7.c [Mental element for Element 4] [Circumstance of lack of justification:] The perpetrator was aware that such order was not justified by the security of the civilians involved or by military necessity.

P.17. Evidence inferred from an utterance, document or deed.

P.18. Evidence inferred from a circumstance.

P.18.1. Evidence inferred from evidence speaking against military necessity based on nature of threat.

P.18.2. Evidence inferred from evidence against military necessity based on pursuit by overwhelming forces.

P.18.3. Evidence inferred from displacement based solely on reasons of preventing espionage and depriving enemies of manpower.

P.18.4. Evidence inferred from planning displacement events irrespective of or prior to military necessity.

P.18.5. Evidence inferred from the non-existance of military objects in the area.

P.18.6. Evidence inferred from displacement within a coherent, consistent strategy of ethnic cleansing.

P.18.7. Evidence inferred from the existence of a larger plan of displacement.

P.18.8. Evidence inferred from persons’ widespread knowledge of other serious crimes occurring.

P.18.9. Evidence inferred from military attacks on the area where persons reside.

P.18.10. Evidence inferred from creating intolerable living conditions.

P.18.11. Evidence inferred from the destruction of persons’ homes.

P.18.12. Evidence inferred from looting or searching for valuables in persons’ homes.

P.18.13. Evidence inferred from dismissing persons from their jobs.

P.18.14. Evidence inferred from dismissing persons from their health insurance.

P.18.15. Evidence inferred from reasons against civilian protection or security reasons for displacement.

P.18.16. Evidence inferred from failure to return civilians after the displacement.

P.18.17. Evidence inferred from destroying homes so that civilians could not return after the displacement.

P.18.18. Evidence inferred from deliberate displacement outside of the occupied territory without evidence that it was physically impossible to do otherwise.

P.18.19. Evidence inferred from conditions of hygiene, health, safety and nutrition were not ensured to the greatest practicable extent.

P.18.20. Evidence inferred from the separation of families.

P.18.21. Evidence inferred from the displacement of children without additional safeguards.

7.c [Mental element for Element 4] [Circumstance of lack of justification:] The perpetrator was aware that such order was not justified by the security of the civilians involved or by military necessity.

P.17. Evidence inferred from an utterance, document or deed.

P.18. Evidence inferred from a circumstance.

P.18.1. Evidence inferred from evidence speaking against military necessity based on nature of threat.

A. Legal source/authority and evidence:

Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, para. 556:

“556. With the exception of one incident in Celinac,¹⁴²² the Trial Chamber is not satisfied that Bosnian Serb authorities carried out the total or partial evacuation of the Bosnian Muslims and Bosnian Croats either for the security of these populations¹⁴²³ or for imperative military reasons. All the evidence points to this conclusion without the shadow of a doubt. In addition, the Trial Chamber notes that decisions to either of the said effects would have required that ‘persons thus evacuated shall be transferred back to their homes as soon as hostilities in the area in question have ceased’¹⁴²⁴, which did not happen in the present case. The Trial Chamber further notes that Bosnian Muslims and Bosnian Croats had a right to continue residing in their respective towns and villages. The Trial Chamber is thus satisfied beyond reasonable doubt of the unlawful nature of transfers carried out to this end.”

“1422. See Vahid Mujkanovic, ex. P1980, 92bis statement, 01106086-01106094. People from the villages of Mehovci and Basici were expelled following attacks in mid-August 1992 targeting villages mostly inhabited by Bosnian Muslims and Bosnian Croats, after which they organised themselves and asked to leave Celinac: BT-90, T. 17094-17097 (closed session ). See also ex. P2000, ‘1st KK daily combat report to SerBiH Army Main Staff , 16 Augut 1992’. They were told to form a column in the direction of Banja Luka. However, for security reasons, the Bosnian Serb military police told them not to proceed, and to remain in Celinac until further notice: BT-90, T. 17097-17100 (closed session). The Accused ordered that they be taken by bus to the Celinac elementary school where, under the protection of special police, approximately 500 Bosnian Muslims and Bosnian Croats were protected against danger, including retaliations , and were kept until their release between seven and fifteen days later: BT-90, T. 17100, 17176-17182 (closed session); Mehmed Talic, T. 24149-24150. He also gave evidence that they stayed at the elementary school for approximately fifteen days, after which they returned to their homes and lived a normal life, T. 24151-24153 .

1423. For evidence of purported evacuations in Bosanski Petrovac, see Jovo Radojko, T. 20363. For evidence of purported evacuations in Bosanska Krupa, see Jadranko Saran, T. 17235 -17236; ex. P2098, ‘Bosanska Krupa War Presidency decision regarding the evacuation of the remaining Muslim population’, 22 May 1992; see para. 551 supra .
1424. Article 49 of Geneva Convention IV. The Commentary of Geneva Convention IV (p. 280) also notes that ‘Evacuation must not involve the movement of protected persons to places outside the occupied territory, unless it is physically impossible to do otherwise. Thus, as a rule, evacuation must be to reception centres inside the territory.’ Article 17 of Additional Protocol II also lists the security of the population and imperative military reasons as the only reasons that could justify the evacuation of the civilian population.”

Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-T, Judgement (TC), 31 March 2003, para. 526:

“526. The remaining question is whether the transfer was a lawful evacuation. The civilians were transferred from Sovici during the night between 4 and 5 May 1993. On 18 April 1993 they were forced by armed soldiers to leave their houses. They were then held under armed guard in crowded housing with approximately seventy people to each house. No imperative military reasons existed.”

Prosecutor v. Radislav Krstić, Case No. IT-98-33-T, Judgement (TC), 2 August 2001, para. 527:

“527. In this case no military threat was present following the taking of Srebrenica. The atmosphere of terror in which the evacuation was conducted proves, conversely, that the transfer was carried out in furtherance of a well organised policy whose purpose was to expel the Bosnian Muslim population from the enclave. The evacuation was itself the goal and neither the protection of the civilians nor imperative military necessity justified the action.”

Deng, F. “Guiding Principles on Internal Displacement” (1998), Extract from U.N. Doc. E/CN.4/1998/53/Add.2.

“Principle 6

[…]

2. The prohibition of arbitrary displacement includes displacement:

(b) In situations of armed conflict, unless the security of the civilians involved or imperative military reasons so demand;”

[B. Evidentiary comment:]

P.18.2. Evidence inferred from evidence against military necessity based on pursuit by overwhelming forces.

