Table of contents
P.20. Evidence inferred from an utterance, a document, or a deed.
P.20.1. Evidence that the perpetrator approved a common plan for imprisonment.
P.20.3. Evidence that the perpetrator attended meetings in which imprisonment was discussed.
P.21. Evidence inferred from a circumstance.
P.21.1. Evidence that the perpetrator supported a common plan which would necessitate detention.
P.21.2. Evidence that the perpetrator was aware of the regular occurrence of imprisonment.
P.21.5. Evidence that the perpetrator knew procedures for legal victims were not being followed.
P.21.6. Evidence that the perpetrator knew his orders for detention were being carried out.
P.21.9. Evidence that the detention was widely-known.
Element
P.20. Evidence inferred from an utterance, a document, or a deed.
P.20.1. Evidence that the perpetrator approved a common plan for imprisonment.
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. 1021:
"1021. With regard to the Kiseljak municipal building, the unlawful detention occurred in June 1993 and in the Kiseljak barracks, the unlawful detention occurred between 30 April and 21 June 1993. Again Kordics involvement and mens rea can be inferred from his approval at the 15 April 1993 meeting of the attack in Kiseljak in April 1993 as well as from his participation in the crimes committed in June. The approval of this general plan is a clear expression of his general intent."
[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. 1020:
"1020. The Appeals Chamber notes that the detentions in the Vitez Cinema, SDK building, Dubravica Elementary School and Rotilj occurred as part of the attacks on Vitez municipality and Kiseljak municipality. The Appeals Chamber considers that Kordic approved the attacks with the awareness of the substantial likelihood that other crimes, including unlawful detention, would occur. Therefore, the Appeals Chamber finds that a reasonable trier of fact could have found that Kordic had the requisite mens rea for the detention crimes occurring in the Vitez Cinema, SDK building, Dubravica Elementary School and in Rotilj. Kordic thereby had the requisite mens rea for planning pursuant to Article 7(1) of the Statute."
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) [ ]."
[B. Evidentiary comment:]
P.20.3. Evidence that the perpetrator attended meetings in which imprisonment was discussed.
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. 994 995, 998:
"994. Blagoje Simic, as President of the SDS Municipal Board, and President of the Serb Crisis Staff in the Municipality of Bosanski Samac (later renamed the War Presidency ), was the highest ranking civilian official in the Municipality. He oversaw the key objectives of the Crisis Staff that included consolidating Serb institutions and coordinating the functions of the authorities in Bosanski Samac, and presided over meetings of the Crisis Staff where operations of authorities in the Municipality were discussed. At these meetings, Stevan Todorovic, the Chief of Police, reported on the situation of arrests and detention in Bosanski Samac.2283 [ ]"
"2283. Blagoje Simic, T. 12571."
"995. The Trial Chamber is satisfied that Blagoje Simic was aware of the persecution of non-Serbs in Bosanski Samac Municipality. The Report of the Command of the 2nd Posavina Infantry Brigade, 1 December 1992,2286 was disclosed to Blagoje Simic, and he attended a meeting in Pelagicevo where this was discussed.2287 The Report recorded that "(t)he massive arrests and isolation of Croats and Muslims followed, without any criteria." [ ]"
"2286. Exhibit P127.
2287. Simo Zaric, T. 19561, T. 19564."
"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. Zejnil Delalić et al., Case No. IT-96-21-A, Judgement (AC), 20 February 2001, para. 383:
"383. [ ] Witness D also testified that Mucic was present early in June when members of the Commission met to discuss how they would go about their work of the classification of the detainees and consideration for their continued detention or release.604 It is implicit in these findings as to Mucics awareness of the work of the Commission , and even of its existence as an independent body with a review function over the camp, that Mucic must have known that such a review was legally required."
"604. Trial Transcript, pp 5175-5176, pp 5189-5190."
[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. 1025:
"1025. The Trial Chamber made no findings as to Kordics direct participation in the crimes nor that he was associated with the orders for the detention of Bosnian Muslims. The Appeals Chamber has above upheld the finding that Kordic approved the general criminal plan at the First Meeting on 15 April 1993, with the awareness of the substantial likelihood that unlawful detention would occur in the furtherance of it."
[B. Evidentiary comment:]
P.21. Evidence inferred from a circumstance.
P.21.1. Evidence that the perpetrator supported a common plan which would necessitate detention.
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. 1019, 1025:
"1019. As discussed above, the Trial Chamber relied on orders indicating that Kordic was responsible for the orders for detention at Kaonik; his mens rea was thus inferred from his willing participation. In relation to detention the Trial Chamber found that Kordic "participated as the senior regional politician in the planning of the military operation and attack against Ahmici (and the other Lasva Valley villages), an operation which was aimed at cleansing these areas of Muslims."1422 The Trial Chamber did not find that Kordic explicitly approved unlawful detention at the meeting on 15 April 1993. It found however, that the detention crimes occurred with such regularity that they had to be part of a preconceived plan, no doubt as part of the general goal to ethnically cleanse these areas at any cost."
