Table of contents:
Element:
P.16. Evidence inferred from an utterance, a document, or a deed.
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. 788:
788. (vi) [ ] However, Witness AT gave evidence that after the conflict of 16 April 1993, the witness requested Muslim labourers for forced labour from the Viteska Brigade. He made the request of Cerkez at least once and, on other occasions, of the duty officer. On 30 April Cerkez told the witness on the phone that Muslims could no longer be used for digging and fortification and that arrangements had to be made with the labour platoon which had been set up.1666
1666. T. 27633-34.
[B. Evidentiary comment:]
P.17. 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. 47:
47. [ ] The Trial Chamber stated that when he first arrived at the KP Dom, Krnojelac asked who was being detained and why, and the response he was given was that the prisoners were Muslims and were being detained for that reason. It went on to state that Krnojelac knew that none of the procedures in place for legally detained persons was ever followed at the KP Dom.65 [ .]
65. Ibid., para. 100.
Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-A, Judgement (AC), 20 February 2001, paras. 378 379, 381-383:
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
[ ] (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
597. This relates to the second category.
379. Where a person who has authority to release detainees knows that persons in continued detention have a right to review of their detention598 and that they have not been afforded that right, he has a duty to release them. Therefore, failure by a person with such authority to exercise the power to release detainees, whom he knows have not been afforded the procedural rights to which they are entitled, commits the offence of unlawful confinement of civilians, even if he is not responsible himself for the failure to have their procedural rights respected.
598. It is unnecessary that he is aware of the legal source of this right.
381. The Trial Chamber concluded in relation to Mucic that [b]y omitting to ensure that a proper enquiry was undertaken into the status of the detainees and that those civilians who could not lawfully be detained were immediately released , Zdravko Mucic participated in the unlawful confinement of civilians in the Celebici prison-camp.599 It is implicit in this finding that Mucic knew that a review of the detainees detention was required but had not been conducted.600 [ ].
382. Relevant to Mucics knowledge of the unlawful nature of the confinement of certain of the detainees (both because of absence of review of detention and, in some cases, of the absence of grounds for the initial detention) is his knowledge of the work of the Military Investigative Commission. As noted above, the Trial Chamber found that a Military Investigative Commission was established by the Konjic Joint Command following a decision by the War Presidency of Konjic to investigate crimes allegedly committed by the detainees prior to their arrival at the Celebici camp,601 and that the Commission did not have the power to finally decide on the release of wrongfully detained prisoners .602
383. The Trial Chamber found that the Commission consisted of five members, one of which was Witness D. The Trial Chamber referred to Witness Ds testimony that he worked closely with Mucic in the classification of the detainees in the Celebici camp, and that Mucic had a complete list of the detainees which he brought out for members of the Commission.603 It is apparent from the context of the Trial Chambers reference that it accepted that evidence. Witness D also testified that Mucic was present early in June when members of the Commission met to discuss how they would go about their work of the classification of the detainees and consideration for their continued detention or release.604 It is implicit in these findings as to Mucics awareness of the work of the Commission , and even of its existence as an independent body with a review function over the camp, that Mucic must have known that such a review was legally required.
599. Trial Judgement, para 1145 (emphasis added).
600. This conclusion is not affected by the fact that Mucic could not ultimately be held responsible for failure to ensure such a review, or that (given that it was the detention practices of Mucic as person having authority over the camp, which were to be the subject of review) this responsibility appears to have lain with authorities outside the camp such as the Military Investigative Commission or the entities who were ultimately responsible for the creation of the camp.
601. Trial Judgement, para 1136.
602. Trial Judgement, para 1137.
603. Trial Judgement, para 748.
604. Trial Transcript, pp 5175-5176, pp 5189-5190.
[B. Evidentiary comment:]
P.17.2. Evidence that the perpetrator knew of the discriminatory nature of imprisonment.
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. [ ] While the Trial Chamber is not satisfied beyond reasonable doubt that he shared the discriminatory intent of the joint criminal enterprise to persecute non-Serb civilians through their unlawful arrest and detention, his continued participation in conducting exchanges and transferring detainees, his attendance at meetings of the Crisis Staff and with some of the other direct perpetrators in the joint criminal enterprise in Belgrade, where the role of the paramilitaries was discussed, shows that he had knowledge of the discriminatory intent towards non-Serbs who were arrested and detained in facilities in Bosanski Samac, at the SUP, TO, primary and secondary schools, and in Brcko and Bijeljina.
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-A, Judgement (AC), 17 September 2003, para. 47:
47. First of all, the Appeals Chamber notes that the Trial Chamber concluded that Krnojelac knew that his acts and omissions were contributing to the system of unlawful imprisonment in place at the KP Dom.64 It also observes that the Trial Chamber found that Krnojelac had voluntarily accepted the position of KP Dom warden in full awareness that non-Serb civilians were being illegally detained there because of their ethnicity. The Trial Chamber stated that when he first arrived at the KP Dom, Krnojelac asked who was being detained and why, and the response he was given was that the prisoners were Muslims and were being detained for that reason. [ ]
64. Ibid.
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, paras. 124, 489:
124. [ ] The Trial Chamber is also satisfied that the Accused, by virtue of his position as warden of the KP Dom, knew that the non-Serb detainees were being unlawfully detained.373 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.
