serb civilians, nor did it require that he attend all meetings of the Crisis Staff. There is no evidence that he was contacted to make any decisions on the arrest or detention of non-Serbs. [ ]"
, para. 653:"653. In relation to Mladen Naletilic, evidence has been adduced that he was seen at the Heliodrom on numerous occasions,1619 and that he questioned prisoners there.1620 The Chamber is not satisfied on the basis of this evidence that he also participated in the arrest and detention of the BH Muslim civilians at the Heliodrom. His ability to have access to the detainees at the Heliodrom does not necessarily imply any authority over their detention or the conditions thereof. [ ] Hence, the Chamber finds that the Prosecution has not established that Mladen Naletilic bears any responsibility relating to detention of BH Muslim civilians in the Heliodrom."
"1619. Witness A, T 513-515; witness H, T 1314-1315.
1620. Witness Z, T 3544-3545 (confidential); witness FF, T 4684-4689 (confidential)."
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, paras. 126, 494:
"126. There is no evidence that the Accused in this case played any role in actually securing the detention of any of the non-Serb detainees in the KP Dom. It has also been accepted by the Trial Chamber that the Accused, as warden of the KP Dom, had no power unilaterally to release detainees.376 It is clear, however, that the Accused did hold the most senior position within the KP Dom and that he did allow civilians to be detained at the KP Dom knowing that their detention was unlawful. There is no evidence that the Accused ever refused to accept any of the civilian detainees brought to the KP Dom, nor on the other hand is there any evidence of what powers, if any, the Accused had to refuse acceptance of detainees at the KP Dom.377 Although the Trial Chamber has found that the Accused accepted the position of warden voluntarily, and that he could have refused or resigned from the position and chose not to do so, in all the circumstances, the Trial Chamber is not satisfied that the Prosecution has established that the Accused incurred criminal responsibility as a principal offender for the offence of imprisonment, as is required for a finding that the Accused "committed" the offence of imprisonment under Article 7(1).378"
"376. See par 106, supra.
377. See pars 104-106, supra; Delalic Appeal Judgment, par 331-369.
, par 188; , par 390; In the , it was held that "committing" covers personally perpetrating a crime (ie, the principal offender) or engendering a culpable omission in violation of criminal law, par 601.""494. Imprisonment. The Trial Chamber has already determined that the Accused held the position of warden of the KP Dom and exercised supervisory responsibility over all subordinate personnel and detainees at the KP Dom.1487 However, the Trial Chamber also found that the Accused played no role in actually securing the detention of non-Serb detainees at the KP Dom, and that the most which could have been done by the Accused as a superior was to report the illegal detention of the non-Serb detainees to the very persons who had ordered it.1488 Accordingly, the Trial Chamber determined that the Accused did not incur superior responsibility for the imprisonment of the non-Serb detainees.1489 Without the establishment of the Accuseds responsibility as a superior for the underlying offence of imprisonment, there is no basis for a finding that the Accused incurred superior responsibility for the act of imprisonment as an act of persecution.1490"
"1487. See par 107, supra.
1488. See pars 106-107, supra.
1489. See par 107, supra.
1490. See pars 106-107, supra."
Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-A, Judgement (AC), 20 February 2001, paras. 342, 357, 363 364:
"342. The Appeals Chamber is of the view that to establish that an individual has committed the offence of unlawful confinement, something more must be proved than mere knowing "participation" in a general system or operation pursuant to which civilians are confined. In the Appeals Chambers view, the fact alone of a role in some capacity, however junior, in maintaining a prison in which civilians are unlawfully detained is an inadequate basis on which to find primary criminal responsibility of the nature which is denoted by a finding that someone has committed a crime. Such responsibility is more properly allocated to those who are responsible for the detention in a more direct or complete sense, such as those who actually place an accused in detention without reasonable grounds to believe that he constitutes a security risk; or who, having some powers over the place of detention, accepts a civilian into detention without knowing that such grounds exist; or who, having power or authority to release detainees, fails to do so despite knowledge that no reasonable grounds for their detention exist, or that any such reasons have ceased to exist. [ ]"
"357. The Prosecution contends that the evidence before the Trial Chamber showed that Delalic was involved in the release of Doctor Grubac and Witness P in July 1992,Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-A, Judgement (AC), 17 September 2003, para.111:
"111. The Appeals Chamber holds that, with regard to Krnojelacs duties, the time over which he exercised those duties, his knowledge of the system in place, the crimes committed as part of that system and their discriminatory nature, a trier of fact should reasonably have inferred from the above findings that he was part of the system and thereby intended to further it."
[B. Evidentiary comment:]
A. Legal source/authority and evidence:
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 489:
"489. Imprisonment. The Trial Chamber has already found that the Accused voluntarily accepted the position of warden at the KP Dom in full awareness that Muslim civilians were being illegally detained at the KP Dom because of their ethnicity, and it determined that the Accused incurred criminal responsibility for aiding and abetting that illegal imprisonment pursuant to Article 7(1).Prosecutor v. Blagoje Simić et al., Case No. IT-95-17/1-T, Judgement (TC), 17 October 2003, para. 997:
"997. The Trial Chamber finds that the only reasonable inference that can be drawn from these facts is that Blagoje Simic shared the intent of the other participants in the joint criminal enterprise, executing the common plan of persecution, and participated in this joint criminal enterprise. Blagoje Simic could not have accepted the continued arrest and detention of non-Serb civilians, in his key position in the Municipality, without exercising discriminatory intent. Blagoje Simic shared the intention of other participants in the joint criminal enterprise to arrest and detain non-Serb civilians in the Municipality of Bosanski Samac and in Brcko and Bijeljina."
, para. 648:"648. It has already been found by the Chamber that there was a plan implemented in relation to the transfer of the civilians from Sovici.1611 An essential part of the plan was the detention of the BH Muslim civilians, to be able to transfer them subsequently. The Chamber is satisfied that Mladen Naletilic was aware of this plan and acted according to it. The Chamber thus finds that he bears responsibility for the unlawful confinement of the civilians, under Article 7(1) of the Statute. [ ]"
"1611. See section on unlawful transfer from Sovici, supra paras 521-531."
[B. Evidentiary comment:]
