Table of contents:
5. The perpetrator seized, detained or otherwise held hostage one or more persons.
5.1. The perpetrator seized one or more persons; OR
5.2. The perpetrator detained or otherwise held hostage one or more persons; OR
5.2.1. Evidence of detention of one or more persons in an enclosed space.
P.1. Evidence of detention 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.
P.1.4. Evidence of detention in a prison.
5.2.2. Evidence of detention of one or more persons in other non-enclosed locations.
P.2. Evidence of detention in established or makeshift camps or detention centres.
P.2.1. Evidence of detention in a camp.
P.2.2. Evidence of detention in a detention centre.
P.2.3. Evidence of detention in an office building.
P.2.4. Evidence of detention in a school.
P.2.5. Evidence of detention in a veterinary station.
P.2.6. Evidence of detention in military barracks/headquarters.
P.2.7. Evidence of detention in a stadium.
P.2.8. Evidence of detention in a warehouse.
P.2.9. Evidence of detention in a cinema.
P.2.10. Evidence of detention in areas known to be military targets.
P.3. Evidence of detention in homes or cities.
P.3.1. Evidence of house arrest.
P.3.2. Evidence of restriction to a closed village or city.
5.2.3. Evidence that detention constitutes an unlawful deprivation of the victims liberty.
P.4. Evidence of unlawful deprivation of the victims liberty.
P.4.1. Evidence that detention is not justifiable on security grounds.
P.4.2. Evidence that detention is not justifiable on safety grounds.
5.3. The perpetrator otherwise held hostage one or more persons.
Element:
5. The perpetrator seized, detained or otherwise held hostage one or more persons.
5.1. The perpetrator seized one or more persons; OR
5.2. The perpetrator detained or otherwise held hostage one or more persons; OR
[General evidentiary comment]
A. Evidentiary comment:
There is overlap between 1.2. The perpetrator detained or otherwise held hostage one or more persons and Element 1 of the war crime of unlawful confinement (Article 8(2)(a)(vii)-2), which states The perpetrator confined or continued to confine one or more persons to a certain location. As there is little hostage-taking jurisprudence at present, some excerpts from means of proof for the "confinement" element of unlawful confinement are included below.
5.2.1. Evidence of detention of one or more persons in an enclosed space.
P.1. Evidence of detention 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).
P.1.4. Evidence of detention in a prison.
A. Legal source/authority and evidence:
Prosecutor v. Tihomir Blakić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, para. 702:
"702. The Prosecution explained that counts 17 and 18 were based on the HVOs taking of Bosnian Muslim detainees incarcerated inter alia at the cinema, the veterinary station, Dubravica school and Kaonik prison as hostages on 19 and 20 April 1993."
[B. Evidentiary comment:]
5.2.2. Evidence of detention of one or more persons in other non-enclosed locations.
P.2. Evidence of detention in established or makeshift camps or detention centres.
P.2.1. Evidence of detention 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 detention 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 detention 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 Blakić, 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 detention 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:
"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. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, para. 784:
"784. (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.45"
"45. Fuad Zeco, T. 6530; Anto Breljas, T.. 11725-26."
Prosecutor v. Tihomir Blakić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, paras. 413, 680, 695, 702:
"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."
"702. The Prosecution explained that counts 17 and 18 were based on the HVOs taking of Bosnian Muslim detainees incarcerated inter alia at the cinema, the veterinary station, Dubravica school and Kaonik prison as hostages on 19 and 20 April 1993."
Prosecutor v. Zoran Kuprekić 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 detention 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 Blakić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, paras. 680, 694, 702:
"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 ."
"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 stations 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."
"702. The Prosecution explained that counts 17 and 18 were based on the HVOs taking of Bosnian Muslim detainees incarcerated inter alia at the cinema, the veterinary station, Dubravica school and Kaonik prison as hostages on 19 and 20 April 1993."
[B. Evidentiary comment:]
P.2.6. Evidence of detention in military barracks/headquarters.
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, paras. 784, 790:
"784. (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.43"
"43. Ex. Z1760-3, Ex. Z1770 are photos of the burned Muslim homes and Mekteb in Gacice."
"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 Blakić, 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 detention 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 detention 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 Blakić, 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 detention 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, paras. 777, 784:
"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."
"784. (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.44"
"44. Dr. Muhamed Mujezinovic, T. 2199-2200; Witness G, T. 3902-03."
Prosecutor v. Tihomir Blakić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, para. 702:
"702. The Prosecution explained that counts 17 and 18 were based on the HVOs taking of Bosnian Muslim detainees incarcerated inter alia at the cinema, the veterinary station, Dubravica school and Kaonik prison as hostages on 19 and 20 April 1993."
[B. Evidentiary comment:]
P.2.10. Evidence of detention in areas known to be military targets.
P.3. Evidence of detention 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 Blakić, 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, para. 784, 792 793:
"784. (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;46 the same was true of the population of besieged Stari Vitez, according the Major Mark Bower.47"
"46. Witness C, T. 827-829; Witness Q, T. 7697-99.
47. Major Mark Bower, T. 9199."
"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 Blakić, 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:]
5.2.3. Evidence that detention constitutes an unlawful deprivation of the victims liberty.
P.4. Evidence of unlawful deprivation of the victims liberty.
A. Legal source/authority and evidence:
Prosecutor v. Tihomir Blakić, Case No. IT-95-14-A, Judgement (AC), 29 July 2004, para. 639:
"639. [A] situation of hostage-taking exists when a person seizes or detains and threatens to kill, injure or continue to detain another person "
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, paras. 308, 312, 314:
"308. In the Defences submission, hostage-taking is only unlawful where the accused lacks a reasonable basis for detaining the civilian hostages. Thus, it is argued, detention is permitted to protect civilians or when security concerns make it necessary.30"
"30. Kordic Pre-trial Brief, Vol. II, para. 57."
"312. It would, thus, appear that the crime of taking civilians as hostages consists of the unlawful deprivation of liberty, including the crime of unlawful confinement."
"314. Consequently, the Chamber finds that an individual commits the offence of taking civilians as hostages when he threatens to subject civilians, who are unlawfully detained, to inhuman treatment or death as a means of achieving the fulfilment of a condition."
Prosecutor v. Tihomir Blakić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, paras. 158, 187:
"158. Within the meaning of Article 2 of the Statute, civilian hostages are persons unlawfully deprived of their freedom, often arbitrarily and sometimes under threat of death.6"
"6. [ICRC] Commentary, pp. 600-601."
"187. [H]ostages are nationals of a belligerent State who of their own free will or through compulsion are in the hands of the enemy and are answerable with their freedom or their life for the execution of his orders and the security of his armed forces8. Consonant with the spirit of the Fourth Convention, the Commentary sets out that the term "hostage" must be understood in the broadest sense9. The definition of hostages must be understood as being similar to that of civilians taken as hostages within the meaning of grave breaches under Article 2 of the Statute, that is persons unlawfully deprived of their freedom, often wantonly and sometimes under threat of death."
"8. [ICRC] Commentary, p. 229.
9. Commentary, p. 230."
B. Evidentiary comment:
It appears that the detention must be unlawful to constitute the crime of hostage-taking. Although the Blaskic Trial Chamber quoted the ICRC Commentary, which states that hostages are individuals in the hands of the enemy of their own free will or through compulsion (Blaskic Trial Judgement, para. 187), the Kordic Trial Chamber explicitly stated that detention must be unlawful for the crime of hostage taking to be constituted (Kordic Trial Judgement, paras. 312, 314). However, commentators conflict on this point.
Werle, G. Principles of International Criminal Law (2005), 326:
"The hostage-taking need not necessarily be against the hostages will, as long as only the party to the conflict has control of the hostage and intends in this way to force concessions from the opposing party.423"
"423. See C. Pilloud and J.S. Pictet, in Y. Sandoz, C. Swinarski and B. Zimmermann (eds.), Commentary on the Additional Protocols (1987), marginal nos. 3051 et seq.
William Fenrick, "Article 8" in Otto Triffterer, ed, Commentary on the Rome Statute of the International Criminal Court (1999), 489:
"Hostage taking [under Article 8(2)(a)(viii)] involves: the detention of a protected person (either lawfully or unlawfully).423"
"423. See C. Pilloud and J.S. Pictet, in Y. Sandoz, C. Swinarski and B. Zimmermann (eds.), Commentary on the Additional Protocols (1987), marginal nos. 3051 et seq.
Guena?l Mettraux International Crimes and the ad hoc Tribunals (2005), 88:
"The crime of taking civilians hostage [Article 2(h) ICTY Statute] therefore consists of both an unlawful deprivation of liberty and the issuance of a conditional threat."
Once further case-law emerges and the jurisprudence settles, it may be possible to draw more parallels between this element and Element 1 of the war crime of unlawful confinement (Article 8(2)(a)(vii)-2), which states The perpetrator confined or continued to confine one or more persons to a certain location.
[B. Evidentiary comment:]
P.4.1. Evidence that detention is not justifiable on security grounds.
A. Legal source/authority and evidence:
Prosecutor v. Tihomir Blakić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, paras. 158, 704:
"158. [A]s asserted by the Defence, detention may be lawful in some circumstances, inter alia to protect civilians or when security reasons so impel."
"704. In the opinion of the Defence, even though General Blaskic exercised command responsibility within the CBOZ, the detention of Bosnian Muslim civilians was justified on security and safety grounds. A lawful act of this type could not therefore be characterised as taking of hostages."
[B. Evidentiary comment:]
P.4.2. Evidence that detention is not justifiable on safety grounds.
A. Legal source/authority and evidence:
Prosecutor v. Tihomir Blakić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, paras. 158, 704:
"158. [A]s asserted by the Defence, detention may be lawful in some circumstances, inter alia to protect civilians or when security reasons so impel."
"704. In the opinion of the Defence, even though General Blaskic exercised command responsibility within the CBOZ, the detention of Bosnian Muslim civilians was justified on security and safety grounds. A lawful act of this type could not therefore be characterised as taking of hostages."
[B. Evidentiary comment:]
5.3. The perpetrator otherwise held hostage one or more persons.
