Table of contents:
Element:
P.15. Evidence inferred from an utterance, a document or a deed.
P.15.2. Evidence that the perpetrator did not stop the looting even after police inquired.
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. 620:
"620. Two reports by the Military Police in Mostar recount that, on 13 June 1993, Vinko Martinovic with 40 armed soldiers was expelling BH Muslims from their apartments in the DUM area on Mladen Naletilics orders. During these expulsions, apartments were robbed; the looting did not stop even after the police had inquired into the situation.1523 Witness GG was dispossessed of his car and other belongings by six HVO soldiers between the end of May and middle-June 1993 in the DUM area.1524 Exhibits PP 456.4 and PP 458.1 show protests from the ABiH 4th Corps Commander Arif Pacalic for large evictions of civilians from the DUM area on 13 and 14 June 1993; the first of these documents also reports robbery from ousted people.1525 Witness P testified that in the days before 14 June 1993 violent evictions of BH Muslim residents in Mostar involved robbery of private property.1526 A memorandum by an international observer states that evictions of BH Muslims on 12 and 13 June 1993 took place in upper middle-class neighbourhoods where the most desirable properties were to be found. In particular, on 13 June 1993 around 5 p.m., thirty soldiers evicted BH Muslims from their apartments, and proceeded to take away the name-plates on the doors.1527 An ECMM report of 14 June 1993 also corroborates these findings, describing expulsions and dispossession of apartments in the DUM and Vatikana areas of Mostar.1528"
"1523. Exhibits PP 456.1, PP 456.2. The latter document explicitly defines the course of conduct by Vinko Martinovic as "pillage".
1524. Witness GG, T 4757 (confidential).
1525. Exhibits PP 456.4, PP 458.1.
1526. Witness P, T 2280-2281 (confidential).
1527. Exhibit PP 456.
1528. Exhibit PP 456.3."
[B. Evidentiary comment:]
P.15.3. Evidence that the perpetrator threatened civilians to hand over their possessions.
A. Legal source/authority and evidence:
Prosecutor v. Goran Jelisić, Case No. IT-95-10-T, Judgement (TC), 14 December 1999, para. 49:
"49. The factual basis attached to the guilty plea48 indicates that the accused stole money, watches, jewellery and other valuables from the detainees upon their arrival at Luka camp by threatening those who did not hand over all their possessions with death. The accused was sometimes accompanied by guards or Monika49 but he mostly acted alone. The Trial Chamber holds that these elements are sufficient to confirm the guilt of the accused on the charge of plunder."
"48. Factual basis, pp. 17-18.
49. Factual basis, Witness AA, p. 18."
P.16. Evidence inferred from a circumstance.
[1] Tadić, Appeal Decision on Jurisdiction, para.94.
[2] Tadić, Appeal Decision on Jurisdiction, para.94(iii).
[3] Kordić and Čerkez, Appeals Chamber Judgment, para. 82.
[4] Delalćic et al, Judgment, Trial Chamber II quarter, para. 591.
[5] Ibid.
[6] Ibid.
[7] The Trial of Carl Krauch and Others, UNWCC, Vol X, at 42 and 49; Trial of Krupp and Others, UNWCC, Vol X, at 140.
[8] UNWCC, Vol IX, at 63.
[9] Ibid.
[10] Ibid at 63.
[11] Ibid.
[12] The UNWCCs argument that ordinary crimes against property could be prosecuted as war crimes would seem to violate the principle of legality. Article 6(b) of the Nuremberg Charter, which the UNWCC referred to as authority for its argument, in particular the reference to the words "shall include, but shall not be limited to" is qualified by the preceding reference to war crimes. In other words, in order to be prosecuted by the IMT under article 6(b) of the Nuremberg Charter , the crime would have to already exist as a war crime.
[13] K Dormann, Elements of War Crimes Under the Rome Statute of the International Criminal Court, 272.
