Table of contents:
Element:
A. Evidentiary comment:
Specific intent elements required under element 1 are addressed in sections 1.3 and 1.4 above. However, the general mental element requirement of article 30 will still govern other knowledge and intent required of the perpetrator regarding the confinement of the women forcibly made pregnant. Since no jurisprudence regarding these general mental elements for forced pregnancy yet exists, the mental element included below is excerpted from the requirements for unlawful confinement, article 8(2)(a)(vii)-2 of the Rome Statute, and imprisonment, article 7(1)(e) of the Rome Statute. Future jurisprudence will hopefully clarify whether knowledge of confinement of a forcibly pregnant woman will suffice, or whether instead the ICC will require specific awareness of confinement of a forcibly pregnant woman with knowledge of the intent to affect the ethnic composition of the population or carry out other grave violations of international law.
P.14. Evidence inferred from an utterance, a document, or a deed.
A. Legal source/authority and evidence:
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-A, Judgement (AC), 17 September 2003, para.111:
"111. The Appeals Chamber holds that, with regard to Krnojelacs duties, the time over which he exercised those duties, his knowledge of the system in place, the crimes committed as part of that system and their discriminatory nature, a trier of fact should reasonably have inferred from the above findings that he was part of the system and thereby intended to further it."
[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. 489:
"489. Imprisonment. The Trial Chamber has already found that the Accused voluntarily accepted the position of warden at the KP Dom in full awareness that Muslim civilians were being illegally detained at the KP Dom because of their ethnicity, and it determined that the Accused incurred criminal responsibility for aiding and abetting that illegal imprisonment pursuant to Article 7(1).1481 The Trial Chamber is also satisfied that, with respect to the crime of imprisonment, it was obvious to the Accused, as it was to anyone who was at the KP Dom, that the principal offenders in imprisoning the Muslim and other non-Serb men intended to discriminate against them on religious and political grounds. The Trial Chamber is also satisfied that the Accused knew that by his acts or omissions he was substantially contributing to the commission of the offence of imprisonment on discriminatory grounds.1482 Accordingly, the Trial Chamber is satisfied that the Accused incurred criminal responsibility as an aider and abettor to the crime of persecution under Article 7(1) of the Statute with respect to the underlying crime of imprisonment."
"1481. See pars 100, 124,127, supra.
1482. See pars 438,443, supra."
[B. Evidentiary comment:]
P.15. Evidence inferred from a circumstance.
A. Legal source/authority and evidence:
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-A, Judgement (AC), 17 September 2003, para.111:
"111. The Appeals Chamber holds that, with regard to Krnojelacs duties, the time over which he exercised those duties, his knowledge of the system in place, the crimes committed as part of that system and their discriminatory nature, a trier of fact should reasonably have inferred from the above findings that he was part of the system and thereby intended to further it."
[B. Evidentiary comment:]
P.15.2. Evidence that the perpetrator participated in imprisonment in a supervisory role.
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. 1016:
"1016. The Appeals Chamber finds that Kordic is partly correct in stating that the Trial Chamber has not identified any order for detention to which he was associated. This however, does not automatically affect Kordics responsibility for the unlawful detention and imprisonment, since both Witness AC and Witness J testified about Kordics control over the detention facilities in Kaonik."
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, paras. 834, 836:
"834. The Trial Chamber finds that in those cases where Kordic participated in the HVO attacks he intended to commit the crimes associated with them and did so. His role was as political leader and his responsibility under Article 7(1) was to plan , instigate and order the crimes. In making this finding the Trial Chamber relies on the evidence already referred to in relation to persecution. As a result the Trial Chamber finds the accused Dario Kordic liable under Article 7(1) on the following counts:
[ ]
(b) On Count 21 (imprisonment) and Count 22 (unlawful confinement of civilians) in the following locations: Kaonik Prison, Vitez Cinema Complex, Veterinary Station, SDK offices, Chess Club, Dubravica Elementary School, Kiseljak municipal buildings and barracks and Rotilj village."