A. Legal source/authority and evidence:

Prosecutor v. Radislav Krstić, Case No. IT-98-33-T, Judgement (TC), 2 August 2001, para. 526:

“526. In addition to the security of the population, the Geneva Convention also allows for evacuations based on “imperative military reasons”. In terms of military necessity, two World War II cases are relevant. General Lothar Rendulic was accused of violating Article 23(g) of the 1907 Hague Regulations, which prohibits the destruction or seizure of the enemy’s property, “unless such destruction or seizure [is] imperatively demanded by the necessities of war”. Retreating forces under his command engaged in scorched earth tactics, destroying all facilities that they thought might aid the opposing army. In addition, Rendulic ordered the evacuation of civilians in the area. Rendulic raised the defence of “military necessity”, since his troops were being pursued by what appeared to be overwhelming Soviet forces. The U.S. Military Tribunal at Nuremberg concluded that, even though Rendulic may have erred in his judgement as to the military necessity for evacuating the civilians, his decisions were still justified by “urgent military necessity” based on the information in his hands at the time.¹¹⁷⁶”

“1176. Wilhelm List and others, US military Tribunal, Nuremberg (“ the Hostages Trial”), Law Reports of Trials of War Criminals, Vol. VIII, case No. 47, p. 69 (1948): ‘It is our considered opinion that the conditions as they appeared to the defendant at the time were sufficient, upon which he could honestly conclude that urgent military necessity warranted the decision made. This being true, the defendant may have erred in the exercise of his judgement but he was guilty of no criminal act’.”

[B. Evidentiary comment:]

P.18.3. Evidence inferred from displacement based solely on reasons of preventing espionage and depriving enemies of manpower.

A. Legal source/authority and evidence:

Prosecutor v. Radislav Krstić, Case No. IT-98-33-T, Judgement (TC), 2 August 2001, para. 526:

“526. By contrast, Field Marshall Erich von Manstein was convicted by a British military tribunal of ‘the mass deportation and evacuation of civilian inhabitants’ of the Ukraine. Von Manstein argued that the evacuation was warranted by the military necessity of preventing espionage and depriving the enemy of manpower.¹¹⁷⁷ This was not found to be a legitimate reason for the evacuation of the population or the destruction of their property.¹¹⁷⁸”

“1177. Von Lewinski (called von Manstein), British Military Court at Hamburg (Germany), Dec. 19, 1949, in 16 Annual Dig. and Reports of Public International Law Cases 509, 521 (1949): ‘In a country so thickly populated as the Ukraine it was necessary for the security of the troops to remove the population from the battle or the combat zone. To do otherwise would have been to invite espionage. The evacuation of this zone was therefore mere military security. Further, it was necessary to deprive the enemy of labour potential as the enemy put every able-bodied man into the army and utilised women and even small children. They could not allow them to fall into the hands of the enemy’.
1178. Id. at 522-23. Indeed, the judge advocate went so far as to suggest that deportation of civilians could never be justified by military necessity, but only by concern for the safety of the population. Id. at 523. This position, however, is contradicted by the text of the later Geneva Convention IV, which does include ‘imperative military reasons’, and the Geneva Convention is more authoritative than the views of one judge advocate.”

[B. Evidentiary comment:]

P.18.4. Evidence inferred from planning displacement events irrespective of or prior to military necessity.

A. Legal source/authority and evidence:

Prosecutor v. Radislav Krstić, Case No. IT-98-33-T, Judgement (TC), 2 August 2001, para. 526-527:

“526. By contrast, Field Marshall Erich von Manstein was convicted by a British military tribunal of ‘the mass deportation and evacuation of civilian inhabitants’ of the Ukraine. Von Manstein argued that the evacuation was warranted by the military necessity of preventing espionage and depriving the enemy of manpower.¹¹⁷⁷ This was not found to be a legitimate reason for the evacuation of the population or the destruction of their property.¹¹⁷⁸ In addition, the judge advocate¹¹⁷⁹ noted that the Prosecution’s evidence showed that “far from this destruction being the result of imperative necessities of the moment, it was really the carrying out of a policy planned a considerable time before, a policy which the accused had in fact been prepared to carry out on two previous occasions and now was carrying out in its entirety and carrying out irrespective of any question of military necessity”.¹¹⁸⁰

“1177. Von Lewinski (called von Manstein), British Military Court at Hamburg (Germany), Dec. 19, 1949, in 16 Annual Dig. and Reports of Public International Law Cases 509, 521 (1949): “In a country so thickly populated as the Ukraine it was necessary for the security of the troops to remove the population from the battle or the combat zone. To do otherwise would have been to invite espionage. The evacuation of this zone was therefore mere military security. Further, it was necessary to deprive the enemy of labour potential as the enemy put every able-bodied man into the army and utilised women and even small children. They could not allow them to fall into the hands of the enemy”.
1178. Id. at 522-23. Indeed, the judge advocate went so far as to suggest that deportation of civilians could never be justified by military necessity, but only by concern for the safety of the population. Id. at 523. This position, however, is contradicted by the text of the later Geneva Convention IV, which does include “imperative military reasons”, and the Geneva Convention is more authoritative than the views of one judge advocate.
1179. The British military tribunals did not issue reasoned opinions, so the law reports contain the submissions of the judge advocates, who advised the court on the law after the presentation of the prosecution and defence.

1180. Von Lewinski (von Manstein), op. cit. p. 522-23.”

“527. In this case no military threat was present following the taking of Srebrenica . The atmosphere of terror in which the evacuation was conducted proves, conversely, that the transfer was carried out in furtherance of a well organised policy whose purpose was to expel the Bosnian Muslim population from the enclave. The evacuation was itself the goal and neither the protection of the civilians nor imperative military necessity justified the action.”

[B. Evidentiary comment:]

P.18.5. Evidence inferred from the non-existance of military objects in the area.

A. Legal source/authority and evidence:

Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, paras. 279, 288-289:

“279. In the Chamber’s view, the facts established in this case make it unnecessary to consider many of the legal and factual issues raised by the submissions of the parties. We would however make the following general observations. The Indictment in this case is confined to an artillery attack on the Old Town which occurred on 6 December 1991. There was also shelling of the wider city of Dubrovnik on that day. The Old Town is a physically distinct part of the wider city. Its geographical location in the wider city, and its clearly visible boundaries as marked by the medieval walls that surround the Old Town, provide an immediate and obvious demarcation of the Old Town from the rest of the city. It is a demarcation which is plain to see at a distance⁸⁹² and was obvious to the JNA forces on 6 December 1991. The Old Town is also legally distinct from the rest of the wider city because the Old Town, in its entirety including the medieval walls, enjoys a World Heritage listing and the protections and immunities that are consequent on that listing. In the context of this particular case there is a further basis for distinguishing the Old Town from the remainder of the wider city of Dubrovnik. As found by the Chamber in this decision, on 6 December 1991 there were a few Croatian military positions in the wider city of Dubrovnik that were relevant to the JNA attempt to capture Srdj that day, whereas there were none in the Old Town, and it was not believed by the JNA forces responsible for the shelling that there were.⁸⁹³ For all of these quite compelling reasons it is legally and factually appropriate, in the circumstances of this case, to consider the targeting and shelling of the Old Town in isolation, and in distinction from, the targeting and shelling of the remainder of the wider city of Dubrovnik. That is so for all counts.”

“892. Exhibit C1/2.

