9. [Mental element for Element 6] [Circumstance of military necessity:] The perpetrator was aware that such destruction or appropriation was not justified by military necessity.

P.57. Evidence inferred from an utterance, a document or a deed.

P.57.1. Evidence that the destruction did not aim at military targets.

P.57.2. Evidence of shelling a part of town with no military objective.

P.57.3. Evidence that houses belonging to a certain ethnic group were specifically and systematically burned.

P.57.4. Evidence of houses and businesses being systematically destroyed.

P.57.5. Evidence of the destruction of a part of a village by means of shelling.

P.57.6. Evidence of looting.

P.58. Evidence inferred from a circumstance.

P.58.1. Evidence that the destruction occurred when there were no military groups in the village

P.58.2. Evidence of the destruction of houses in a village that showed no resistance.

P.58.3. Evidence that the destruction occurred after combat had ceased.

P.58.4. Evidence that the destruction was part of a policy of reprisals.

P.58.5. Evidence that the destruction had not been caused by the fighting.

P.58.6. Evidence of a practice of appropriation of property following eviction.

P.58.7. Evidence of an organized seizure of property undertaken within the framework of a systematic economic exploitation of occupied territory.

P.58.8. Evidence of systematic plunder/looting.

P.58.9. Evidence of a policy of reprisal through pillage.

P.58.10. Evidence that the property taken was not militarily useful.

P.58.11. Evidence that the property appropriated was not proportional to the military needs of the hostile power.

9. [Mental element for Element 6] [Circumstance of military necessity:] The perpetrator was aware that such destruction or appropriation was not justified by military necessity.

P.57. Evidence inferred from an utterance, a document or a deed.

P.57.1. Evidence that the destruction did not aim at military targets.

A. Legal source/authority and evidence:

Prosecutor v. Tihomir Blaskic, Case No. It-95-14-T3, Judgement (TC), 3 March 2000, para. 409:

"409. Lieutenant-Colonel Thomas, UNPROFOR commander at the material time, went to Ahmici on 17 April 1993 and stated that he saw no evidence suggesting that there had been a conflict between two separate military entities, nor any evidence of resistance such as trenches, sandbags or barbed wire indicating the presence in the village of an armed force ready for combat ⁸²³ . Furthermore, the bodies he saw were not in uniform ⁸²⁴ and not a single weapon was found in the destroyed buildings ⁸²⁵ . On the contrary, there were women and children amongst the bodies strewn on the ground ⁸²⁶ . The witnesses Watters ⁸²⁷ , Bower ⁸²⁸ , Stewart ⁸²⁹ , Landry ⁸³⁰ , Parrott ⁸³¹ , Kujawinski ⁸³² and Ellis ⁸³³ stated that they had seen the same thing. In its second periodical report on the human rights situation on the territory of the former Yugoslavia, the Commission on Human Rights even found that "by all accounts, including those of the local Croat HVO commander and international observers, this village contained no legitimate military targets and there was no organised resistance to the attack" ⁸³⁴ . The accused himself admitted before the Trial Chamber that the "villagers of Ahmi ci, that is Bosniak Muslims," had been the victims of the attack without there having been any attempt to distinguish between the civilian population and combatants ⁸³⁵ ."

"⁸²³ Same evidence as that of witness Baggesen, PT of 22 August 1997, pp. 1931-1932.

⁸²⁴ Evidence confirmed, inter alia, by witness Kujawinski, PT pp. 4112-4113.

⁸²⁵ Witness Thomas, PT of 24 September 1997 pp. 2583-2588 and 2645-2650.

⁸²⁶ Witness Kujawinski, PT pp. 4112-4113.

⁸²⁷ PT pp. 3639-3640.

⁸²⁸ PT pp. 9361 and 9405. The witness stated, inter alia, that he had not seen any actual trench systems or any military installations.

⁸²⁹ PT p. 23864."

P.57.2. Evidence of shelling a part of town with no military objective.

A. Legal source/authority and evidence:

Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, paras. 214, 288:

"214. In view of the foregoing, the Chamber finds that the shelling of the Old Town on 6 December 1991 was not a JNA response at Croatian firing or other military positions, actual or believed, in the Old Town, nor was it caused by firing errors by the Croatian artillery or by deliberate targeting of the Old Town by Croatian forces. In part the JNA forces did target Croatian firing and other military positions, actual or believed, in Dubrovnik, but none of them were in the Old Town. These Croatian positions were also too distant from the Old Town to put it in danger of unintended incidental fall of JNA shells targeted at those Croatian positions. It is the finding of the Chamber that the cause of the established extensive and large-scale damage to the Old Town was deliberate shelling of the Old Town on 6 December 1991, not only by JNA mortars but also by other JNA weapons such as ZIS and recoilless cannons and Maljutka rockets."

