Table of contents:
4.1. The perpetrator intended to shield a military objective from attack.
P.5. Evidence inferred from an utterance, a document, or a deed.
P.5.1. Evidence that the perpetrator ordered the use of human shields.
P.6. Evidence inferred from a circumstance.
4.2. The perpetrator intended to shield, favour or impede military operations.
P.7. Evidence that the perpetrator intended to shield military operations.
P.8. Evidence that the perpetrator intended to favour military operations.
P.8.1. Evidence of the use of prisoners in military operations.
P.9. Evidence that the perpetrator intended to impede military operations.
P.9.1. Evidence that detainees were moved to halt enemy shelling.
Element:
4.1. The perpetrator intended to shield a military objective from attack.
P.5. Evidence inferred from an utterance, a document, or a deed.
P.5.1. Evidence that the perpetrator ordered the use of human shields.
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. 290:
"290. As far as Vinko Martinovics direct responsibility is concerned, the prisoners involved in the wooden rifle incident all testified that Vinko Martinovic himself issued the instructions to them.806 On this basis, the Chamber is satisfied that on 17 September 1993, he directly ordered that the four selected prisoners be used as human shields in the conditions described above. The Chamber finds that the responsibility of Vinko Martinovic is most appropriately described under Article 7(1) of the Statute."
"806. Witness PP, T 6086, 6088; witness OO, T 5976-5978; witness J, T 1547-1548."
Prosecutor v. Tihomir Blakić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, paras. 742 743:
"iii) Inhuman and cruel treatment: human shields (counts 19 and 20)
742. On 20 April 1993, 247 detainees were in front of the Hotel Vitez, General Blakićs headquarters in Vitez. Despite his presence in the building for a large part of the afternoon, the accused claimed that he knew nothing of it 1660 . However, there were many HVO soldiers in and around the Hotel whose frontage was glass 1661 . One of the soldiers said to one of the detainees in front of the Hotel that he would go and tell the commander 1662 . Moreover, the officer responsible for operations under General Blakić, Slavko Marin, implicitly admitted that the civilians from Gacice village were put in danger 1663 . Finally, the Trial Chamber recalls that on 20 April 1993 the ABiH set in motion an extremely threatening offensive of which General Blakić was well aware.
743. The Trial Chamber is therefore convinced beyond all reasonable doubt that on 20 April 1993 General Blakić ordered civilians from Gacice village to be used as human shields in order to protect his headquarters."
B. [Evidentiary comment:]
P.6. Evidence inferred from a circumstance.
A. Legal source/authority and evidence
Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-T, Judgement (TC), 25 June 1999, para. 129:
"129. Likewise, by his attitude towards Witness Novalic and his passive presence when the detainees were taken away to serve as human shields, he manifested his approval of this practice and contributed substantially to the commission of the crime. Consequently the Trial Chamber finds the accused responsible under Article 7(1) for having aided and abetted in the use of detainees as human shields and for trench-digging."
B. [Evidentiary comment:]
4.2. The perpetrator intended to shield, favour or impede military operations.
P.7. Evidence that the perpetrator intended to shield military operations.
P.8. Evidence that the perpetrator intended to favour military operations.
P.8.1. Evidence of the use of prisoners in military operations.
A. Legal source/authority and evidence
Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-T, Judgement (TC), 31 March 2003, paras. 283, 290, 334:
"283. Allan Knudsen testified that on the day before the attack, he was informed that an operation would be taking place. According to him, on 17 September 1993, Stela explained to the soldiers that the aim was to take over two buildings on the other side of the front line776 and that the operation would involve heavy artillery and the use of prisoners carrying wooden rifles as human shields.777 The witness and the prisoners were all waiting in the Health centre for the operation to start,778 which happened around 11 a.m., when a T55 tank arrived and started to fire.779 At that point, the prisoners, who were wearing camouflage uniforms and carrying wooden rifles, were ordered to run in front of the soldiers.780 While the soldiers were supposed to reach a wall, the prisoners had been instructed to keep going forward towards the ABiH lines.781 The operation did not succeed however, and the soldiers had to withdraw back inside the building of the Health centre.782 Allan Knudsen stated that in the midst of the action, he saw the prisoners fall down, but that he could not ascertain whether they had been hit or killed.783"
"776. The witness marked the buildings as numbers 5 and 6 on exhibit PP 14.4/3. The Martinovic Defence called Defence witness MQ to contradict the witness testimony that a man called Alan was translating Stelas instructions for the foreign soldiers. However, witness Allan Knudsen could neither confirm the full name of this man, nor that it was indeed the witness called by the Martinovic Defence, witness Allan Knudsen T 5682-5683. The Chamber also takes note that neither Allan Knudsen nor witness Q testified that Allan was the interpreter of the unit, but only that he spoke some English, as did other soldiers. Witness Q, T 2409-10.
"290.[ ] As far as Vinko Martinovics direct responsibility is concerned, the prisoners involved in the wooden rifle incident all testified that Vinko Martinovic himself issued the instructions to them.806 On this basis, the Chamber is satisfied that on 17 September 1993, he directly ordered that the four selected prisoners be used as human shields in the conditions described above. The Chamber finds that the responsibility of Vinko Martinovic is most appropriately described under Article 7(1) of the Statute."
"806. Witness PP, T 6086, 6088; witness OO, T 5976-5978; witness J, T 1547-1548."
"334. The Chamber [ ] finds Vinko Martinovic guilty of unlawful labour, inhumane acts, inhuman treatment and cruel treatment under Articles 2(b), 3, 5(i) and 7(1) of the Statute for ordering four prisoners of war to walk across the front line with wooden rifles on 17 September 1993 in his area of responsibility (Counts 2, 3, 4 and 5). [ ]"
B. [Evidentiary comment:]
P.9. Evidence that the perpetrator intended to impede military operations.
P.9.1. Evidence that detainees were moved to halt enemy shelling.
A. Legal source/authority and evidence
Prosecutor v. Tihomir Blakić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, paras. 711, 714, 716:
"711. The Prosecution submitted that the HVOs use of Bosnian Muslim detainees as human shields was based on three events or distinct types of action. First, on 19 and 20 April 1993, the Bosnian Muslims detained at Vitez cinema were allegedly used as human shields in an attempt to halt the ABiH shelling the CBOZ and Vitez Brigade headquarters. Then, on 20 April 1993, the HVO purportedly placed 250 Muslim men, women and children around the Hotel Vitez for about three hours in order to try and halt the ABiH shelling of that zone. Last, the HVO was allegedly engaged in a widespread practice consisting of using the detainees forced to dig trenches on the front-line positions as human shields. The detainees thus placed in a dangerous situation around (or in) buildings constituting military objectives were allegedly victims of great physical and mental suffering or of serious attacks upon their human dignity 1621."
"1621. Prosecutors Brief, book 6, IX, 9."
"b) Conclusions
714. Around 20 April 1993, Vitez and in particular the HVO headquarters at the Hotel Vitez were shelled 1622. That same day, following the attack on Gacice village by Croatian forces, a column of 247 Muslim men, women and children 1623 was directed to a spot just in front of the Hotel Vitez. Once there, the men were led off elsewhere 1624. Witness Hrustic was seated in a shell crater opposite the Hotel:
One of the soldiers said, while we were standing there, "you are going to sit here now and let your people shell you, because they have been shelling us up to now, and you better sit down and wait". 1625
The persons assembled were watched over by soldiers inside the Hotel Vitez. They told them that whoever moved would be instantly cut down. After about two and a half to three hours, the persons were taken back to their village 1626."
"716. In conclusion, the Trial Chamber is of the view that on 20 April 1993, the villagers of Gacice served as human shields for the accuseds headquarters in Vitez . Quite evidently, this inflicted considerable mental suffering upon the persons involved. As they were Muslim civilians or Muslims no longer taking part in combat operations, the Trial Chamber adjudges that, by this act, they suffered inhuman treatment (count 19) and, consequently, cruel treatment (count 20)."
B. [Evidentiary comment:]