893. See supra, paras 193- 194; 211.”

“288. The Chamber has found that the Old Town was extensively targeted by JNA artillery and other weapons on 6 December 1991⁹²⁸ and that no military firing points or other objectives, real or believed, in the Old Town were targeted by the JNA.⁹²⁹ Hence, in the Chamber’s finding, the intent of the perpetrators was to target civilians and civilian objects in the Old Town. The Chamber has, in addition, found that a relatively few military objectives (actual or believed) in the wider city of Dubrovnik, but outside the Old Town, were targeted by JNA forces on 6 December 1991. These were, in most cases, widely separated and in positions distant from the Old Town. Shelling targeted at the Croatian military positions in the wider Dubrovnik, including those closer to the Old Town, and whether actual or believed positions, would not cause damage to the Old Town, for reasons given in this decision. That is so for all JNA weapons in use on 6 December 1991, including mortars. In addition to this, however, the Chamber has found there was also extensive targeting of non -military objectives outside the Old Town in the wider city of Dubrovnik.

289. As found elsewhere in this decision, the deliberate JNA shelling of the Old Town on 6 December 1991 has been proved to have resulted in the death of two civilians and caused injuries to civilians.930 There was also extensive damage to civilian objects.931 Accordingly, and leaving aside for the present the issue of the Accused’s criminal responsibility, the Chamber finds that the elements of the offence of attacks on a civilian population and civilian objects have been established.”

928. See supra, para 214.
929. See supra, paras 193-194.
930. See supra, paras 250; 259; 270; 276.
931. See infra, paras 326-327.

[B. Evidentiary comment:]

P.18.6. Evidence inferred from displacement within a coherent, consistent strategy of ethnic cleansing.

A. Legal source/authority and evidence:

Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, paras. 548, 551:

“548. The Trial Chamber is satisfied beyond reasonable doubt that there was a coherent, consistent strategy of ethnic cleansing against Bosnian Muslims and Bosnian Croats by the Bosnian Serb police and other Bosnian Serb authorities.¹³⁹⁵ This policy to forcibly displace Bosnian Muslims and Bosnian Croats from the area was carried out throughout the ARK and was implemented by several means.”

“1395. See paras 77, 118 infra. For evidence regarding the strategy of ethnic cleansing of other national groups by the SDS and by the Bosnian Serb army, see BT-19, T. 20620, 20622 , 20669-20671 (closed session); ex. P2659 (under seal).”

“551. The Trial Chamber is satisfied beyond reasonable doubt both that the expulsions and forcible removals were systematic throughout the ARK, in which and from where tens of thousands of Bosnian Muslims and Bosnian Croats were permanently displaced,¹⁴⁰⁵ and that this mass forcible displacement was intended to ensure the ethnic cleansing of the region. These people were left with no option but to escape. Those who were not expelled and did not manage to escape were subjected to intolerable living conditions imposed by the Bosnian Serb authorities,¹⁴⁰⁶ which made it impossible for them to continue living there and forced them to seek permission to leave. Bosnian Muslims and Bosnian Croats were subjected to movement restrictions, as well as to perilous living conditions;¹⁴⁰⁷ they were required to pledge their loyalty to the Bosnian Serb authorities¹⁴⁰⁸ and, in at least one case, to wear white armbands.¹⁴⁰⁹ They were dismissed from their jobs and stripped of their health insurance.¹⁴¹⁰ Campaigns of intimidation specifically targeting Bosnian Muslims and Bosnian Croats were undertaken.¹⁴¹¹”

“1405. For evidence regarding the forcible displacement of more than one million people throughout BiH, see BT-19, T. 20662 (closed session). See also ex. P2675 (under seal). Regarding Prijedor, Sanski Most and Bosanska Krupa, see Charles Kirudja, T. 14660. Regarding Prijedor, see Charles McLeod, T. 7325 -7326, 7388. Regarding Kotor Varos, see BT-71, T. 17649 (private session ). Regarding Bosanski Novi, see Charles Kirudja, T. 14660-14661. Regarding Prnjavor, see BT-91, T. 15860-15862; Dobrivoje Vidic, T. 23011; BT -51, ex. P1784, 92bis statement, 00635474. With regards to the driving out of at the Bosnian Muslim and Bosnian Croat residents of the Teslic region , see BT-95, T 19598-19599 (closed session); ex. P1937, “BBC World Broadcast Summary of a Radio BiH report that at least 10000 Teslic region residents had been driven out”. Regarding the expulsion of Bosnian Muslims and Bosnian Croats from Bosanski Petrovac, see Ahmet Hidic, T. 16272; ex. P1878, “Report on the events in Bosanski Petrovac from June 1992 by Bosanski Petrovac Country Club ”. Regarding the expulsion of people from the Muslim villages of Basici and Mehovci in Celinac, see BT-90, T. 17095, 17097 (closed session).
1406. See IX.A., “Exterminaion and Wilful Killing” supra; D., “Destructions”, infra.
1407. For Prijedor, see BT-1, T. 13682-13684; for Bosanski Novi, see Charles Kirudja, T. 14496; BT-84, T. 14163-14164; for Sipovo, see BT-105, T. 19111- 19112 (private session); for Bosanski Petrovac, see Jovo Radojko, T. 20361; for Celinac, see BT-90, T. 17083-17084, 17090-17092 (closed session).

1408. Those who remained in Sanski Most had to sign a loyalty oath to Serbian authorities: Besim Islamcevic, T. 7431; BT-104, T. 18531 (private session). Conversely, the police recommended to those who did not accept this loyalty, that it would be best if they moved out: Jakov Maric, T. 10840. See also BT-21, T. 8511-8513 (closed session) and ex. P218, “Decision of the Serb Municipality of Sanski Most Crisis Staff, 30 May 1992”. For evidence regarding the organisation and moving out of refugees in Prnjavor disloyal to the authorities of the SerBiH, see ex. P 2608, “ Official Gazette of the Prnjavor Municipality”, 18 August 1992.

1409. Following a decision of the Municipal Crisis Staff in Prijedor, which was broadcasted via the media, BT-1, T . 13682-13684 (private session). See also Nusret Sivac, ex. P1547, T. 6719 .

1410. See IX.F., “Persecutions ”, infra.

1411. In Banja Luka in 1992 , a number of identifiable vehicles regularly circulated with armed, uniformed occupants , who conducted house searches, picked people off the streets, and searched for people in restaurants and coffee bars: BT-22, T. 4413-4419, 4490; BT-9, T. 3499 (closed session); Zijahudin Smailagic, T. 1964; Amir Dzonlic, T. 2391-2392; BT-97 , T. 18006-18007 (closed session). Persons were beaten and tortured; some were arrested and never returned: BT-22, T. 4416; BT-7, T. 2953; Zijahudin Smailagic, T. 1964. All citizens of Banja Luka were very familiar with a red Combi, and one witness refers to it as a “mobile torture chamber”: BT-7, T. 3122 (closed session); Muharem Krzic, T. 1488. Regarding the fact that the police and Crisis Staff should similarly have been aware of the vehicles’ notoriety, see BT-7, T. 3077, (closed session ). Regarding the pressure exerted on Bosnian Muslims and Bosnian Croats in villages around Banja Luka, see BT-7, T. 3045 (closed session); ex. P422, “1st KK Command transcription of a Decision of SerBiH Presidency on granting amnesty from criminal prosecution”, 6 September 1992. A general atmosphere of fear also resulted in the involuntary departures of Bosnian Muslims and Bosnian Croats from a number of areas. Regarding Kljuc, see ex. P1100, “Video-tape from Banja Luka TV”; ex. P1045, “Crime report no.12/92 informing on crimes committed in the municipality since 27 May 1992, 28 September 1992”; ex. P1010, “Report on the work of the Klju c Crisis Committee from 15 May onwards, 1 June 1992”; Ajiz Becic, ex. P549, 92bis statement, 02109336; BT-79, T. 11591 (closed session). In Prnjavor, Bosnian Muslims and Bosnian Croats feared eviction from their homes and were subject to pressure exerted on them daily: Jasmin Odobasic, T. 15126-15127. Bosnian Muslims in Bosanski Novi suffered persecution and intimidation from Bosnian Serb armed group: Charles Kirudja, T. 14495. See also ex. P1672, “Memorandum regarding arriving refugees from Bosanski Novi”, 8 July 1992.”

Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-A, Judgement (AC), 17 September 2003, paras. 236 – 237:

“236. The Trial Chamber reached the following conclusion:

“385. Judgment, para. 49 (the Trial Chamber uses the term “deportation” here to mean displacement within the borders of Bosnia and Herzegovina).”

“237. Given these conclusions, as well as the discriminatory character of unlawful detention and the imposition of the living conditions³⁸⁶ described above on non-Serb KP Dom detainees, the Appeals Chamber considers that it was not reasonable for the Trial Chamber to conclude that there was no evidence that the 35 detainees had been transferred to Montenegro on the requisite discriminatory grounds.”

“386. See, for example, paragraph 193 of this Judgement.”

[B. Evidentiary comment:]

P.18.7. Evidence inferred from the existence of a larger plan of displacement.

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. 529:

“529. The Chamber is satisfied that there was a plan early on in the operation to have the BH Muslim civilian population transferred from Sovici, intending to use them in exchange for BH Croat prisoners taken by the ABiH elsewhere.¹³⁷³ Evidence has been led to the fact that the plan was implemented. A report¹³⁷⁴ dated 7 May 1993¹³⁷⁵ signed by Blaz Azinovic, Herceg Stjepan Battalion, Mijat Tomic Brigade, states that the transfer was ordered by Vlado Curic referred to as “Tuta’s Commissioner”. Defence witness NW confirms that the transfer referred to in the report is the transfer of the civilians from the Junuzovici houses to Gornji Vakuf relevant to the Indictment.¹³⁷⁶”

“1373. Exhibit PP 333.

1374. Exhibit PP 368. As to its reliability See supra 1373.

1375. The date of the report was raised by Defence witness NW, as the date 7 May 1993 is written with the number 5 which has replaced the original number 4 (indicating April). However, witness NW later in his testimony admits that the transfer referred to is that of the civilians from Sovici to Gornji Vakuf, Defence witness NW, T 14991-14993. As the transfer was in May 1993, the Chamber is satisfied that the correct date of the report is 7 May 1993.
1376. Defence witness NW, T 14991-14993.”

[B. Evidentiary comment:]

P.18.8. Evidence inferred from persons’ widespread knowledge of other serious crimes occurring.

A. Legal source/authority and evidence:

Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-T, Judgement (TC), 17 January 2005, para. 617:

“617. The evidence establishes that the Bosnian Muslim refugees in Potocari did not have a genuine choice of whether to remain in or leave the Srebrenica enclave. This lack of a genuine choice was a result of the actions and behaviour of the officers and soldiers of the VRS towards the refugees.²⁰¹² In particular the Trial Chamber observes the following evidence testimony:

- the widespread knowledge among the Bosnian Muslim refugees of serious crimes committed by members of the Bosnian Serb forces in Potocari,^2013”

“2012. See generally section II. D. 1.
2013. See supra para. 166, and section II. D. 1. (g).”

[B. Evidentiary comment:]

P.18.9. Evidence inferred from military attacks on the area where persons reside.

A. Legal source/authority and evidence:

Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, paras. 549, 566:

“549. Military operations were carried out against towns and villages that were not military targets. Bosnian Serb forces carried out attacks in Prijedor, Sanski Most, Bosanski Novi, Kljuc, Teslic, and Kotor Varos, among others.¹³⁹⁶ Such military operations were undertaken with the specific purpose to drive Bosnian Muslim and Bosnian Croat residents away.¹³⁹⁷ The evidence shows that the displacement of persons was not simply the consequence of military action, but the aim of it.¹³⁹⁸ Following attacks on towns and villages, Bosnian Muslim and Bosnian Croat men, women and children were rounded up and often separated.¹³⁹⁹”

“1396. See paras 104-114 infra. BT-19, T. 20620, 20622 (closed session); ex. P2659 (under seal).

1397. Ibid.

1398. BT-19, T. 20635-20637, 20708 (closed session). The witness gave evidence that this was true of basically all sides. See also, BT-21, T. 8226; BT-20, T. 5247-5249.
1399. Charles McLeod, T. 7325-7326 . Following the attack on Hambarine in Prijedor, Bosnian Serb soldiers divided the women from the men and at least one bus transported the men to the Trnopolje camp : Emsud Garibovic, T. 12458-12460. In Kozarac, conditions of a cease-fire included the surrender of mainly Bosnian Muslim civilians to Bosnian Serb authorities and their subsequent expulsion by uniformed soldiers: Nerim Karagic, ex. P559, T. 5210 -5215, and by the police: Nusret Sivac, ex. P1547, T. 6768. This expulsion included that of women and children, and their transfer to Keraterm, Omarska and Trnopolje camps: Jusuf Arifagic, ex. P554, T. 7075. Following the take-over of Prijedor, people either left or were escorted by Bosnian Serb soldiers and a tank to places where people with white stripes on their arms, were bussed to Keraterm, Omarska and Trnopolje camps: Nusret Sivac, ex. P1547, T. 6575. Following the attacks on Biscani and on Carakovo, civilians were forced to leave their villages and were told to gather at various collection points, from which approximately a couple of thousand of them were then bussed to the Keraterm, Omarska and Trnopolje camps: BT-106, T. 21075- 21081 (closed session).”

“566. In the Municipality of Bosanski Novi, the Bosnian Serb military told people that the village of Suhaca was about to be attacked, that they could not protect them, and that they had to leave.¹⁴⁵⁷ People were also told by the army to retreat towards Bosanski Novi, where it would be decided where they would then go.¹⁴⁵⁸ On 24 May 1992, there were between approximately 8,000 and 10,000 Muslim men, women and children from Gornji Agici, Donji Agici and Crna Rijeka that left on a convoy of cars, tractors and horse-drawn carts.¹⁴⁵⁹”

“1457. BT-82, T. 13970-13972; Charles Kirudja, T. 14451-14452. See also ex. P1666, ‘UNPROFOR Memorandum regarding 5000 Muslims from Bosanski Novi’, 9 June 1992.
1458. BT-82, T. 13970.

1459. BT-82, T. 13972. See also ex. P1684, ‘UNPROFOR Report’, 8 October 1992; Charles Kirudja, T. 14452, 14454 ; ex. P1666, ‘UNPROFOR Memorandum regarding 5000 Muslims from Bosanski Novi’, 9 June 1992; BT-84, T. 14129.”

Prosecutor v. Radislav Krstić, Case No. IT-98-33-T, Judgement (TC), 2 August 2001, paras. 147, 292:

“147. Overwhelming evidence presented during the course of the Trial, however, demonstrates that, in July 1995, the Bosnian Muslim population of Srebrenica was not faced with a genuine choice as to whether to leave or to remain in the area. The shelling of Srebrenica, particularly on 10 and 11 July 1995, and the burning of Bosnian Muslim homes was calculated to terrify the population and make them flee the area with no hope of return…”

“292. The Drina Corps was not oblivious to the overall VRS strategy of eliminating the Srebrenica enclave. This had always been the long-term Drina Corps objective in the area. Although Krivaja 95 started out as a limited operation, it quickly accelerated to a plan for taking over Srebrenica town when the opportunity presented itself on the evening of 9 July 1995. From that point, the Drina Corps continued to shell the enclave intensively with the intent to cause the Bosnian Muslim civilians to flee the area. The Drina Corps was also fully cognisant of the catastrophic humanitarian situation of the Bosnian Muslim refugees in Potocari and the fact that Bosnian Serb forces were terrorising the population there.”

[B. Evidentiary comment:]

P.18.10. Evidence inferred from creating intolerable living conditions.

A. Legal source/authority and evidence:

Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, para. 551:

“551. The Trial Chamber is satisfied beyond reasonable doubt both that the expulsions and forcible removals were systematic throughout the ARK, in which and from where tens of thousands of Bosnian Muslims and Bosnian Croats were permanently displaced,¹⁴⁰⁵ and that this mass forcible displacement was intended to ensure the ethnic cleansing of the region. These people were left with no option but to escape. Those who were not expelled and did not manage to escape were subjected to intolerable living conditions imposed by the Bosnian Serb authorities,¹⁴⁰⁶ which made it impossible for them to continue living there and forced them to seek permission to leave. Bosnian Muslims and Bosnian Croats were subjected to movement restrictions, as well as to perilous living conditions;¹⁴⁰⁷ they were required to pledge their loyalty to the Bosnian Serb authorities¹⁴⁰⁸ and, in at least one case, to wear white armbands.¹⁴⁰⁹ They were dismissed from their jobs and stripped of their health insurance.¹⁴¹⁰ Campaigns of intimidation specifically targeting Bosnian Muslims and Bosnian Croats were undertaken.¹⁴¹¹”

“1405. For evidence regarding the forcible displacement of more than one million people throughout BiH, see BT-19, T. 20662 (closed session). See also ex. P2675 (under seal). Regarding Prijedor, Sanski Most and Bosanska Krupa, see Charles Kirudja, T. 14660. Regarding Prijedor, see Charles McLeod, T. 7325 -7326, 7388. Regarding Kotor Varos, see BT-71, T. 17649 (private session ). Regarding Bosanski Novi, see Charles Kirudja, T. 14660-14661. Regarding Prnjavor, see BT-91, T. 15860-15862; Dobrivoje Vidic, T. 23011; BT -51, ex. P1784, 92bis statement, 00635474. With regards to the driving out of at the Bosnian Muslim and Bosnian Croat residents of the Teslic region , see BT-95, T 19598-19599 (closed session); ex. P1937, “BBC World Broadcast Summary of a Radio BiH report that at least 10000 Teslic region residents had been driven out”. Regarding the expulsion of Bosnian Muslims and Bosnian Croats from Bosanski Petrovac, see Ahmet Hidic, T. 16272; ex. P1878, “Report on the events in Bosanski Petrovac from June 1992 by Bosanski Petrovac Country Club ”. Regarding the expulsion of people from the Muslim villages of Basici and Mehovci in Celinac, see BT-90, T. 17095, 17097 (closed session).
1406. See IX.A., “Exterminaion and Wilful Killing” supra; D., “Destructions”, infra.
1407. For Prijedor, see BT-1, T. 13682-13684; for Bosanski Novi, see Charles Kirudja, T. 14496; BT-84, T. 14163-14164; for Sipovo, see BT-105, T. 19111- 19112 (private session); for Bosanski Petrovac, see Jovo Radojko, T. 20361; for Celinac, see BT-90, T. 17083-17084, 17090-17092 (closed session).

1408. Those who remained in Sanski Most had to sign a loyalty oath to Serbian authorities: Besim Islamcevic, T. 7431; BT-104, T. 18531 (private session). Conversely, the police recommended to those who did not accept this loyalty, that it would be best if they moved out: Jakov Maric, T. 10840. See also BT-21, T. 8511-8513 (closed session) and ex. P218, “Decision of the Serb Municipality of Sanski Most Crisis Staff, 30 May 1992”. For evidence regarding the organisation and moving out of refugees in Prnjavor disloyal to the authorities of the SerBiH, see ex. P 2608, “ Official Gazette of the Prnjavor Municipality”, 18 August 1992.

1409. Following a decision of the Municipal Crisis Staff in Prijedor, which was broadcasted via the media, BT-1, T . 13682-13684 (private session). See also Nusret Sivac, ex. P1547, T. 6719 .

1410. See IX.F., “Persecutions ”, infra.

1411. In Banja Luka in 1992 , a number of identifiable vehicles regularly circulated with armed, uniformed occupants , who conducted house searches, picked people off the streets, and searched for people in restaurants and coffee bars: BT-22, T. 4413-4419, 4490; BT-9, T. 3499 (closed session); Zijahudin Smailagic, T. 1964; Amir Dzonlic, T. 2391-2392; BT-97 , T. 18006-18007 (closed session). Persons were beaten and tortured; some were arrested and never returned: BT-22, T. 4416; BT-7, T. 2953; Zijahudin Smailagic, T. 1964. All citizens of Banja Luka were very familiar with a red Combi, and one witness refers to it as a “mobile torture chamber”: BT-7, T. 3122 (closed session); Muharem Krzic, T. 1488. Regarding the fact that the police and Crisis Staff should similarly have been aware of the vehicles’ notoriety, see BT-7, T. 3077, (closed session ). Regarding the pressure exerted on Bosnian Muslims and Bosnian Croats in villages around Banja Luka, see BT-7, T. 3045 (closed session); ex. P422, “1st KK Command transcription of a Decision of SerBiH Presidency on granting amnesty from criminal prosecution”, 6 September 1992. A general atmosphere of fear also resulted in the involuntary departures of Bosnian Muslims and Bosnian Croats from a number of areas. Regarding Kljuc, see ex. P1100, “Video-tape from Banja Luka TV”; ex. P1045, “Crime report no.12/92 informing on crimes committed in the municipality since 27 May 1992, 28 September 1992”; ex. P1010, “Report on the work of the Klju c Crisis Committee from 15 May onwards, 1 June 1992”; Ajiz Becic, ex. P549, 92bis statement, 02109336; BT-79, T. 11591 (closed session). In Prnjavor, Bosnian Muslims and Bosnian Croats feared eviction from their homes and were subject to pressure exerted on them daily: Jasmin Odobasic, T. 15126-15127. Bosnian Muslims in Bosanski Novi suffered persecution and intimidation from Bosnian Serb armed group: Charles Kirudja, T. 14495. See also ex. P1672, “Memorandum regarding arriving refugees from Bosanski Novi”, 8 July 1992.”

Prosecutor v Milomir Stakić, Case No. IT-97-24-T, Judgment (TC), 31 July 2003, para. 691:

“691. There is ample evidence that those who left the municipality did so under considerable pressure. Witness B explained it in the following way:

This is corroborated by a report on the work of the Prijedor Red Cross between 5 May and 30 September 1992 which notes: “There is great pressure for citizens of Muslim or Croatian nationality to leave the AR Krajina”.¹³⁵¹”

1350. Witness B, T. 2263.
1351. Exh. S434.

Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, paras. 231, 233:

“231. The testimony of FWS-54, one of the 35 detainees, illustrates the atmosphere of fear and constraint that prevailed in the KP Dom. The Trial Chamber noted that on 8 August 1992, about 20 days before being moved, ‘FWS-54 was beaten by a KP Dom guard named Pilica Blagojevic as punishment for giving a fellow detainee an extra slice of bread contrary to orders. As a result of the beating, FWS-54 was seriously bruised and lost a few teeth. After the beating, he was locked up in solitary confinement for three or four days.’³⁷⁶ Furthermore, relying on the testimony of FWS-54, the Trial Chamber found that on five occasions in June or July 1992, detainees were called outside and were severely beaten. Other detainees heard the cries and moans of the persons.³⁷⁷”

“376. Judgment, para. 219, footnotes omitted.
377. Ibid., para. 274.”

“233. The Trial Chamber finds that living conditions in the KP Dom made the non-Serb detainees subject to a coercive prison regime which was such that they were not in a position to exercise genuine choice. This leads the Appeals Chamber to conclude that the 35 detainees were under duress and that the Trial Chamber erred in finding that they had freely chosen to be exchanged.”

[B. Evidentiary comment:]

P.18.11. Evidence inferred from the destruction of persons’ homes.

A. Legal source/authority and evidence:

Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, para. 550:

“550. Subsequently, most of them were confined to camps and detention centres for varying lengths of time.¹⁴⁰⁰ Most of these were then deported or forcibly transferred, some of them immediately, by Bosnian Serb soldiers. The expulsion of Bosnian Muslims and Bosnian Croats was often accompanied by a widespread destruction of their homes¹⁴⁰¹ and institutions dedicated to religion.¹⁴⁰²”

“1400. See for example, para . 559 infra regarding Trnopolje; para. 558 infra regarding Manjaca Military Camp.

1401. See IX.D., “Destructions”, infra.”

[B. Evidentiary comment:]

P.18.12. Evidence inferred from looting or searching for valuables in persons’ homes.

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. 560:

“560. Witness MM, (a resident of the Centar II area in Mostar), recalled how nine soldiers, qualifying themselves as “Stelici”, entered her apartment in the evening of 29 September 1993, searching for money and gold valuables.¹⁴²³ The soldiers evicted them together with other families from the same building and divided men from women, children, and elderly.¹⁴²⁴”

“1423. Witness MM, T 5754-5755 (confidential).
1424. Witness MM, T 5758 (confidential).”

[B. Evidentiary comment:]

P.18.13. Evidence inferred from dismissing persons from their jobs.

A. Legal source/authority and evidence:

Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, para. 551:

“551. The Trial Chamber is satisfied beyond reasonable doubt both that the expulsions and forcible removals were systematic throughout the ARK, in which and from where tens of thousands of Bosnian Muslims and Bosnian Croats were permanently displaced,¹⁴⁰⁵ and that this mass forcible displacement was intended to ensure the ethnic cleansing of the region. These people were left with no option but to escape. Those who were not expelled and did not manage to escape were subjected to intolerable living conditions imposed by the Bosnian Serb authorities,¹⁴⁰⁶ which made it impossible for them to continue living there and forced them to seek permission to leave. Bosnian Muslims and Bosnian Croats were subjected to movement restrictions, as well as to perilous living conditions;¹⁴⁰⁷ they were required to pledge their loyalty to the Bosnian Serb authorities¹⁴⁰⁸ and, in at least one case, to wear white armbands.¹⁴⁰⁹ They were dismissed from their jobs and stripped of their health insurance.¹⁴¹⁰”

“1405. For evidence regarding the forcible displacement of more than one million people throughout BiH, see BT-19, T. 20662 (closed session). See also ex. P2675 (under seal). Regarding Prijedor, Sanski Most and Bosanska Krupa, see Charles Kirudja, T. 14660. Regarding Prijedor, see Charles McLeod, T. 7325 -7326, 7388. Regarding Kotor Varos, see BT-71, T. 17649 (private session ). Regarding Bosanski Novi, see Charles Kirudja, T. 14660-14661. Regarding Prnjavor, see BT-91, T. 15860-15862; Dobrivoje Vidic, T. 23011; BT -51, ex. P1784, 92bis statement, 00635474. With regards to the driving out of at the Bosnian Muslim and Bosnian Croat residents of the Teslic region , see BT-95, T 19598-19599 (closed session); ex. P1937, “BBC World Broadcast Summary of a Radio BiH report that at least 10000 Teslic region residents had been driven out”. Regarding the expulsion of Bosnian Muslims and Bosnian Croats from Bosanski Petrovac, see Ahmet Hidic, T. 16272; ex. P1878, “Report on the events in Bosanski Petrovac from June 1992 by Bosanski Petrovac Country Club ”. Regarding the expulsion of people from the Muslim villages of Basici and Mehovci in Celinac, see BT-90, T. 17095, 17097 (closed session).
1406. See IX.A., “Exterminaion and Wilful Killing” supra; D., “Destructions”, infra.
1407. For Prijedor, see BT-1, T. 13682-13684; for Bosanski Novi, see Charles Kirudja, T. 14496; BT-84, T. 14163-14164; for Sipovo, see BT-105, T. 19111- 19112 (private session); for Bosanski Petrovac, see Jovo Radojko, T. 20361; for Celinac, see BT-90, T. 17083-17084, 17090-17092 (closed session).

1408. Those who remained in Sanski Most had to sign a loyalty oath to Serbian authorities: Besim Islamcevic, T. 7431; BT-104, T. 18531 (private session). Conversely, the police recommended to those who did not accept this loyalty, that it would be best if they moved out: Jakov Maric, T. 10840. See also BT-21, T. 8511-8513 (closed session) and ex. P218, “Decision of the Serb Municipality of Sanski Most Crisis Staff, 30 May 1992”. For evidence regarding the organisation and moving out of refugees in Prnjavor disloyal to the authorities of the SerBiH, see ex. P 2608, “ Official Gazette of the Prnjavor Municipality”, 18 August 1992.

1409. Following a decision of the Municipal Crisis Staff in Prijedor, which was broadcasted via the media, BT-1, T . 13682-13684 (private session). See also Nusret Sivac, ex. P1547, T. 6719 .

1410. See IX.F., “Persecutions ”, infra.”

[B. Evidentiary comment:]

P.18.14. Evidence inferred from dismissing persons from their health insurance.

A. Legal source/authority and evidence:

Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, para. 551:

“551. The Trial Chamber is satisfied beyond reasonable doubt both that the expulsions and forcible removals were systematic throughout the ARK, in which and from where tens of thousands of Bosnian Muslims and Bosnian Croats were permanently displaced,¹⁴⁰⁵ and that this mass forcible displacement was intended to ensure the ethnic cleansing of the region. These people were left with no option but to escape. Those who were not expelled and did not manage to escape were subjected to intolerable living conditions imposed by the Bosnian Serb authorities,¹⁴⁰⁶ which made it impossible for them to continue living there and forced them to seek permission to leave. Bosnian Muslims and Bosnian Croats were subjected to movement restrictions, as well as to perilous living conditions;¹⁴⁰⁷ they were required to pledge their loyalty to the Bosnian Serb authorities¹⁴⁰⁸ and, in at least one case, to wear white armbands.¹⁴⁰⁹ They were dismissed from their jobs and stripped of their health insurance.¹⁴¹⁰”

“1405. For evidence regarding the forcible displacement of more than one million people throughout BiH, see BT-19, T. 20662 (closed session). See also ex. P2675 (under seal). Regarding Prijedor, Sanski Most and Bosanska Krupa, see Charles Kirudja, T. 14660. Regarding Prijedor, see Charles McLeod, T. 7325 -7326, 7388. Regarding Kotor Varos, see BT-71, T. 17649 (private session ). Regarding Bosanski Novi, see Charles Kirudja, T. 14660-14661. Regarding Prnjavor, see BT-91, T. 15860-15862; Dobrivoje Vidic, T. 23011; BT -51, ex. P1784, 92bis statement, 00635474. With regards to the driving out of at the Bosnian Muslim and Bosnian Croat residents of the Teslic region , see BT-95, T 19598-19599 (closed session); ex. P1937, ‘BBC World Broadcast Summary of a Radio BiH report that at least 10000 Teslic region residents had been driven out’. Regarding the expulsion of Bosnian Muslims and Bosnian Croats from Bosanski Petrovac, see Ahmet Hidic, T. 16272; ex. P1878, ‘Report on the events in Bosanski Petrovac from June 1992 by Bosanski Petrovac Country Club’. Regarding the expulsion of people from the Muslim villages of Basici and Mehovci in Celinac, see BT-90, T. 17095, 17097 (closed session).
1406. See IX.A., ‘Exterminaion and Wilful Killing’ supra; D., ‘Destructions’, infra.
1407. For Prijedor, see BT-1, T. 13682-13684; for Bosanski Novi, see Charles Kirudja, T. 14496; BT-84, T. 14163-14164; for Sipovo, see BT-105, T. 19111- 19112 (private session); for Bosanski Petrovac, see Jovo Radojko, T. 20361; for Celinac, see BT-90, T. 17083-17084, 17090-17092 (closed session).

1408. Those who remained in Sanski Most had to sign a loyalty oath to Serbian authorities: Besim Islamcevic, T. 7431; BT-104, T. 18531 (private session). Conversely, the police recommended to those who did not accept this loyalty, that it would be best if they moved out: Jakov Maric, T. 10840. See also BT-21, T. 8511-8513 (closed session) and ex. P218, ‘Decision of the Serb Municipality of Sanski Most Crisis Staff, 30 May 1992’. For evidence regarding the organisation and moving out of refugees in Prnjavor disloyal to the authorities of the SerBiH, see ex. P 2608, ‘Official Gazette of the Prnjavor Municipality’, 18 August 1992.

1409. Following a decision of the Municipal Crisis Staff in Prijedor, which was broadcasted via the media, BT-1, T . 13682-13684 (private session). See also Nusret Sivac, ex. P1547, T. 6719 .

1410. See IX.F., ‘Persecutions’, infra.”

[B. Evidentiary comment:]

P.18.15. Evidence inferred from reasons against civilian protection or security reasons for displacement.

A. Legal source/authority and evidence:

Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, para. 556:

“556. With the exception of one incident in Celinac,¹⁴²² the Trial Chamber is not satisfied that Bosnian Serb authorities carried out the total or partial evacuation of the Bosnian Muslims and Bosnian Croats either for the security of these populations¹⁴²³ or for imperative military reasons. All the evidence points to this conclusion without the shadow of a doubt. In addition, the Trial Chamber notes that decisions to either of the said effects would have required that “persons thus evacuated shall be transferred back to their homes as soon as hostilities in the area in question have ceased”¹⁴²⁴, which did not happen in the present case. The Trial Chamber further notes that Bosnian Muslims and Bosnian Croats had a right to continue residing in their respective towns and villages. The Trial Chamber is thus satisfied beyond reasonable doubt of the unlawful nature of transfers carried out to this end.”

“1422. See Vahid Mujkanovic, ex. P1980, 92bis statement, 01106086-01106094. People from the villages of Mehovci and Basici were expelled following attacks in mid-August 1992 targeting villages mostly inhabited by Bosnian Muslims and Bosnian Croats, after which they organised themselves and asked to leave Celinac: BT-90, T. 17094-17097 (closed session ). See also ex. P2000, ‘1st KK daily combat report to SerBiH Army Main Staff , 16 Augut 1992’. They were told to form a column in the direction of Banja Luka. However, for security reasons, the Bosnian Serb military police told them not to proceed, and to remain in Celinac until further notice: BT-90, T. 17097-17100 (closed session). The Accused ordered that they be taken by bus to the Celinac elementary school where, under the protection of special police, approximately 500 Bosnian Muslims and Bosnian Croats were protected against danger, including retaliations , and were kept until their release between seven and fifteen days later: BT-90, T. 17100, 17176-17182 (closed session); Mehmed Talic, T. 24149-24150. He also gave evidence that they stayed at the elementary school for approximately fifteen days, after which they returned to their homes and lived a normal life, T. 24151-24153 .

1423. For evidence of purported evacuations in Bosanski Petrovac, see Jovo Radojko, T. 20363. For evidence of purported evacuations in Bosanska Krupa, see Jadranko Saran, T. 17235 -17236; ex. P2098, ‘Bosanska Krupa War Presidency decision regarding the evacuation of the remaining Muslim population’, 22 May 1992; see para. 551 supra .
1424. Article 49 of Geneva Convention IV. The Commentary of Geneva Convention IV (p. 280) also notes that ‘Evacuation must not involve the movement of protected persons to places outside the occupied territory, unless it is physically impossible to do otherwise. Thus, as a rule, evacuation must be to reception centres inside the territory.’ Article 17 of Additional Protocol II also lists the security of the population and imperative military reasons as the only reasons that could justify the evacuation of the civilian population.”

Prosecutor v. Radislav Krstić, Case No. IT-98-33-T, Judgement (TC), 2 August 2001, para. 527:

“527. In this case no military threat was present following the taking of Srebrenica. The atmosphere of terror in which the evacuation was conducted proves, conversely, that the transfer was carried out in furtherance of a well organised policy whose purpose was to expel the Bosnian Muslim population from the enclave. The evacuation was itself the goal and neither the protection of the civilians nor imperative military necessity justified the action.”

[B. Evidentiary comment:]

P.18.16. Evidence inferred from failure to return civilians after the displacement.

A. Legal source/authority and evidence:

Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, para. 556:

“556. With the exception of one incident in Celinac,¹⁴²² the Trial Chamber is not satisfied that Bosnian Serb authorities carried out the total or partial evacuation of the Bosnian Muslims and Bosnian Croats either for the security of these populations¹⁴²³ or for imperative military reasons. All the evidence points to this conclusion without the shadow of a doubt. In addition, the Trial Chamber notes that decisions to either of the said effects would have required that ‘persons thus evacuated shall be transferred back to their homes as soon as hostilities in the area in question have ceased’¹⁴²⁴, which did not happen in the present case. The Trial Chamber further notes that Bosnian Muslims and Bosnian Croats had a right to continue residing in their respective towns and villages. The Trial Chamber is thus satisfied beyond reasonable doubt of the unlawful nature of transfers carried out to this end.”

Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-T, Judgement (TC), 31 March 2003, para. 526:

“526. The remaining question is whether the transfer was a lawful evacuation. The civilians were transferred from Sovici during the night between 4 and 5 May 1993. On 18 April 1993 they were forced by armed soldiers to leave their houses. They were then held under armed guard in crowded housing with approximately seventy people to each house. No imperative military reasons existed. When a genuine evacuation takes place, there is an obligation to bring the population back when the hostilities have ended. No attempts to return them were made. In fact most of their houses were torched after 18 April 1993.”

Doğan and Others v. Turkey, Application Nos. 8803-8811/02, 8813/02 and 8815-8819/02), Judgment (European Court of Human Rights) ,29 June 2004, para. 154:

“154 For the Court, however, the authorities have the primary duty and responsibility to establish conditions, as well as provide the means, which allow the applicants to return voluntarily, in safety and with dignity, to their homes or places of habitual residence, or to resettle voluntarily in another part of the country (see in this respect Principles 18 and 28 of the United Nations Guiding Principles on Internal Displacement, E/CN.4/1998/53/Add.2, dated 11 February 1998)”

[B. Evidentiary comment:]

P.18.17. Evidence inferred from destroying homes so that civilians could not return after the displacement.

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. 526:

“526. The remaining question is whether the transfer was a lawful evacuation. The civilians were transferred from Sovici during the night between 4 and 5 May 1993. On 18 April 1993 they were forced by armed soldiers to leave their houses. They were then held under armed guard in crowded housing with approximately seventy people to each house. No imperative military reasons existed. When a genuine evacuation takes place, there is an obligation to bring the population back when the hostilities have ended. No attempts to return them were made. In fact most of their houses were torched after 18 April 1993.”

[B. Evidentiary comment:]

P.18.18. Evidence inferred from deliberate displacement outside of the occupied territory without evidence that it was physically impossible to do otherwise.

A. Legal source/authority and evidence:

“1371. Commentary to Geneva Convention IV, p 280.”

[B. Evidentiary comment:]

P.18.19. Evidence inferred from conditions of hygiene, health, safety and nutrition were not ensured to the greatest practicable extent.

A. Legal source/authority and evidence:

Prosecutor v. Radislav Krstić, Case No. IT-98-33-T, Judgement (TC), 2 August 2001, para. 615:

“615. The object of the joint criminal enterprise implemented at Potocari on 12 and 13 July was firstly the forcible transfer of the Muslim civilians out of Srebrenica. That General Krstić had the intent for this crime is indisputably evidenced by his extensive participation in it. Furthermore, the humanitarian crisis that prevailed at Potocari was so closely connected to, and so instrumental in, the forcible evacuation of the civilians that it cannot but also have fallen within the object of the criminal enterprise. When General Krstić marched triumphantly into Srebrenica alongside General Mladic on 11 July, he saw the town completely empty and soon found out, at least by the evening, that a huge number of the inhabitants had fled to Potocari and were crowded together in the UN compound and surrounding buildings. Although, by his own claim, he was the organiser of the military operation on Srebrenica, he had taken no action to provide food or water, nor to guarantee the security of the civilian inhabitants of the town. The Trial Chamber finds that General Krstić subscribed to the creation of a humanitarian crisis as a prelude to the forcible transfer of the Bosnian Muslim civilians. This is the only plausible inference that can be drawn from his active participation in the holding and transfer operation at Potocari and from his total declination to attempt any effort to alleviate that crisis despite his on the scene presence.”

Article 49(3), Geneva Convention IV:

“The Occupying Power undertaking such transfers or evacuations shall ensure, to the greatest practicable extent, that proper accommodation is provided to receive the protected persons, that the removals are effected in satisfactory conditions of hygiene, health, safety and nutrition, and that members of the same family are not separated.”

[B. Evidentiary comment:]

P.18.20. Evidence inferred from the separation of families.

A. Legal source/authority and evidence:

Article 49(3), Geneva Convention IV:

“The Occupying Power undertaking such transfers or evacuations shall ensure, to the greatest practicable extent, that proper accommodation is provided to receive the protected persons, that the removals are effected in satisfactory conditions of hygiene, health, safety and nutrition, and that members of the same family are not separated.”

Article 75(5), Geneva Convention Additional Protocol I:

“Women whose liberty has been restricted for reasons related to the armed conflict shall be held in quarters separated from men's quarters. They shall be under the immediate supervision of women. Nevertheless, in cases where families are detained or interned, they shall, whenever possible, be held in the same place and accommodated as family units.”

[B. Evidentiary comment:]

P.18.21. Evidence inferred from the displacement of children without additional safeguards.

A. Legal source/authority and evidence:

Article 78, Geneva Convention Additional Protocol I:

“1. No Party to the conflict shall arrange for the evacuation of children, other than its own nationals, to a foreign country except for a temporary evacuation where compelling reasons of the health or medical treatment of the children or, except in occupied territory, their safety, so require. Where the parents or legal guardians can be found, their written consent to such evacuation is required. If these persons cannot be found, the written consent to such evacuation of the persons who by law or custom are primarily responsible for the care of the children is required. Any such evacuation shall be supervised by the Protecting Power in agreement with the Parties concerned, namely, the Party arranging for the evacuation, the Party receiving the children and any Parties whose nationals are being evacuated. In each case, all Parties to the conflict shall take all feasible precautions to avoid endangering the evacuation.
2. Whenever an evacuation occurs pursuant to paragraph 1, each child's education, including his religious and moral education as his parents desire, shall be provided while he is away with the greatest possible continuity.
3. With a view to facilitating the return to their families and country of children evacuated pursuant to this Article, the authorities of the Party arranging for the evacuation and, as appropriate, the authorities of the receiving country shall establish for each child a card with photographs, which they shall send to the Central Tracing Agency of the International Committee of the Red Cross.”

[B. Evidentiary comment:]