"288. The Chamber has found that the Old Town was extensively targeted by JNA artillery and other weapons on 6 December 1991 ⁹²⁸ and that no military firing points or other objectives, real or believed, in the Old Town were targeted by the JNA.⁹²⁹ Hence, in the Chamber’s finding, the intent of the perpetrators was to target civilians and civilian objects in the Old Town. The Chamber has, in addition, found that a relatively few military objectives (actual or believed) in the wider city of Dubrovnik, but outside the Old Town, were targeted by JNA forces on 6 December 1991. These were, in most cases, widely separated and in positions distant from the Old Town. Shelling targeted at the Croatian military positions in the wider Dubrovnik, including those closer to the Old Town, and whether actual or believed positions, would not cause damage to the Old Town, for reasons given in this decision. That is so for all JNA weapons in use on 6 December 1991, including mortars. In addition to this, however, the Chamber has found there was also extensive targeting of non -military objectives outside the Old Town in the wider city of Dubrovnik."

"⁹²⁸. See supra, para 214.

⁹²⁹. See supra, paras 193-194."

P.57.3. Evidence that houses belonging to a certain ethnic group were specifically and systematically burned.

A. Legal source/authority and evidence:

Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, paras. 600, 608:

"600. The Trial Chamber is satisfied that in the period relevant to the Indictment, Bosnian Serb forces shelled towns and villages predominantly inhabited by Bosnian Muslims and Bosnian Croats, causing extensive damage to houses and business premises. After the shelling, the Bosnian Serb forces entered the towns and villages, looting and setting on fire apartments, houses and business premises belonging to Bosnian Muslims and Bosnian Croats. The Trial Chamber finds that the purpose of such attacks was to create terror, destroy these properties, cities, towns and villages and prompt non-Serbs to abandon their houses, viallges or towns and leave permanently."

"608.The Trial Chamber finds that the town of Bosanka Krupa was shelled by Bosnian Serb forces on 22 April 1992. Houses predominantly inhabited by Bosnian Muslims were set on fire and destroyed.¹⁵³⁹"

"¹⁵³⁹. BT-56, T. 17496 (private session ); Jadranko Saran, T. 17289."

Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-T, Judgement (TC), 31 March 2003, paras. 583– 585:

"583.The deliberate destruction of the houses in Sovici started on 18 April 1993 and continued until 23 April.¹⁴⁴⁸ In contrast to the shelling, the BH Muslim houses were now specifically targeted.¹⁴⁴⁹ Defence witness NN confirmed that BH Muslim houses were torched but denied that all houses were destroyed.¹⁴⁵⁰ A Report from the ECMM recounts that "during the fighting the HVO have systematically burn [sic] Muslim houses".¹⁴⁵¹

584. On 20 April 1993, the HVO was firing at Doljani.¹⁴⁵² The village was on fire and houses were burning.¹⁴⁵³ International observers visiting Doljani after the conflict reported that half of Doljani were destroyed.¹⁴⁵⁴ The hamlet of Kraj was destroyed by shelling.¹⁴⁵⁵

585. The deliberate destruction of houses in Doljani occurred on 21 and 22 April 1993 and, as in Sovici, only BH Muslim houses were targeted.¹⁴⁵⁶"

"¹⁴⁴⁴ - Witness JJ, T 5008; exhibit PP 357 (confidential).
¹⁴⁴⁵ - Witness Y testified that on 17 April 1993 there was two tanks at Obuc, which fired at the upper part of Sovici from the mosque down taking all of the buildings, one after the other; witness Y, T 3369-3370.
¹⁴⁴⁶ - Witness A testified that the only houses destroyed during the attack were those of Ramo and Omer Kovac, witness A, T 500; witness W, T 3181.
¹⁴⁴⁷ - Witness C testified that she was in her house in Doljani on 17 April 1993, and that in Sovici the hamlets of Kovici, Rudina were shelled as well as in Doljani the hamlet called Kraj, and that further down in Donji Doljani shelling was not possible as it was a mixed BH Muslim and Croat population. The targeted hamlets were all BH Muslim, witness C, T 856-861. However, this testimony is not consistent with the testimonies of witness Y, who states that the upper part of Sovici was targeted, witness Y, T 3369-3370. Witness A testified that the only houses destroyed were those of Ramo and Omer Kovac, witness A, T 497, witness W, T 3181.
¹⁴⁴⁸ - Witness W, T 3180-3181; witness C testified that the houses were being set on fire on approximately 21 or 22 April 1993, witness C, T 862; witness X, T 3327; witness JJ, T 5004; exhibit PP 357 (confidential).
¹⁴⁴⁹ - Witness W testified "Can you tell the Chamber, please, what was the condition of the houses in Sovici when you passed through the village at that time? A. But I was passing by Croat houses all the time. Q. Well, what was the condition of those houses? A. Well, naturally like today. Nobody ever touched them, not a bullet nor anything else" witness W, T 3179-3181.
¹⁴⁵⁰ - Defence witness NN, T 12900, 12994.
¹⁴⁵¹ - Exhibit PP 344.
¹⁴⁵² - Exhibit PP 928, pp 74, 75,77.
¹⁴⁵³ - Witness RR, T 6441-6459, while being taken from Orlovac to Krcine, saw the village on fire.
¹⁴⁵⁴ - Witness JJ, T 5008; exhibit PP 357 (confidential).
¹⁴⁵⁵ - Witness C, T 857.
¹⁴⁵⁶ - Witness Falk Simang testified that KB set to fire all BH Muslim houses in Doljani after the death of Mario Hrkac (Cikota), witness Falk Simang, T 3809-3810. See also Rados Diary, exhibit PP 928, pp 78-79, where it is stated that after the death of Cikota on 20 April 1993, Tuta (Mladen Naletilic) ordered all Muslim houses in Doljani to be burnt down and that this continued at least until 22 April 1993."