"836. The Trial Chamber finds that in those cases where Cerkez participated in attacks as Commander of the Viteska Brigade, he committed the crimes associated with them , intending to commit the crimes. His responsibility as Commander of the Brigade was as a co-perpetrator in crimes which he committed. As a result the Trial Chamber finds the accused, Mario Cerkez, liable under Article 7(1) on the following counts:
[ ]
(b) on Count 29 (imprisonment), Count 30 (unlawful confinement of civilians), Count 31 (inhuman treatment), Count 33 (taking civilians as hostages) and Count 35 (inhuman treatment) in relation to the following locations: Vitez Cinema Complex, Veterinary Station, SDK offices and Chess Club);"
[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. 995 996:
"995. [ ] Blagoje Simic was informed of the continued arrests and detention of non-Serbs during the conflict, and was in a position to express persuasive opinions at meetings with principal actors in the joint criminal enterprise. The fact that he was contacted by Simo Zaric to release Sulejman Tihic,2288 and also by Lt. Col. Stevan Nikolic, about the release of members of the 4th Detachment, 2289 demonstrates his strong influence over the arrest and detention of individuals, although it was the role of the chief of police to determine this."
"2286. Exhibit P127.
2287. Simo Zaric, T. 19561, T. 19564.
2288. Sulejman Tihic, T. 1408."
"996. Although the Trial Chamber cannot conclude beyond a reasonable doubt that Blagoje Simic ever entered any of the places of detention, he had to be aware of civilians being detained in facilities that included the SUP, TO, and primary and secondary schools in Bosanski Samac. [ ] While the Trial Chamber accepts that there is insufficient evidence to conclude that the Crisis Staff was responsible for ordering the isolation of Croats in Crkvina, it finds that once informed about the detention of civilians in Crkvina and Zasavica, Blagoje Simic did nothing to assist or release them. He continued to act as President of the Crisis Staff and at no point sought to resign due to the acts of persecution that were going on around him. He did not take any measures to impede the functioning of the joint criminal enterprise."
Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-A, Judgement (AC), 20 February 2001, paras. 342, 378:
"342. The Appeals Chamber is of the view that to establish that an individual has committed the offence of unlawful confinement, something more must be proved than mere knowing "participation" in a general system or operation pursuant to which civilians are confined. In the Appeals Chambers view, the fact alone of a role in some capacity, however junior, in maintaining a prison in which civilians are unlawfully detained is an inadequate basis on which to find primary criminal responsibility of the nature which is denoted by a finding that someone has committed a crime. Such responsibility is more properly allocated to those who are responsible for the detention in a more direct or complete sense, such as those who actually place an accused in detention without reasonable grounds to believe that he constitutes a security risk; or who, having some powers over the place of detention, accepts a civilian into detention without knowing that such grounds exist; or who, having power or authority to release detainees, fails to do so despite knowledge that no reasonable grounds for their detention exist, or that any such reasons have ceased to exist. [ ]"
"542. Prosecution Brief, para 7.12."
"378. As is evident from the earlier discussion of the law relating to unlawful confinement , the Appeals Chamber considers that a person in the position of Mucic commits the offence of unlawful confinement of civilians where he has the authority to release civilian detainees and fails to exercise that power, where
(i) he has no reasonable grounds to believe that the detainees do not pose a real risk to the security of the state;596 or
(ii) he knows that they have not been afforded the requisite procedural guarantees (or is reckless as to whether those guarantees have been afforded or not).597"
"596. This relates to the first "category" of the offence.
597. This relates to the second "category"."
Prosecutor v. Tihomir Blakić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, paras. 728:
"728. The Defence contended that in January 1993 General Blaskic was isolated in Kiseljak and therefore did not know that civilians were being detained and subjected to ill-treatment 1636 . However, the accused himself declared that on 27 January 1993 he ordered the release of civilian detainees at Kaonik prison 1637 . His power to order the release of prisoners 1638 shows that he could actually find out about the circumstances in which the civilians were being detained. In this connection, the Trial Chamber notes that at the time , Blaskic knew that the Red Cross had become involved when it was informed that detainees were being ill-treated 1639 ."
"1636. Defence Brief, IX, A.1 and G.
1637. Witness Blaskic, PT pp. 21659-21660.
1638. The delay between Blaskics order and the actual release of the prisoners has nothing to do with Blaskics authority over his subordinates but was down to the involvement of the Red Cross. Witness Blaskic, PT pp. 21660-21661.
