Table of contents
Element
6.a. [Mental element for Element 3] [Conduct of confinement]: The perpetrator meant to engagein the unlawful confinement of a woman forcibly made pregnant
A. Evidentiary comment:
Specific intent elements required under element 1 are addressed in sections 1.3 and 1.4 above. However, the general mental element requirement of article 30 will still govern other knowledge and intent required of the perpetrator regarding the confinement of the women forcibly made pregnant. Since no jurisprudence regarding these general mental elements for forced pregnancy yet exists, the mental element included below is excerpted from the requirements for unlawful confinement, article 8(2)(a)(vii)-2 of the Rome Statute, and imprisonment, article 7(1)(e) of the Rome Statute. Future jurisprudence will hopefully clarify whether knowledge of confinement of a forcibly pregnant woman will suffice, or whether instead the ICC will require specific awareness of confinement of a forcibly pregnant woman with knowledge of the intent to affect the ethnic composition of the population or carry out other grave violations of international law.
P.14. Evidence inferred from an utterance, a document, or a deed.
A. Legal source/authority and evidence
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. 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.15.2. 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
(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. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, para. 788:
"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, 381:
"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. 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-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. 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.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)."
"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. 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:
"(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
(i) he has no reasonable grounds to believe that the detainees do not pose a real risk to the security of the state;596 [ ]"
"596. This relates to the first "category" of the offence."
"380. [ ] However, as is apparent from the discussion below, the Trial Chambers findings also suggest that it had concluded that Mucic was also aware that no reasonable ground existed for the detention of at least some of the detainees."
"385. It is obvious from this report, which the Trial Chamber accepted, that there were persons in the camp in respect of whom no reasons existed to justify their detention and that the Commission was not able to perform the necessary review of the detention of the Celebici camp detainees. The Trial Chamber found that, after working for about one month at the prison-camp, the Commission was in fact disbanded at the instigation of its members as early as the end of June 1992.606 Although the Trial Chamber made no finding that Mucic had read the Commissions report, in view of its findings that Mucic worked closely with the Commission, it is implicit in the findings taken as a whole that Mucic was aware of the matters that the Commission discussed in the report, including the fact that there were civilians there who had been detained without justification, and that the detainees generally had not had their detention properly reviewed. This knowledge can only have been reinforced by the presence in the camp, of which Mucic must have been aware, of detainees of a kind which would have appeared so unlikely to pose a security risk that it must have raised doubts as to whether any reasonable grounds had ever existed for their initial detention. This included elderly persons607 and persons such as Grozdana Cecez, a 42 year old mother of two children.608"
"606. Trial Judgement, para 1136.
607. Such as ?cepo Gotovac, the man of about 70 years of age who was the victim of the wilful killing/murder charged in Counts 1 and 2 of the Indictment. See Trial Judgement, para 823.
608. Trial Judgement, para 1133."
[B. Evidentiary comment:]