373. The Accused gave evidence that at some point he asked why the men were detained at the KP Dom and received the answer They are Muslims. He disputed, however, that this answer was to be interpreted to mean that the men were brought in because they were Muslims. He claimed that he was only told that the detained persons were Muslims (T 7844). The Trial Chamber finds this explanation not credible. Further, the Accused clearly admitted that he knew that none of the procedures in place for legally detaining persons were ever followed at the KP Dom, by stressing that this very fact was the reason why he asked not to continue at the KP Dom (T 7845, 7846).
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).
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. [ ]
1481. See pars 100, 124,127, supra.
[B. Evidentiary comment:]
A. Legal source/authority and evidence:
Prosecutor v. Tihomir Blakić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, paras. 732 733:
732. General Blaskic admitted to the Trial Chamber that he knew that civilians were being detained at Dubravica primary school 1644 . These included inter alia the women and children who had been placed around General Blaskics command post for two weeks. Nonetheless, he announced that he had not made any effort to investigate the circumstances under which people were detained because the civilian authorities and Red Cross were dealing with the matter 1645 . [ ] General Blaskic could not have been unaware of the atmosphere of terror and the rapes which occurred at the school.
1644. Witness Blaskic, PT pp. 22225-22226.
1645. Witness Blaskic, PT pp. 22226-22227.
1646. Witness Duncan, PT pp. 9061-9063; witness Lanthier, PT pp. 8260-8265; D333 and D334, General Blaskic ordered captured civilians be treated humanely; D366, General Blaskic ordered that the civilians be released and provided with security.
[B. Evidentiary comment:]
P.17.4. Evidence that the perpetrator knew about the requirements of theGeneva Conventions and did not follow them.
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. 788, 791:
788. (vi) At a meeting of the Busovaca Joint Commission, a representative of the ICRC complained to Mario Cerkez and Franjo Nakic about the use of detainees for trench-digging: the response was a denial and the statement that this practice was against the Geneva Conventions.1665 However, Witness AT gave evidence that after the conflict of 16 April 1993, the witness requested Muslim labourers for forced labour from the Viteska Brigade. He made the request of Cerkez at least once and, on other occasions, of the duty officer. On 30 April Cerkez told the witness on the phone that Muslims could no longer be used for digging and fortification and that arrangements had to be made with the labour platoon which had been set up.1666
1665. Michael Buffini, T. 9335-36. The only evidence directly connecting Mario Cerkez with the work platoons is an order for their establishment in September 1993, signed by the Chief of the Vitez Defence Office, with what looks like Cerkezs signature on the back according to Gordana Badrov, T. 26440-42: Ex. Z1199.3.
1666. T. 27633-34.
791. [ ] When Major Baggesen of the ECMM visited the barracks in June 1993, the HVO commander said that the prisoners were out digging trenches and clearing minefields: the commander said the Geneva Conventions did not apply in this conflict. At the witnesss insistence the prisoners were released that evening; they were all Muslim civilians .1681
1681. T. 7566-70.
[B. Evidentiary comment:]
P.17.5. Evidence that the perpetrator knew that victims did not pose a security risk.
A. Legal source/authority and evidence:
Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-A, Judgement (AC), 20 February 2001, paras. 378, 380, 385:
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 [ ]
596. This relates to the first category of the offence.
380. [ ] However, as is apparent from the discussion below, the Trial Chambers findings also suggest that it had concluded that Mucic was also aware that no reasonable ground existed for the detention of at least some of the detainees.
385. It is obvious from this report, which the Trial Chamber accepted, that there were persons in the camp in respect of whom no reasons existed to justify their detention and that the Commission was not able to perform the necessary review of the detention of the Celebici camp detainees. The Trial Chamber found that, after working for about one month at the prison-camp, the Commission was in fact disbanded at the instigation of its members as early as the end of June 1992.606 Although the Trial Chamber made no finding that Mucic had read the Commissions report, in view of its findings that Mucic worked closely with the Commission, it is implicit in the findings taken as a whole that Mucic was aware of the matters that the Commission discussed in the report, including the fact that there were civilians there who had been detained without justification, and that the detainees generally had not had their detention properly reviewed. This knowledge can only have been reinforced by the presence in the camp, of which Mucic must have been aware, of detainees of a kind which would have appeared so unlikely to pose a security risk that it must have raised doubts as to whether any reasonable grounds had ever existed for their initial detention. This included elderly persons607 and persons such as Grozdana Cecez, a 42 year old mother of two children.608
606. Trial Judgement, para 1136.
607. Such as ?cepo Gotovac, the man of about 70 years of age who was the victim of the wilful killing/murder charged in Counts 1 and 2 of the Indictment. See Trial Judgement, para 823.
608. Trial Judgement, para 1133.
[B. Evidentiary comment:]
