Table of contents:
P.9. Evidence inferred from an utterance, a document, or a deed.
P.9.1. Evidence that the perpetrator intended for victims never to return to the area.
P.9.2. Evidence that the perpetrator created intolerable living conditions to force victims to flee.
P.9.3. Evidence of the perpetrator making public statements calling for victims to leave an area.
P.9.4. Evidence that the perpetrator had previously espoused displacement.
P.10. Evidence inferred from a circumstance.
P.10.1. Evidence that the perpetrator frequented an area near where displacement occurred.
P.10.2. Evidence that the perpetrator supported ideology necessitating displacement.
P.11. Not sufficient: Evidence that perpetrator meant to displace in pursuit of a larger objective.
P.11.1. Not sufficient: Evidence that perpetrator meant to transfer in order to detain.
Element:
P.9. Evidence inferred from an utterance, a document, or a deed.
P.9.1. Evidence that the perpetrator intended for victims never to return to the area.
A. Legal source/authority and evidence:
Prosecutor v Milomir Stakić, Case No. IT-97-24-T, Judgment (TC), 31 July 2003, para. 687:
"687. The Trial Chamber agrees with the Trial Chamber in the Prosecutor v. Mladen Naletilic and Vinko Martinovic that the intent of the perpetrator must be that the victim is "removed, which implies the aim that the person is not returning." 1346 If a victim were to return, this would consequently not have an impact on the criminal responsibility of the perpetrator who removed the victim."
"1346. Naletilic and Martinovic Trial Judgement, para. 520 and 1362."
Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-T, Judgement (TC), 31 March 2003, para. 520:
"520. The Prosecution needs to prove the intent to have the person (or persons) removed, which implies the aim that the person is not returning.1362"
"1362. The Commentary to the Geneva Convention IV holds "[unlike] deportation and forcible transfer, evacuation is a provisional measure", p 280. The Chamber sees this as indicative of that deportation and forcible transfer are not by their nature provisional, which implies an intent that the transferred persons should not return."
[B. Evidentiary comment:]
P.9.2. Evidence that the perpetrator created intolerable living conditions to force victims to flee.
A. Legal source/authority and evidence:
Prosecutor v. Radislav Krstić, Case No. IT-98-33-T, Judgement (TC), 2 August 2001,paras. 147, 615:
"147. Overwhelming evidence presented during the course of the Trial, however, demonstrates that, in July 1995, the Bosnian Muslim population of Srebrenica was not faced with a genuine choice as to whether to leave or to remain in the area. The shelling of Srebrenica, particularly on 10 and 11 July 1995, and the burning of Bosnian Muslim homes was calculated to terrify the population and make them flee the area with no hope of return. Further, it was General Mladic who initiated the meetings at the Hotel Fontana when he made it abundantly clear that he wanted the Bosnian Muslims out of the area. On 12 July 1995, as the bus convoys were being organised, General Mladic was heard to say during an intercepted conversation:
Theyve all capitulated and surrendered and well evacuate them all those who want to and those who dont want to.316
Certainly, the Bosnian Muslim refugees were not consulted or given a choice about their final destination. An UNMO in the Srebrenica area testified to an incident he witnessed in which Serb soldiers threatened to shoot an elderly woman if she did not leave Srebrenica, despite her pleas to remain. As a result of this threat and to ensure her safety, the UNMO physically removed the woman from the Srebrenica hospital where she had been and took her to Potocari.317 All of these factors, against the backdrop of the terror campaign waged by the VRS against the refugees in Potocari, make it clear that the Bosnian Serbs wanted the area cleansed of Bosnian Muslims."
"316. P 445 (conversation intercepted by the ABiH between General Mladic and an unidentified person).
317. Kingori, T. 1886-1887."
"615. The object of the joint criminal enterprise implemented at Potocari on 12 and 13 July was firstly the forcible transfer of the Muslim civilians out of Srebrenica. That General Krstić had the intent for this crime is indisputably evidenced by his extensive participation in it. Furthermore, the humanitarian crisis that prevailed at Potocari was so closely connected to, and so instrumental in, the forcible evacuation of the civilians that it cannot but also have fallen within the object of the criminal enterprise. When General Krstić marched triumphantly into Srebrenica alongside General Mladic on 11 July, he saw the town completely empty and soon found out, at least by the evening, that a huge number of the inhabitants had fled to Potocari and were crowded together in the UN compound and surrounding buildings. Although, by his own claim, he was the organiser of the military operation on Srebrenica, he had taken no action to provide food or water, nor to guarantee the security of the civilians inhabitants of the town. The Trial Chamber finds that General Krstić subscribed to the creation of a humanitarian crisis as a prelude to the forcible transfer of the Bosnian Muslim civilians. This is the only plausible inference that can be drawn from his active participation in the holding and transfer operation at Potocari and from his total declination to attempt any effort to alleviate that crisis despite his on the scene presence."
[B. Evidentiary comment:]
P.9.3. Evidence of the perpetrator making public statements calling for victims to leave an area.
A. Legal source/authority and evidence:
Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, para. 574:
"574. The Trial Chamber is however satisfied that the ARK Crisis Staffs decisions of 28 and 29 May 1992 prompted the municipal authorities and the police, who implemented them, to commit the crimes of deportation and forcible transfer after those dates. Although the two decisions are, not disingenuously, framed in terms of voluntary compliance, to the municipal authorities and the police they could have only meant a direct incitement to deport and forcibly transfer non-Serbs from the territory of the ARK. This is the only reasonable conclusion that may be drawn when the terms of the decisions are considered in the light of the Accuseds unambiguous public statements, made repeatedly from early April 1992 onwards, calling upon the non- Serb population to leave the Bosnian Krajina and stating that only a small percentage of non-Serbs would be allowed to stay.1478"
"1478. See VIII.C.5., "The Accuseds propaganda campaign", supra."
[B. Evidentiary comment:]
P.9.4. Evidence that the perpetrator had previously espoused displacement.
A. Legal source/authority and evidence:
Prosecutor v. Duko Tadić, Case No. IT-94-1-T, Judgement (TC), 7 May 1997, para. 459:
"459. The accused's presence at the Trnopolje camp when the surviving prisoners were deported to Croatia is significant evidence with regard to the charge in this subparagraph. The question remains, however, whether when the accused was participating in the seizure and selection of non-Serbs, as established above, he knew that the majority of the prisoners who survived would be deported. His presence at the Trnopolje camp when thousands of prisoners were being removed is relevant in this regard, as is his description of himself in his work report as an "earnest SDS member and an enthusiastic supporter of the idea of creating Republika Srpska", both of which embrace the notion of an ethnically pure Serbian territory. Additionally, in his role as SDS President in Kozarac, he must have had knowledge of the SDS programme, which included the vision of a Greater Serbia. Witnesses including Witness AA provided evidence which not only showed that the accused knew of this goal but that he was an active supporter of it. Witness AA testified to an argument about politics that the accused had with Sefik Sivac shortly before the conflict in which the accused said that the area "would be a Greater Serbia, it would be theirs, and that we, Muslims, will not be there, that there will be no place for us there"."
[B. Evidentiary comment:]
P.10. Evidence inferred from a circumstance.
P.10.1. Evidence that the perpetrator frequented an area near where displacement occurred.
A. Legal source/authority and evidence:
Prosecutor v Milomir Stakić, Case No. IT-97-24-T, Judgment (TC), 31 July 2003, paras. 711-712:
"711. After having visited Prijedor municipality, including the Trnopolje camps, an ECMM representative accompanying the CSCE Rapporteurs mission wrote in his personal notes that "the Muslim population is not wanted, and is being systematically kicked out by whatever method (that( is available." The massive scale on which these deportations were carried out, also from the very centre of Prijedor town close to the Accuseds office in the Municipal Assembly building, clearly supports the finding that the Accused himself was instrumental in the plan to expel the non-Serb population."
"712. In conclusion the Trial Chamber is convinced that the Accused intended to deport the non-Serb population from Prijedor municipality and that, based on this intent, he not only committed the crime of deportation as a co-perpetrator, but also planned and ordered this crime. The Trial Chamber consequently finds the Accused guilty of the crime of deportation, a crime against humanity under Article 5(d) of the Statute."
Prosecutor v. Duko Tadić, Case No. IT-94-1-T, Judgement (TC), 7 May 1997, para. 459:
"459. The accused's presence at the Trnopolje camp when the surviving prisoners were deported to Croatia is significant evidence with regard to the charge in this subparagraph. The question remains, however, whether when the accused was participating in the seizure and selection of non-Serbs, as established above, he knew that the majority of the prisoners who survived would be deported. His presence at the Trnopolje camp when thousands of prisoners were being removed is relevant in this regard "
[B. Evidentiary comment:]
P.10.2. Evidence that the perpetrator supported ideology necessitating displacement.
A. Legal source/authority and evidence:
Prosecutor v. Duko Tadić, Case No. IT-94-1-T, Judgement (TC), 7 May 1997, para. 459:
"459. The accused's presence at the Trnopolje camp when the surviving prisoners were deported to Croatia is significant evidence with regard to the charge in this subparagraph. The question remains, however, whether when the accused was participating in the seizure and selection of non-Serbs, as established above, he knew that the majority of the prisoners who survived would be deported. His presence at the Trnopolje camp when thousands of prisoners were being removed is relevant in this regard, as is his description of himself in his work report as an "earnest SDS member and an enthusiastic supporter of the idea of creating Republika Srpska", both of which embrace the notion of an ethnically pure Serbian territory. Additionally, in his role as SDS President in Kozarac, he must have had knowledge of the SDS programme, which included the vision of a Greater Serbia. Witnesses including Witness AA provided evidence which not only showed that the accused knew of this goal but that he was an active supporter of it. Witness AA testified to an argument about politics that the accused had with Sefik Sivac shortly before the conflict in which the accused said that the area "would be a Greater Serbia, it would be theirs, and that we, Muslims, will not be there, that there will be no place for us there"."
[B. Evidentiary comment:]
P.11. Not sufficient: Evidence that perpetrator meant to displace in pursuit of a larger objective.
P.11.1. Not sufficient: Evidence that perpetrator meant to transfer in order to detain.
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. 536 537:
"536. Most of the BH Muslim civilians were transported to the Velez Stadium in Mostar, from where many were taken to the Heliodrom. The women and children who were detained at the Heliodrom were released after a few days, pursuant to the cease- fire agreement entered into between the ABiH and the HVO. Many of the persons detained at the Heliodrom who were released, were subsequently detained again."
"537. The Chamber is not satisfied that these acts constitute unlawful transfer under Article 2(g) of the Statute, even though the persons, technically speaking, were moved from one place to another against their free will. They were apprehended and arrested in order to be detained and not in order to be transferred. Therefore, the requisite intent is not established. These arrests and movements to the Heliodrom on 9 May 1993 is further considered under unlawful confinement detention as persecu
[B. Evidentiary comment:]
