Table of contents
P.18. Evidence inferred from an utterance, a document, or a deed.
P.18.1. Evidence that the perpetrator was personally involved in arresting victims.
P.18.2. Evidence that the perpetrator issued orders for imprisonment.
P.19. Evidence inferred from a circumstance.
P.19.1. Evidence that the perpetrator participated in imprisonment in a supervisory role.
P.19.6. Evidence that the perpetrator supported a common plan for imprisonment.
Element
8.b.ii. [Mental element for Element 3] [Consequence of imprisoning or otherwise severely depriving physical liberty:] The perpetrator meant to imprison one or more persons or otherwise severely deprive one or more persons of physical libert; OR.
P.18. Evidence inferred from an utterance, a document, or a deed.
P.18.1. Evidence that the perpetrator was personally involved in arresting victims.
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 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.18.2. 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.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.19. Evidence inferred from a circumstance.
P.19.1. 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,2288 and also by Lt. Col. Stevan Nikolic, about the release of members of the 4th Detachment, 2289 demonstrates his strong influence over the arrest and detention of individuals, although it was the role of the chief of police to determine this."
"2286. Exhibit P127.
2287. Simo Zaric, T. 19561, T. 19564.
2288. Sulejman Tihic, T. 1408."
"996. Although the Trial Chamber cannot conclude beyond a reasonable doubt that Blagoje Simic ever entered any of the places of detention, he had to be aware of civilians being detained in facilities that included the SUP, TO, and primary and secondary schools in Bosanski Samac. [ ] While the Trial Chamber accepts that there is insufficient evidence to conclude that the Crisis Staff was responsible for ordering the isolation of Croats in Crkvina, it finds that once informed about the detention of civilians in Crkvina and Zasavica, Blagoje Simic did nothing to assist or release them. He continued to act as President of the Crisis Staff and at no point sought to resign due to the acts of persecution that were going on around him. He did not take any measures to impede the functioning of the joint criminal enterprise."
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
"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:]