"1422. Trial Judgement, para. 631."
"1025. The Trial Chamber made no findings as to Kordics direct participation in the crimes nor that he was associated with the orders for the detention of Bosnian Muslims. The Appeals Chamber has above upheld the finding that Kordic approved the general criminal plan at the First Meeting on 15 April 1993, with the awareness of the substantial likelihood that unlawful detention would occur in the furtherance of it."
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."
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, para. 802:
"802. The Trial Chamber finds that the unlawful confinement and detention of the Bosnian Muslims was part of the common design to subjugate them. As has been noted, the attacks on the towns and villages followed a pattern, beginning with the initial assault and culminating in the detention of the surviving Muslims. This happened with such regularity that it could have been the result of nothing except a common plan. The Trial Chamber is entitled to draw the inference that as political leader Dario Kordic was involved in this plan in the areas for which he held political responsibility. [ ]"
[B. Evidentiary comment:]
P.21.2. Evidence that the perpetrator was aware of the regular occurrence of imprisonment.
A. Legal source/authority and evidence:
Prosecutor v. Tihomir Blakić, Case No. IT-95-14-T, Judgement (TC)
, 3 March 2000, para. 720:"720. The above analyses demonstrate that the illegal confinement and detention of male Muslim civilians was a recurring feature of the attacks conducted by the HVO in the municipalities of Busovaca, Kiseljak and Vitez. Hence, these persons were detained in a manifestly organised way. [ ] The Trial Chamber deems that such a degree of organisation demonstrates that the highest levels of authority within the HVO were involved and therefore finds that the evidence establishes beyond all reasonable doubt that General Blaskic ordered the detentions."
[B. Evidentiary comment:]
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. 843:
"843. The Chamber is satisfied that Mario Cerkez knew of the impending attacks on those towns by those troops under his command, that he failed to take the necessary measures to prevent those attacks, and that he failed to punish those who were responsible for the attacks. The Chamber therefore finds Mario Cerkez liable under Article 7(3) in respect of the attacks by the Viteska Brigade on the three locations and the associated killings and injuries (Counts 5 - 6, 14 - 15, 17 and 19), imprisonment and other detention offences (Counts 29 31, 33 and 35), plunder (Count 42) and destruction (Counts 41 and 44)."
[B. Evidentiary comment:]
A. Legal source/authority and evidence:
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-A, Judgement (AC), 17 September 2003, para. 110:
"110. The Trial Chamber noted that, by his own admission, Krnojelac was warden of the KP Dom from 18 April 1992 until the end of July 1993, that is for 15 months.Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 124:
"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.373 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.374."
"373. The Accused gave evidence that at some point he asked why the men were detained at the KP Dom and received the answer "They are Muslims". He disputed, however, that this answer was to be interpreted to mean that the men were brought in because they were Muslims. He claimed that he was only told that the detained persons were Muslims (T 7844). The Trial Chamber finds this explanation not credible. Further, the Accused clearly admitted that he knew that none of the procedures in place for legally detaining persons were ever followed at the KP Dom, by stressing that this very fact was the reason why he asked not to continue at the KP Dom (T 7845, 7846).
374. See Warden par 100, supra; The Accused (T 7845-7846, 7887-7889, 7895, 7936, 7945); Ex P 46A, dated 6 June 1992, p 33; Ex P 48A, dated 13 July 1992, p 30-31; FWS-66 (T 1044, 1113-1114); FWS-111 (T 1269-1271); R.J (T 3828, 3829, 3835, 3847, 3851); Ex D 66-1-A, dated 30 July 1992; Ex D 66-2-A, dated 30 July 1992; Slobodan Jovancevic (T 5619, 5605); Miladin Matovic (T 6501, 6506)."
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, para. 801:
"801. The Trial Chamber finds that Mario Cerkez was responsible, as Commander of the Viteska Brigade, for the unlawful detention and inhuman treatment of the detainees in the Vitez detention facilities, i.e., the Cinema, Chess Club, SDK building and Veterinary Station. [ ] The Trial Chamber also accepts the evidence of Witness G that Cerkez was supervising the activities of the police and notes that it would not be surprising for a Brigade Commander to take charge of the prisoners detained in his own headquarters."
Prosecutor v. Zejnil Delalic et al., Case No. IT-96-21-T, Judgement (TC), 16 November 1998
,para. 1145:"1145. The Trial Chamber has established that Zdravko Mucic was in a de facto position of superior authority over the Celebici prison-camp. The Trial Chamber finds that Zdravko Mucic, by virtue of this position, was the individual with primary responsibility for, and had the ability to affect, the continued detention of civilians in the prison-camp. Specifically, Zdravko Mucic, in this position, had the authority to release detainees. By omitting to ensure that a proper inquiry was undertaken into the status of the detainees, and that those civilians who could not lawfully be detained were immediately released, Zdravko Mucic participated in the unlawful confinement of civilians in the Celebici prison-camp. [ ]"
[B. Evidentiary comment:]
P.21.5. Evidence that the perpetrator knew procedures for legal victims were not being followed.
A. Legal source/authority and evidence:
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-A, Judgement (AC), 17 September 2003, para. 110:
"110. The Trial Chamber noted that, by his own admission, Krnojelac was warden of the KP Dom from 18 April 1992 until the end of July 1993, that is for 15 months.Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 124:
"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.373 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.374."
"373. The Accused gave evidence that at some point he asked why the men were detained at the KP Dom and received the answer "They are Muslims". He disputed, however, that this answer was to be interpreted to mean that the men were brought in because they were Muslims. He claimed that he was only told that the detained persons were Muslims (T 7844). The Trial Chamber finds this explanation not credible. Further, the Accused clearly admitted that he knew that none of the procedures in place for legally detaining persons were ever followed at the KP Dom, by stressing that this very fact was the reason why he asked not to continue at the KP Dom (T 7845, 7846).
374. See Warden par 100, supra; The Accused (T 7845-7846, 7887-7889, 7895, 7936, 7945); Ex P 46A, dated 6 June 1992, p 33; Ex P 48A, dated 13 July 1992, p 30-31; FWS-66 (T 1044, 1113-1114); FWS-111 (T 1269-1271); R.J (T 3828, 3829, 3835, 3847, 3851); Ex D 66-1-A, dated 30 July 1992; Ex D 66-2-A, dated 30 July 1992; Slobodan Jovancevic (T 5619, 5605); Miladin Matovic (T 6501, 6506)."
[B. Evidentiary comment:]
P.21.6. Evidence that the perpetrator knew his orders for detention were being carried out.
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. 996:
"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. He was also aware that detainees were held in camps in Zasavica and Crkvina, and transferred from the TO to Brcko and detained in other facilities presided over by the JNA in Bijeljina. The arrest and detention of civilians within the Municipality of Bosanski Samac was widely known. The police, paramilitaries, Crisis Staff and JNA, worked together to maintain the system of arrests and detention, and detainees were transferred amongst these facilities. 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. [ ]."
Prosecutor v. Tihomir Blakić, Case No. IT-95-14-T, Judgement (TC)
, 3 March 2000, paras. 728, 732 733:"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. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, para. 778:
"778. [ ] (x) Witness L, when detained in the Cinema, was forced to dig trenches in the Vranjska and Rijeka areas near Vitez. He recognised some of the guards as coming from the same areas. He saw Mario Cerkez there once in a while, as well as at the Cinema .
Prosecutor v. Tihomir Blakić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000
, para. 731:"731. Murders and physical violence took place in Rotilj for the extended period of time that the HVO held Muslim civilians there. The Trial Chamber is of the view that through his subordinates, General Blaskic must have known what was going on in the village which lay 4.6 kilometres from HVO Kiseljak headquartersProsecutor v. Blagoje Simić et al., Case No. IT-95-17/1-T, Judgement (TC), 17 October 2003, para. 996:
"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. He was also aware that detainees were held in camps in Zasavica and Crkvina, and transferred from the TO to Brcko and detained in other facilities presided over by the JNA in Bijeljina. The arrest and detention of civilians within the Municipality of Bosanski Samac was widely known. [ ]"
[B. Evidentiary comment:]
A. Legal source/authority and evidence:
, 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."
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, para. 802:
"802. The Trial Chamber finds that the unlawful confinement and detention of the Bosnian Muslims was part of the common design to subjugate them. As has been noted, the attacks on the towns and villages followed a pattern, beginning with the initial assault and culminating in the detention of the surviving Muslims. This happened with such regularity that it could have been the result of nothing except a common plan. The Trial Chamber is entitled to draw the inference that as political leader Dario Kordic was involved in this plan in the areas for which he held political responsibility. [ ]"
[B. Evidentiary comment:]
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. 843:
"843. The Chamber is satisfied that Mario Cerkez knew of the impending attacks on those towns by those troops under his command, that he failed to take the necessary measures to prevent those attacks, and that he failed to punish those who were responsible for the attacks. The Chamber therefore finds Mario Cerkez liable under Article 7(3) in respect of the attacks by the Viteska Brigade on the three locations and the associated killings and injuries (Counts 5 - 6, 14 - 15, 17 and 19), imprisonment and other detention offences (Counts 29 31, 33 and 35[ ]."
[B. Evidentiary comment:]