Prosecutor v. Tihomir Blaskic, Case No. It-95-14-T3, Judgement (TC), 3 March 2000, paras. 418, 425-426, 428:

"418. According to the Centre for Human Rights in Zenica, 180 of the existing 200 Muslim houses in Ahmici were burned during the attack ⁸⁶⁰ . The Commission on Human Rights made the same finding in its report dated 19 May 1993 ⁸⁶¹ . Prosecution exhibit P117 also showed that nearly all the Muslim houses had been torched, whereas all the Croat houses had been spared ⁸⁶² . The witnesses Bower ⁸⁶³ and Casim Ahmic ⁸⁶⁴ confirmed the information . The witness Nura Pezer stated, on this point, that the day before the attack, she had seen a Croat from the village, named Ivica Vidovic, who, in the presence of another man, was pointing out the Croat houses and the Muslim houses ⁸⁶⁵ . The British UNPROFOR battalion reported having seen houses burning in ?antici on 17 April ⁸⁶⁶ . According to the ECMM observer Morsink, practically all the Muslim houses in the villages of Ahmici, Nadioci , Pirici, Sivrino Selo, Gacice, Gomionica, Gromiljak and Rotilj had been burned ⁸⁶⁷ . He stated that the houses had all been set alight with petrol and oil ⁸⁶⁸ . Likewise, according to the witness Watters, the Muslim houses had been systematically burned in Nadioci, Ahmici and ?antici ⁸⁶⁹ . The witness Baggesen, ECMM observer, reported that "it was a whole area that was burning" ⁸⁷⁰ . The report of the Joint Busovaca Commission, dated 21 April, showed that the ICRC had made enquiries that afternoon in Ahmici and noted that all the Muslims situated in Ahmici-west had left and that 90% of the houses together with the area's mosque, had been destroyed ⁸⁷¹ . The report stated moreover that about 200 Muslim women and children were crowded into 3 houses in Novaci, and that half of them wished to be evacuated ⁸⁷² ."

"⁸⁶⁰ P242, "Report on inter-ethnic violence in Vitez, Busovaca and Zenica in April 1993", Annex N to ECMM H/S 720, 15 May 1993. Meeting with the Centre for Human Rights in Zenica, p. N-2.

⁸⁶¹ P184, p. 5, para. 20.

⁸⁶² - Witnesses Abdullah Ahmic, PT p. 3768; M, PT p. 4410; Elvir Ahmic, PT p. 3255-3256.

⁸⁶³ This witness, a member of the Prince of Wales Regiment in Bosnia Herzegovina (2nd British Battalion which succeeded the Cheshire Regiment), who remained in the area from April to November 1993, stated that some houses, where Croats lived, remained intact. PT p. 9361.

⁸⁶⁴ PT of 1 October 1997 p. 3136.

⁸⁶⁵ Witness Nura Pezer, PT pp. 3883-3884.

⁸⁶⁶ P242, "Report on inter-ethnic violence in Vitez, Busovaca and Zenica in April 1993", Annex N to ECMM H/S 720, 15 May 1993. Events reported by ECMM and UN, 13-30 April 1993, Annex R to ECMM H/S 720, 15 May 1993, p. R-3.

⁸⁶⁷ Witness Morsink, PT pp. 9900-9901.

⁸⁶⁸ Witness Morsink, PT pp. 9901-9902.

⁸⁶⁹ Witness Watters, PT pp. 3602-3605.

⁸⁷⁰ Witness Baggesen, PT of 22 August 1997 p. 1928.

⁸⁷¹ This information appears also in the report of the ECMM whose team accompanied the ICRC team. P242, "Report on inter-ethnic violence in Vitez, Busovaca and Zenica in April 1993", Annex N to ECMM H/S 720, 15 May 1993. Events reported by ECMM and UN, 13-30 April 1993, Annex R to ECMM H/S 720, 15 May 1993, p. R-7.

⁸⁷² P696: report of the Joint Busovaca Commission dated 21 April (witness Morsink), para. D."

"425. The methods of attack and the scale of the crimes committed against the Muslim population or the edifices symbolising their culture sufficed to establish beyond reasonable doubt that the attack was aimed at the Muslim civilian population. An ECMM observer noted that, further to his visit to Ahmici on 22 April 1993, "apart from the systematic destruction and the religious edifices that had been dynamited, what was most striking was the fact that certain houses remained intact, inhabited even, and one wondered how those islands had been able to survive such a show of violence" ⁸⁹⁰ . Several international observers who went to the village a few days after the attack on Ahmici reported finding "a phenomenon of a ferocity and a brutality almost impossible to describe" ⁸⁹¹ . The accused went to Ahmici on the morning of 27 April and noted the scale of the damage: houses burnt , livestock slaughtered and an entirely deserted village ⁸⁹² . He conceded, both to the Commission on Human Rights representatives on 5 May 1993 ⁸⁹³ and in his testimony ⁸⁹⁴ before the Trial Chamber that crimes had been committed in Ahmici.