1639. Witness Nuhagic, PT pp. 5216-5217."
[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, para. 998:
"998. The Trial Chamber is not satisfied that there is sufficient evidence that Miroslav Tadic participated in the persecution of non-Serb prisoners through unlawful arrest and detention. While there is evidence that he was present at the detention facilities in Bosanski Samac, and had knowledge of their existence and conditions, he rarely entered the facilities, and visited these sites only in his role of conducting exchanges. Unlike Blagoje Simic, he did not hold a leading position in the Crisis Staff. His position as member of the Exchange Commission, did not afford him authority or influence over the arrest and detention of non-Serb civilians, nor did it require that he attend all meetings of the Crisis Staff. There is no evidence that he was contacted to make any decisions on the arrest or detention of non-Serbs. [ ]"
Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-T, Judgement (TC), 31 March 2003, para. 653:
"653. In relation to Mladen Naletilic, evidence has been adduced that he was seen at the Heliodrom on numerous occasions,1619 and that he questioned prisoners there.1620 The Chamber is not satisfied on the basis of this evidence that he also participated in the arrest and detention of the BH Muslim civilians at the Heliodrom. His ability to have access to the detainees at the Heliodrom does not necessarily imply any authority over their detention or the conditions thereof. [ ] Hence, the Chamber finds that the Prosecution has not established that Mladen Naletilic bears any responsibility relating to detention of BH Muslim civilians in the Heliodrom."
"1619. Witness A, T 513-515; witness H, T 1314-1315.
1620. Witness Z, T 3544-3545 (confidential); witness FF, T 4684-4689 (confidential)."
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, paras. 126, 494:
"126. There is no evidence that the Accused in this case played any role in actually securing the detention of any of the non-Serb detainees in the KP Dom. It has also been accepted by the Trial Chamber that the Accused, as warden of the KP Dom, had no power unilaterally to release detainees.376 It is clear, however, that the Accused did hold the most senior position within the KP Dom and that he did allow civilians to be detained at the KP Dom knowing that their detention was unlawful. There is no evidence that the Accused ever refused to accept any of the civilian detainees brought to the KP Dom, nor on the other hand is there any evidence of what powers, if any, the Accused had to refuse acceptance of detainees at the KP Dom.377 Although the Trial Chamber has found that the Accused accepted the position of warden voluntarily, and that he could have refused or resigned from the position and chose not to do so, in all the circumstances, the Trial Chamber is not satisfied that the Prosecution has established that the Accused incurred criminal responsibility as a principal offender for the offence of imprisonment, as is required for a finding that the Accused "committed" the offence of imprisonment under Article 7(1).378"
"376. See par 106, supra.
377. See pars 104-106, supra; Delalic Appeal Judgment, par 331-369.
378. Tadic Appeal Judgment, par 188; Kunarac Trial Judgment, par 390; In the Krstic Trial Judgment, it was held that "committing" covers personally perpetrating a crime (ie, the principal offender) or engendering a culpable omission in violation of criminal law, par 601."
"494. Imprisonment. The Trial Chamber has already determined that the Accused held the position of warden of the KP Dom and exercised supervisory responsibility over all subordinate personnel and detainees at the KP Dom.1487 However, the Trial Chamber also found that the Accused played no role in actually securing the detention of non-Serb detainees at the KP Dom, and that the most which could have been done by the Accused as a superior was to report the illegal detention of the non-Serb detainees to the very persons who had ordered it.1488 Accordingly, the Trial Chamber determined that the Accused did not incur superior responsibility for the imprisonment of the non-Serb detainees.1489 Without the establishment of the Accuseds responsibility as a superior for the underlying offence of imprisonment, there is no basis for a finding that the Accused incurred superior responsibility for the act of imprisonment as an act of persecution.1490"
"1487. See par 107, supra.
1488. See pars 106-107, supra.
1489. See par 107, supra.
1490. See pars 106-107, supra."
Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-A, Judgement (AC), 20 February 2001, paras. 342, 357, 363 364:
"342. The Appeals Chamber is of the view that to establish that an individual has committed the offence of unlawful confinement, something more must be proved than mere knowing "participation" in a general system or operation pursuant to which civilians are confined. In the Appeals Chambers view, the fact alone of a role in some capacity, however junior, in maintaining a prison in which civilians are unlawfully detained is an inadequate basis on which to find primary criminal responsibility of the nature which is denoted by a finding that someone has committed a crime. Such responsibility is more properly allocated to those who are responsible for the detention in a more direct or complete sense, such as those who actually place an accused in detention without reasonable grounds to believe that he constitutes a security risk; or who, having some powers over the place of detention, accepts a civilian into detention without knowing that such grounds exist; or who, having power or authority to release detainees, fails to do so despite knowledge that no reasonable grounds for their detention exist, or that any such reasons have ceased to exist. [ ]"
"357. The Prosecution contends that the evidence before the Trial Chamber showed that Delalic was involved in the release of Doctor Grubac and Witness P in July 1992,564 and that he signed orders on 24 and 28 August 1992565 for the classification of detainees and their release. However, the Trial Chamber explicitly found that:
The Trial Chamber found that the orders referred to by the Prosecution were not signed in Delalics capacity as "co-ordinator", as all documents were signed "for " the Head of the Investigating Body of the War Presidency.567 He had no independent authority to do so.568"
"564. Trial Judgement, para 684.
565. Trial Judgement, para 692. See Prosecution Exhibits 99-7/10 and 99-7/11.
566. Trial Judgement, para 684.
567. Trial Judgement, para 684.
568. Trial Judgement, para 685. It should be noted that, in the week prior to the hearing of the Appeal, the Prosecution filed a motion for the adjournment of the hearing of the appeal on the basis that it had recently received new documents from the archives of the Croatian government which related to the Celebici camp: Prosecution Motion for Adjournment of Oral Argument of Argument of Appeal or Alternatively for Adjournment of Oral Argument of Certain Grounds of Appeal, 31 May 2000. The Prosecution believed at that stage the there were "certain documents which appear to relate to the responsibilities of Zejnil Delalic as a commander in the region and his role in relation to the Celebici prison camp during the relevant time period" and sought time to have the documents translated and properly assessed. A brief description of certain of these documents was annexed to the motion and indicated that there may be documents which related in some way to Delalics relationship with the Celebici camp. This motion for adjournment was refused on the basis that the material referred to in the motion did not adequately indicate that they were relevant to the allegations of errors of law in the relevant grounds of appeal, but the Appeals Chamber reserved the question of the use to which the material in the documents could be put to the hearing of the appeal. The Prosecution then made an oral motion at the hearing of the appeal that the appeal proceedings not be closed for a period of time after the hearing to enable the filing of written submissions in relation to the documents (see Appeal Transcript pp 79-82). This motion was supported by certain translated documents (Confidential Exhibits for Prosecution Oral Motion to File Supplementary Materials after the Conclusion of the Hearing of the Appeal, 5 June 2000), including a document which was described as being relevant to the capacity in which Delalic signed the orders for release referred to in the above text (Appeal Transcript pp 87-88). The Prosecution was given until the final day of the hearing of the appeal to determine whether it wished to bring an application for the use of the documents in some capacity but ultimately advised the Appeals Chamber that it would not do so (Appeal Transcript p 636). The Prosecution therefore closed its case without seeking to rely on those documents."
"363. Although Delic belonged to the military police of the joint command of the TO and HVO,574 which the Trial Chamber found had been involved in the creation of the camp, there was no finding by the Trial Chamber that Delic in his position had authority to detain or release civilians or even that as a practical matter he could affect who should be detained or released . The Prosecution does not refer to any evidence which would have established such a finding beyond reasonable doubt. [ ]"
"574. Ibid, para 797."
"364. Although the Prosecution appears to contend that the evidence established Delics primary responsibility for commission of the offence of unlawful confinement of civilians, it does not refer to any evidence which establishes more than that he was aware of the unlawfulness of the detention of at least some of the detainees , and that he, as a guard and deputy commander of the camp, thereby participated in the detention of the civilians held there.576 The Prosecution makes the general submission that:
Insofar as this may suggest that any prison guard who is aware that there are detainees within the camp who were detained without reasonable grounds to suspect that they were a security risk is, without more, responsible for the crime of unlawful confinement, the Appeals Chamber does not accept this submission. As already indicated above, the Appeals Chamber has concluded that a greater degree of involvement in the confinement of an individual is required to establish primary responsibility, and that, even in relation to aiding and abetting, it must be established that the accuseds assistance to the principal must have a substantial effect on the commission of the crime. What will satisfy these requirements will depend on the circumstances of the particular case, but the Appeals Chamber would not accept that the circumstance alone of holding a position as a guard somewhere within a camp in which civilians are unlawfully detained suffices to render that guard responsible for the crime of unlawful confinement of civilians. [ ]"
"577. Prosecution Brief, para 7.12."
[B. Evidentiary comment:]
