8. a.[Mental element for Element 5] [Conduct of destroying or seizing:] The perpetrator meant to engage in the destruction or seizing of certain property.

P.50. Evidence inferred from an utterance, a document or a deed.

P.50.1. Evidence of setting fire to targeted houses and stables.

P.50.2. Evidence of setting fire for the purpose of creating terror.

P.50.3. Evidence of the destruction of a part of a village by means of shelling.

P.50.4. Evidence of placing explosives.

P.50.5. Evidence of destruction caused by firing.

P.50.6. Evidence of soldiers carrying petrol canisters in order to burn property.

P.50.7. Evidence that property was pulled down.

P.50.8. Evidence that property was mutilated.

P.50.9. Evidence of ordering destruction.

P.50.10. Evidence that the property was deliberately destroyed.

P.50.11. Evidence of abusive and illegal requisitions of property.

P.50.12. Evidence of a forced transfer of property.

P.51. Evidence inferred from a circumstance.

P.51.1. Evidence of a policy of reprisal.

P.51.2. Evidence of an organized seizure of property undertaken within the framework of a systematic economic exploitation of occupied territory.

8.a.[Mental element for Element 5] [Conduct of destroying or seizing:] The perpetrator meant to engage in the destruction or seizing of certain property.

P.50. Evidence inferred from an utterance, a document or a deed.

P.50.1. Evidence of setting fire to targeted houses and stables.

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. 586:

“586. The deliberate destruction of the houses in Sovici started on 18 April 1993 and continued until 23 April.¹⁴⁴⁸ In contrast to the shelling, the BH Muslim houses were now specifically targeted.¹⁴⁴⁹ Defence witness NN confirmed that BH Muslim houses were torched but denied that all houses were destroyed.¹⁴⁵⁰ A Report from the ECMM recounts that “during the fighting the HVO have systematically burn [sic] Muslim houses”.¹⁴⁵¹ On 20 April 1993, the HVO was firing at Doljani.¹⁴⁵² The village was on fire and houses were burning.¹⁴⁵³ International observers visiting Doljani after the conflict reported that half of Doljani were destroyed.¹⁴⁵⁴ The hamlet of Kraj was destroyed by shelling.¹⁴⁵⁵”

“¹⁴⁴⁸ - Witness W, T 3180-3181; witness C testified that the houses were being set on fire on approximately 21 or 22 April 1993, witness C, T 862; witness X, T 3327; witness JJ, T 5004; exhibit PP 357 (confidential).
¹⁴⁴⁹ - Witness W testified “Can you tell the Chamber, please, what was the condition of the houses in Sovici when you passed through the village at that time? A. But I was passing by Croat houses all the time. Q. Well, what was the condition of those houses? A. Well, naturally like today. Nobody ever touched them, not a bullet nor anything else” witness W, T 3179-3181.
¹⁴⁵⁰ - Defence witness NN, T 12900, 12994.
¹⁴⁵¹ - Exhibit PP 344.
¹⁴⁵² - Exhibit PP 928, pp 74, 75,77.
¹⁴⁵³ - Witness RR, T 6441-6459, while being taken from Orlovac to Krcine, saw the village on fire.
¹⁴⁵⁴ - Witness JJ, T 5008; exhibit PP 357 (confidential).
¹⁴⁵⁵ - Witness C, T 857.”

Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, paras. 418, 424:

“418. […] Prosecution exhibit P117 also showed that nearly all the Muslim houses had been torched, whereas all the Croat houses had been spared ⁸⁶² . […]The witness Nura Pezer stated, on this point, that the day before the attack, she had seen a Croat from the village, named Ivica Vidovic, who, in the presence of another man, was pointing out the Croat houses and the Muslim houses ⁸⁶⁵ . […] . According to the ECMM observer Morsink, practically all the Muslim houses in the villages of Ahmici, Nadioci , Pirici, Sivrino Selo, Gacice, Gomionica, Gromiljak and Rotilj had been burned ⁸⁶⁷ . He stated that the houses had all been set alight with petrol and oil ⁸⁶⁸ . Likewise, according to the witness Watters, the Muslim houses had been systematically burned in Nadioci, Ahmici and ?antici ⁸⁶⁹ . The witness Baggesen, ECMM observer, reported that "it was a whole area that was burning" ⁸⁷⁰ . The report of the Joint Busovaca Commission, dated 21 April, showed that the ICRC had made enquiries that afternoon in Ahmici and noted that all the Muslims situated in Ahmici-west had left and that 90% of the houses together with the area's mosque, had been destroyed ⁸⁷¹ […].

“⁸⁶² - Witnesses Abdullah Ahmic, PT p. 3768; M, PT p. 4410; Elvir Ahmic, PT p. 3255-3256.

⁸⁶⁵ Witness Nura Pezer, PT pp. 3883-3884.

⁸⁶⁷ Witness Morsink, PT pp. 9900-9901.

⁸⁶⁸ Witness Morsink, PT pp. 9901-9902.

⁸⁶⁹ Witness Watters, PT pp. 3602-3605.

⁸⁷⁰ Witness Baggesen, PT of 22 August 1997 p. 1928.

⁸⁷¹ This information appears also in the report of the ECMM whose team accompanied the ICRC team. P242, "Report on inter-ethnic violence in Vitez, Busovaca and Zenica in April 1993", Annex N to ECMM H/S 720, 15 May 1993. Events reported by ECMM and UN, 13-30 April 1993, Annex R to ECMM H/S 720, 15 May 1993, p. R-7.”

“424. The soldiers also set fire to the stables and slaughtered the livestock ⁸⁸³ as the accused noted himself when he visited the site on 27 April ⁸⁸⁴.”

“⁸⁸³ Witness Zec, PT pp. 4288-4289; M, PT pp. 4405-4407; Pjanic, PT pp. 4435-4436; Elvir Ahmic, PT p. 3253.

⁸⁸⁴ Witness Blaškic, PT pp. 19036-19037.”

P.50.2. Evidence of setting fire for the purpose of creating terror.

A. Legal source/authority and evidence:

Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, paras. 600, 608:

“600. […] After the shelling, the Bosnian Serb forces entered the towns and villages, looting and setting on fire apartments, houses and business premises belonging to Bosnian Muslims and Bosnian Croats. The Trial Chamber finds that the purpose of such attacks was to create terror, destroy these properties, cities, towns and villages and prompt non-Serbs to abandon their houses, viallges or towns and leave permanently.”

“608.The Trial Chamber finds that the town of Bosanka Krupa was shelled by Bosnian Serb forces on 22 April 1992. Houses predominantly inhabited by Bosnian Muslims were set on fire and destroyed.¹⁵³⁹”

“¹⁵³⁹. BT-56, T. 17496 (private session ); Jadranko Saran, T. 17289.”

P.50.3. Evidence of the destruction of a part of a village by means of shelling.

A. Legal source/authority and evidence:

Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, paras. 614, 626:

“614. The Trial Chamber is satisfied that houses and shops belonging to Bosnian Muslims in the town of Celinac were shelled and set on fire by Bosnian Serb forces.¹⁵⁵⁶ Bosnian Muslim homes were also broken into and appliances and other valuables were taken away.¹⁵⁵⁷”

“¹⁵⁵⁶. Mehmet Talic, T. 24164; BT-90, T. 17072 (closed session); Radosava Dzombic, T. 23446, 23449; See, e.g . ex. P1991, “Morning news from Radio Banja Luka on 11 June 1992”, concerning four bomb attacks being carried out against private shops in Celinac. The town of Celinac was visited by the Trial Chamber and the Parties during the site visit which took place in March 2004.

¹⁵⁵⁷. BT-90, T. 17101-17102 (closed session).”

“626. […] Following the expiration of the ultimatum, the Bosnian Muslim village of Hambarine was shelled by Bosnian Serb forces for the entire day.¹⁵⁹⁵ Houses were targeted indiscriminately. Tanks passed through the village and shelled the houses causing civilian casualties. Houses were looted and set on fire.¹⁵⁹⁶”

“¹⁵⁹⁵. Hambarine was visited by the Trial Chamber and the Parties during the site visit which took place in March 2004 .

¹⁵⁹⁶. Muharem Murselovic, T. 12589 -12590, 2700-2701; Ivo Atlija, T. 5556; BT-33, T. 12667 (closed session); Elvedin Nasic, T. 12720; BT-35, ex. P563, T. 6808-6810 (under seal); BT-33, T. 4032-4033 (closed session).”

Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-T, Judgement (TC), 31 March 2003, para. 586:

“586. […] The hamlet of Kraj was destroyed by shelling.^1455”

“¹⁴⁵⁵ - Witness C, T 857.”

P.50.4. Evidence of placing explosives.

A. Legal source/authority and evidence:

Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, para. 624:

“624.[…] Many houses were destroyed during the night with explosives. The day following such destruction the rubble would be collected.¹⁵⁹⁰ A group of men marked the non-Serb houses that had to be destroyed. One of the members of the group claimed to act pursuant to orders of the Crisis Staff.¹⁵⁹¹”

“¹⁵⁹⁰. Nusret Sivac, T. 6624.

¹⁵⁹¹. Nusret Sivac, T. 6693-6694, 6755.”

P.50.5. Evidence of destruction caused by firing.

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. 586:

“586. […]The deliberate destruction of the houses in Sovici started on 18 April 1993 and continued until 23 April.¹⁴⁴⁸ In contrast to the shelling, the BH Muslim houses were now specifically targeted.¹⁴⁴⁹ Defence witness NN confirmed that BH Muslim houses were torched but denied that all houses were destroyed.¹⁴⁵⁰ A Report from the ECMM recounts that “during the fighting the HVO have systematically burn [sic] Muslim houses”.¹⁴⁵¹ On 20 April 1993, the HVO was firing at Doljani.¹⁴⁵² The village was on fire and houses were burning.¹⁴⁵³ International observers visiting Doljani after the conflict reported that half of Doljani were destroyed.¹⁴⁵⁴ The hamlet of Kraj was destroyed by shelling.^1455”

“¹⁴⁴⁸ - Witness W, T 3180-3181; witness C testified that the houses were being set on fire on approximately 21 or 22 April 1993, witness C, T 862; witness X, T 3327; witness JJ, T 5004; exhibit PP 357 (confidential).
¹⁴⁴⁹ - Witness W testified “Can you tell the Chamber, please, what was the condition of the houses in Sovici when you passed through the village at that time? A. But I was passing by Croat houses all the time. Q. Well, what was the condition of those houses? A. Well, naturally like today. Nobody ever touched them, not a bullet nor anything else” witness W, T 3179-3181.
¹⁴⁵⁰ - Defence witness NN, T 12900, 12994.
¹⁴⁵¹ - Exhibit PP 344.
¹⁴⁵² - Exhibit PP 928, pp 74, 75,77.
¹⁴⁵³ - Witness RR, T 6441-6459, while being taken from Orlovac to Krcine, saw the village on fire.
¹⁴⁵⁴ - Witness JJ, T 5008; exhibit PP 357 (confidential).
¹⁴⁵⁵ - Witness C, T 857.”

P.50.6. Evidence of soldiers carrying petrol canisters in order to burn property.

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 485:

“485. Based on the same evidence discussed in the section on unlawful attack on civilian objects, the Appeals Chamber is of the view that a reasonable trier of fact could have found that damage to only Muslim houses was of such nature that it could not have been caused by the fighting and was thus not justified by military necessity and that the fact that soldiers were carrying around petrol canisters shows that it was deliberate. The Appeals Chamber upholds the Trial Chamber’s finding that wanton destruction, Count 38 (Kordic) was established.”

P.50.7. Evidence that property was pulled down.

A. Legal source/authority and evidence:

K. D?rmann, Elements of War Crimes under the Rome Statute of the International Criminal Court, p. 83:

“The following conduct may, inter alia, constitute destruction: to set fire to property, to destroy, pull down, mutilate […].”

P.50.8. Evidence that property was mutilated.

A. Legal source/authority and evidence:

K. D?rmann, Elements of War Crimes under the Rome Statute of the International Criminal Court, p. 83:

“The following conduct may, inter alia, constitute destruction: to set fire to property, to destroy, pull down, mutilate […].”

P.50.9. Evidence of ordering destruction.

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. 596:

“596. The Chamber is satisfied that Mladen Naletilic ordered the destruction of the houses in Doljani and that he is responsible under Article 7(1) of the Statute. The Chamber is further satisfied that the destruction was carried out by KB soldiers under the command of Mladen Naletilic. Mladen Naletilic knew about the destruction, since he himself had ordered it; he did not prevent it and, therefore, he is also responsible under Article 7(3) of the Statute.”

P.50.10. Evidence that the property was deliberately destroyed.

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. 586:

“586. The deliberate destruction of the houses in Sovici started on 18 April 1993 and continued until 23 April.¹⁴⁴⁸ In contrast to the shelling, the BH Muslim houses were now specifically targeted.¹⁴⁴⁹ Defence witness NN confirmed that BH Muslim houses were torched but denied that all houses were destroyed.¹⁴⁵⁰ A Report from the ECMM recounts that “during the fighting the HVO have systematically burn [sic] Muslim houses”.¹⁴⁵¹ On 20 April 1993, the HVO was firing at Doljani.¹⁴⁵² The village was on fire and houses were burning.¹⁴⁵³ International observers visiting Doljani after the conflict reported that half of Doljani were destroyed.¹⁴⁵⁴ The hamlet of Kraj was destroyed by shelling.^1455”

“¹⁴⁴⁸ - Witness W, T 3180-3181; witness C testified that the houses were being set on fire on approximately 21 or 22 April 1993, witness C, T 862; witness X, T 3327; witness JJ, T 5004; exhibit PP 357 (confidential).
¹⁴⁴⁹ - Witness W testified “Can you tell the Chamber, please, what was the condition of the houses in Sovici when you passed through the village at that time? A. But I was passing by Croat houses all the time. Q. Well, what was the condition of those houses? A. Well, naturally like today. Nobody ever touched them, not a bullet nor anything else” witness W, T 3179-3181.
¹⁴⁵⁰ - Defence witness NN, T 12900, 12994.
¹⁴⁵¹ - Exhibit PP 344.
¹⁴⁵² - Exhibit PP 928, pp 74, 75,77.
¹⁴⁵³ - Witness RR, T 6441-6459, while being taken from Orlovac to Krcine, saw the village on fire.
¹⁴⁵⁴ - Witness JJ, T 5008; exhibit PP 357 (confidential).
¹⁴⁵⁵ - Witness C, T 857.”

P.50.11. Evidence of abusive and illegal requisitions of property.

A. Legal source/authority and evidence:

P Rust, UNWCC, LRTWC, vol IX, p. 70 and 74:

“It was alleged by the Prosecution that in September, 1944, a local inhabitant, Marcel Schmitt, was ordered and forced by the accused to supply horses and vehicles with which he had to carry German ammunition and that he was compelled to repair German military bicycles, motor-cycles and electrical installations. It was also alleged that several other French civilians had been subjected to the same treatment, and that the acts of requisitioning were illegally effected in that no receipts were delivered to the owners of the horses and vehicles. […].”

P.50.12. Evidence of a forced transfer of property.

A. Legal source/authority and evidence:

Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, paras. 605, 613:

“605. The Trial Chamber is further satisfied that, during the period relevant to the Indictment, there were many incidents in Banja Luka of non-Serbs being forced to either sign over their property ¹⁵²⁴ or exchange their property for property in Croatia.¹⁵²⁵ An agency was set up by the authorities of Banja Luka specifically to facilitate these exchanges.¹⁵²⁶ The SDS publicly announced that non-Serb owned shops and businesses would be transferred to returning Bosnian Serb soldiers as a reward.¹⁵²⁷ Bosnian Serb families moved into apartments belonging to non-Serbs who had left Banja Luka.¹⁵²⁸ Some people applied to exchange their apartments for apartments in Zagreb or Rijeka.¹⁵²⁹ In one example, a non-Serb was forced to exchange his house for just 100 German marks.¹⁵³⁰

“¹⁵²⁴. BT-20, T. 5255 (closed session ).

¹⁵²⁵. Muharem Krzic, T. 1484-1485 .

¹⁵²⁶. Muharem Krzic, T. 1484-1485 .

¹⁵²⁷. Muharem Krzic, T. 1483; BT- 22, T. 4436.

¹⁵²⁸. BT-20, T. 5241 (closed session); ex. P763 (under seal).

¹⁵²⁹. BT-9, T. 3445 (closed session ).”

“613. Non-Serbs were forced to hand over their property, either by exchanging it with Bosnian Serbs who were coming to Bosanski Petrovac or by leaving it to the SerBiH.¹⁵⁵² In fact, actual exchanges seldom took place: non-Serbs transferred their property in exchange for nothing.¹⁵⁵³ However, some families that left for Bihac acquired Bosnian Serb property in exchange.¹⁵⁵⁴ The Trial Chamber is not satisfied that documents showing the sale of property belonging to non-Serbs are reliable, as the evidence shows that such transfers were always occasioned by force.¹⁵⁵⁵”

“¹⁵⁵². Ahmet Hidic, T. 16277-16283 ; Midho Druzic, T. 16805-16812.; ex. P1844, “Decision of the Petrovac Municipal Assembly”, dated 3 August 1992, providing that for citizens of Muslim nationality "the commission will establish who can leave the Petrovac Municipality and the condition will be for them to exchange property or give it to the state, that is, to the Serbian Municipality of Petrovac.”

¹⁵⁵³. Ahmet Hidic, T. 16277-16283 .

¹⁵⁵⁴. Ahmet Hidic, T. 16347. See , e.g., ex. P1869, “Crisis Staff minutes of 2 June 1992”, which provide: “It has been decided that all Muslims and Croats, who so wish, be enabled to evacuated from the territory of Autonomous Region Krajina, but only under the condition that the Serbs outside the Serbian autonomous regions also be allowed to evacuate to the territory of the Serbian Republic of Bosnia and Herzegovina that is the Autonomous Region Krajina. In this way, the organised exchange of population would be carried out, that is its evacuation from one part of the former Socialist Republic of Bosnia to the other […]”.

¹⁵⁵⁵. Ex. P1846, “Document containing a number of contracts concerning the transfer of movable and immovable property belonging to Muslim citizens of Petrovac to the Petrovac Municipal Assembly”; Ahmet Hidic, T. 16277-16283.”

P.51. Evidence inferred from a circumstance.

P.51.1. Evidence of a policy of reprisal.

A. Legal source/authority and evidence:

Trial of Franz Holstein and Twenty-Three Others, Case No. 56, Permanent Military Tribunal at Dijon, 3rd February 1947, United Nations War Crimes Commission. Law Reports of Trials of War Criminals. Volume VIII, 1949, p. 22-23:

“According to the evidence presented by the prosecution, the accused took part in combined operations against members of the French resistance movement: The operations were decided upon and planned at a conference held at Dijon under the auspices of General Hederich, Feldkommandant and “ Befehlshaber Nord-Ost Frankreich ” (G.O.C., North-East, France), in June, 1944. Six of the accused attended in their respective commanding capacities : Irmisch, Hippe, Major, Hulf, Kruger and Verfurt. They were to provide the troops and issue instructions, and all had to take personal part in the operations at the head of their units. The conference decided that the French resistance movement in the area was to be suppressed and annihilated, and that severe measures were to be taken against them and the population “ in reprisals ” for their struggle against the occupying authorities or assistance given in this respect. In the light of some of the evidence, such measures were to consist in […]the burning down of three farms for every German soldier killed, and of one farm for every German soldier wounded.”

P.51.2. Evidence of an organized seizure of property undertaken within the framework of a systematic economic exploitation of occupied territory.

A. Legal source/authority and evidence:

Prosecutor v. Zejnil Delalić, Zdravko Mucić, Hazim Delic and Esad Landžo, