Table of contents:
5. The perpetrator confined or continued to confine one or more persons to a certain location.
5.1. Confinement of one or more persons; OR
5.1.1. Evidence of confinement of one or more persons in an enclosed space.
P.1. Evidence of confinement in an enclosed space with prevention of movement to other spaces.
P.1.1. Evidence of victims being locked in cells.
P.1.2. Evidence of victims being detained in guarded garages.
P.1.3. Evidence of victims being detained in locked or guarded storage rooms.
5.1.2. Evidence of confinement in other non-enclosed locations.
P.2. Evidence of confinement in established or makeshift camps or detention centres.
P.2.1. Evidence of confinement in a camp.
P.2.2. Evidence of confinement in a detention centre.
P.2.3. Evidence of confinement in an office building.
P.2.4. Evidence of confinement in a school.
P.2.5. Evidence of confinement in a veterinary station.
P.2.6. Evidence of confinement in military barracks.
P.2.7. Evidence of confinement in a stadium.
P.2.8. Evidence of confinement in a warehouse.
P.2.9. Evidence of confinement in a cinema.
P.3. Evidence of confinement in homes or cities.
P.3.1. Evidence of house arrest.
P.3.2. Evidence of restriction to a closed village or city.
5.1.3. Evidence that confinement was unlawful.
P.4. Evidence of the conditions of victimsarrest.
P.4.1. Evidence of large-scale arrests or round-ups.
P.4.2. Evidence of the lack of valid arrest warrants or failure to present valid arrest warrants.
P.4.3. Evidence of a failure to inform victims of the reasons for arrest or detention.
P.4.4. Evidence of beatings at the time of arrest.
P.5. Evidence that detention resulted from the exercise of fundamental rights and freedoms.
P.6. Evidence that detention was arbitrary.
P.6.1. Evidence that detention was arbitrary because of a lack of legal basis.
P.6.2. Evidence that detention was arbitrary because of a lack of due process.
P.7. Evidence that detention was not absolutely necessary.
P.7.1. Evidence that victims did not pose a security threat to the detaining forces.
P.7.3. Evidence that victims were civilians.
P.7.4. Evidence that victims had not participated in military activities.
P.7.5. Evidence that perpetrators had no reason to suspect that victims had committed offenses.
P.7.6. Evidence of the failure to judge necessity on a case-by-case basis.
P.7.7. Evidence that victims were not detained for their own safety.
P.7.9. Not sufficient: Evidence that liberty was restricted by processes established by law.
P.8. Evidence that a victim chose to be detained because of security risks.
5.2. Continued confinement of one or more persons.
P.9. Evidence that the perpetrator failed to provide initial due process of law.
P.9.1. Evidence of a failure to provide a fair trial.
P.9.2. Evidence of a failure to follow procedures prescribed for legally-detained persons.
P.9.3. Evidence of a failure to inform victims of the reason for their detention.
P.9.4. Evidence of inconsistent search and interrogation techniques.
P.9.5. Evidence of interrogations under forced or coercive circumstances.
P.9.6. Evidence of a failure to inform victims of their procedural rights.
P.9.7. Evidence of a failure to inform victims of the possibilities for release.
P.9.8. Evidence of a failure to charge, try or convict victims of a crime.
P.10.1. Evidence that an initially-lawful detention at any point became unlawful.
P.10.3. Evidence that an administrative board investigating detention had ceased to function.
P.10.4. Evidence that an administrative board investigating detention had no actual power.
P.10.5. Evidence of a failure to reconsider detention twice per year.
P.10.6. Evidence of continued detention after establishing no reason for detention.
P.11. Evidence of confinement under inhumane conditions, rendering the confinement unlawful.
P.11.2. Evidence that victims were used as hostages.
P.11.3. Evidence that victims were used as human shields.
P.11.4. Evidence that victims were beaten, injured, or subjected to other acts of physical violence.
P.11.5. Evidence that victims were kept in poor conditions of space, nutrition, or hygiene.
Element:
5.1.Confinement of one or more persons; OR
A. General evidentiary comment:
The ICTY has held in several cases that the elements of the war crime of unlawful confinement are identical to the crime against humanity of imprisonment. The Kordic and Cerkez Trial Judgment, para. 301, was the first such holding:
"301. […] [T]he Trial Chamber concurs with the arguments of the Prosecution with regard to the identity of the elements of the crime of imprisonment and those of unlawful confinement."
Several ICTY judgments have upheld this view (see, e.g., Krnojelac Trial Judgment, para. 111; Simic Trial Judgment, para. 65). For this reason, many of the means of proof described below are identical to those for the crime against humanity of imprisonment or other severe deprivations of physical liberty (art. 7(1)(e). Means of proof which seemed to apply only to imprisonment and not to unlawful confinement (for example, proof of the severity of a deprivation of physical liberty) are absent from this document, but are available in the imprisonment document.
5.1.1.Evidence of confinement of one or more persons in an enclosed space.
P.1. Evidence of confinement in an enclosed space with prevention of movement to other spaces.
P.1.1. Evidence of victims being locked in cells.
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. 536:
"536. Prosecution witnesses testified that they were detained in cells,1108 and garages in the yard of the SUP,1109 where they were guarded.1110 Hasan Bicic testified that when he was detained at the SUP on 18 April 1992, the entrance to the building was surrounded by two lines of soldiers.1111"
"1108. Izet Izetbegovic, T. 2279; Sulejman Tihic, T.1410-11, T. 1414; Witness C, T. 7918-19; Witness Q, T. 11724-25; Osman Jasarevic, Rule 92bis Statement, para. 56.
1109. Esad Dagovic, T. 3994-96; Exhibit P14a (n. 56); Witness A, Rule 92bis Statement, para. 86.
1110. Detainees were guarded by persons with camouflage paint on their faces (Hasan Bicic, T. 2650). Sulejman Tihic stated that when he was arrested and taken to the SUP on 18 April 1992, he saw people in all kinds of uniforms including Grey Wolves, JNA, Serb Territorial Defence, Police, Red Berets and different camouflage uniforms (Sulejman Tihic, T. 1374, T. 1377).
1111. Hasan Bicic, T. 2644."
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 112:
"112. The Trial Chamber is of the view that any form of arbitrary physical deprivation of liberty of an individual may constitute imprisonment under Article 5(e) as long as the other requirements of the crime are fulfilled.338 In the instant case, it is alleged that the victims were deprived of their liberty by being locked in cells at the KP Dom for substantial periods of time.339"
"338. International instruments use various terms to refer to deprivation of liberty, including inter alia "arrest," "detention" and "imprisonment". The Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, as adopted by the General Assembly resolution 43/173 of 9 December 1988, defines these terms in its preamble while declaring that the principles enshrined shall apply "for the protection of all persons under any form of detention or imprisonment". The Working Group on Arbitrary Detention (1991) also points out that deprivation of liberty is referred to by different names, including, "apprehension, incarceration, prison, reclusion, custody and remand", United Nations High Commissioner for Human Rights, Fact Sheet No 26, Working Group on Arbitrary Detention, p 4. The Commission on Human Rights adopted in its resolution 1997/50 the definition "deprivation of liberty imposed arbitrarily", E/CN.4/RES/1997/50, 15 April 1997, par 15.
339. FWS-109 (T 2355); FWS-66 (T 1068); FWS-198 (T 957); FWS-139 (T 319); FWS-73 (T 3194); FWS-210 (T 4833); FWS-250 (T 5021)."
[B. Evidentiary comment:]
P.1.2. Evidence of victims being detained in guarded garages.
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. 536:
"536. Prosecution witnesses testified that they were detained in cells,1108 and garages in the yard of the SUP,1109 where they were guarded.1110 Hasan Bicic testified that when he was detained at the SUP on 18 April 1992, the entrance to the building was surrounded by two lines of soldiers.1111"
"1108. Izet Izetbegovic, T. 2279; Sulejman Tihic, T.1410-11, T. 1414; Witness C, T. 7918-19; Witness Q, T. 11724-25; Osman Jasarevic, Rule 92bis Statement, para. 56.
1109. Esad Dagovic, T. 3994-96; Exhibit P14a (n. 56); Witness A, Rule 92bis Statement, para. 86.
1110. Detainees were guarded by persons with camouflage paint on their faces (Hasan Bicic, T. 2650). Sulejman Tihic stated that when he was arrested and taken to the SUP on 18 April 1992, he saw people in all kinds of uniforms including Grey Wolves, JNA, Serb Territorial Defence, Police, Red Berets and different camouflage uniforms (Sulejman Tihic, T. 1374, T. 1377).
1111. Hasan Bicic, T. 2644."
[B. Evidentiary comment:]
P.1.3. Evidence of victims being detained in locked or guarded storage rooms.
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. 541:
"541. Detainees were held in several rooms at the TO, one large and one small, and were also held in a room referred to as a storage room, where they were guarded.1125 Dragan Lukac testified that two armed Serbian policemen from Bosanski Samac guarded the locked door to the storage room where people were detained.1126 […]"
"1125. Witness E, T. 7717; Dragan Lukac, T. 1735.
1126. Dragan Lukac, T. 1678."
B. Evidentiary comment:
Commentators have suggested that the juxtaposition of "imprisonment" and "other…deprivations of physical liberty" signals that the Rome Statute intends a narrow interpretation of the term "imprisonment" (see, e.g., O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court (1999), Art. 7, marginal no. 38). Thus, "[t]he term imprisonment includes cases in which a person is, literally, ‘imprisoned’ in an enclosed space and thus prevented from moving to another place" (Werle, G. "IV. Deportation or Forcible Transfer of Population" (2005), 243).
5.1.2.Evidence of confinement in other non-enclosed locations.
P.2. Evidence of confinement in established or makeshift camps or detention centres.
P.2.1. Evidence of confinement in a camp.
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. 666:
"666. The Trial Chamber finds that family members of some of the men detained in other facilities, including the SUP and TO in Bosanski Samac, or who had been exchanged, were detained in Zasavica.1521 In late June 1992, family members of men who escaped across the Sava River into Croatia, to avoid the mobilization call, were rounded up in military trucks and taken to Zasavica, and detained in camps there. Women, children and elderly were held there, including some men.1522 […] People did not go voluntarily to the camp in Zasavica, nor were they able to leave the village.1526 […]"
"1521. Esad Dagovic, T. 3985-86; Witness K, T. 4699, T. 4707.
1522. Jelena Kapetanovic, T. 8943-46; Nusret Hadzijusufovic, T. 6954-56, Safet Dagovic, T. 7234-35, Osman Jasarevic, Rule 92bis Statement, para. 127, Ediba Bobic, T. 11271-72.
1526. Nusret Hadzijusufovic, T. 6954-56."
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 116:
"116. The Trial Chamber is satisfied that, between 10 April 1992 and the beginning of June 1992, large-scale arrests of non-Serb civilian men, mostly of Muslim ethnicity, were carried out throughout Foca and its environs. Subsequent to their arrest, the men were transferred to the KP Dom."
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, paras. 299, 774:
"299. […] The International Law Commission further indicates that arbitrary imprisonment is contrary to Article 9 of the Universal Declaration of Human Rights and to Article 9 of the International Covenant on Civil and Political Rights ("ICCPR")418 and would cover the practice of concentration camps or detention camps or "other forms of long-term detention".419"
"418. Ibid. Article 9, para. 1, of the International Covenant on Civil and Political Rights, adopted by the United Nations General Assembly on 16 December 1996 ("ICCPR") provides that: "No one shall be deprived of his liberty except on such grounds and in accordance with such procedures as are established by law".
419. 1996 ILC Report, p. 101."
"774. The most substantial facility was at Kaonik camp, five kilometres north of Busovaca.1593 Muslim civilians and TO members were detained in the camp on two occasions: first, after the HVO attack on the municipality in January 1993 and, secondly, after the attacks in the Lasva Valley in April 1993. […]"
"1593. Aerial photo, Ex. Z1862.1. Witness J, T. 4536."
Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-T, Judgement (TC), 16 November 1998, para. 1130:
"1130. It is clear that a considerable number of prisoners were detained in the Celebici prison-camp between the period of April and December 1992. […]"
[B. Evidentiary comment:]
P.2.2. Evidence of confinement in a detention centre.
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. 534:
"534. Defence witnesses testified that in the initial days after war broke out in Bosanski Samac, people were detained in detention facilities within the Municipality of Bosanski Samac and in other areas that included the SUP, TO, primary and secondary schools, Zasavica, Crkvina, Brcko, and Bijeljina.1098 Some witnesses testified how hundreds of non-Serbs, including Muslim and Croat women and children, were held in detention centres,1099 and that some non-Serbs were detained in these facilities.1100 Miroslav Tadic testified that between 500 and 600 persons could have passed through the detention facilities. […]"
"1098. Svetozar Vasovic, T. 14964; Radovan Antic, T. 16843; Velimir Maslic, T. 14189, T. 14208-09; Miroslav Tadic, T. 15532-33. One witness, Branislav Marusic, testified that he had no knowledge that hundreds of non-Serb civilians including men, women, children, and elderly were isolated at facilities in Samac. He did not know about the situation in the prisons and detention facilities (T. 18956). The Trial Chamber notes that it will not take into consideration liability of the accused with respect to detainees held at Batkovic, on the basis that this detention centre is not covered within the scope of the Amended Indictment or the Prosecution Pre-trial Brief.
1099. Muharem Bicakcic, Deposition T. 98-99; ?eljko Volasevic, T. 16592-93, T. 17760-61; Teodor Tutnjevic, T. 17446-48; Stevan Arandjic, Deposition T. 179; Simo Zaric, T. 20073.
1100. Zeljko Volasevic, T. 17761; Naser Sejdic, T. 17556-57; Savo Djurdevic, T. 17638-39."
[B. Evidentiary comment:]
P.2.3. Evidence of confinement in an office building.
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. 781:
"781. A third Vitez detention centre was established in the SDK building, a block of offices in Vitez. […]"
Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, para. 680:
"680. The indictment alleges that from January 1993 to January 1994, Bosnian Muslims were detained by the HVO in […] the SDK offices in Vitez, Kiseljak barracks, Rotilj village and the houses of Gacice 1547 ."
"1547. Second amended indictment, para. 12."
[B. Evidentiary comment:]
P.2.4. Evidence of confinement in a school.
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. 534, 549, 654, 664, 668:
"534. Defence witnesses testified that in the initial days after war broke out in Bosanski Samac, people were detained in detention facilities within the Municipality of Bosanski Samac and in other areas that included the SUP, TO, primary and secondary schools, Zasavica, Crkvina, Brcko, and Bijeljina.1098 Some witnesses testified how hundreds of non-Serbs, including Muslim and Croat women and children, were held in detention centres,1099 and that some non-Serbs were detained in these facilities.1100 Miroslav Tadic testified that between 500 and 600 persons could have passed through the detention facilities. There were about 50 persons in the TO and primary school as well, and about 300 in the secondary school.1101"
"1098. Svetozar Vasovic, T. 14964; Radovan Antic, T. 16843; Velimir Maslic, T. 14189, T. 14208-09; Miroslav Tadic, T. 15532-33. One witness, Branislav Marusic, testified that he had no knowledge that hundreds of non-Serb civilians including men, women, children, and elderly were isolated at facilities in Samac. He did not know about the situation in the prisons and detention facilities (T. 18956). The Trial Chamber notes that it will not take into consideration liability of the accused with respect to detainees held at Batkovic, on the basis that this detention centre is not covered within the scope of the Amended Indictment or the Prosecution Pre-trial Brief.
1099. Muharem Bicakcic, Deposition T. 98-99; ?eljko Volasevic, T. 16592-93, T. 17760-61; Teodor Tutnjevic, T. 17446-48; Stevan Arandjic, Deposition T. 179; Simo Zaric, T. 20073.
1100. Zeljko Volasevic, T. 17761; Naser Sejdic, T. 17556-57; Savo Djurdevic, T. 17638-39.
1101. Miroslav Tadic, T. 15533-34."
"549. Prosecution witnesses testified how a group of detainees were transferred from Bijeljina to the primary and secondary school in Bosanski Samac on 13 May 1992.1148 During the spring and summer of 1992, detainees were placed in the primary1149 and secondary school gymnasiums in Bosanski Samac,1150 and guarded there.1151 The camp in the secondary school building was used to hold detainees until 30 January 1993 .1152 The gym was the only part of the secondary school left intact, as the school had burnt down.1153 The guards would rotate their duties from the secondary and elementary school to the TO and the SUP building.1154 Snjezana Delic stated that the secondary school, where there was a large number of Croats waiting to be exchanged, was referred to as an "isolation camp."1155"
"1148. Muhamed Bicic, T. 2977-78, T. 2981; Ibrahim Salkic, T. 3320, T. 3324, T. 3368; Dragan Delic, T. 6688-89, T. 6701; Hasan Subasic, T. 10957-58, T. 10960; Witness N, T. 6101-04; Hasan Bicic, T. 2710-11, T. 2715, T. 2719-21; Witness O, Rule 92bis Statement, paras 23, 35.
1149. Primary and elementary school are used interchangeably by some witnesses.
1150. Witness O, Rule 92bis Statement, para. 32; Nusret Hadzijusufovic, T. 6952-53.
1151. Ibrahim Salkic, T. 3361-62.
1152. Nusret Hadzijusufovic, T. 7077.
1153. Muhamed Bicic, T. 2980; Witness N, T. 6110.
1154. Hasan Subasic, T. 10965.
1155. Snjezana Delic, T. 6422; Osman Jasarevic, Rule 92bis Statement, paras 112-117."
"654. […] From May 1992 until the end of the year, numbers of those arrested and held at the SUP varied from 50 to 100 persons.1469 Around 200 arrested persons were detained at the TO during this period,1470 and between 300 and 500 arrested persons were brought to the secondary school in Bosanski Samac.1471 […]"
"1469. Dragan Lukac, T. 1742; Ibrahim Salkic, T. 3382.
1470. Witness E, T. 7717; Ibrahim Salkic, T. 3368; Witness L, T. 4343; Witness M, T. 5236.
1471. Hasan Subasic, T. 10960-61; Mladen Borbeli, T. 14724."
"664. The Trial Chamber finds that detainees were held at the primary and secondary school gymnasiums, several hundred metres away from the SUP and TO in Bosanski S amac. The numbers of detainees rose to 50 at the primary school, and between 300 and 500 in the secondary school.1510 The first group of detainees at the primary and secondary school were transferred there on 13 May 1992 from the JNA barracks in Bijeljina.1511 Throughout the spring and summer of 1992, people were brought to the primary and secondary schools and detained there, including men from the Kultur Dom in Crkvina and from Zasavica.1512 Detainees were held in the schools for months at a time.1513"
"1510. Hasan Subasic, T. 10960-61. Miroslav Tadic testified that 50 men were detained in the primary school and 300 at the secondary school (T. 15533).
1511. Detainees transferred to the primary and secondary schools from Bijeljina from 13 May 1992, and detained there included Muhamed Bicic, T. 2977-78, T. 2981; Ibrahim Salkic, T. 3320, T. 3324, T. 3368; Dragan Delic, T. 6688-89; Hasan Subasic, T. 10957-60, T. 10980; Witness N, T. 6098, T. 6101-04, T. 6110; Hasan Bicic, T. 2711, T. 2715, T. 2719-21.
1512. Witness O, Rule 92bis Statement, paras 32, 35; Nusret Hadzijusufovic, T. 6952-53.
1513. Ibrahim Salkic was held in the primary school from about 15-17 May 1992 until late September 1992 (T. 3328). Dragan Delic was held there from 13 May 1992 until 4 September 1992 (T. 6688-89)."
"668. […] After a group of detainees were transferred to Batajnica in Serbia, the rest remained in Bijeljina for approximately two weeks before being taken to facilities in Bosanski Samac that included the primary and secondary schools.1536 […]"
"1536. Osman Jasarevic, Rule 92bis Statement, para. 110; Hasan Bicic, T. 2701-03, T. 2705-06, T. 2711; Muhamed Bicic, T. 2977-79, T. 2981; Ibrahim Salkic, T. 3313-16, T. 3320-21; Dragan Delic, T. 6682, T. 6685, T. 6688-89; Witness N, T. 6092-96, T. 6098."
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 794:
"794. […] The men aged between 16 and 60 years were separated from the women and children1689 and taken to the elementary school. Conditions there were very bad: 105 men were kept in a cell measuring six metres by seven metres and received hardly any water .1690 […]"
"1689. Witness F, T. 3437-40.
1690. Witness AH, T. 14435-36; Witness AH, T. 14435."
Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, paras. 413, 680, 695:
"413. Some inhabitants were transferred to the school in Dubravica 845 . According to the Commission on Human Rights, "approximately 150 Muslims were rounded up and detained for sixteen days in the Braca Ribara school in Dubravica. […]"
"845. Witness G, PT pp. 3867-3868; Elvir Ahmic, PT p. 3264."
"680. The indictment alleges that from January 1993 to January 1994, Bosnian Muslims were detained by the HVO in […] Dubravica primary school […] 1547 ."
"1547. Second amended indictment, para. 12."
"695. Located in a municipal building near to Vitez railway station and just over two and a half kilometres from the Hotel Vitez 1587 , Dubravica primary school was the billet for the Vitezovi unit and the Ludwig Pavlovic Brigade 1588 . During the second half of April 1993, the school also served as an HVO detention centre. Two hundred Muslim men, women and children from the villages of Vitez municipality were detained there 1589 .[…]"
"1587. P32, witness Zeco, PT of 26 September 1997, pp. 2818-2819; witness Leach, PT of 27 June 1997, pp. 272-274.
1588. Witness Sefkija Djidic, PT of 29 July 1997, pp. 1226-1227; witness HH, PT p. 6836.
1589. Witness Zeco, PT of 26 September 1997, pp. 2819-2820; witness XX, PT p. 10466 and pp. 10468-10469."
Prosecutor v. Zoran Kupreškić et al., Case No. IT- 95-16-T, Judgement (TC), 14 January 2000, para. 280:
"280. Those persons who survived the attack on Ahmici were moved to a prison camp which had been set up in Dubravica school, where they were mistreated and used, inter alia, to dig trenches in contravention of the laws of war.313 […] According to Witness U, the HVO was in charge of Dubravica school. 150-200 men, women and children, all Bosnian Muslims, were detained in a hall there. They were not free to leave. Witness U stayed in Dubravica school for six days, before he was evacuated by UNHCR because of his wounds.317"
"314. T. 1401.
317. T. 3029-3031."
[B. Evidentiary comment:]
P.2.5. Evidence of confinement in a veterinary station.
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. 780:
"780. The prosecution case is that a detention centre was established in this station and was used for the first few days of the conflict in Vitez. Evidence was given by Fuad Zeco, Director of the Station, who was taken there by HVO soldiers on the morning of 16 April, having been arrested in his home.1623 He said that there were about 40 Muslims detained in the basement on his arrival and around 70 people were detained there at any one time: the guards did not provide the detainees with any food but the detainees’ families could bring food for them. He also said that detainees were taken to dig trenches at Kruscica and that two were killed.1624 After four days the detainees were taken to the Dubravica school. In the Veterinary Station the detainees could move around freely, make telephone calls and receive food from home .1625"
"1623. Ex. Z2765 is a photo of the veterinary station; Fuad Zeco, T. 6508-10.
1624. T. 6516; Ex. Z2210.4, .5 are the death certificates.
1625. Zdrako Zuljevic, T. 24393-94."
Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, paras. 680, 694:
"680. The indictment alleges that from January 1993 to January 1994, Bosnian Muslims were detained by the HVO in […] Vitez veterinary station, Dubravica primary school, the SDK offices in Vitez, Kiseljak barracks, Rotilj village and the houses of Gacice 1547 ."
"1547. Second amended indictment, para. 12."
"694. On 16 April 1993, HVO soldiers detained a large number of male Muslim civilians in Vitez veterinary station 1581 . The station was inside a municipal building located approximately 900 metres from the Hotel Vitez 1582 . […] The elderly were finally transferred to the veterinary station’s examination room 1584 .[…]"
"1581. Witness Zeco, PT of 26 September 1997, pp. 2808-2810; witness D, PT of 24 September 1997, pp. 2700-2701; witness Beso, PT of 26 August 1997, PT p. 2217, p. 2219.
1582. Witness Leach, PT of 27 June 1997, pp. 272-273.
1584. Witness D, PT of 24 September 1997, pp. 2700-2701."
[B. Evidentiary comment:]
P.2.6. Evidence of confinement in military barracks.
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. 629:
"629. Witness AN testified that on 12 June 1993 the village of Tulica was attacked, following which he and a number of others were put onto a truck and taken to the Kiseljak barracks, where he was put in a cell together with approximately thirty -five people.881 […]."
"881. T. 15 678-79."
Prosecutor v. Blagoje Simić et al., Case No. IT-95-17/1-T, Judgement (TC), 17 October 2003, paras. 667-668:
"667. […] Lt. Col. Stevan Nikolic then contacted Captain Petrovic, and they agreed to the transfer, where detainees were loaded onto trucks with the assistance of Makso S imeunovic, Savo Cancarevic and Mihajlo Topolovac, and taken to the JNA barracks in Brcko.1530 They were guarded at the barracks by JNA soldiers.1531 This group of detainees was held there until the conflict broke out in Brcko on 1 or 2 May 1992. […]"
"1530. Simo Zaric, T. 19335-39, T. 19391.
1531. Hasan Subasic, T. 10956-57."
"668. The Trial Chamber finds that detainees who were held in Brcko were transferred by military escort to the JNA barracks in Bijeljina on 1 or 2 May 1992, following the outbreak of war in Brcko.1533 […]The barracks in Bijeljina were guarded by Serb military men, including officers and reserves.1535 […]"
"1533. Dragan Lukac, T. 1707; Osman Jasarevic, Rule 92bis Statement, paras 97, 99. Detainees who were transferred from Brcko and detained in the JNA barracks in Bijeljina on 1 or 2 May 1992 included Sulejman Tihic (T. 1376, T. 1451); Dragan Lukac, T. 1706-13; Hasan Bicic, T. 2701-06, T. 2711; Muhamed Bicic, T. 2967, T. 2973, T. 2977; Ibrahim Salkic, T. 3313, T. 3316, T. 3320-21, T. 3394-95; Witness N, T. 6092-96; Dragan Delic, T. 6682, T. 6685, T. 6689.
1535. Sulejman Tihic, T. 1480.
"Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, para. 790:
"790. In April and June 1993 two facilities were used by the HVO for the purpose of detaining Muslims from the villages around Kiseljak town, namely the barracks and municipal buildings in the town. The prisoners were initially detained in the barracks where they were kept in overcrowded and unhygienic conditions, their valuables having been taken from them.1675 […]"
"1675. Witness Y, T. 11004-13; Witness AN, T. 15679-80; photo of barracks, Ex. Z1894.1."
Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, paras. 680, 690:
"680. The indictment alleges that from January 1993 to January 1994, Bosnian Muslims were detained by the HVO in […] Kiseljak barracks, Rotilj village and the houses of Gacice 1547 ."
"1547. Second amended indictment, para. 12."
"690. On 23 April 1992, the HVO took over a former JNA barracks in Kiseljak where Tihomir Blaskic set up one of his headquarters 1568 . As of April 1993 until approximately November 1993 1569 , the barracks were also used as a detention centre to hold many male Muslim civilians captured by the HVO in the villages of Kiseljak municipality 1570 . At one time, there were also women and children interned at the prison 1571 . […]"
"1568. Witness MM, PT p. 8229; witness Friis-Pedersen, PT pp. 5485-5486.
1569. Witness Friis-Pedersen, PT pp. 5485-5486.
1570. Witness AA, PT p. 6619, pp. 6652-6653; witness DD, PT pp. 7035-7038, pp. 7058-7059; witness JJ, PT pp. 7393-7394, pp. 7410-7411.
1571. Witness Lanthier, PT p. 8303."
[B. Evidentiary comment:]
P.2.7. Evidence of confinement in a stadium.
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. 665:
"665. The Trial Chamber finds that a group of Croat women and children were taken to Crkvina in mid-May 2003. They were detained in facilities in Crkvina, together with men and the elderly, in places that included the Youth Centre,1514 a warehouse,1515 the Omladinski Dom1516 and the Sport Stadium.1517 […] Women residents of Bosanski Samac were allowed to leave the Sport Stadium and return home, while others from the neighbouring villages were taken to Zasavica.1520"
"1514. Dragan Lukac, T. 1660.
1515. Witness P, T. 11566, T. 11588-93.
1516. Witness O, Rule 92bis Statement, paras 25, 33.
1517. Jelena Kapetanovic, T. 8943-46; Simo Zaric, T. 19449.
1520. Jelena Kapetanovic, T. 8970-80."
[B. Evidentiary comment:]
P.2.8. Evidence of confinement in a warehouse.
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. 665:
"665. The Trial Chamber finds that a group of Croat women and children were taken to Crkvina in mid-May 2003. They were detained in facilities in Crkvina, together with men and the elderly, in places that included the Youth Centre,1514 a warehouse,1515 the Omladinski Dom1516 and the Sport Stadium.1517 […]"
"1514. Dragan Lukac, T. 1660.
1515. Witness P, T. 11566, T. 11588-93.
1516. Witness O, Rule 92bis Statement, paras 25, 33.
1517. Jelena Kapetanovic, T. 8943-46; Simo Zaric, T. 19449."
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 794:
"794. […] According to Witness F, after the surrender the civilian Muslim population was ordered to gather and marched between HVO soldiers to four or five hangars or warehouses in the compound of the Nova Trgovina company where about 5,000 were detained. […] The women and children remained in the hangars, guarded by the HVO military police.1691"
"1691. Witness F, T. 3437-39."
Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, para. 688:
"688. During the first half of 1993, male Muslim civilians, particularly from Busovaca municipality 1554 , were imprisoned by the HVO at Kaonik prison 1555 , a former JNA warehouse a little over 10 kilometres from the Hotel Vitez 1556 . The prison was made up of approximately twenty rooms, about 9 square metres, transformed for the purpose into cells to hold Muslims 1557 . […]."
"1554. The prisoners in Kaonik did not originate solely from the Municipality of Busovaca. Witness Y, for example, was arrested in Vitez and detained at the cultural centre in the town. Then, along with 13 other detainees, he was transferred to Kaonik prison where he remained from 5 to 14 May 1993. PT pp. 6509-6511.
1555. Witness Nuhagic, PT pp. 5214-5215, pp. 5228-5229, pp. 5247-5248; witness T, PT pp. 5769-5770, pp. 5771-5805.
1556. Witness Leach, PT of 27 June 1997, PT p. 259; witness Nuhagic, PT pp. 5228-5229.
1557. Witness T, PT pp. 5771-5772; witness Nuhagic, PT pp. 5228-5229."
[B. Evidentiary comment:]
P.2.9. Evidence of confinement in a cinema.
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. 777:
"777. The Vitez Cinema is part of a complex variously called "the Cinema", "Cultural Centre" or "Workers’ University". During the war this complex housed the headquarters of the Viteska Brigade. Parts of it (first the basement, then the cinema hall) were also used after 16 April 1993, for the detention of some 200-300 Muslim men of all ages, who had been rounded up.1614 […]"
"1614. Witness AC, T. 12606. Witness AC, T. 12608-12. Kadir Didic was detained in the Cinema on 17 April 1993 and taken to the basement where he found his Muslim neighbours, men of between 17 and 65 years of age, in the boiler room. There was no space to lie down. Initially there was no food provided and the detainees were only able to go to the toilet in an adjacent corridor. After several days he was transferred to the cinema hall where conditions were slightly better: T. 4014-20. Ex. Z767; Ex. Z805; Ex. Z807 and Ex. Z807/1 are documents signed by Tihomir Blaskic regarding the treatment of detainees in Central Bosnia: T. 4019-22."
[B. Evidentiary comment:]
P.3. Evidence of confinement in homes or cities.
P.3.1. Evidence of house arrest.
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. 645:
"645. The BH Muslim civilian population of Sovici was taken by the HVO soldiers to a hamlet of houses that were not destroyed called the Junuzovici houses and were made to stay there.1601 […]"
"1601. Witness X, T 3327-3329."
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, para. 793:
"793. Muslims were still detained in Rotilj in September 1993. On 28 September a Canbat officer, Captain Liebert, visited Rotilj and found 600 people there who had been displaced from all over the municipality: they were living in about 20 houses and conditions were poor and over-crowded.1685 […] Witness Y and his family were detained in a small weekend house which contained five families. […]"
"1685. Witness TW20, Blaskic T. 8790-92"
Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, para. 697:
"697. The village of Gacice lies in the municipality of Vitez approximately two kilometres from the town of Vitez 1601 . After the attack on the village on 20 April 1993, a group of 180 women, children , elderly men and Muslim civilians were assembled in a few of the remaining houses 1602 under the control of the HVO soldiers 1603 . […]"
"1601. Witness Hrustic, PT p. 4791.
1602. Witness Hrustic, PT pp. 4815-4817.
1603. Witness Hrustic, PT pp. 4818-4819; witness ZZ, PT pp. 10845-10846."
[B. Evidentiary comment:]
P.3.2. Evidence of restriction to a closed village or city.
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. 640:
"640. The Appeals Chamber concludes that a reasonable trier of fact could have found that cordoning off Rotilj, preventing civilians from leaving the village, when the civilians were not detained in the village for their own safety, constitute imprisonment and unlawful confinement of civilians, Counts 21 and 22 (Kordic)."
Prosecutor v. Blagoje Simić et al., Case No. IT-95-17/1-T, Judgement (TC), 17 October 2003, para. 475:
"475. On 21 May 1992, the Crisis Staff issued a "Decision on a general ban on leaving the territory of the Serbian Municipality of Bosanski Samac". The Decision stated: "No individual is to leave the territory of the Serbian Municipality of Bosanski Samac without a special permit."966 […]"
"966. Exhibit P90, Decision on the General Ban on leaving the Territory of the Serbian Municipality of Bosanski Samac, 21 May 1992."
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, paras. 792 – 793:
"792. Rotilj, as has already been noted, is a village in the Kiseljak municipality , lying a few kilometres to the west of Kiseljak town itself. It is situated in a valley, a natural bowl or basin, in the hills, with one small road leading in and out.1682 According to the Prosecution , after the HVO took the village on 18-19 April 1993 (destroying Muslim houses and killing seven people)1683 they turned part of it into a detention camp for Muslims from the other villages in the municipality , together with the surviving Muslims from Rotilj itself. Once detained, the Muslims were surrounded and could not leave, being controlled by HVO soldiers and snipers stationed on the surrounding hillsides.1684"
"1682. Major Baggesen, T. 7548-51.
1683. As reported to the ECMM, Report, Ex. Z818.
1684. Major Baggesen, ibid.; Col. Morsink, T. 8035-38, giving evidence of their visit to the village on 27 April 1993. Their report is Ex. Z818."
"793. Muslims were still detained in Rotilj in September 1993. On 28 September a Canbat officer, Captain Liebert, visited Rotilj and found 600 people there who had been displaced from all over the municipality: they were living in about 20 houses and conditions were poor and over-crowded.1685 One witness who was in Rotilj from September 1993 to September 1994 said that the Muslims were not allowed out of the village and that there was no heating in it: the HVO took men out for trench-digging every day.1686 […] There was a barrier at the edge of the village but no fence: it was not necessary as the village was surrounded by hills controlled by the HVO and there was nowhere to go.1687 […]"
"1685. Witness TW20, Blaskic T. 8790-92.
1686. Witness TW25, Blaskic T. 6653-59.
1687. Witness Y, T. 11018-19."
Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, para. 691:
"691. In addition, from April 1993 until January 1994 1574, Muslims from Kiseljak municipality were held captive in the village of Rotilj . The Trial Chamber recalls that the detainees were prevented from leaving the village, especially because they were being watched by snipers positioned in the hills around the village. The Muslims were therefore kept in an HVO detention camp."
"1574. In fact, up until March, witness TT, PT pp. 9334-9335."
[B. Evidentiary comment:]
5.1.3.Evidence that confinement was unlawful.
A. Evidentiary comment:
The elements of the crime of unlawful confinement do not include a specific reference to establishing the unlawfulness of the confinement (unlike the elements of the crime against humanity of imprisonment, which explicitly require conduct of such a gravity as to violate the "fundamental rules of international law"). However, such a requirement is implied in the name of the crime.
One commentator has suggested that "[t]he illegal nature of confinement would therefore be very difficult to prove in view of the extended powers granted in this matter to States. Obviously internment for no particular reason, especially in occupied territory, could come within the definition of this breach" (William J. Fenrick, "(vii) Unlawful deportation, transfer or confinement," in O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court (1999), marginal no. 17). The means of proof below provide a broad picture of aspects of confinement that have been held to be illegal in ICTY and ICTR jurisprudence. As ICC jurisprudence develops, these means of proof may be narrowed.
P.4. Evidence of the conditions of victims’arrest.
P.4.1. Evidence of large-scale arrests or round-ups.
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. 562, 654:
"562. Witness M stated that the day after his escape, in late June 1992, military trucks took the families of all those who managed to escape to Zasavica. The truck went from house to house picking up women and children and elderly people of Bosnian Muslim and Bosnian Croat ethnicity, with only the clothes they had on.1194 […]"
"1194. Witness M, T. 5076-79, T. 5089; See also Nusret Hadzijusufovic, T. 6954-56; Safet Dagovic, T. 7234-35; Osman Jasarevic Rule 92bis Statement, para. 127-128; Ediba Bobic, T. 11272."
"654. The Trial Chamber is satisfied that following the takeover in Bosanski Samac Municipality on 17 April 1992, and continuing throughout 1992, large-scale arrests of Bosnian Muslims and Bosnian Croats were carried out in the Municipality. Within the first week of the conflict, up to 50 persons had been arrested and detained at the SUP.1468 From May 1992 until the end of the year, numbers of those arrested and held at the SUP varied from 50 to 100 persons.1469 Around 200 arrested persons were detained at the TO during this period,1470 and between 300 and 500 arrested persons were brought to the secondary school in Bosanski Samac.1471 Large groups of persons were arrested and taken to facilities in Zasavica and Crkvina.1472"
"1468. Ibrahim Salkic testified that on 18 April 1992 there were about 10 to 15 Muslim and Croat persons held at the SUP (T. 3243-4). Miroslav Tadic testified that in the first few days following the conflict, there were some 30 people arrested (T. 15664-65, T. 15744-45). Simo Zaric testified that a week after the takeover there were over 50 men in custody (T. 19396). Miroslav Tadic stated that after the period of 18 to 20 April 1992, the arrests were conducted on a more massive scale (T. 15745).
1469. Dragan Lukac, T. 1742; Ibrahim Salkic, T. 3382.
1470. Witness E, T. 7717; Ibrahim Salkic, T. 3368; Witness L, T. 4343; Witness M, T. 5236.
1471. Hasan Subasic, T. 10960-61; Mladen Borbeli, T. 14724.
1472. Snjezana Delic, T. 6419-23, T. 6429."
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 116:
"116. The Trial Chamber is satisfied that, between 10 April 1992 and the beginning of June 1992, large-scale arrests of non-Serb civilian men, mostly of Muslim ethnicity, were carried out throughout Foca and its environs. Subsequent to their arrest, the men were transferred to the KP Dom."
Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, para. 413:
"413. […] According to the Commission on Human Rights, "approximately 150 Muslims were rounded up and detained for sixteen days in the Braca Ribara school in Dubravica. […]"
[B. Evidentiary comment:]
P.4.2. Evidence of the lack of valid arrest warrants or failure to present valid arrest warrants.
A. Legal source/authority and evidence:
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 119:
"119. The Trial Chamber is satisfied that none of the non-Serb men was arrested on the basis of a valid arrest warrant. None of the detainees was shown an arrest warrant at the time of their initial detention or informed orally of the reason for their arrest.357 […]"
"357. Several detainees gave evidence that they had not been shown any arrest warrant before being taken away: FWS-139 (T 318); Dzevad S Lojo (T 2533). Zoran Vukovic told RJ that he was sorry to have to take him to the police station without a warrant: RJ (T 3842). Some witnesses managed, however, to cast a glance at "name lists" with which the arresting persons were equipped, and on which they could identify their own names: Safet Avdic (Ex P 123, T 676); Ahmet Hadzimusic (T 1936, 1939); FWS-139 (T 318-319)."
[B. Evidentiary comment:]
P.4.3. Evidence of a failure to inform victims of the reasons for arrest or detention.
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. 658:
"658. […] Those arrested were not told the reason for their arrest,1493 and many were beaten at the time of their arrests.1494 Some were told that they were wanted for questioning but were not advised of the reasons of their arrest at the time of arrest. It is clear that many civilian persons were arrested without legal basis.1495 These factors, considered together, render the arrests of non-Serb civilians in Bosanski Samac, including those who may have been in possession of unlawful weapons, as discussed in this paragraph, to be unlawful."
"1493. Snjezana Delic, T. 6397-98; Sulejman Tihic, T. 1456; Witness C, T. 7993-94; Ibrahim Salkic, T. 3246; Kemal Bobic, T. 11404; Kemal Mehinovic, T. 7406; Andrija Petric, T. 17607-09; Mustafa Omeranovic, T. 18129-30; Miroslav Tadic, T. 15315.
1494. Muhamed Bicic, T. 2932-33; Witness M, T. 5028-29; Kemal Mehinovic, T. 7406; Izet Izetbegovic, T. 2267, T. 2272-75; Hasan Bicic, T. 2639-43.
1495. In the report prepared by Simo Zaric, dated 1 December 1992, for the Command of the 2nd Posavina Infantry Brigade in Bosanski Samac Municipality, "On certain developments undermining morale among the soldiers and increasing the complexity of the security and political situation in the 2nd Posavina Infantry Brigade and Samac Municipality", he writes that "the massive arrests and isolation of Croats and Muslims followed, without any criteria" (Page 03013490) (Exhibit P127)."
Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-T, Judgement (TC), 31 March 2003, para. 650:
"650. The Chamber has already found, that BH Muslim civilians were transported to the Velez Stadium in Mostar and then taken to the Heliodrom.1614 The people who were arrested and detained were not given a reason for their detention."
"1614. See supra paras 44-45."
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 119:
"119. The Trial Chamber is satisfied that none of the non-Serb men was arrested on the basis of a valid arrest warrant. None of the detainees was shown an arrest warrant at the time of their initial detention or informed orally of the reason for their arrest.357 If they were told anything it was that they were required to accompany those carrying out the arrests for the purpose of giving a short statement and that, once that statement had been given, they would be free to go.358 […]."
"357. Several detainees gave evidence that they had not been shown any arrest warrant before being taken away: FWS-139 (T 318); Dzevad S Lojo (T 2533). Zoran Vukovic told RJ that he was sorry to have to take him to the police station without a warrant: RJ (T 3842). Some witnesses managed, however, to cast a glance at "name lists" with which the arresting persons were equipped, and on which they could identify their own names: Safet Avdic (Ex P 123, T 676); Ahmet Hadzimusic (T 1936, 1939); FWS-139 (T 318-319).
358. FWS-66 (T 1068); FWS-111 (T 1199); FWS-198 (T 943); FWS-215 (T 858-859); FWS-54 (T 731); FWS-86 (T 1454); FWS-142 (T 1819); FWS-138 (T 2043); Dzevad S. Lojo (T 2533); Ekrem Zekovic (T 3341); FWS-69 (T 4051); FWS-172 (T 4554); FWS-137 (T 4733)."
Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-T, Judgement (TC), 16 November 1998,paras. 1126, 1133:
"1126. […] The Prosecution further contends that the confinement of civilians in the Celebici prison-camp was unlawful on the basis that most of the detainees were never informed as to why they had been arrested, and that their confinement was never properly and regularly reviewed in accordance with the provisions of Geneva Convention IV.989"
"989. Prosecution Closing Brief, RP D2890."
"1133. […] Vaso Dordic testified that he had no weapon at the time of his arrest, was not a member of any party, did not in any way take part in the defence of his village, and was not told why he was arrested.1002 […]"
"1002. T. 4346."
[B. Evidentiary comment:]
P.4.4. Evidence of beatings at the time of arrest.
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. 658:
"658. […] Those arrested were not told the reason for their arrest,1493 and many were beaten at the time of their arrests.1494 Some were told that they were wanted for questioning but were not advised of the reasons of their arrest at the time of arrest. It is clear that many civilian persons were arrested without legal basis.1495 These factors, considered together, render the arrests of non-Serb civilians in Bosanski Samac, including those who may have been in possession of unlawful weapons, as discussed in this paragraph, to be unlawful."
"1493. Snjezana Delic, T. 6397-98; Sulejman Tihic, T. 1456; Witness C, T. 7993-94; Ibrahim Salkic, T. 3246; Kemal Bobic, T. 11404; Kemal Mehinovic, T. 7406; Andrija Petric, T. 17607-09; Mustafa Omeranovic, T. 18129-30; Miroslav Tadic, T. 15315.
1494. Muhamed Bicic, T. 2932-33; Witness M, T. 5028-29; Kemal Mehinovic, T. 7406; Izet Izetbegovic, T. 2267, T. 2272-75; Hasan Bicic, T. 2639-43.
1495. In the report prepared by Simo Zaric, dated 1 December 1992, for the Command of the 2nd Posavina Infantry Brigade in Bosanski Samac Municipality, "On certain developments undermining morale among the soldiers and increasing the complexity of the security and political situation in the 2nd Posavina Infantry Brigade and Samac Municipality", he writes that "the massive arrests and isolation of Croats and Muslims followed, without any criteria" (Page 03013490) (Exhibit P127)."
[B. Evidentiary comment:]
P.5. Evidence that detention resulted from the exercise of fundamental rights and freedoms.
A. Legal source/authority and evidence:
U.N. Working Group on Arbitrary Detention, "Individual Complaints, Urgent Appeals, Deliberations,"(online: http://www2.ohchr.org/english/issues/detention/complaints.htm), para. I:
"According to the methods of work of the Group, deprivation of liberty is arbitrary if a case falls into one of the following three categories:
[…]
B) When the deprivation of liberty results from the exercise of the rights or freedoms guaranteed by articles 7, 13, 14, 18, 19, 10 and 21 of the Universal Declaration of Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22, 25, 26 and 27 of the International Covenant on Civil and Political Rights (Category II); […]"
P.6. Evidence that detention was arbitrary.
P.6.1. Evidence that detention was arbitrary because of a lack of legal basis.
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. 64, 684:
"64. The Trial Chamber in Kordic concluded that imprisonment in Article 5 (e) of the Statute should be understood as arbitrary imprisonment, defined as "deprivation of liberty of the individual without due process of law, as part of a widespread or systematic attack directed against the civilian population".116 The Trial Chamber in Krnojelac held that "any form of arbitrary physical deprivation of liberty of an individual may constitute imprisonment under Article 5 (e) as long as the other requirements of the crime are fulfilled".117 The Trial Chamber considered that deprivation of an individual’s liberty is arbitrary if imposed without due process of law.118 The Trial Chamber outlined the following elements to establish a crime of imprisonment (or unlawful confinement) as a crime against humanity under Article 5 (e) of the Statute:
1. An individual is deprived of his or her liberty.
2. The deprivation of liberty is imposed arbitrarily, that is, no legal basis can be invoked to justify the deprivation of liberty. […]119"
"116. Kordic Trial Judgement, para. 302.
117. Krnojelac Trial Judgement, para. 112.
118. Krnojelac Trial Judgement, para. 113.
119. Krnojelac Trial Judgement, para. 115."
"684. The Trial Chamber finds that the Bosnian Croat, Bosnian Muslims and other non -Serbs detained in the detention facilities above, namely at the SUP, TO, primary and secondary schools, Brcko, and Bijeljina, were deprived of their liberty arbitrarily. The evidence has clearly established that there was no legal basis which could be relied upon to justify their deprivation of liberty under national or international law. […]"
Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-T, Judgement (TC), 31 March 2003, paras. 646, 651:
"646. The Chamber has already found there was a widespread or systematic attack against civilians in Sovici.1606 The Chamber is further satisfied that civilians from Sovici were detained collectively. […] There is no indication that it was absolutely necessary for the security of the Detaining Power or that it was justified on any other legal basis."
"1606. See supra para 238."
"651. The Chamber finds that the arrest and detention of the civilian population in Mostar was carried out on a discriminatory basis, as the BH Muslim population was targeted specifically while their Croat neighbours were left unharmed. It was unlawful since there was no legal basis for this measure."
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, paras. 114-115, 122, 438:
"114. Having considered these instruments, the Trial Chamber is of the view that, under Article 5(e) of the Tribunal’s Statute, a deprivation of an individual’s liberty will be arbitrary and, therefore, unlawful if no legal basis can be called upon to justify the initial deprivation of liberty."
"115. To establish the crime of imprisonment as a crime against humanity under Article 5(e) of the Tribunal’s Statute, the Trial Chamber accordingly finds that the following elements must be established in the circumstances of the present case:
1. An individual is deprived of his or her liberty.
2. The deprivation of liberty is imposed arbitrarily, that is, no legal basis can be invoked to justify the deprivation of liberty.347"
"347. The Trial Chamber notes that arbitrariness of imprisonment pursuant to Article 5(e) may further result from an otherwise justified deprivation of physical liberty if the deprivation is being administered under serious disregard of fundamental procedural rights of the person deprived of his or her liberty as provided for under international law. Basic procedural guarantees are, for instance, provided for in Article 9 and 14 of the ICCPR. In addition, Article 43 of Geneva Convention IV, enshrines basic procedural rights of civilians who are detained on the legal basis of Article 42 of the same Convention. Article 43 entitles interned protected persons to have, inter alia, the internment reconsidered as soon as possible by an appropriate court or administrative board, and, in case that the internment is maintained, to have it periodically, considered. With regard to the case before it, however, the Trial Chamber sees no need to elaborate on this aspect, since the Prosecution and the Defence case focused on the allegation of the initial unlawfulness of the imprisonment of the non-Serbs."
"122.The Trial Chamber finds that the Muslims and other non-Serbs detained at the KP Dom were deprived of their liberty arbitrarily. The evidence has clearly established that there was no legal basis which could be relied upon to justify their deprivation of liberty under national or international law. […]"
"438. The Prosecution charges "the prolonged and routine imprisonment and confinement within the KP Dom facility of Muslim and other non-Serb male civilian inhabitants of Foca municipality and its environs" as persecution.1315 This act is separately charged as imprisonment, a crime against humanity pursuant to Article 5(e) of the Statute,1316 and as such is of sufficient gravity to constitute persecution. […] While some Serbs were also held in the KP Dom, they were held legally, having been convicted by courts of law prior to the outbreak of the conflict or having been detained for military offences during the conflict. By contrast, the non-Serbs were not detained on any legal ground, nor was their continued confinement subject to review."
"1315. Par 5.2(a) of the Indictment.
1316. Count 11."
[B. Evidentiary comment:]
P.6.2. Evidence that detention was arbitrary because of a lack of due process.
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. 116:
"116. The Appeals Chamber agrees with the Trial Chamber’s finding "that the term imprisonment in Article 5(e) of the Statute should be understood as arbitrary imprisonment, that is to say, the deprivation of liberty of the individual139 without due process of law, as part of a widespread or systematic attack directed against a civilian population".140"
"140. Trial Judgement, para. 302."
Prosecutor v. Blagoje Simić et al., Case No. IT-95-17/1-T, Judgement (TC), 17 October 2003, para. 64:
"64. The Trial Chamber in Kordic concluded that imprisonment in Article 5 (e) of the Statute should be understood as arbitrary imprisonment, defined as "deprivation of liberty of the individual without due process of law, as part of a widespread or systematic attack directed against the civilian population".116 The Trial Chamber in Krnojelac held that "any form of arbitrary physical deprivation of liberty of an individual may constitute imprisonment under Article 5 (e) as long as the other requirements of the crime are fulfilled".117 The Trial Chamber considered that deprivation of an individual’s liberty is arbitrary if imposed without due process of law.118 […]"
"116. Kordic Trial Judgement, para. 302.
117. Krnojelac Trial Judgement, para. 112.
118. Krnojelac Trial Judgement, para. 113."
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, paras. 110, 113:
"110. In the jurisprudence of the Tribunal, imprisonment as a crime against humanity has been considered on one occasion only.334 The Trial Chamber in the Kordic and Cerkez Judgment […] concluded that imprisonment should be understood as arbitrary imprisonment and defined this as "deprivation of liberty of the individual without due process of law".336 Consequently, the Trial Chamber held that the imprisonment of civilians is unlawful where (1) civilians have been detained in contravention of Article 42 of Geneva Convention IV, that is, they are detained in the absence of reasonable grounds that the security of the detaining power makes it absolutely necessary; (2) the procedural safeguards required by Article 43 of the Geneva Convention IV are not complied with in respect of detained civilians, even where the initial detention may have been justified; […]337"
"334. Kordic and Cerkez Trial Judgment, pars 292-303.
336. Kordic and Cerkez Trial Judgment, par 302. Unlike the instant case, imprisonment under Article 5 was charged in connection with unlawful confinement under Article 2, both charges referring to the same act, the alleged illegal detention of Bosnian Muslims, par 273.
337. Kordic and Cerkez Trial Judgment, par 303."
"113. For the purpose of Article 5(e), the deprivation of an individual’s liberty is arbitrary if it is imposed without due process of law. Relevant international instruments do not adopt a common approach to the issue of when a deprivation of liberty is or becomes arbitrary.340 The Universal Declaration of Human Rights states that "no one shall be subjected to arbitrary arrest, detention or exile". There are no exceptions to this prohibition, although by definition any deprivation which is not arbitrary would be permissible.341 The ICCPR allows a deprivation of one’s liberty only "on such grounds and in accordance with such procedure as are established by law".342 The Convention on the Rights of the Child provides that the arrest, detention or imprisonment of a child shall be "in conformity with the law".343 The American Convention on Human Rights provides that a person shall only be deprived of his or her physical liberty "for the reasons and under conditions established beforehand by the constitution of the State Party concerned or by a law established pursuant thereto".344 The European Convention on Human Rights identifies an exhaustive list of cases in which the deprivation of liberty "in accordance with a procedure prescribed by law" does not constitute a violation of the Convention.345"
"340. The United Nations High Commissioner for Human Rights’ Working Group on Arbitrary Detention arrived at the same conclusion by stating that the question of when detention is or becomes arbitrary is not definitely answered by the international instruments, Fact Sheet No. 26, p 4.
341. Article 9.
342. Article 9 (1).
343. Article 37 (b).
344. Article 7 (2).
345. Article 5(1) (a)-(f). Report of the Preparatory Commission for the International Criminal Court, Addendum, Finalised draft text of the Elements of Crimes, PCNICC/2000/INF/3/Ad.2, p 11. It must be noted, however, that the Statute of the International Criminal Court ("ICC Statute" or "Rome Statute") has not entered into force, nor have the Draft Elements of Crime been formally adopted. The UN Working Group on Arbitrary Detention, in contrast, identifies three categories under which a deprivation of liberty will be regarded as being imposed arbitrarily. According to the Working Group’s report, the deprivation of liberty is arbitrary when (a) it is clearly impossible to invoke any legal basis justifying the deprivation of liberty (category I), when (b) the deprivation of liberty results from the exercise of the rights or freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of Human Rights and, insofar as State parties are concerned, by articles 12, 18, 19, 21, 22, 25, 26 and 27 of the ICCPR (category II), when (c) the total or partial non-observance of the international norms relating to the right to a fair trial, established in the Universal Declaration of Human Rights and in the relevant international instruments accepted by the States concerned, is of such gravity as to give the deprivation of liberty an arbitrary character (category III); Commission on Human Rights, Question of the Human rights of all persons subjected to any form of detention or imprisonment, Report of the Working Group on Arbitrary Detention, E/CN.4/1998/44, 19 December 1997, Annex I, par 8. The Draft Elements of Crimes for the ICC Statute define imprisonment as constituting a crime against humanity where the conduct of the principal offender carrying out the imprisonment "was in violation of fundamental rules of international law"."
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, para. 302:
"302. The Trial Chamber concludes that the term imprisonment in Article 5(e) of the Statute should be understood as arbitrary imprisonment, that is to say, the deprivation of liberty of the individual without due process of law, as part of a widespread or systematic attack directed against a civilian population."
[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. 657, 685:
"657. The Trial Chamber concludes that the arrests of groups of women, children and elderly, who were subsequently detained in Zasavica and Crkvina were arbitrary, with no lawful basis. They were arrested because they were non-Serbs, not because there was a reasonable suspicion that they had committed any offences, or for reasons of their safety."
"685. The Trial Chamber is satisfied that non-Serb persons were arrested and detained because of their non-Serb ethnicity and political affiliations. The overwhelming majority of those detained were Bosnian Croats and Bosnian Muslims civilians. The Trial Chamber finds that the arrest and detention of the non-Serb civilian population in Bosanski Samac was carried out on a discriminatory basis, as the Bosnian Muslim and Bosnian Croat population was targeted specifically, while their Serb neighbours were on the whole left unharmed. In addition, members of the SDA and HDZ, Bosnian Muslim and Croat political parties were arrested and detained, while again, members of the Serb parties were not."
Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-T, Judgement (TC), 31 March 2003, paras. 646, 657:
"646. The Chamber has already found there was a widespread or systematic attack against civilians in Sovici.1606 The Chamber is further satisfied that civilians from Sovici were detained collectively. The measure was directed only towards civilians of Muslim ethnicity. The confinement lasted a considerable amount of time. There is no indication that it was absolutely necessary for the security of the Detaining Power or that it was justified on any other legal basis."
"1606. See supra para 238."
"657. The Chamber is satisfied that detention of BH Muslim civilians at Ljubuski was unlawful and grounded on a discriminatory basis. The confinement of prominent members of the BH Muslim community was conducted systematically, undermining the vitality and the possibility of physical and moral resistance of that part of the population. It only concerned the BH Muslim part of the population."
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, paras. 41, 118, 438:
"41. The illegal arrest and imprisonment of non-Serb civilian males was carried out on a massive scale and in a systematic way. Hundreds of Muslim men, as well as a few other non-Serb civilians, were detained at the KP Dom without being charged with any crime.141 At all times from the end of the fighting until the end of 1994, up to several hundred Muslim civilian men were thus arbitrarily interned at the KP Dom.142 […]"
"141. See pars 116-124, infra.
142. At its peak in the summer of 1992, there were about 500-600 detainees at the KP Dom. The number decreased from the autumn of 1992 until 1993 when about 200-300 detainees remained. Around October 1994, the last detainees, by then numbering less than 100, were released. See, eg, FWS-66 (T 1078); FWS-111 (T 1218); FWS-162 (T 1313); FWS-139 (T 329-330); FWS-54 (T 743); FWS-85 (T 583-584); FWS-65 (T 548); FWS-86 (T 1531-1532); FWS-138 (T 2035, 2038); FWS-104 (T 2205): FWS-03 (T 2273); FWS-71 (T 2893); FWS-113 (T 2560); Ekrem Zekovic (T 3682); RJ (T 3898); FWS-69 (T 4163-4164); FWS-33 (T 508); Safet Avdic (Ex P 123, pp 686-687); Muhamed Lisica (T 4850-4851). See also par 35, supra."
"118. The Trial Chamber is satisfied that non-Serb males from Foca and its environs were imprisoned indiscriminately. The only personal characteristic which featured in the decision to detain these men was their non-Serb ethnicity,353 the overwhelming majority of those detained being Muslim.354 The evidence establishes that no consideration was given to age, state of health or civilian status. The detainees ranged in age from 15 years to almost 80 years.355 There were many elderly persons among the detained, and there was a substantial group of ill, wounded, physically handicapped and mentally disturbed persons among the detained men.356"
"353. See par 438, infra. One witness described the systematic and collective nature of the detention of the Muslim male population in his own words by testifying that "everybody was brought there, even if all they had with Islam was their name." This was well borne out by the evidence.
354. There were only a handful of Croats, Albanians and Roma: Safet Avdic (T 681); FWS-66 (T 1076); FWS-111 (T 1217-1218); FWS-139 (T 327-329); FWS-198 (T 952); FWS-182 (T 1594); Rasim Taranin (T 3015, 3018); FWS-08 (T 1763, 1768); FWS-71 (T 2792); FWS-138 (T 2050); FWS-104 (T 2193); Dzevad S. Lojo (T 2537, 2539); Dr Amir Berberkic (T 3735); Muhamed Lisica (4851).
355. The uncle of the son-in-law of FWS-75 was 75 years old (T 731). Regarding the age range of detainees, see: FWS-66 (T 1076); FWS-111 (T 1218); FWS-139 (T 437); FWS-182 (T 1593); Dzevad S Lojo (T 2537); FWS-49, who was already 72 years old in 1992, was kept in a room where "everyone was old, worn out and weak" (T 4692). A little girl, about seven years old was in the room where FWS-182 was kept (T 1595).
356. FWS-111 (T 1218); FWS-139 (T 329); Dzevad Lojo (T 581); FWS-69 suffered from angina pectoris (T 4062). FWS-182, who himself was suffering from an ulcer on the duodendum and who was depending on a certain diet, saw persons with tuberculosis, asthma and heart problems (T 1595). Two men suffered from tuberculosis. A man called Glusac: FWS-109 (T 2366) and a man called Hamdzija Mandzo: FWS-71 (2797). There were a lot of sick people in room 16. FWS-182 had problems with his stomach. FWS-172 and FWS-104 were quite sick persons, Muradif Konjo had high blood pressure and Abid Sahovic had liver bleeding problems: Dr Amir Berberkic (T 3736). Ramiz Dzamo was brought in from the hospital with serious facial injuries which prevented him from eating: Dr Amir Berberkic (T 3737). Two old men of at least 75 years, Ejub Durmisevic and Adil, were brought to the isolation cell occupied by Ramiz Dzamo. Ejub’s ear was severely cut: FWS-159 (T 2470). An old blind man and another man who had been released from the military as a disabled person shared a cell with FWS-49 (T 4692). Ahmet Hadzimusic was a disabled person who had to use crutches ever since he contracted polio in 1947 and never underwent compulsory military training (T 1928). In Room 16 there was a man with a serious heart condition, Hasan Hadzimuratovic, who was 80 years old, and there were also some young men who had bullet wounds and wounds from an accident and who had been brought in from the hospital: Dzevad Lojo (T 2549, 2539). A mental patient injured himself severely twice: Dzevad Lojo (T 1218-1219). A mental patient named Mujo Murguz was very tense and aggressive, and another person had psychological problems which caused him to eat a cake of soap: FWS-71 (T 2794)."
"438. […] The Trial Chamber is satisfied that the imprisonment and confinement of non-Serbs at the KP Dom was carried out with the intent to discriminate on religious or political grounds. The Trial Chamber has already found that, during the time period relevant to this Indictment, non-Serbs were illegally imprisoned at the KP Dom and that this imprisonment was effected primarily or solely with the intent to discriminate against them because of their religious or political affiliations.1317 The discriminatory nature of the imprisonment itself is clear from the evidence given.1318 While some Serbs were also held in the KP Dom, they were held legally, having been convicted by courts of law prior to the outbreak of the conflict or having been detained for military offences during the conflict. By contrast, the non-Serbs were not detained on any legal ground, nor was their continued confinement subject to review."
"1317. See pars 118-124, supra.
1318. FWS-250 (T 5022); FWS-33 (Ex P 106, p 483); Safet Avdic (Ex P 123, pp 680-681); FWS-249 (Ex P 161, p 2111); FWS-104 (T 2193, 2200); FWS-73 (T 3206-3207)."
Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-T, Judgement (TC), 16 November 1998, paras. 583, 1126, 1133 – 1134:
"583. For the reasons set out above, it is the opinion of this Trial Chamber that the confinement of civilians during armed conflict may be permissible in limited cases, but has in any event to be in compliance with the provisions of articles 42 and 43 of Geneva Convention IV. The security of the State concerned might require the internment of civilians and, furthermore, the decision of whether a civilian constitutes a threat to the security of the State is largely left to its discretion. However, it must be borne in mind that the measure of internment for reasons of security is an exceptional one and can never be taken on a collective basis. […]"
"1126. The Prosecution contends that the confinement of numerous civilians in the Celebici prison-camp was unlawful under international humanitarian law. According to the Prosecution, the population of detainees in the Celebici prison-camp was not limited to individuals who had been armed or participated in military activities. It thus submits that many of those detained could not reasonably have been suspected of participating in any activities that could have justified their confinement under the provisions of Geneva Convention IV. The Prosecution accordingly contends that the confinement of civilians in the Celebici prison-camp was a collective measure aimed at a specific group of persons, based only on their ethnic background, and not a legitimate security measure. […]989"
"989. Prosecution Closing Brief, RP D2890."
"1133. […] Various other witnesses who had been detained in the prison-camp testified that they had not participated in any military activity, and posed no genuine threat to the forces that occupied the area. Thus Branko Gotovac denied that he had ever been politically active in his life, and said that the only reason he ever heard for his detention in the prison-camp was that he was a Serb.998"
"998. T. 980, T. 1009."
"1134. […] The Trial Chamber does not deem it necessary to decide whether all of the persons detained in the Celebici prison-camp were to be considered as "peaceful" civilians, not constituting any threat to the security of the detaining forces. However, the Trial Chamber is convinced that a significant number of civilians were detained in the Celebici prison-camp although there existed no serious and legitimate reason to conclude that they seriously prejudiced the security of the detaining power. To the contrary, it appears that the confinement of civilians in the Celebici prison-camp was a collective measure aimed at a specific group of persons, based mainly on their ethnic background, and not a legitimate security measure. As stated above, the mere fact that a person is a national of, or aligned with, an enemy party cannot be considered as threatening the security of the opposing party where he is living, and is not, therefore, a valid reason for interning him."
[B. Evidentiary comment:]
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. 657:
"657. The Chamber is satisfied that detention of BH Muslim civilians at Ljubuski was unlawful and grounded on a discriminatory basis. The confinement of prominent members of the BH Muslim community was conducted systematically, undermining the vitality and the possibility of physical and moral resistance of that part of the population. It only concerned the BH Muslim part of the population."
[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. 118:
"118. The evidence establishes that no consideration was given to age, state of health or civilian status. The detainees ranged in age from 15 years to almost 80 years. There were many elderly persons among the detained, and there was a substantial group of ill, wounded, physically handicapped and mentally disturbed persons among the detained men."
[B. Evidentiary comment:]
P.7. Evidence that detention was not absolutely necessary.
P.7.1. Evidence that victims did not pose a security threat to the detaining forces.
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. 69 – 70, 72 – 73, 114:
"69. As the Appeals Chamber noted in Celebici, the offence of unlawful confinement of a civilian, a grave breach of the Geneva Conventions which is recognised under Article 2(g) of the Statute, is not further defined in the Statute, but clear guidance can be found in the provisions of Geneva Convention IV.74 The confinement of civilians during armed conflict may be permissible in limited cases, but will be unlawful if the detaining party does not comply with the provisions of Article 42 of Geneva Convention IV, which states:
The internment or placing in assigned residence of protected persons may be ordered only if the security of the Detaining Power makes it absolutely necessary. […]"
"74. Celebici Appeal Judgement, para. 320."
"70. Thus, the involuntary confinement of a civilian where the security of the Detaining Power does not make this absolutely necessary will be unlawful.75 […]"
"75. Celebici Appeal Judgement, para. 320."
"72. This provision reinforces the principle behind Article 42 of Geneva Convention IV, that restrictions on the rights of civilian protected persons, such as deprivation of their liberty by confinement, are permissible only where there are reasonable grounds to believe that the security of the State is at risk.78"
"73. Thus the detention or confinement of civilians will be unlawful in the following two circumstances:
(i) when a civilian or civilians have been detained in contravention of Article 42 of Geneva Convention IV, i.e., they are detained without reasonable grounds to believe that the security of the Detaining Power makes it absolutely necessary ; and […]"
"114. The Appeals Chamber notes the finding of the Trial Chamber that imprisonment of civilians is unlawful where
- civilians have been detained in contravention of Article 42 of Geneva Convention IV, i.e. that they are detained without reasonable grounds to believe that the security of the Detaining Power makes it absolutely necessary; […]"
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, para. 303:
"303. Based on the aforementioned definition, the imprisonment of civilians will be unlawful where:
- civilians have been detained in contravention of Article 42 of Geneva Convention IV, i.e., they are detained without reasonable grounds to believe that the security of the Detaining Power makes it absolutely necessary; […]"
Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-A, Judgement (AC), 20 February 2001, para. 322, 330:
"322. The Appeals Chamber agrees with the Trial Chamber that the exceptional measure of confinement of a civilian will be lawful only in the conditions prescribed by Article 42 [of Geneva Convention IV], and where the provisions of Article 43 are complied with.505 Thus the detention or confinement of civilians will be unlawful in the following two circumstances:
(i) when a civilian or civilians have been detained in contravention of Article 42 of Geneva Convention IV, ie they are detained without reasonable grounds to believe that the security of the Detaining Power makes it absolutely necessary ; […]"
"505. This does not preclude the existence of other circumstances which may render confinement of a civilian unlawful, but that question does not now arise for determination by the Appeals Chamber."
"330. […] As observed in the ICRC Commentary, the measure of confinement of civilians is an "exceptionally severe" measure, and it is for that reason that the threshold for its imposition is high – it must, on the express terms of Article 42, be "absolutely necessary".526 It was open to the Trial Chamber to accept the evidence of a number of witnesses that they had not borne arms, nor been active in political or any other activity which would give rise to a legitimate concern that they posed a security risk. […]"
"526. ICRC Commentary (GCIV) p 261: "the Convention describes internment and placing in assigned residence as exceptionally severe measures which may be applied only if they are absolutely necessary for the security of the State."
Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-T, Judgement (TC), 16 November 1998, paras. 571 – 572, 575, 1132 – 1134:
"571. Although the fundamental human rights of the persons concerned are not, generally speaking, in any danger as a result of some of the administrative measures which might be taken in relation to them, this is not necessarily so in the case of assigned residence or internment. The experience of the Second World War has shown in tragic fashion that under such conditions there is a particularly great danger of offences against the human person. Furthermore, all too often in situations of armed conflict, the mere fact of being an enemy subject has been regarded as a justification for internment. For these reasons, the relevant norms of international humanitarian law have been developed such that only absolute necessity, based on the requirements of State security, can justify recourse to these measures, and only then if security cannot be safeguarded by other, less severe means.586"
"586. Commentary, p. 258."
"572. The drafters of the Fourth Geneva Convention, conscious of these dangers, only permitted internment and assigned residence as a last resort, and makes them subject to strict rules (articles 41 to 43 and article 78)."
"575. Article 42 of Geneva Convention IV provides as follows:
The internment or placing in assigned residence of protected persons may be ordered only if the security of the Detaining Power makes it absolutely necessary. […]"
"1132. However, it is clear that the confinement of a number of the civilians detained in the Celebici prison-camp cannot be justified by any means. While it must be recognised that a detaining power is given a large degree of discretion to determine the behaviour which it deems detrimental to its security, it is clear to the Trial Chamber that several of the civilians detained in the Celebici prison-camp cannot reasonably have been considered to pose any sufficiently serious danger to the detaining forces as to warrant their detention."
"1133. This applies to, for example, Ms. Grozdana Cecez, a 42 year old mother of two children, who testified that she was neither armed nor a member of any armed group at the time of the military operation against her village.996 She testified that she was informed that she was detained in the Celebici prison-camp until her husband was found, that is, she was detained as a kind of a hostage997. Various other witnesses who had been detained in the prison-camp testified that they had not participated in any military activity, and posed no genuine threat to the forces that occupied the area. Thus Branko Gotovac denied that he had ever been politically active in his life, and said that the only reason he ever heard for his detention in the prison-camp was that he was a Serb.998 Witness P denied that he was involved in the defence of his village or that he had any weapon.999 Nedeljko Draganic testified that he took no part in the defence of his town and that he was not armed.1000 Dragan Kuljanin said that he had no weapon when his village was attacked, and that neither he nor any of the other members of the group he was with at the time of his arrest had a weapon.1001 Vaso Dordic testified that he had no weapon at the time of his arrest, was not a member of any party, did not in any way take part in the defence of his village, and was not told why he was arrested.1002 Similarly, Petko Grubac denied that he was involved in the defence of his village or that he had any weapon, and stated further that he did not know how to use any armaments.1003"
"996. T. 481-T. 482.
997. T. 532-T. 533.
998. T. 980, T. 1009.
999. T. 4482-T. 4483.
1000. T. 1600-T. 1602.
1001. T. 2421-T. 2422.
1002. T. 4346.
1003. T. 5951."
"1134. The Trial Chamber is of the opinion that there is no reason to question the testimonies of these witnesses. In light of this evidence, the Trial Chamber cannot accept the Defence’s contention that all persons detained in the Celebici prison-camp were members of an armed rebellion against the Bosnian authorities. […] [T]he Trial Chamber is convinced that a significant number of civilians were detained in the Celebici prison-camp although there existed no serious and legitimate reason to conclude that they seriously prejudiced the security of the detaining power. To the contrary, it appears that the confinement of civilians in the Celebici prison-camp was a collective measure aimed at a specific group of persons, based mainly on their ethnic background, and not a legitimate security measure. As stated above, the mere fact that a person is a national of, or aligned with, an enemy party cannot be considered as threatening the security of the opposing party where he is living, and is not, therefore, a valid reason for interning him."
[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. 284:
"284. […]If internment is permitted only in cases of absolute necessity, it is, to a large extent, up to the Party exercising this right to determine the activities that are prejudicial to the external or internal security of the State. However, if activities threatening the security of the State, such as subversive activities or direct assistance to the enemy, may permit a Party to intern people or place them in assigned residence – but only if it has a serious and legitimate reason to think that they are members of a subversive organization - the mere fact that a person is a national of the enemy cannot be considered as threatening the security of the country where he lives.397 Furthermore, the fact that a man is "of military age should not necessarily be considered as justifying the application of these measures".398"
"397. ICRC Commentary (GC IV), p. 258.
398. See also Celebici Trial Judgement, para. 577."
Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-A, Judgement (AC), 20 February 2001, para. 327:
"327. In the Appeals Chamber’s view, there is no necessary inconsistency between the Trial Chamber’s finding that the Bosnian Serbs were regarded by the Bosnian authorities as belonging to the opposing party in an armed conflict516 and the finding that some of them could not reasonably be regarded as presenting a threat to the detaining power’s security. To hold the contrary would suggest that, whenever the armed forces of a State are engaged in armed conflict, the entire civilian population of that State is necessarily a threat to security and therefore may be detained. It is perfectly clear from the provisions of Geneva Convention IV referred to above that there is no such blanket power to detain the entire civilian population of a party to the conflict in such circumstances, but that there must be an assessment that each civilian taken into detention poses a particular risk to the security of the State. This is reflected in the ICRC Commentary to Article 42 of Geneva Convention IV:
[...] the mere fact that a person is a subject of an enemy Power cannot be considered as threatening the security of the country where he is living; it is not therefore a valid reason for interning him or placing him in assigned residence.517
Thus the Appeals Chamber agrees with the conclusion reached by the Trial Chamber that "the mere fact that a person is a national of, or aligned with, an enemy party cannot be considered as threatening the security of the opposing party where he is living, and is not, therefore, a valid reason for interning him."518"
"516. Trial Judgement, para 265.
517. ICRC Commentary (GC IV) p 258.
518. Trial Judgement, para 1134."
Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-T, Judgement (TC), 16 November 1998, paras. 577, 1134:
"577. On the other hand, the mere fact that a person is a national of, or aligned with, an enemy party cannot be considered as threatening the security of the opposing party where he is living and is not, therefore, a valid reason for interning him or placing him in assigned residence. To justify recourse to such measures, the party must have good reason to think that the person concerned, by his activities, knowledge or qualifications, represents a real threat to its present or future security. The fact that an individual is male and of military age should not necessarily be considered as justifying the application of these measures."
"1134. The Trial Chamber is of the opinion that there is no reason to question the testimonies of these witnesses. In light of this evidence, the Trial Chamber cannot accept the Defence’s contention that all persons detained in the Celebici prison-camp were members of an armed rebellion against the Bosnian authorities. The Trial Chamber does not deem it necessary to decide whether all of the persons detained in the Celebici prison-camp were to be considered as "peaceful" civilians, not constituting any threat to the security of the detaining forces. […] As stated above, the mere fact that a person is a national of, or aligned with, an enemy party cannot be considered as threatening the security of the opposing party where he is living, and is not, therefore, a valid reason for interning him."
[B. Evidentiary comment:]
P.7.3. Evidence that victims were civilians.
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. 608, 610, 627, 637:
"608. Witness Sulejman Kavazovic also testified that when he arrived at the SDK building on 18 April 1993, there were male prisoners – "children 12 and up, and there was Nazif Arnaut, who was 64 years of age."843 Based on this testimony, the Appeals Chamber concludes that a reasonable trier of fact could have found that the "children 12 and up" were civilians. Regarding Nazif Arnaut, whom the witness appears to have known, the Appeals Chamber concludes that a reasonable trier of fact could have found that Nazif Arnaut was older than the conscription age, thus a civilian. […]"
"843. T. 7366-67, "I arrived on the 18th and some had been brought there on the 16th and 17th, to that SDK building. There were children 12 and up, and there was Nazif Arnaut, who was 64 years of age. They were all Muslims. There were no Serbs or Romanise or anyone else, only Muslims. The premises of SDK was tight given how many we were. We did not have enough room to lie down. We had to sit during the night." The Witness answered to the question whether they were all males, -"yes, only males"."
"610. The Appeals Chamber finds that a reasonable trier of fact could have concluded that Nazif Arnaut and several children were unlawfully detained and upholds the Trial Chamber’s finding that imprisonment, Count 21 (Kordic), Count 29 (Cerkez) and unlawful confinement, Count 22 (Kordic), Count 30 (Cerkez) were established in the SDK building."
"627. The Trial Chamber’s finding relates to two places charged separately in the Indictment and will be considered separately by the Appeals Chamber. With regard to the Kiseljak barracks, the first evidence relied on, which supports that civilians were detained, was that of Major Baggesen, an ECMM monitor873 who was a trained and experienced military intelligence officer in the Danish army and a military observer.874 He testified that he inspected the Kiseljak barracks on 30 April 1993 and found forty-eight detained Muslim civilians,875 and that on 21 June 1993 they had still not been released.876 The Appeals Chamber considers that even though Witness Major Baggesen’s evidence does not elaborate extensively as to why he considered the forty-eight men detained in the Kiseljak barracks to be civilians and that the fact that the detainees identified themselves as civilians is not assisting, the Appeals Chamber finds that Major Baggesen was a trained military and that therefore a reasonable trier of fact could have found that the detainees in the Kiseljak barracks were civilians."
"873. T. 7432.
874. T. 7429-30.
875. T. 7563-64.
876. T.7567-68."
"638. The Trial Chamber did not specifically state that the persons detained in Rotilj village were civilians. However, from the Trial Chamber’s findings894 it is evident that a whole village was surrounded by the HVO and cut off and that the persons in the village included families. The Appeals Chamber therefore finds that a reasonable trier of fact could have found that that there were civilians in Rotilj. This conclusion is supported by Witness Major Baggesen and by Witness Y, who testified that he came to Rotilj with his family.895"
"894. Trial Judgement, paras 792-793.
895. T. 11017-18."
Prosecutor v. Blagoje Simić et al., Case No. IT-95-17/1-T, Judgement (TC), 17 October 2003, paras. 537, 659:
"537. Izet Izetbegovic testified that all the detainees were civilians and that there were no soldiers.1112 There were also elderly people and women held at the SUP. Both Esad Dagovic and Kemal Mehinovic testified that they saw Nihada Ademovic and Behka, both Bosniak Muslim women, detained at the SUP.1113 Ibrahim Salkic testified how men of approximately 70 years of age were detained in the SUP, being brought from a Croat village. They stayed there until their transfer to Batkovic.1114"
"1112. Izet Izetbegovic, T. 2310.
1113. Esad Dagovic, T. 3982-84; Kemal Mehinovic, T. 7437-38, T. 7440.
1114. Ibrahim Salkic, T. 3386-88."
"659. The Trial Chamber does not accept that allegations about possession of weapons, in itself, creates a reasonable doubt as to the civilian status of the persons arrested and detained for possession of weapons. The evidence demonstrates that only a small number of detainees belonged to an armed SDA paramilitary formation, giving rise to consideration as to whether they could be classified as combatants .1496 The fact that most of them were arrested from their homes, combined with a lack of evidence that they participated in the armed conflict, clearly shows that they were not combatants, but rather, civilians, and consequently were not taken as prisoners of war."
"1496. See para. 661 of Judgement."
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, paras. 117, 122:
"117. The Defence claimed that all Muslim men detained at the KP Dom were prisoners of war and that their detention was on that basis lawful. It supported this claim by emphasising that some of those detained were in possession of weapons at the time of their arrest. The Trial Chamber does not accept that this evidence creates a reasonable doubt as to the civilian status of most of the Muslim detainees held at the KP Dom. […] The Trial Chamber accepts, however, that, in addition to the mainly civilian population at the KP Dom, there were a small number of Muslim soldiers kept in isolation cells separately from the civilian Muslim detainees."
"122.The Trial Chamber finds that the Muslims and other non-Serbs detained at the KP Dom were deprived of their liberty arbitrarily. […] They were, inter alia, doctors and medical health workers, journalists, former KP Dom employees, managers, police officers and other persons of civilian status."
Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-A, Judgement (AC), 20 February 2001, para. 323:
"323. As stated above, the Trial Chamber found that the persons detained in the Celebici camp were civilian protected persons for the purposes of Article 4 of Geneva Convention IV.506 […] However, the Trial Chamber also found that the confinement of a significant number of civilians in the camp could not be justified by any means. Even taking into account the measure of discretion which should be afforded to the detaining power in assessing what may be detrimental to its own security, several of the detained civilians could not reasonably have been considered to pose any sufficiently serious danger as to warrant their detention.508 The Trial Chamber specifically accepted the evidence of a number of witnesses who had testified that they had not participated in any military activity or even been politically active, including a 42-year old mother of two children.509 It concluded that at least this category of people were detained in the camp although there existed no serious and legitimate reason to conclude that they seriously prejudiced the security of the detaining party, which indicated that the detention was a collective measure aimed at a specific group of persons, based mainly on their ethnic background.510"
"506. See above, Chapter II, Section B.
508. Trial Judgement, para 1132.
509. Trial Judgement, para 1133.
510. Trial Judgement, para 1134."
B. Evidentiary comment:
The nature of evidence sufficient to determine the civilian status of detainees has varied in ICTY jurisprudence. While various Trial and Appeals Chambers have accepted as sufficient to establish civilian status witness statements that they had not participated in military activities (e.g. Delalic et al. "Celebici" Appeals Judgment, para. 323), failure to produce evidence that most detainees had been in possession of weapons (e.g. Krnojelac Trial Judgment, para. 117), and the occupations of detainees (e.g. Krnojelac Trial Judgment, para. 122), the Kordic and Cerkez Appeals Chamber seemed to use a more stringent standard. The Kordic and Cerkez Appeals judgment questioned simple witness testimony regarding civilian status without more probing questions, including why witnesses considered detainees to be civilians (see Kordic and Cerkez Appeals Judgment, paras. 603 – 604, 613, and 615).
P.7.4. Evidence that victims had not participated in military activities.
A. Legal source/authority and evidence:
Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-T, Judgement (TC), 16 November 1998,paras. 568, 1126:
"568. […] Clearly, a civilian cannot shoot a passing enemy soldier, secrete a bomb in the enemy encampment, or otherwise directly and intentionally harm his enemy and hope to retain all the protections of the Fourth Geneva Convention583. However, all of these acts involve material, direct harm to the adversary, rather than merely granting support to the forces of the party with which the civilian is aligned."
"582. Gehring, p. 80 (footnote 73).
583. Gehring, p. 67."
"1126. The Prosecution contends that the confinement of numerous civilians in the Celebici prison-camp was unlawful under international humanitarian law. According to the Prosecution, the population of detainees in the Celebici prison-camp was not limited to individuals who had been armed or participated in military activities. It thus submits that many of those detained could not reasonably have been suspected of participating in any activities that could have justified their confinement under the provisions of Geneva Convention IV. […]"
"989. Prosecution Closing Brief, RP D2890."
[B. Evidentiary comment:]
P.7.5. Evidence that perpetrators had no reason to suspect that victims had committed offenses.
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. 68, 657, 680, 683:
"68. […] When making findings on the charge of imprisonment in Krnojelac, the Trial Chamber considered that the detainees were not criminals under suspicion of having committed a crime or ever accused of having committed a crime under national and/or international law, and found no lawful basis for their imprisonment.126"
"126. Krnojelac Trial Judgement, para. 122."
"657. The Trial Chamber concludes that the arrests of groups of women, children and elderly, who were subsequently detained in Zasavica and Crkvina were arbitrary, with no lawful basis. They were arrested because they were non-Serbs, not because there was a reasonable suspicion that they had committed any offences, or for reasons of their safety."
"680. The Trial Chamber considers that the non-Serb civilians who were detained in the camps in Zasavica, and for the short period in Crkvina, were detained arbitrarily, with no lawful basis. Non-Serb civilians were taken to the village of Zasavica where they were guarded and unable to leave. […] There was no reasonable suspicion that they had committed any criminal offence. They were not informed of any accusation against them, but rather forced from their homes, rounded up and taken to Zasavica where they were prevented from leaving. This treatment constitutes arbitrary deprivation of their liberty. […]"
"683. […] In addition, the interrogations were not based upon reasonable grounds that such persons had committed any criminal offences, nor were they followed by fair criminal proceedings. Although some detainees were questioned about the offence of illegal possession of weapons, as charged in the "Law on Criminal Proceeding of former Social Federative Republic of Yugoslavia",1564 they were all non-Serbs, and were clearly singled out and questioned on the basis of their ethnicity. No witnesses were ever convicted for illegal possession of weapons. […]"
"1564. Exhibits D24/3 and D51/4."
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 122:
"122. The Trial Chamber finds that the Muslims and other non-Serbs detained at the KP Dom were deprived of their liberty arbitrarily. The evidence has clearly established that there was no legal basis which could be relied upon to justify their deprivation of liberty under national or international law. Those detained were not criminals under suspicion of having committed a crime or ever accused of having committed a crime under national and/or international law. […]"
[B. Evidentiary comment:]
P.7.6. Evidence of the failure to judge necessity on a case-by-case basis.
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. 609:
"609. […] The assessment that each civilian taken into detention poses a particular risk to security of the State must be made on an individual basis. […]"
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 123:
"123. Although it may strictly be unnecessary in the circumstances of this case, the Trial Chamber is satisfied that there was no basis under Article 42 of the Geneva Convention IV which could be called upon to justify the deprivation of liberty of the non-Serb detainees as claimed by the Defence. A party seeking to rely upon Article 42 of the Geneva Convention IV must show with respect to each individual who has been deprived of his liberty reasonable grounds for concluding that that individual constituted a threat to the security of the depriving party. There was no consideration given to the individual circumstances of any of the non-Serb detainees by those carrying out the detentions.372"
"372. The Trial Chamber notes that, after the initial arrest of the non-Serb detainees, there was no lawful mechanism in place by which the lawfulness of their detention could be reviewed. "Interrogations" were carried out in an atmosphere of terror and fear of mistreatment, and they did not constitute a process of review. However, as the initial detention was itself unlawful, the Trial Chamber does not need to consider the fact that no lawful process of review took place at the KP Dom. See pars 34-42, supra; pars 237-306, infra."
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, para. 285:
"285. However, whether in the territory of the occupying power or in that of the occupied power, internment and assigned residence are exceptional measures to be taken only after careful consideration of each individual case, and never on a collective basis.399"
"399. Celebici Trial Judgement, para. 578."
Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-A, Judgement (AC), 20 February 2001, paras. 327, 329, 578:
"327. […] It is perfectly clear from the provisions of Geneva Convention IV referred to above that there is no such blanket power to detain the entire civilian population of a party to the conflict in such circumstances, but that there must be an assessment that each civilian taken into detention poses a particular risk to the security of the State. […]"
"329. […] Delic submits that "the government had the right to continue the confinement until it determined that the State’s security would not be harmed by release of the detainees."524 This submission, which carries the implication that civilian detainees may be considered a risk to security which makes their detention absolutely necessary until proved otherwise, completely reverses the onus of justifying detention of civilians. It is upon the detaining power to establish that the particular civilian does pose such a risk to its security that he must be detained, and the obligation lies on it to release the civilian if there is inadequate foundation for such a view."
"524. Delic Response, para 262, p 218."
"578. […] Article 78 of Geneva Convention IV sets up a rule similar to article 41 in situations of occupation, allowing Occupying Powers to intern protected persons under certain conditions587. However, internment and assigned residence, whether in the occupying power’s national territory or in the occupied territory, are exceptional measures to be taken only after careful consideration of each individual case588. Such measures are never to be taken on a collective basis."
"587. Article 78 of Geneva Convention IV provides as follows: "If the Occupying Power considers it necessary, for imperative reasons of security, to take safety measures concerning protected persons, it may, at the most, subject them to assigned residence or to internment. Decisions regarding such assigned residence or internment shall be made according to a regular procedure to be prescribed by the Occupying Power in accordance with the provisions of the present Convention. This procedure shall include the right of appeal for the parties concerned. Appeals shall be decided with the least possible delay. In the event of the decision being upheld, it shall be subject to periodical review, if possible every six months, by a competent body set up by the said Power. Protected persons made subject to assigned residence and thus required to leave their homes shall enjoy the full benefit of Article 39 of the present Convention."
588. Gehring, p. 87; Commentary, p. 258."
[B. Evidentiary comment:]
P.7.7. Evidence that victims were not detained for their own safety.
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. 657:
"657. The Trial Chamber concludes that the arrests of groups of women, children and elderly, who were subsequently detained in Zasavica and Crkvina were arbitrary, with no lawful basis. They were arrested because they were non-Serbs, not because there was a reasonable suspicion that they had committed any offences, or for reasons of their safety."
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, para. 800:
"800. The Trial Chamber finds that the underlying offences in Counts 21-36 are made out. The Bosnian Muslims were systematically subjected to arbitrary imprisonment for which there was no justification. The assertion that they were detained for security reasons, or for their own safety, is in the Chamber’s view, without foundation."
[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. 609:
"609. […] The detaining power has a reasonable time to determine whether a particular person is a civilian and further to determine whether there are reasonable grounds to believe that the security of the detaining power is threatened. […] The assessment that each civilian taken into detention poses a particular risk to security of the State must be made on an individual basis. The Appeals Chamber, in the Celebici Appeal Judgement, accepted that some reasonable time is given to the detaining power to determine, which of the detainees is a threat.845"
"845. Celebici Appeal Judgement, para. 327."
[B. Evidentiary comment:]
P.7.9. Not sufficient: Evidence that liberty was restricted by processes established by law.
A. Legal source/authority and evidence:
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 109:
"109. […] The right of an individual not to be deprived of his or her liberty arbitrarily is also enshrined in a number of human rights instruments, both international332 and regional.333 However, as these instruments show, this right does not constitute an "absolute right", and it can be restricted by procedures established by law."
"332. Article 9 of the Universal Declaration of Human Rights (1948) states that nobody shall be subjected to arbitrary arrest, detention or exile. Article 9 of the ICCPR (1966) requires that no one shall be subjected to arbitrary arrest or detention. Article II of the International Convention on the Suppression and Punishment of the Crime of Apartheid (1973) defines the "arbitrary arrest and illegal imprisonment of the members of a racial group or groups" as an act constituting the crime of apartheid. The Convention on the Rights of the Child (1989) enshrines in Article 37(b) that no child shall be deprived of his or her liberty unlawfully or arbitrarily.
333. The European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) enshrines in Article 5 the right to liberty and security and states that no one shall be deprived of his liberty except in particular cases, as enumerated in the Convention. The American Convention on Human Rights (1969) provides in Article 7 that "no one shall be deprived of his physical liberty" except in certain cases and that "no one shall be subject to arbitrary arrest or imprisonment"."
Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-T, Judgement (TC), 16 November 1998,para. 565:
"565. […] [T]he freedom of movement of "enemy" civilians during armed conflict may be restricted, or even temporarily suppressed, if circumstances so require. Thus there is no absolute right in the Geneva Conventions to freedom of movement. However, this does not mean that there is a general suspension of this right during armed conflict either. To the contrary, the regulations concerning civilians in the territory of a party to an armed conflict are based on the concept that the individual freedom of civilians should remain unimpaired. The right in question is therefore a relative one, which may be restricted.578"
"578. Commentary, p. 202."
B. Evidentiary comment:
It should be noted that in ICTY jurisprudence, even liberty-restricting processes established by domestic law are subject to legality review under international law, as described in section 2.2.1. above. See Delalic et al. "Celebici" Trial Judgment, paras. 568 and 1130, and Krnojelac Trial Judgment para. 114.
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. 71:
"71. The Appeals Chamber noted further in Celebici that Article 5 of Geneva Convention IV imposes certain restrictions on the protections which may be enjoyed by certain individuals under the Convention.77 It provides, in relevant part:
Where, in the territory of a Party to the conflict, the latter is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person shall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in the favour of such individual person, be prejudicial to the security of such State. […]"
"77. Celebici Appeal Judgement, para. 321."
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, para. 280:
"280. In order to assess the legality of the initial confinement, the Trial Chamber must evaluate its conformity with international humanitarian law. Although, as a rule, civilians are entitled to the rights and privileges set forth in Geneva Convention IV, there are instances in an armed conflict whereby certain of those rights may be temporarily restricted or suspended.388 Accordingly, Article 5 of Geneva Convention IV provides:
Where in the territory of a Party to the conflict, the latter is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person shall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in the favour of such individual person, be prejudicial to the security of such State.
[…]
Although the language of this provision may suggest a broad application of Article 5 to a variety of situations, the Chamber observes nevertheless that "activities hostile to the security of the State", are above all espionage, sabotage and intelligence with the enemy Government or enemy nationals and exclude, for example, a civilian’s political attitude towards the State.389 […]"
"388. ICRC Commentary (GC IV), p. 202.
389. ICRC Commentary (GC IV), p. 56.
390. Celebici Trial Judgement, para. 568 (footnotes omitted)."
Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-T, Judgement (TC), 16 November 1998,paras. 566 – 567, 576:
"566. When the ICRC draft text for the Fourth Geneva Convention was presented to the 1949 Diplomatic Conference, several delegations stated that, in cases involving spies, saboteurs or other unprivileged combatants, there should be some derogation permitted from the rights normally accorded to protected persons. Otherwise, those rights could be used to the disadvantage of a party to an armed conflict579. Therefore, the confinement of civilians is permitted in certain limited situations. The general rule providing for the limitation of the rights of civilians is contained in article 5 of the Fourth Geneva Convention, which provides as follows:
Where, in the territory of a Party to the conflict, the latter is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person shall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in the favour of such individual person, be prejudicial to the security of such State.
Where, in occupied territory, an individual protected person is detained as a spy or saboteur, or as a person under definite suspicion of activity hostile to the security of the Occupying Power, such person shall, in those cases where absolute military security so requires, be regarded as having forfeited rights of communication under the present Convention. […]"
"579. Gehring - Loss of Civilian Protections under the Fourth Geneva Convention and Protocol I, Military Law Review (hereafter "Gehring"), Vol. 90 (1980), Pamphlet No. 27-100-90, 49, p. 79; Commentary, pp. 52-53."
"567. The language of article 5 is very broad and its provisions may be applicable in a wide variety of situations580. The concept of "activities prejudicial or hostile to the security of the State" is difficult to define. What appears to be included is, above all, espionage, sabotage and intelligence activities for the enemy forces or enemy nationals. […]"
"580. See Commentary, p. 58: "The article, as it stands, is involved – one might even say, open to question. It is an important and regrettable concession to State expediency. What is most to be feared is that widespread application of the Article may eventually lead to the existence of a category of civilian internees who do not receive the normal treatment laid down by the Convention but are detained under conditions which are almost impossible to check.""
"576. Clearly, internment is only permitted when absolutely necessary. Subversive activity carried on inside the territory of a party to the conflict, or actions which are of direct assistance to an opposing party, may threaten the security of the former, which may, therefore, intern people or place them in assigned residence if it has serious and legitimate reasons to think that they may seriously prejudice its security by means such as sabotage or espionage."
[B. Evidentiary comment:]
P.8. Evidence that a victim chose to be detained because of security risks.
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. 621:
"621. Witness Buffini […] testified that the two generals agreed that all the prisoners were free to go as of that moment, and were able to walk out of the cinema, should they choose to do so. But that only six of the detainees chose to leave since all the others did not feel confident enough to leave and "feared that as soon as they left the cinema, they would either be shot or attacked by HVO troops in the local area. So they actually stayed."868 The Appeals Chamber concludes that based on this testimony no reasonable trier of fact could have found that the detainees in the Cinema were unlawfully detained civilians."
"868. T. 9348."
5.2.Continued confinement of one or more persons.
A. Evidentiary comment:
Several commentaries have suggested that the inclusion of the phrase "continued to confine" in article 8(2)(a)(vii)-2 intends to cover cases where a protected person has initially been lawfully confined (in accordance with, in particular, Arts. 27, 42 and 78 of the Fourth Geneva Convention), but the confinement becomes unlawful at a certain point. See D?rmann, K. "Article 8(2)(a)(vii)-2—Unlawful Confinement," in Lee (2001), p. 137; D?rmann, K. "Art. 8(2)(a)(vii)—Unlawful deportation or transfer or unlawful confinement," (2002), p. 113. The means of proof below thus relate to the ways in which an initially-legal confinement may become illegal.
P.9. Evidence that the perpetrator failed to provide initial due process of law.
P.9.1. Evidence of a failure to provide a fair trial.
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. 582 – 583, 588, 591 – 592, 678 – 679:
"582. While at the hangar, he had neither the opportunity nor the facilities to conduct his defence. He had a lawyer assigned to him, but the lawyer did not support him. There was no prior consultation with the defence or any papers.1290 The judgement was read to him in court, and he was told that the decision, once typed out, would be delivered to him at the hangar.1291 He was sentenced to three and a half years imprisonment for "aggression against Serbian people and Serbian territory", in February or March 1993,1292 after six or seven months of detention.1293 He also did not have the time or possibility to appeal the remand order within the 24 hour period with which to do so as stated in D15/3.1294 Without his knowledge, the appeal was sent and the decision delivered to him later, at the hangar.1295 The guards told him that since the army was holding many Serbs, it was a mere formality so that he and others could be exchanged for Serbs.1296"
"1290. Witness L, T. 4501, T. 4503, T. 4347, T. 4518, T. 4523; D17/3, Republika Srpska, Supreme Military Court number 37/93, Han Pijesak dated 31st May, 1993 (Sentence). The document contains reference to Ziko Krunic as military defence counsel. However, Witness L was not familiar with the name (T. 4475).
1291. Witness L, T. 4506; Exhibit D16/3, Judgement of Supreme Military Court of Republika Srpska, 31 May 1993, T. 4467-70.
1292. Witness L, T. 4346-47, Exhibit D17/3, Sentencing Judgement of Supreme Military Court of Republika Srpska.
1293. Witness L, T. 4447.
1294. Witness L, T. 4523, T. 4508-09.
1295. Witness L, T. 4515-16.
1296. Witness L, T. 4485–86."
"583. Kemal Mehinovic testified that he was given no intimation of the trial until his name was called out and a military police officer came to take him to the trial in approximately January 1993.1297 He was taken to a private house in Bijeljina, where the military court was located .1298 He was not served with a charge sheet, or Indictment, nor was he given any information regarding the reason for summoning him. He was not advised regarding what would happen to him.1299 He did not meet with a lawyer prior to attending court, and he was not told he would be assigned a lawyer.1300 The judge asked him if he knew the reason why he was taken to the courtroom. When he said no, the judge responded, "Well, you will". That is the only conversation he had with the judge.1301 The judge did not ask him to make a statement, nor to answer any charges. He was also not asked to sign any documents.1302"
"1297. Kemal Mehinovic, T. 7467, T. 7476.
1298. Kemal Mehinovic, T. 7467-68.
1299. Kemal Mehinovic, T. 7468, T. 7470-71.
1300. Kemal Mehinovic, T. 7468. Kemal Mehinovic was shown D39/3, Decision on the appointment of Defence Counsel, dated 9 January 1993, which notifies the assignment of Ziko Krunic as defence counsel. Kemal Mehinovic had not seen the document before (T. 7554-55).
1301. Kemal Mehinovic, T. 7470.
1302. Kemal Mehinovic, T. 7470-71; Exhibit P55 -A document dated 19 January 1993, which purports to be a record of hearing in the courthouse in Bijeljina. Kemal Mehinovic recognised the signature at the bottom of each page of the document as his. He did not give a statement to the judge at the courthouse in Bijeljina. The judge did not make any notes. He does not remember signing a statement but he might have been so afraid that he signed it without remembering (T. 7555-56). He was also shown Exhibit P56, dated 27 March 1993, which purports to be a receipt of documents in the proceedings. Kemal Mehinovic stated that he did not sign this receipt and does not remember receiving this while in Batkovic (T. 7496-98; T. 7555-56)."
"588. A few days later, he was taken back to Bijeljina for sentencing. He had a lawyer but he did not do anything to help him. He was not able to meet his lawyer prior to the trial. His lawyer never advised him concerning the legal issues involved.1312 He was convicted of armed rebellion in the territory of the SFRY, and sentenced to 12 years imprisonment. After sentencing, he was taken back to Batkovic. He could not call any witness to testify on his behalf.1313 He did not appeal this sentence as he believed his life was in danger.1314 He was exchanged in June 1994, in Satorovic, BiH, and went to Slavonia."
"1312. Hasan Subasic, T. 11026-27.
1313. Hasan Subasic, T. 11026-27.
1314. Hasan Subasic, T. 11136."
"591. Nusret Had‘ijusufovic testified that he was convicted and sentenced to one year of imprisonment for violation of the borders of Republika Srpska. He was never notified of any charges being brought against him, nor was he served with a complaint or advised of his rights. He never appeared at any hearing or trial, was not provided with legal counsel, and did not receive official notice of any court judgment or sentence.1319"
"1319. Nusret Hadzijusufovic, T. 7147-48."
"592. Izet Izetbegovic testified that he was detained and interrogated in Batajnica. He was handcuffed and blindfolded, and taken to a room. These restraints were then removed and he was interviewed by two or three people on three occasions. He was told that he was charged with having overthrown and taken part in the breakdown of the Yugoslav system. He was informed of these charges in Bosanski Samac by Vladimir Sarkanovic, who was interviewing him.1320 Nine prisoners from Bosanski Samac were then lined up and Sulejman Tihic was told to read out the sentence. The death sentence was pronounced on "us two".1321 He said that this was not real sentencing, but a means of intimidation.1322 He testified that he was not provided access to a lawyer, nor was he given any facilities to defend himself.1323"
"1320. Izet Izetbegovic, T. 2371-73.
1321. Izet Izetbegovic, T. 2374.
1322. Izet Izetbegovic, T. 2529.
1323. Izet Izetbegovic, T. 2375."
"678. The criminal proceedings outlined above by witnesses, were not conducted with full respect for their right to fair trial, and liberty and security of the person, as enshrined in Articles 5 and 6 of the ECHR, and Articles 9 and 14 of the ICCPR. These rights are encompassed in Common Article 3 of the Geneva Conventions of 1949, paragraph (d), which prohibits the passing of sentences without previous judgement pronounced by a regularly constituted court, affording all the judicial guarantees, recognizable as indispensable by civilized peoples, an article which has reached international customary law status.1552 Such rights include the right to be brought promptly before a judge or other officer authorized by law to exercise judicial power and to trial within a reasonable time or to release; the right for a court to decide without delay on the lawfulness of detention; the right to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law; to be presumed innocent until proved guilty according to law; to be informed promptly of the nature and cause of the accusation against him or her; to have adequate time and facilities for the preparation of his or her defence; to have legal assistance; to examine or have examined witnesses against him or her and to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses against him or her, amongst others."
"1552. The Appeals Chamber in Celebici confirmed the view expressed in the Tadic Appeal Judgement that the expression "laws and customs of war" has evolved to encompass violations of the Geneva law at the time the alleged offence was committed (para. 133)."
"679. In many cases witnesses were deprived of all these guarantees, and in instances where some of these rights were afforded, these measures were inadequate, for example, where Hasan Subasic was assigned a lawyer, he was not able to meet with him prior to trial and was never advised of the legal issues involved.1553 The witnesses were detained for lengthy periods of time without any review of their detention, and without knowing the crimes for which they were charged.1554 The witnesses were not given the opportunity to bring witnesses for their defence in the proceedings.1555 They were not advised in time of any right of appeal.1556"
"1553. Hasan Subasic, T. 11026-27.
1554. Nusret Hadzijusufovic, T. 7147-48.
1555. Witness P, T. 11598.
1556. Kemal Mehinovic, T. 7467-72, T. 7489-91; Witness L, T. 4523."
Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-T, Judgement (TC), 16 November 1998, para. 566:
"566. When the ICRC draft text for the Fourth Geneva Convention was presented to the 1949 Diplomatic Conference, several delegations stated that, in cases involving spies, saboteurs or other unprivileged combatants, there should be some derogation permitted from the rights normally accorded to protected persons. Otherwise, those rights could be used to the disadvantage of a party to an armed conflict579. Therefore, the confinement of civilians is permitted in certain limited situations. The general rule providing for the limitation of the rights of civilians is contained in article 5 of the Fourth Geneva Convention, which provides as follows:
Where, in the territory of a Party to the conflict, the latter is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person shall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in the favour of such individual person, be prejudicial to the security of such State.
[…]
In each case, such persons shall nevertheless be treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention. They shall also be granted the full rights and privileges of a protected person under the present Convention at the earliest date consistent with the security of the State or Occupying Power, as the case may be."
"579. Gehring - Loss of Civilian Protections under the Fourth Geneva Convention and Protocol I, Military Law Review (hereafter "Gehring"), Vol. 90 (1980), Pamphlet No. 27-100-90, 49, p. 79; Commentary, pp. 52-53."
[B. Evidentiary comment:]
P.9.2. Evidence of a failure to follow procedures prescribed for legally-detained persons.
A. Legal source/authority and evidence:
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 124:
"124. […]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."
"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.9.3. Evidence of a failure to inform victims of the reason for their detention.
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. 656:
"656. There were however also non-combatants, such as witness O, witness QQ, and witness FF, kept in detention.1630 These BH Muslim civilians were imprisoned without explanation1631 or serious interrogation,1632 sometimes with the excuse of a mock trial.1633 […]"
"1630. Among the civilians, witness FF arrived at the detention centre around mid-May 1993. Witness QQ arrived in June and Witness O in August.
1631. Witness QQ, T 6185-6186, 6194; witness FF, T 4677-4679; witness DD, T 4469.
1632. Witness FF, T 4684-4686.
1633. Witness O, T 2148-2150."
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 120:
"120. The Trial Chamber is satisfied that, once detained at the KP Dom, none of the detainees was informed of the reason for his detention, the term of his detention or of any possibility of release. […]"
[B. Evidentiary comment:]
P.9.4. Evidence of inconsistent search and interrogation techniques.
A. Legal source/authority and evidence:
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 120:
"120. […] Upon entry into the KP Dom, some of the detainees were searched and registered,361 while others were not.362 Similarly, interrogations of those detained were conducted sometimes within a few days or weeks,363 sometimes only after months 364 and, in some cases, never.365 […]"
"361. FWS-86 (T 1460); Muhamed Lisica (T 4833).
362. FWS-109 (T 2355); Dzevad S Lojo (T 2535); FWS-104 (T 2161); FWS-139 (T 320); Dr Amir Berberkic (T 3733).
363. FWS-111 (T 1260); FWS-215 (T 862); FWS-54 (T 751); Dzevad Lojo (T 634); FWS-139 (T 346); Ahmet Hadzimusic (T 1940); FWS-144 (T 2308); FWS-109 (T 2372); Dr Amir Berberkic (T 3768); Ekrem Zekovic (T 3468).
"364. FWS-137 was interrogated only 55 days after his arrest, after he had asked Risto Ivanovic to be interviewed, hoping to be released thereafter (T 4735). Rasim Taranin attempted to be interviewed for a long time before he finally succeeded. He also thought that he would then be released but was not. He was taken out of the KP Dom and detained at Rudo for approximately 9 months and then transferred to Kula Prison Camp. He was released from Kula after a couple of months, on 6 or 7 October 1994 (T 1721-1742). FWS-138 spent 10 months at the KP Dom before he was interrogated (T 2045).
365. FWS-08 (T 1769); Dzevad S Lojo (T 2533)."
[B. Evidentiary comment:]
P.9.5. Evidence of interrogations under forced or coercive circumstances.
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. 68, 592, 683:
"68. The Trial Chamber considers that the underlying conduct of interrogation and forcing non-Serb civilians to sign false and coerced statements, is relevant to the consideration of whether non-Serbs who were arrested and detained were deprived of their liberty arbitrarily, without any legal basis. […]"
"592. Izet Izetbegovic testified that he was detained and interrogated in Batajnica. He was handcuffed and blindfolded, and taken to a room. These restraints were then removed and he was interviewed by two or three people on three occasions. […]"
"683. The Trial Chamber is satisfied that interrogations of those detained were conducted under coercive and forced circumstances.1559 […] In this paragraph the Trial Chamber considers the conduct of interrogations as it relates to the legality of detention. The charge against Simo Zaric in paragraph 15(d) of the Amended Indictment is considered separately in the section that follows. Detainees were beaten as they were required to give statements,1562 and many did not see the statements that they were forced to sign.1563 The fact that interrogations were conducted does not render these detentions lawful, given the forceful nature of many of the interrogations, and the context in which they were carried out. […]The fact that some detainees were interviewed without beatings, for example, in the instances where they were interrogated by Simo Zaric, and were able to read their statements before signing, does not change the fact that interrogations were conducted in forced circumstances, as detainees were held in circumstances that were clearly coercive, having been locked in facilities, guarded by armed soldiers and police, and surrounded by violence, that included torture and beatings. […]"
"1559. Hasan Subasic, T. 10953-54; Witness G, T. 4063-66; Esad Dagovic, T. 4005-06, T. 5779-80; Witness P, T. 11558-59.
1562. Muhamed Bicic, T. 3001-02; Witness O, Rule 92bis Statement, para. 27; Dragan Lukac, T. 1695-96; Esad Dagovic, T. 5963-64; Ibrahim Salkic, T. 3268, T. 3272-74; Kemal Mehinovic, T. 7413-15.
1563. Esad Dagovic, T. 5780; T. 5787-88; Nusret Hadzijusufovic, T. 6964-65."
Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-T, Judgement (TC), 16 November 1998, paras. 1138 – 1139:
"1138. Detainees were maltreated and physically abused by certain guards from the moment they were brought in until the time their statement was taken i.e. until their interview was conducted. […][I]n the last ten days almost every dawn brought another dead detainee"
"1139. […] it is clear from the evidence on record that the way interviews and interrogations were conducted by no means respected the basic procedural rights of the concerned detainees. For example, Witness D testified that he saw how one detainee during interrogation was tied with a rope which interrupted the blood circulation in his hands."
[B. Evidentiary comment:]
P.9.6. Evidence of a failure to inform victims of their procedural rights.
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. 683:
"683. […] The Trial Chamber is satisfied that none of the detainees were ever advised of their procedural rights before or during their detention."
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 121:
"121. The Trial Chamber is satisfied that none of the detainees was ever actually charged, tried or convicted for any crime before being detained or while detained at the KP Dom.370 It is also satisfied that none of the detainees was ever advised of their procedural rights before or during their detention.371"
"370. FWS-250 (T 5022); FWS-159 (T 2459); FWS-104 (T 2193); FWS-86 (T 1464); Dzevad Lojo (T 635); FWS-215 (T 865); FWS-111 (T 1199); FWS-119 (T 1939, 1994); FWS-73 (T 3194); FWS-137 (T 4733).
371. FWS-104 (T 2194); FWS-66 (T 1068); FWS-198 (T 957); FWS-54 (T 731); FWS-139 (T 318); FWS-142 (T 1832); FWS-03 (T 2265); FWS-144 (T 2326); FWS-71 (T 2780); FWS-89 (T 4707); Safet Avdic (Ex P 123, p 679)."
[B. Evidentiary comment:]
P.9.7. Evidence of a failure to inform victims of the possibilities for release.
A. Legal source/authority and evidence:
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 120:
"120. The Trial Chamber is satisfied that, once detained at the KP Dom, none of the detainees was informed of the reason for his detention, the term of his detention or of any possibility of release. […]361 […]"
"361. FWS-86 (T 1460); Muhamed Lisica (T 4833)."
[B. Evidentiary comment:]
P.9.8. Evidence of a failure to charge, try or convict victims of a crime.
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. 680 – 681:
"680. The Trial Chamber considers that the non-Serb civilians who were detained in the camps in Zasavica, and for the short period in Crkvina, were detained arbitrarily, with no lawful basis. Non-Serb civilians were taken to the village of Zasavica where they were guarded and unable to leave. They were not brought before a judge to challenge the legality of their detention, nor were any lawful criminal proceedings conducted. There was no reasonable suspicion that they had committed any criminal offence. They were not informed of any accusation against them, but rather forced from their homes, rounded up and taken to Zasavica where they were prevented from leaving. This treatment constitutes arbitrary deprivation of their liberty. […]"
"681. The detention of non-Serb civilians in facilities within Bosanski Samac, namely, the SUP, TO and primary and secondary schools, was also arbitrary and unlawful. […] The detainees in these facilities were not given any lawful reasons for their detention, and they were confined for considerable amounts of time without being charged. […] Those few who were subject to criminal proceedings, did not receive trials or procedures in accordance with international human rights standards, and the guarantees as set out in the Geneva Conventions.1558 The legality of their detention was never reviewed by the Serb authorities."
"1558. See Article 75 of Protocol I; Articles 71-76, Geneva Convention IV."
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 121:
"121. The Trial Chamber is satisfied that none of the detainees was ever actually charged, tried or convicted for any crime before being detained or while detained at the KP Dom.370 […]"
"370. FWS-250 (T 5022); FWS-159 (T 2459); FWS-104 (T 2193); FWS-86 (T 1464); Dzevad Lojo (T 635); FWS-215 (T 865); FWS-111 (T 1199); FWS-119 (T 1939, 1994); FWS-73 (T 3194); FWS-137 (T 4733)."
[B. Evidentiary comment:]
P.10.1. Evidence that an initially-lawful detention at any point became unlawful.
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. 73, 114:
"73. Thus the detention or confinement of civilians will be unlawful in the following two circumstances:
[…]
(ii) where the procedural safeguards required by Article 43 of Geneva Convention IV are not complied with in respect of detained civilians, even where their initial detention may have been justified.79"
"79. Celebici Appeal Judgement, para. 322."
"114. The Appeals Chamber notes the finding of the Trial Chamber that imprisonment of civilians is unlawful where
[…]
- the procedural safeguards required by Article 43 of Geneva Convention IV are not complied with in respect of detained civilians, even where initial detention may have been justified; […]"
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 114:
"114. Having considered these instruments, the Trial Chamber is of the view that, under Article 5(e) of the Tribunal’s Statute, a deprivation of an individual’s liberty will be arbitrary and, therefore, unlawful if no legal basis can be called upon to justify the initial deprivation of liberty. If national law is relied upon as justification, the relevant provisions must not violate international law.346 In addition, the legal basis for the initial deprivation of liberty must apply throughout the period of imprisonment. If at any time the initial legal basis ceases to apply, the initially lawful deprivation of liberty may become unlawful at that time and be regarded as arbitrary imprisonment."
"346. In particular, the national law itself must not be arbitrary and the enforcement of this law in a given case must not take place arbitrarily."
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, para. 303:
"303. Based on the aforementioned definition, the imprisonment of civilians will be unlawful where:
[…]
- the procedural safeguards required by Article 43 of Geneva Convention IV are not complied with in respect of detained civilians, even where initial detention may have been justified;421 […]"
"421. Celebici Appeal Judgement, para. 322. The Appeals Chamber set forth this definition in the context of a discussion of the offence of unlawful confinement under Article 2 of the Statute. See also discussion above."
Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-A, Judgement (AC), 20 February 2001, paras. 322, 330:
"322. The Appeals Chamber agrees with the Trial Chamber that the exceptional measure of confinement of a civilian will be lawful only in the conditions prescribed by Article 42, and where the provisions of Article 43 are complied with.505 Thus the detention or confinement of civilians will be unlawful in the following two circumstances:
[…]
(ii) where the procedural safeguards required by Article 43 of Geneva Convention IV are not complied with in respect of detained civilians, even where their initial detention may have been justified."
"505. This does not preclude the existence of other circumstances which may render confinement of a civilian unlawful, but that question does not now arise for determination by the Appeals Chamber."
"330. […] The Appeals Chamber is also not satisfied that the Trial Chamber erred in its conclusion that, even if it were to accept that the initial confinement of the individuals detained in the Celebici prison-camp was lawful, the continuing confinement of these civilians was in violation of international humanitarian law, as the detainees were not granted the procedural rights required by article 43 of Geneva Convention IV."
"525. See Aleksovski Appeal Judgement, para 63.
526. ICRC Commentary (GCIV) p 261: "the Convention describes internment and placing in assigned residence as exceptionally severe measures which may be applied only if they are absolutely necessary for the security of the State.""
[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. 70:
"70. Further, an initially lawful internment clearly becomes unlawful if the detaining party does not respect the basic procedural rights of the detained persons and does not establish an appropriate court or administrative board as prescribed in Article 43 of Geneva Convention IV.76 That article provides:
Any protected person who has been interned or placed in assigned residence shall be entitled to have such action reconsidered as soon as possible by an appropriate court or administrative board designated by the Detaining Power for that purpose. If the internment or placing in assigned residence is maintained, the court or administrative board shall periodically, and at least twice yearly, give consideration to his or her case, with a view to the favourable amendment of the initial decision, if circumstances permit.
Unless the protected persons concerned object, the Detaining Power shall, as rapidly as possible, give the Protecting Power the names of any protected persons who have been interned or subjected to assigned residence, or have been released from internment or assigned residence. The decisions of the courts or boards mentioned in the first paragraph of the present Article shall also, subject to the same conditions, be notified as rapidly as possible to the Protecting Power."
"76. Celebici Appeal Judgement, para. 320."
Prosecutor v. Blagoje Simić et al., Case No. IT-95-17/1-T, Judgement (TC), 17 October 2003, para. 681:
"681. The detention of non-Serb civilians in facilities within Bosanski Samac, namely, the SUP, TO and primary and secondary schools, was also arbitrary and unlawful. Although a small number of the arrests may not have been unlawful for persons belonging to the SDA paramilitary group, in so far as their may have been a well -founded suspicion that they committed crimes during their participation in these groups, the detention of these persons became unlawful when they were subjected to continued detention without respect for their rights to liberty and security of the person, and to a fair trial. […] The legality of their detention was never reviewed by the Serb authorities."
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, para. 286:
"286. Civilians interned in accordance with Articles 5, 27 or 42 of Geneva Convention IV should be granted the procedural rights set forth in Article 43 of Geneva Convention IV, which reads as follows:
Any protected person who has been interned or placed in assigned residence shall be entitled to have such action reconsidered as soon as possible by an appropriate court or administrative board designated by the Detaining Power for that purpose. […]"
Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-T, Judgement (TC), 16 November 1998,paras. 579 – 580, 583, 1135:
"579. In case the internment of civilian persons can be justified according to articles 5, 27 or 42 of Geneva Convention IV, the persons so detained must still be granted some basic procedural rights. These rights are entrenched in article 43 of Geneva Convention IV which provides as follows:
Any protected person who has been interned or placed in assigned residence shall be entitled to have such action reconsidered as soon as possible by an appropriate court or administrative board designated by the Detaining Power for that purpose. If the internment or placing in assigned residence is maintained, the court or administrative board shall periodically, and at least twice yearly, give consideration to his or her case, with a view to the favourable amendment of the initial decision, if circumstances permit. […]"
"580. Article 43 supplements articles 41 and 42 by laying down a procedure which is designed to ensure that the parties to an armed conflict, which resort to measures of internment, respect the basic procedural rights of the persons concerned. As Geneva Convention IV leaves a great deal to the discretion of the detaining party in the matter of the original internment or placing in assigned residence of an individual, the party’s decision that such measures of detention are required must be "reconsidered as soon as possible by an appropriate court or administrative board"."
"583. […] However, it must be borne in mind that the measure of internment for reasons of security is an exceptional one and can never be taken on a collective basis. An initially lawful internment clearly becomes unlawful if the detaining party does not respect the basic procedural rights of the detained persons and does not establish an appropriate court or administrative board as prescribed in article 43 of Geneva Convention IV."
"1135. Even were the Trial Chamber to accept that the initial confinement of the individuals detained in the Celebici prison-camp was lawful, the continuing confinement of these civilians was in violation of international humanitarian law, as the detainees were not granted the procedural rights required by article 43 of Geneva Convention IV. According to this provision, the decision to take measures of detention against civilians must be "reconsidered as soon as possible by an appropriate court or administrative board".""
[B. Evidentiary comment:]
P.10.3. Evidence that an administrative board investigating detention had ceased to function.
A. Legal source/authority and evidence:
Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-T, Judgement (TC), 16 November 1998, para. 1136:
"1136. The evidence before the Trial Chamber shows that the War Presidency in Konjic municipality decided to form an investigatory commission for the crimes allegedly committed by the persons confined in the Celebici prison-camp. In May 1992, the Joint Command formed such an organ for Investigations - the Military Investigations Commission. Several witnesses testified to the establishment and organisation of this Commission, which consisted of five members, […]. These members were representatives of the MUP and the HVO, as well as of the TO, and were appointed by their respective commanders. The evidence before the Trial Chamber shows that the Commission ceased to function as early as the end of June 1992, when its members resigned from their positions."
[B. Evidentiary comment:]
P.10.4. Evidence that an administrative board investigating detention had no actual power.
A. Legal source/authority and evidence:
Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-A, Judgement (AC), 20 February 2001, para. 329:
"329. The Trial Chamber found that a Military Investigative Commission for the crimes allegedly committed by the persons confined in the Celebici camp was established ,521 but that this Commission did not meet the requirements of Article 43 of Geneva Convention IV as it did not have the necessary power to decide finally on the release of prisoners whose detention could not be considered as justified for any serious reason.522 There is therefore nothing in the activities of the Commission which could justify the continued detention of detainees in respect of whom there was no reason to categorise as a security risk. Indeed, it appears to have recommended the release of several of the Celebici camp detainees, albeit without result.523 […]"
"521. See infra para 382.
522. Trial Judgement, paras 1138-1140.
523. Trial Judgement, paras 1137-1138."
Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-T, Judgement (TC), 16 November 1998,paras. 1137 – 1139:
"1137. […] it is clear to the Trial Chamber that this Commission did not have the necessary power to finally decide on the release of prisoners whose detention could not be considered as being justified for any serious reason. To the contrary, the power of this Commission was limited to initiating investigations of the prisoners and conducting interviews with prisoners in order to obtain relevant information concerning other individuals suspected of armed rebellion outside the prison-camp. The members of the Commission did not have any possibility to supervise the actual release of prisoners who were suggested for release by its members."
"1138. The evidence before the Trial Chamber further shows that the members of the Commission, after becoming aware of the conditions in the prison-camp, including the mistreatment of detainees and the continued incarceration of persons who were peaceful civilians, in June 1992 prepared a report detailing the problems and their inability to correct them."
"1139. Similarly, Witness D, in his testimony before the Trial Chamber provided the following description of the role of the Commission:
We all realised that this was just a facade, this whole Commission, which was supposed to sort of provide some semblance of lawfulness to all this, but it was, in fact, nothing. 1006 […]"
"1006. T. 5226."
[B. Evidentiary comment:]
P.10.5. Evidence of a failure to reconsider detention twice per year.
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. 70:
"70. Further, an initially lawful internment clearly becomes unlawful if the detaining party does not respect the basic procedural rights of the detained persons and does not establish an appropriate court or administrative board as prescribed in Article 43 of Geneva Convention IV.76 That article provides:
Any protected person who has been interned or placed in assigned residence shall be entitled to have such action reconsidered as soon as possible by an appropriate court or administrative board designated by the Detaining Power for that purpose. If the internment or placing in assigned residence is maintained, the court or administrative board shall periodically, and at least twice yearly, give consideration to his or her case, with a view to the favourable amendment of the initial decision, if circumstances permit. […]"
"76. Celebici Appeal Judgement, para. 320."
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, para. 286:
"286. Civilians interned in accordance with Articles 5, 27 or 42 of Geneva Convention IV should be granted the procedural rights set forth in Article 43 of Geneva Convention IV, which reads as follows:
Any protected person who has been interned or placed in assigned residence shall be entitled to have such action reconsidered as soon as possible by an appropriate court or administrative board designated by the Detaining Power for that purpose. If the internment or placing in assigned residence is maintained, the court or administrative board shall periodically, and at least twice yearly, give consideration to his or her case, with a view to the favourable amendment of the initial decision , if circumstances permit. […]"
Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-T, Judgement (TC), 16 November 1998,para. 579:
"579. In case the internment of civilian persons can be justified according to articles 5, 27 or 42 of Geneva Convention IV, the persons so detained must still be granted some basic procedural rights. These rights are entrenched in article 43 of Geneva Convention IV which provides as follows:
Any protected person who has been interned or placed in assigned residence shall be entitled to have such action reconsidered as soon as possible by an appropriate court or administrative board designated by the Detaining Power for that purpose. If the internment or placing in assigned residence is maintained, the court or administrative board shall periodically, and at least twice yearly, give consideration to his or her case, with a view to the favourable amendment of the initial decision, if circumstances permit. […]"
[B. Evidentiary comment:]
P.10.6. Evidence of continued detention after establishing no reason for detention.
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. 288:
"288. Finally, Article 132 of Geneva Convention IV provides:
Each interned person shall be released by the Detaining Power as soon as the reasons which necessitated his internment no longer exist."
Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-T, Judgement (TC), 16 November 1998,paras. 581, 1138:
"581. The judicial or administrative body reviewing the decision of a party to a conflict to detain an individual must bear in mind that such measures of detention should only be taken if absolutely necessary for reasons of security. Thus, if these measures were inspired by other considerations, the reviewing body would be bound to vacate them. Clearly, the procedures established in Geneva Convention IV itself are a minimum and the fundamental consideration must be that no civilian should be kept in assigned residence or in an internment camp for a longer time than the security of the detaining party absolutely demands.589"
"589. This point is also emphasised in article 132, Geneva Convention IV which provides as follows: "Each interned person shall be released by the Detaining Power as soon as the reasons which necessitated his internment no longer exist. The Parties to the conflict shall, moreover, endeavour during the course of hostilities, to conclude agreements for the release, the repatriation, the return to places of residence or the accommodation in a neutral country of certain classes of internees, in particular children, pregnant women and mothers with infants and young children, wounded and sick, and internees who have been detained for a long time.""
"1138. The evidence before the Trial Chamber further shows that the members of the Commission, after becoming aware of the conditions in the prison-camp, including the mistreatment of detainees and the continued incarceration of persons who were peaceful civilians, in June 1992 prepared a report detailing the problems and their inability to correct them1004. In this report, the Commission stated, inter alia:
[…] Persons who were arrested under such circumstances stayed in detention even after it had been established that they had been detained for no reason and received the same treatment as persons captured in the combat zone.… Because self-appointed judges have appeared, any further investigation is pointless until these problems are solved.1005"
"1004. Exhibit 162. See also T. 5203.
1005. Exhibit 162/A."
[B. Evidentiary comment:]
P.11. Evidence of confinement under inhumane conditions, rendering the confinement unlawful.
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. 94:
"94. When discussing "confinement under inhumane conditions", the Kvocka Trial Chamber found that:
Confinement in camps under inhumane conditions can be included under sub-clauses (e) and (i) prohibiting "imprisonment" and "other inhumane acts" and also meets the definition of a persecutory act.171"
"171. Kvocka Trial Judgement, para. 189."
[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. 282:
"282. In sum, the reservation in paragraph 4 leaves a wide margin of discretion to the belligerents with regard to the choice of measures, which can range from imposing a duty to register to the internment of civilians.392 However, what is fundamental is that, even if these measures of constraint are justified and made absolutely necessary based on the requirements of State security, the fundamental rights of the persons must be respected.393"
"392. ICRC Commentary (GC IV), p. 207.
393. ICRC Commentary (GC IV), p. 207; Celebici Trial Judgement, para. 570."
Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-T, Judgement (TC), 16 November 1998,para. 570:
"570. However, these security measures which States are entitled to take are not specified. Once again, the Convention merely lays down a general provision and a great deal is thus left to the discretion of the parties to the conflict as regards the choice of means. It appears that these would include, for example, a mild restriction such as the duty of registering and also more stringent measures like assigned residence or internment. What is essential is that the measures of constraint adopted should not affect the fundamental right of the persons concerned to be treated with humanity584. The right to respect for the human person covers all the rights of the individual, that is, those rights and qualities which are inseparable from a person by the very fact of his or her existence, in particular, the right to physical, moral and intellectual integrity.585"
"584. Commentary, p. 207.
585. Ibid., p. 201."
[B. Evidentiary comment:]
P.11.2. Evidence that victims were used as hostages.
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, paras. 784, 800:
"784. Evidence was given that Muslim civilian prisoners were used as hostages:
(a) Prisoners from Gacice (247 civilians) were taken to the HVO headquarters in Hotel Vitez and kept there for some hours as hostages in case of ABiH shelling.1637
(b) Dr. Muhammad Mujezinovic was asked by Mario Cerkez to set up a Commission from 300 detainees held in the basement of the Vitez cinema to call upon the ABiH to stop attacking or all prisoners held in Vitez would be killed.1638
(c) The detainees at the Dubravica school were told that the ground around the school had been mined and should the ABiH attack the detainees would be blown up along with the building.1639
(d) The people in the Stari Soliter building in Novi Travnik were prevented from leaving and were used as leverage by the HVO in negotiations;1640 the same was true of the population of besieged Stari Vitez, according to Major Mark Bower.1641"
"1637. Ex. Z1760-3, Ex. Z1770 are photos of the burned Muslim homes and Mekteb in Gacice.
1638. Dr. Muhamed Mujezinovic, T. 2199-2200; Witness G, T. 3902-03.
1639. Fuad Zeco, T. 6530; Anto Breljas, T. 11725-26.
1640. Witness C, T. 827-829; Witness Q, T. 7697-99.
1641. Major Mark Bower, T. 9199."
"800. The Trial Chamber finds that while so detained the Muslims were subjected to conditions which varied from camp to camp, but which were generally inhuman. The Trial Chamber also finds that while detained the Muslims were, without any justification, used as hostages and human shields, and forced to dig trenches and that, as a result of the latter activity, a number were killed or wounded. The Trial Chamber, therefore, finds that the detained Bosnian Muslims were unlawfully confined and subjected to inhuman treatment."
[B. Evidentiary comment:]
P.11.3. Evidence that victims were used as human shields.
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, paras. 783, 785, 795, 800:
"783. […] (ii) […] The detainees were mistreated and would be used as human shields and for trench-digging in the area near the school and Kula. This all led the witness to protest against the mistreatment of prisoners .1636"
"1636. T. 11717-24. On one occasion the witness received a cut-off ear from a member of the Vitezovi: T. 11724. Another prisoner, a judge from Travnik named Kemal Poricanin, was beaten badly and died in detention: T. 11726-27."
"785. The following witnesses gave evidence about being used as human shields:
(a) Witness T said he and others were used as human shields at Strane, Kula and Komari.1642
(b) Witness H said that Bosnian Muslim prisoners were required to dig trenches and carry ammunition on the front line: he believes they were being used as human shields .1643 Five prisoners from Loncari were killed at Kuber while carrying ammunition for the HVO and 12 young men from Loncari are missing.1644
(c) Witness J was taken from Kaonik on 26 or 27 January 1993 with 15 other prisoners from Busovaca: 13 of them (excluding the witness but including his brother) were tied together with a rope and told they would be used as human shields at Strane . The witness’s brother later told him that they had been used as human shields ; for example, they were tied to a railroad bridge and used as human shields at Merdani. No one was killed.1645
(d) On 5 October 1993, in Novi Travnik, three ABiH soldiers, who were prisoners of the HVO, were forced to walk towards the ABiH line with mines attached to them: when they reached the vicinity of the ABiH positions the mines were activated.1646
(e) Three Muslim men were used as human shields by the HVO at Svinjarevo in order to force the defenders of the village to surrender. All three are missing.1647
(f) Witness AJ heard of people used as human shields at Gomionica and Kresevo.1648"
"1642. Witness T, T. 9474.
1643. Witness H, T. 4109.
1644. Witness H, T. 4109-12.
1645. Witness J, T. 4541-45, 4669.
1646. Witness C, T. 854-55.
1647. Witness AM, T. 15580-82.
1648. Witness AJ, T. 14644."
"795. […]Osman Tukic, chief of the railway station , and nine other civilians were taken from the silos in Zepce to be used as human shields on the railway line and went missing.1696 The silos continued to be used as a detention centre until the end of 1993 or the beginning of 1994, when the prisoners were taken to HVO camps in Herzegovina.1697"
"1696. Witness F, T. 3451-52; Ex. Z1421.1.
1697. Witness F, T. 3466. List of detainees from Zepce taken to HVO camps in Herzegovina, Ex. Z1362."
"800. […] The Trial Chamber finds that while so detained the Muslims were subjected to conditions which varied from camp to camp, but which were generally inhuman. The Trial Chamber also finds that while detained the Muslims were, without any justification, used as hostages and human shields, and forced to dig trenches and that, as a result of the latter activity, a number were killed or wounded. The Trial Chamber, therefore, finds that the detained Bosnian Muslims were unlawfully confined and subjected to inhuman treatment."
Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, para. 681:
"681. The detainees were allegedly used as human shields, beaten, forced to dig trenches and subjected to physical and mental violence, threats and inhuman treatment, in particular by being confined in cramped or overcrowded facilities and being deprived of sufficient food and water. Some of them were reportedly killed or wounded while being forced to dig trenches in the Kiseljak, Vitez and Busovaca municipalities 1548 ."
"1548. Second amended indictment, paras. 13-14."
[B. Evidentiary comment:]
P.11.4. Evidence that victims were beaten, injured, or subjected to other acts of physical violence.
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, paras. 774, 778, 790, 795:
"774. […] There was much evidence of the poor conditions in the camp and the mistreatment of prisoners: the cells were small and over-crowded, hygiene was very poor and the food was inadequate.1595 The detainees were subjected to beatings: one witness described how he could hear people being beaten and crying out day in and day out;1596 another described how he was beaten severely for three and a half hours and suffered a broken jaw as a result.1597 Sounds of screams were played on the loudspeakers at night.1598"
"1595. Witness B, T. 479-480; Witness G, T. 3909-12; Witness I, T. 4209-16; Witness J, T. 4539; Witness H, T. 4097-98; Dan Damon, T. 6670-71.
1596. Edib Zlotrg, T. 1685-86: this witness lost 30 kilos in weight during his detention.
1597. Witness J, T. 4548-52. Witness I was beaten at night and still suffers from the effects: T. 4216; Enes Surkovic could hear screams at night from the cells in which Arab prisoners were held: T. 4389-92, 4467.
1598. Witness G, T. 3909-12."
"778. Witness S, a doctor, treated civilians (men and women) detained in the cinema ; some of whom had sustained gunshot wounds while being forced to dig trenches.1618 The witness said she was then ordered to join a Commission to check the health of the detainees and to prepare a list of those to be released on medical grounds. The witness saw around 50 prisoners, some of them elderly, and in total the Commission saw about 100-150. A local Vitez television crew was present and was told by Dr . Thibolt, the Croat manager of the centre, that nobody had complained of mistreatment : however, Witness S had the impression that the prisoners were terrified. One prisoner had a broken arm and another a broken jaw.1619"
"1618. Witness S, T. 7938-39.
1619. Witness S, T. 7939-52."
"790. In April and June 1993 two facilities were used by the HVO for the purpose of detaining Muslims from the villages around Kiseljak town, namely the barracks and municipal buildings in the town. The prisoners were initially detained in the barracks where they were kept in overcrowded and unhygienic conditions, their valuables having been taken from them.1675 The prisoners were beaten regularly and kept short of food.1676 Witness Y was transferred from the barracks to the municipal building which he described as being in a terrible condition, dirty, with a lot of garbage and mice running around: with 50 people to a room and no food for two days.1677"
"1675. Witness Y, T. 11004-13; Witness AN, T. 15679-80; photo of barracks, Ex. Z1894.1.
1676. Witness TW09, Blaskic T. 9332-33; Witness AN, T. 15679-80.
1677. Witness Y, T. 11011-12."
"795. […] At the end of August a Muslim soldier was badly beaten in the silos and died from his injuries.1693 During the day the prisoners were sent to dig trenches for the HVO and for the Serbs.1694 While they were digging trenches they were exposed to the risk of being killed by the ABiH;1695 and two men were killed by guards while digging trenches. Osman Tukic, chief of the railway station , and nine other civilians were taken from the silos in Zepce to be used as human shields on the railway line and went missing.1696 The silos continued to be used as a detention centre until the end of 1993 or the beginning of 1994, when the prisoners were taken to HVO camps in Herzegovina.1697"
"1693. Witness F, T. 3446; Witness AH could hear him screaming and said there were also other examples of maltreatment at night: Witness AH, T. 14440-41. Witness F was himself beaten by a military policeman while at the silos: T. 3455.
1694. Witness F, T. 3443; Witness AH estimates that more than 100 prisoners were killed in the course of forced labour. Witness L compiled a list of 100 people killed in Zepce, which included people killed while digging trenches: Ex. Z2291.1.
1695. Witness AH, T. 14441-44.
1696. Witness F, T. 3451-52; Ex. Z1421.1.
1697. Witness F, T. 3466. List of detainees from Zepce taken to HVO camps in Herzegovina, Ex. Z1362."
Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, paras. 681, 693:
"681. The detainees were allegedly used as human shields, beaten, forced to dig trenches and subjected to physical and mental violence, threats and inhuman treatment, in particular by being confined in cramped or overcrowded facilities and being deprived of sufficient food and water. Some of them were reportedly killed or wounded while being forced to dig trenches in the Kiseljak, Vitez and Busovaca municipalities 1548 ."
"1548. Second amended indictment, paras. 13-14."
"693. […] In addition, they were mistreated by the Military Police 1578 who, for example, sometimes inflicted sadistic bodily harm on them. Thus, one witness related how they placed a cigarette up his nostril while threatening to kill him 1579 . The guards prohibited the detainees from taking cover whilst fire was being exchanged 1580 ."
"1578. Witness TT, PT p. 9342.
1579. Witness OO, PT p. 8657.
1580. Witness OO, PT p. 8657."
[B. Evidentiary comment:]
P.11.5. Evidence that victims were kept in poor conditions of space, nutrition, or hygiene.
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. 737 – 738:
"737. Several Prosecution witnesses gave evidence that after 17 April 1992, they were held in the SUP in overcrowded cells, sometimes with not enough room to sit .1664 Prisoners had often only cardboard to sleep on.1665 The situation in the TO and in the primary and secondary schools was similar.1666 In Crkvina1667 and Bijeljina,1668 the conditions were alike."
"1664. Sulejman Tihic, T. 1411, T. 1414, T. 3641-42; Dragan Lukac, T. 1746-47, T. 1762, T. 1769; Witness A, Rule 92bis Statement, para. 86; Esad Dagovic, T 3964; Witness L, T. 4341-43; Witness M, T. 5218-19; Ibrahim Salkic, T. 3263-64, T. 3287; Witness C, T. 7919-21; Witness Q, T. 11728-29; Witness E, T. 7679-80, T. 7740-41, T. 7822-23; Kemal Bobic, T. 11403.
1665. Dragan Lukac, T. 1746, 1769; Witness A, Rule 92bis Statement, para. 86.
1666. Sulejman Tihic, T. 3641-42; Izet Izetbegovic, T. 2314-15; Hasan Bicic, T. 2669, T. 2714-15; Muhamed Bicic, T. 2937, T. 3026-27; Ibrahim Salkic, T. 3263-66, T. 3330; Kemal Mehinovic, T. 7443; Witness E, T. 7715-17; Hasan Subasic, T. 10944-45; Witness A, Rule 92bis Statement, paras 48, 52; Witness O, Rule 92bis Statement, para. 50; Witness P, T. 11554-55.
1667. Witness O, Rule 92bis Statement, para. 25.
1668. Hasan Bicic, T. 2706; Osman Jasarevic, Rule 92bis Statement, paras 100-102."
"738. Prosecution witnesses testified that they had an insufficient supply of food and water during their detention in the SUP,1669 in the TO,1670 in the primary and secondary schools,1671 in Crkvina,1672 and in Zasavica, 1673 and that the situation was better in Brcko1674 and Bijeljina.1675"
"1669. Sulejman Tihic, T. 1414, T. 1416-18, T. 1431; Izet Izetbegovic, T. 2294; Dragan Lukac, T. 1746, T. 1769, T. 1781-83; Hasan Bicic, T. 2653; Ibrahim Salkic, T. 3263-64, T. 3287; Esad Dagovic, T. 3976, T. 4003-04; Witness L, T. 4341-43; Kemal Bobic, T. 11403; Witness M, T. 5218-19; Witness E, T. 7711; Witness P, T. 11558; Witness A, Rule 92bis Statement, para. 87; Witness Q, T. 11863-66.
1670. Sulejman Tihic, T. 1400; Izet Izetbegovic, T. 2314. See also Muhamed Bicic, T. 2963; Hasan Bicic, T. 2670; Ibrahim Salkic, T. 3282; Dragan Delic, T. 6675-77; Witness A, Rule 92bis Statement, para. 53; Muhamed Bicic, T. 2963; Witness N, T. 6076-77; Kemal Mehinovic, T. 7442-43; Witness E, T. 7723; Osman Jasarevic, Rule 92bis Statement, para. 77; Ediba Bobic, T. 11271; Witness P, T. 11556; Fadil Topcagic, T. 18345.
1671. Hasan Bicic, T. 2722; Ibrahim Salkic, T. 3338-39; Muhamed Bicic, T. 3025. See also Witness N, T. 6151-52; Witness O, Rule 92bis Statement, paras 32, 48; Andrija Petric, T. 17595.
1672. Jelena Kapetanovic, T. 8952-54, T. 8959-60, T. 8966-69.
1673. Jelena Kapetanovic, T. 10326-28.
1674. Sulejman Tihic, T. 3708; Witness N, T. 6092; Muhamed Bicic, T. 2971, T. 3057-58.
1675. Witness N, T. 6096; Muhamed Bicic, T. 2977; Osman Jasarevic, Rule 92bis Statement, para. 103."
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, paras. 774, 783, 790, 795:
"774. […] There was much evidence of the poor conditions in the camp and the mistreatment of prisoners: the cells were small and over-crowded, hygiene was very poor and the food was inadequate.1595 […]
"1595. Witness B, T. 479-480; Witness G, T. 3909-12; Witness I, T. 4209-16; Witness J, T. 4539; Witness H, T. 4097-98; Dan Damon, T. 6670-71."
"783. […] (ii) […] Women and children were separated from the men; the former were kept in the classrooms and the latter in the gymnasium. Military prisoners were kept in the basement and 15 of them were killed. In the witness’s opinion the conditions were appalling; in the gymnasium there was not enough air; there was inadequate food and no medical treatment. The detainees were mistreated and would be used as human shields and for trench-digging in the area near the school and Kula. This all led the witness to protest against the mistreatment of prisoners.1636"
"1636. T. 11717-24. On one occasion the witness received a cut-off ear from a member of the Vitezovi: T. 11724. Another prisoner, a judge from Travnik named Kemal Poricanin, was beaten badly and died in detention: T. 11726-27."
"790. In April and June 1993 two facilities were used by the HVO for the purpose of detaining Muslims from the villages around Kiseljak town, namely the barracks and municipal buildings in the town. The prisoners were initially detained in the barracks where they were kept in overcrowded and unhygienic conditions, their valuables having been taken from them.1675 The prisoners were beaten regularly and kept short of food.1676 Witness Y was transferred from the barracks to the municipal building which he described as being in a terrible condition, dirty, with a lot of garbage and mice running around: with 50 people to a room and no food for two days.1677"
"1675. Witness Y, T. 11004-13; Witness AN, T. 15679-80; photo of barracks, Ex. Z1894.1.
1676. Witness TW09, Blaskic T. 9332-33; Witness AN, T. 15679-80.
1677. Witness Y, T. 11011-12."
"795. The silos were normally used for the storage of grain but they were now used as a prison for able-bodied men of military age. It was upon this facility that the prosecution evidence concentrated. Witness F’s evidence was that the detainees were kept in concrete cells of 15 metres by 5 metres, 50-60 men to each cell, without toilets; sleeping on the floor without any covers. There were two to three toilets for 500-600 prisoners and two meals a day.1692 […]"
"1692. Witness F, T. 3443-45."
Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, paras. 681, 692:
"681. The detainees were allegedly used as human shields, beaten, forced to dig trenches and subjected to physical and mental violence, threats and inhuman treatment, in particular by being confined in cramped or overcrowded facilities and being deprived of sufficient food and water. […]."
"1548. Second amended indictment, paras. 13-14."
"692. The prisoners of Rotilj were forced to endure particularly harsh living conditions. The village was overcrowded and the people crammed into those houses which had not been destroyed. They lacked medicines and there was insufficient water and food . The Trial Chamber points to the murders and acts of physical violence, including rape, which occurred in the village."
[B. Evidentiary comment:]
P.11.6. Evidence that victims were forced to dig trenches.
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, paras. 775, 783, 795, 800:
"775. Evidence was given that the HVO forced detainees from Kaonik to dig trenches at various places. Witness I said that he was among those taken trench-digging from Kaonik and that about 26 of those taken during his time there did not return .1599 Witness H’s son was one of those selected in April 1993 and did not return: the witness himself had also to go trench-digging.1600 Witness AR was beaten and his ribs broken when he was trench-digging: he saw others being beaten and said that the prisoners were denied food and water and two of them were killed.1601 Other witnesses gave evidence about this trench-digging, including international observers.1602"
"1599. Witness I, T. 4204-08.
1600. T. 4092-95, 4103-09.
1601. T. 16307-10.
1602. Witness J, T. 4564-79; Edib Zlotrg, T. 1673-76; Major Phillip Jennings saw 10 to 15 Muslims, two or three of whom were women, digging trenches south of the T-junction at Kaonik on approximately 28 January 1993. Four HVO soldiers in camouflage, armed with Kalashnikovs, were with them: T. 8872-73; Col. Hendrik Morsink saw civilians digging trenches near Jelinak: T. 8043. Witness AS, a member of the HVO, saw prisoners digging trenches in the area of Putis: T. 16358. Witness T said that in 1993 he and a group of around 160 Muslims were compelled to dig trenches around Loncari and two were killed: T. 9474."
"783. […] (i) […] However, some detainees were taken to dig trenches in Nadioci , Pirici, Kuber, Tolovici and other locations.1632 Some were killed and others wounded; some suffered physical mistreatment and humiliation while digging trenches.1633 When the fighting came close to the school, the HVO soldiers told the detainees that they would be blown up along with the building.1634 However, the detainees were released on 30 April 1993 and were told they could either stay in the Vitez municipality or leave.1635"
"1632. These locations are marked on Ex. Z2767.
1633. Fuad Zeco, T. 6523-28.
1634. Anto Breljas, T. 11725-26, gave evidence that on the orders of Darko Kraljevic, explosives were placed around the school so that it could be blown up in the case of an ABiH attack: when the ABiH did attack on 20 April 1993 the attack ended in an ABiH withdrawal.
1635. Fuad Zeco, T. 6530-32. The Defence called no evidence in relation to the conditions of detention in this facility."
"795. […] During the day the prisoners were sent to dig trenches for the HVO and for the Serbs.1694 While they were digging trenches they were exposed to the risk of being killed by the ABiH;1695 and two men were killed by guards while digging trenches. […]"
"1694. Witness F, T. 3443; Witness AH estimates that more than 100 prisoners were killed in the course of forced labour. Witness L compiled a list of 100 people killed in Zepce, which included people killed while digging trenches: Ex. Z2291.1.
1695. Witness AH, T. 14441-44."
"800. […] The Trial Chamber also finds that while detained the Muslims were, without any justification, used as hostages and human shields, and forced to dig trenches and that, as a result of the latter activity, a number were killed or wounded. The Trial Chamber, therefore, finds that the detained Bosnian Muslims were unlawfully confined and subjected to inhuman treatment."
Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, paras. 681, 693, 699:
"681. The detainees were allegedly used as human shields, beaten, forced to dig trenches and subjected to physical and mental violence, threats and inhuman treatment, in particular by being confined in cramped or overcrowded facilities and being deprived of sufficient food and water. Some of them were reportedly killed or wounded while being forced to dig trenches in the Kiseljak, Vitez and Busovaca municipalities 1548 ."
"1548. Second amended indictment, paras. 13-14."
"693. Furthermore, the men detained in Kiseljak barracks and Rotilj were compelled by the HVO to dig trenches 1575 . In so doing, some detainees near the front-line were killed or wounded during exchanges of fire 1576 . Forced labour sometimes lasted a long time and the detainees were exposed to bad weather 1577 . In addition, they were mistreated by the Military Police 1578 who, for example, sometimes inflicted sadistic bodily harm on them. Thus, one witness related how they placed a cigarette up his nostril while threatening to kill him 1579 . The guards prohibited the detainees from taking cover whilst fire was being exchanged 1580 ."
"1575. Witness DD, PT pp. 7050-7051; witness AA, PT pp. 6656-6658.
1576. Witness AA, PT p. 6655; witness TT, PT p. 9342.
1577. Witness TT, PT p. 9342.
1578. Witness TT, PT p. 9342.
1579. Witness OO, PT p. 8657.
1580. Witness OO, PT p. 8657."
"699. A significant number of the detainees at the cultural centre, the veterinary station, Dubravica school and the SDK building were forced to dig trenches by HVO soldiers 1607. It was strenuous and dangerous work. At the front-line, some were killed or wounded 1608 , especially when the HVO did not allow them to lie down to protect themselves from shooting 1609 . During one incident in particular, HVO soldiers killed one detainee and threatened to kill another 1610 ."
"1607. Witness Pezer, PT of 19 August 1997, pp. 1570-1571; witness Zeco, PT of 26 September 1997, p. 2816; witness G, PT pp. 3868-3869; witness Kavazovic, PT of 26 August 1997 pp. 2320-2321.
1608. Witness Zeco, PT of 26 September 1997, pp. 2817-2818; witness XX, PT pp. 10470-10471; witness Y, PT p. 6515.
1609. Witness D, PT of 24 September 1997, pp. 2704-2705.
1610. Witness D, PT of 24 September 1997, pp. 2707-2708."