426. Witness Baggesen said of the attack on Ahmici: "We think that this operation, military operation against the civilian population was to scare them and to show what would happen to other villages and the Muslim inhabitants in other villages if they did not move out. So I think this was an example to show" ⁸⁹⁵ , especially given what Ahmici symbolised for the Muslim community."

"⁸⁹⁰ PT p. 23584.

⁸⁹¹ Witness Thomas, PT pp. 2672 and 2674.

⁸⁹² Witness Blaškic, PT pp. 19036-19037.

⁸⁹³ P 184; witness Marin, PT p. 13631.

⁸⁹⁴ Witness Blaškic, PT pp. 19025-19026: "I toured a part of the village. I saw burned houses in the village, and there was still some embers. They may have been burned during the night or set fire to. I saw the minaret and mosque and other signs of destruction".

⁸⁹⁵ Witness Baggesen, PT of 22 august 1997 p. 1935."

"428. All that evidence enables the Trial Chamber to conclude without any doubt that the villages of Ahmici, Pirici, ?antici and Nadioci had been the object of a planned attack on the Muslim population on 16 April 1993."

P.57.4. Evidence of houses and businesses being systematically destroyed.

P.57.5. Evidence of the destruction of a part of a village by means of shelling.

A. Legal source/authority and evidence:

Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, paras. 614, 626:

"614. The Trial Chamber is satisfied that houses and shops belonging to Bosnian Muslims in the town of Celinac were shelled and set on fire by Bosnian Serb forces.¹⁵⁵⁶ Bosnian Muslim homes were also broken into and appliances and other valuables were taken away.¹⁵⁵⁷"

"¹⁵⁵⁶. Mehmet Talic, T. 24164; BT-90, T. 17072 (closed session); Radosava Dzombic, T. 23446, 23449; See, e.g . ex. P1991, "Morning news from Radio Banja Luka on 11 June 1992", concerning four bomb attacks being carried out against private shops in Celinac. The town of Celinac was visited by the Trial Chamber and the Parties during the site visit which took place in March 2004.

¹⁵⁵⁷. BT-90, T. 17101-17102 (closed session)."

"626. […] Following the expiration of the ultimatum, the Bosnian Muslim village of Hambarine was shelled by Bosnian Serb forces for the entire day.¹⁵⁹⁵ Houses were targeted indiscriminately. Tanks passed through the village and shelled the houses causing civilian casualties. Houses were looted and set on fire.¹⁵⁹⁶"

"¹⁵⁹⁵. Hambarine was visited by the Trial Chamber and the Parties during the site visit which took place in March 2004 .

¹⁵⁹⁶. Muharem Murselovic, T. 12589 -12590, 2700-2701; Ivo Atlija, T. 5556; BT-33, T. 12667 (closed session); Elvedin Nasic, T. 12720; BT-35, ex. P563, T. 6808-6810 (under seal); BT-33, T. 4032-4033 (closed session)."

P.57.6. Evidence of looting.

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 559, 576:

"559. The Trial Chamber relied on the testimony of Witness TW01 (based on transcripts from the Blaskic trial), which stated that the HVO "came in trucks, on tractors, and they plundered the lower part of the village, taking away everything they could at the time"⁷⁷⁷, later being aided by civilians "who carried, on their backs and wheelbarrows, valuable things."⁷⁷⁸

"⁷⁷⁷.Blaskic,T.9270.
⁷⁷⁸. Blaskic, T. 9270

"576. The Trial Chamber relied on Witness TW12⁸¹⁹ who testified that he: "saw cars and buses being taken away or trucks, if somebody had them. [He] saw looting and they just took all those things that they could take away right now and right there. And they were talking to each other saying, ‘Take this now and leave the rest here. We will come back later and take the other stuff.’ And they took the stuff to Brnjaci."⁸²⁰

"⁸¹⁹. Based on transcripts from the Blaskic trial.
⁸²⁰. Blaskic, T. 9532."

P.58. Evidence inferred from a circumstance.

P.58.1. Evidence that the destruction occurred when there were no military groups in the village

A. Legal source/authority and evidence:

Prosecutor v. Tihomir Blaskic, Case No. It-95-14-T3, Judgement (TC), 3 March 2000, para. 409:

"409. Lieutenant-Colonel Thomas, UNPROFOR commander at the material time, went to Ahmici on 17 April 1993 and stated that he saw no evidence suggesting that there had been a conflict between two separate military entities, nor any evidence of resistance such as trenches, sandbags or barbed wire indicating the presence in the village of an armed force ready for combat ⁸²³. Furthermore, the bodies he saw were not in uniform ⁸²⁴ and not a single weapon was found in the destroyed buildings ⁸²⁵ . On the contrary, there were women and children amongst the bodies strewn on the ground ⁸²⁶. […] ."

"⁸²³ Same evidence as that of witness Baggesen, PT of 22 August 1997, pp. 1931-1932.

⁸²⁴ Evidence confirmed, inter alia, by witness Kujawinski, PT pp. 4112-4113.

⁸²⁵ Witness Thomas, PT of 24 September 1997 pp. 2583-2588 and 2645-2650.

⁸²⁶ Witness Kujawinski, PT pp. 4112-4113."

P.58.2. Evidence of the destruction of houses in a village that showed no resistance.

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. 534:

"534. Paragraph 659 describing the events at Ocehnici reads as follows:

In the Appeals Chamber’s view, a reasonable trier of fact could have concluded that the wilful destruction of all Muslim houses in Ocehnici was of a large scale and was not justified by military necessity since the villagers were unarmed and did not put up any resistance. Therefore, Kordic’s argument that the Trial Chamber erred in finding that wanton destruction was committed in Ocehnici in April 1993 fails. The Appeals Chamber upholds the Trial Chamber’s finding that the crime was established."

"⁷¹⁵. Indictment, paras 24 and 36.

⁷⁵¹. (Footnotes omitted)."

Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, para. 639:

"639. The protection to civilian property in Article 3(b) of the Statute is only limited by the military necessity exception. In most instances there is abundant evidence that there was no resistance at all and in the few cases where there is evidence of some resistance, the Trial Chamber comes to the conclusion that the evidence shows beyond reasonable doubt that it was minimal and certainly not such as to justify the destruction that occurred. The evidence therefore shows that the destruction of civilian property in villages, towns and cities predominantly inhabited by Bosnian Muslims and Bosnian Croats was not justified by military necessity and that the Bosnian Serb forces deliberately destroyed property belonging to Bosnian Muslims and Bosnian Croats."

Prosecutor v. Tihomir Blaskic, Case No. It-95-14-T3, Judgement (TC), 3 March 2000, para. 409:

"409. Lieutenant-Colonel Thomas, UNPROFOR commander at the material time, went to Ahmici on 17 April 1993 and stated that he saw no evidence suggesting that there had been a conflict between two separate military entities, nor any evidence of resistance such as trenches, sandbags or barbed wire indicating the presence in the village of an armed force ready for combat ⁸²³ . Furthermore, the bodies he saw were not in uniform ⁸²⁴ and not a single weapon was found in the destroyed buildings ⁸²⁵ . On the contrary, there were women and children amongst the bodies strewn on the ground ⁸²⁶ . The witnesses Watters ⁸²⁷ , Bower ⁸²⁸ , Stewart ⁸²⁹ , Landry ⁸³⁰ , Parrott ⁸³¹ , Kujawinski ⁸³² and Ellis ⁸³³ stated that they had seen the same thing. In its second periodical report on the human rights situation on the territory of the former Yugoslavia, the Commission on Human Rights even found that "by all accounts, including those of the local Croat HVO commander and international observers, this village contained no legitimate military targets and there was no organised resistance to the attack" ⁸³⁴ . The accused himself admitted before the Trial Chamber that the "villagers of Ahmici, that is Bosniak Muslims," had been the victims of the attack without there having been any attempt to distinguish between the civilian population and combatants ⁸³⁵ ."

"⁸²³ Same evidence as that of witness Baggesen, PT of 22 August 1997, pp. 1931-1932.

⁸²⁴ Evidence confirmed, inter alia, by witness Kujawinski, PT pp. 4112-4113.

⁸²⁵ Witness Thomas, PT of 24 September 1997 pp. 2583-2588 and 2645-2650.

⁸²⁶ Witness Kujawinski, PT pp. 4112-4113.

⁸²⁷ PT pp. 3639-3640.

⁸²⁸ PT pp. 9361 and 9405. The witness stated, inter alia, that he had not seen any actual trench systems or any military installations.

⁸²⁹ PT p. 23864.

P.58.3. Evidence that the destruction occurred after combat had ceased.

A. Legal source/authority and evidence:

Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-T, Judgement (TC), 31 March 2003, para. 589:

"589. […]The destruction was not justified by military necessity as it occurred both in Sovici and Doljani after the actual shelling had ceased.¹⁴⁶³ The Chamber is satisfied that the houses in Sovici and Doljani were destroyed in violation of the law or customs of war under Article 3(b) of the Statute."

"¹⁴⁶³ Houses in Sovici and Doljani were destroyed on a large scale after the actual shelling of the villages had ceased. The shelling of Sovici ceased on 18 April, while that of Doljani on 20 April 1993. The torching of the houses in Sovici occurred after 18 April 1993. In Doljani it occurred on 21 and 22 April 1993."

P.58.4. Evidence that the destruction was part of a policy of reprisals.

A. Legal source/authority and evidence:

F Holstein and Twenty Three Others, UNWCC, LRTWC, vol. VIII, p. 22-23:

"According to the evidence presented by the prosecution, the accused took part in combined operations against members of the French resistance movement: The operations were decided upon and planned at a conference held at Dijon under the auspices of General Hederich, Feldkommandant and " Befehlshaber Nord-Ost Frankreich " (G.O.C., North-East, France), in June, 1944. Six of the accused attended in their respective commanding capacities : Irmisch, Hippe, Major, Hulf, Kruger and Verfurt. They were to provide the troops and issue instructions, and all had to take personal part in the operations at the head of their units. The conference decided that the French resistance movement in the area was to be suppressed and annihilated, and that severe measures were to be taken against them and the population " in reprisals " for their struggle against the occupying authorities or assistance given in this respect. In the light of some of the evidence, such measures were to consist in executing on the spot every member of the resistance, captured with arms, pursuant to Hitler’s orders to kill all " terrorists " or " saboteurs "; in the burning down of three farms for every German soldier killed, and of one farm for every German soldier wounded. The events described by the Prosecution showed that, in carrying out the above instructions, the accused killed a large number of inhabitants, destroyed by fire many buildings in various localities, and pillaged property of the population."

"421. The Trial Chamber notes at the outset that according to the witness Stewart, it was barely plausible that soldiers would have taken refuge in the mosque since it was impossible to defend ⁸⁷⁶ . Furthermore , the mosque in Donji Ahmici was destroyed by explosives laid around the base of its minaret ⁸⁷⁷ . According to the witness Kaiser, this was "an expert job" which could only have been carried out by persons who knew exactly where to place the explosives ⁸⁷⁸ . The witness Zec stated that he had heard a Croatian soldier speaking on his radio asking for explosives "for the lower mosque in Ahmici" ⁸⁷⁹ . The destruction of the minaret was therefore premeditated and could not be justified by any military purpose whatsoever. The only reasons to explain such an act were reasons of discrimination."

"⁸⁷⁶ Witness Stewart, PT p. 23864.

⁸⁷⁷ Witness Thomas, PT pp. 2645-2650; PT p. 23660.

⁸⁷⁸ Witness Kaiser, PT p. 10663. See also witness Thomas, PT p. 2650.

⁸⁷⁹ Witness Zec, PT p. 4286-4287."

P.58.5. Evidence that the destruction had not been caused by the fighting.

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 485:

"485. Based on the same evidence discussed in the section on unlawful attack on civilian objects, the Appeals Chamber is of the view that a reasonable trier of fact could have found that damage to only Muslim houses was of such nature that it could not have been caused by the fighting and was thus not justified by military necessity and that the fact that soldiers were carrying around petrol canisters shows that it was deliberate. The Appeals Chamber upholds the Trial Chamber’s finding that wanton destruction, Count 38 (Kordic) was established."

P.58.6. Evidence of a practice of appropriation of property following eviction.

A. Legal source/authority and evidence:

Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-T, Judgement (TC), 31 March 2003, paras. 619 – 622, 627, 630:

"619. Witness U (a BH Muslim) testified that, on 9 May 1993, HVO units not engaged in combat were involved in evicting people and taking property; ten HVO soldiers entered his apartment and, while allegedly looking for weapons, took away some gold jewellery, a computer and other valuables.¹⁵²⁰ On that same day, seven armed men evicted Witness WW, her family and all BH Muslims living in the same building from their apartments in the DUM area;¹⁵²¹ on that occasion, Vinko Martinovic ordered a soldier to drive away a car belonging to one of the neighbours of Witness WW.¹⁵²² "

"¹⁵²⁰. Witness U, T 2927-2928.

¹⁵²². Witness WW, T 7014-7021. When witness WW returned to her apartment around mid-June, she found it emptied of valuables, witness WW, T 7032. These testimonies are corroborated by witnesses participating in the attack on Mostar. Witness Falk Simang, a mercenary fighting in the KB, admitted that after the attack on Mostar KB soldiers drove BH Muslims out of their homes and took away all valuables they could carry, witness Falk Simang, T 3830. Witness Q, a Danish mercenary fighting with the Vinko [krobo ATG, described an instance when soldiers from his unit met at Mladen Naletilic headquarters and went to loot valuables in Muslim houses using civilian cars, witness Q, T 2375."

"620. Two reports by the Military Police in Mostar recount that, on 13 June 1993, Vinko Martinovic with 40 armed soldiers was expelling BH Muslims from their apartments in the DUM area on Mladen Naletilic’s orders. During these expulsions, apartments were robbed; the looting did not stop even after the police had inquired into the situation.¹⁵²³ Witness GG was dispossessed of his car and other belongings by six HVO soldiers between the end of May and middle-June 1993 in the DUM area.¹⁵²⁴ Exhibits PP 456.4 and PP 458.1 show protests from the ABiH 4th Corps Commander Arif Pacalic for large evictions of civilians from the DUM area on 13 and 14 June 1993; the first of these documents also reports robbery from ousted people.¹⁵²⁵ Witness P testified that in the days before 14 June 1993 violent evictions of BH Muslim residents in Mostar involved robbery of private property.¹⁵²⁶ A memorandum by an international observer states that evictions of BH Muslims on 12 and 13 June 1993 took place in upper middle-class neighbourhoods where the most desirable properties were to be found. In particular, on 13 June 1993 around 5 p.m., thirty soldiers evicted BH Muslims from their apartments, and proceeded to take away the name-plates on the doors.¹⁵²⁷ An ECMM report of 14 June 1993 also corroborates these findings, describing expulsions and dispossession of apartments in the DUM and Vatikana areas of Mostar.¹⁵²⁸"

"621. Between the end of July and 17 September 1993, Witness OO was repeatedly forced by the Vinko [krobo ATG, under the overall authority of Vinko Martinovic, to carry looted household appliances in areas of Mostar far away from the combat zones of the Bulevar.¹⁵²⁹ Witness F testified that in the period between July 1993 and March 1994 he was once forced to loot apartments in an area under the responsibility of Vinko Martinovic, loading the booty on trucks that soldiers would drive away. Vinko Martinovic’s soldiers were there and he recognised Zubac, a subordinate of Martinovic, acting as commander.¹⁵³⁰ According to witness II, Vinko Martinovic was never present during the plunder and it was his subordinates, who chose the prisoners.¹⁵³¹

622. Witness Sulejman Hadisalihovic, after being captured by the HVO on 25 June 1993,¹⁵³² was forced by HVO soldiers to loot apartments in Mostar together with other prisoners, mostly at night.¹⁵³³ This testimony is consistent with the statement of witness AC that Baja and other men were taking property away at night from BH Muslim apartments.¹⁵³⁴ Witness F was forced to loot apartments after June 1993, loading the booty on trucks that soldiers would drive away.¹⁵³⁵ Witness II was frequently ordered by soldiers from the Vinko [krobo ATG to loot abandoned apartments between the end of July and December 1993.¹⁵³⁶ Witness AB testified that he was forced to loot apartments many times from mid-August 1993 onwards;¹⁵³⁷ in one of these instances, Vinko Martinovic was present and, while not explicitly ordering the looting, did nothing to prevent or stop it.^1538"

"¹⁵²³. Exhibits PP 456.1, PP 456.2. The latter document explicitly defines the course of conduct by Vinko Martinovic as "pillage".

¹⁵²⁴. Witness GG, T 4757 (confidential).

¹⁵²⁵. Exhibits PP 456.4, PP 458.1.

¹⁵²⁶. Witness P, T 2280-2281 (confidential).

¹⁵²⁷. Exhibit PP 456.

¹⁵²⁸. Exhibit PP 456.3."

¹⁵²⁹. Witness OO, T 5943.

¹⁵³⁰. Witness F, T 1106-1108.

¹⁵³¹. Witness II, T 4962.

¹⁵³². Witness Sulejman Hadisalihovic, T 1222.

¹⁵³². Witness Sulejman Hadisalihovic, T 1222.

¹⁵³³. Witness Sulejman Hadisalihovic, T 1247.

¹⁵³⁴. Witness AC, T 7912.

¹⁵³⁵. Witness F, T 1106.

¹⁵³⁶. Witness II, T 4962.

¹⁵³⁷. Witness AB, T 7867. The Prosecution Final Brief, p 121, refers instead to witness ZZ.

¹⁵³⁸. Witness AB, T 7880-7881."

"627. With regard to the incidents occurring in the DUM area on 13 June 1993, it has been established that a large-scale operation of plunder, in connection with evictions, was carried out by soldiers acting under the supervision of Vinko Martinovic. Vinko Martinovic ordered the modalities of the evictions; such modalities included plunder of BH Muslim property in the neighbourhood. He organised his men during this operation and took no action even after police had inquired about the events.¹⁵⁴⁸ Vinko Martinovic is therefore responsible under Articles 3(e) and 7(1) of the Statute."

"¹⁵⁴⁸. Exhibit PP 456.1."

"630. Plunder was carried out by HVO soldiers directly¹⁵⁵⁷ or forcing prisoners to do it for them.¹⁵⁵⁸ In this respect, Mladen Naletilic was giving specific orders as to the modalities of the operations.¹⁵⁵⁹"

"¹⁵⁵⁷. Witness U, T 2927-2928; witness GG, T 4756.

¹⁵⁵⁸. Witness Sulejman Hadzisalihovic, T 1246; Witness II, T 4962; witness CC, T 4423-4426.

¹⁵⁵⁹. Exhibits PP 456.1, and PP 456.2. These exhibits are reports by two different officials at the Command of the HVO 1st Military Police Battalion in Mostar, alleging that soldiers participating in the operation were "Tuta’s men" acting on "Tuta’s orders." See also witness AC, T 7907-7911, stating that his unit, the Benko Penavic ATG under the authority of Mladen Naletilic, was often divided into groups, one of which had the task to ethnically cleanse a portion of Mostar. Specific instructions were given that plunder of Muslim property was part and parcel of these cleansing operations."

P.58.7. Evidence of an organized seizure of property undertaken within the framework of a systematic economic exploitation of occupied territory.

A. Legal source/authority and evidence:

Prosecutor v. Zejnil Delalic, Zdravko Mucic, Hazim Delic and Esad Landžo, Case No. IT-96-21-T, Judgement (TC), 16 November 1998, para. 590:

"590. In this connection, it is to be observed that the prohibition against the unjustified appropriation of public and private enemy property is general in scope, and extends both to acts of looting committed by individual soldiers for their private gain, and to the organized seizure of property undertaken within the framework of a systematic economic exploitation of occupied territory. […]"

P.58.8. Evidence of systematic plunder/looting.

A. Legal source/authority and evidence:

Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, para. 600:

"600. The Trial Chamber is satisfied that in the period relevant to the Indictment, Bosnian Serb forces shelled towns and villages predominantly inhabited by Bosnian Muslims and Bosnian Croats, causing extensive damage to houses and business premises. After the shelling, the Bosnian Serb forces entered the towns and villages, looting and setting on fire apartments, houses and business premises belonging to Bosnian Muslims and Bosnian Croats. The Trial Chamber finds that the purpose of such attacks was to create terror, destroy these properties, cities, towns and villages and prompt non-Serbs to abandon their houses, viallges or towns and leave permanently."

Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-T, Judgement (TC), 31 March 2003, para. 625:

"625. Neither of the accused has alleged the lawfulness of the taking of property from BH Muslim private individuals. The plunder did not involve property related to military operations or the needs of the occupant. Some of the evidence presented at trial explicitly refers to the planning of large-scale operations including plunder against BH Muslims. Other evidence points to systematic plunder due to the choice of BH Muslim apartments among possible targets as well as the means employed during the plunder. The Chamber is satisfied that private property was unlawfully appropriated in Mostar following the attack on 9 May 1993 in a systematic way. The Chamber is satisfied that property was chosen because of its monetary value, not its military usefulness."

P.58.9. Evidence of a policy of reprisal through pillage.

A. Legal source/authority and evidence:

F Holstein and Twenty Three Others, UNWCC, LRTWC, vol. VIII, p. 23-25:

"The conference decided that the French resistance movement in the area was to be suppressed and annihilated, and that severe measures were to be taken against them and the population " in reprisals " for their struggle against the occupying authorities or assistance given in this respect. In the light of some of the evidence, such measures were to consist in executing on the spot every member of the resistance, captured with arms, pursuant to Hitler’s orders to kill all " terrorists " or " saboteurs "; in the burning down of three farms for every German soldier killed, and of one farm for every German soldier wounded. The events described by the Prosecution showed that, in carrying out the above instructions, the accused killed a large number of inhabitants, destroyed by fire many buildings in various localities, and pillaged property of the population.[…] On 27 June, the place was thoroughly pillaged and twelve houses were set on fire and burnt to the ground. On 28^th June, at 1pm, the Germans left the locality. […] Eleven houses were set on fire and property of the inhabitants was looted. […] The village was also pillaged."

P.58.10. Evidence that the property taken was not militarily useful.

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 576:

"576.The Trial Chamber relied on the testimonies of Witness AF and Witness AN, who witnessed soldiers looting valuables from the houses in Tulica and driving off with them;⁸⁰³ an HVO soldier pushing a wheelbarrow full of electronic equipment, including a television set, stereo and video-equipment;⁸⁰⁴ and HVO soldiers driving around in cars belonging to the villagers.^805"

"⁸⁰³.WitnessAF,T.4060.
⁸⁰⁴.WitnessAN,T.15665-66.
⁸⁰⁵. Witness AN, T. 15665-66."

Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-T, Judgement (TC), 31 March 2003, para. 625:

"625. Neither of the accused has alleged the lawfulness of the taking of property from BH Muslim private individuals. The plunder did not involve property related to military operations or the needs of the occupant. Some of the evidence presented at trial explicitly refers to the planning of large-scale operations including plunder against BH Muslims. Other evidence points to systematic plunder due to the choice of BH Muslim apartments among possible targets as well as the means employed during the plunder. The Chamber is satisfied that private property was unlawfully appropriated in Mostar following the attack on 9 May 1993 in a systematic way. The Chamber is satisfied that property was chosen because of its monetary value, not its military usefulness."

Prosecutor v. Goran Jelisić, Case No. IT-95-10-T, Judgement (TC), 14 December 1999, para. 49:

"49. The factual basis attached to the guilty plea indicates that the accused stole money, watches, jewellery and other valuables from the detainees upon their arrival at Luka camp by threatening those who did not hand over all their possessions with death. […] The Trial Chamber holds that these elements are sufficient to confirm the guilt of the accused on the charge of plunder."

P.58.11. Evidence that the property appropriated was not proportional to the military needs of the hostile power.

A. Legal source/authority and evidence:

IG Farben Trial, UNWCC, LRTWC, Vol X, p. 50:

"If management had been taken over in a manner that indicated a mere temporary control or operation for the duration of the hostilities, there might be some merit to the defence. The evidence, however, shows that the interests which Farben proceeded to acquire, contrary to the wishes of the owners, were intended to be permanent. The evidence further establishes that the action of the owners was involuntary, and that the transfer was not necessary to the maintenance of the German army of occupation. […]".

Krupp Trial, UNWCC, LRTWC, Vol X, p. 73:

"It was alleged by the Prosecution that these acts of plunder and spoliation were carried out in consequence of a deliberate design and policy on behalf of the German Government. The territories occupied by Germany had been exploited in a ruthless way far beyond the needs of the army of occupation and in disregard of the needs of the local economy, and were out of proportion to the resources of the occupied territories."

Von Leep (The High Command Trial) LRTWC, UNWCC, Volume XII, p. 93:

"We content ourselves on this subject with stating that such a view would eliminate all humanity and decency and all law from the conduct of war and it is a contention which this Tribunal repudiates as contrary to the accepted usages of civilized nations. Nor does military necessity justify the compulsory recruitment of labour from an occupied territory either for use in military operations or for transfer to the Reich, nor does it justify the seizure of property or goods beyond that which is necessary for the use of the army of occupation."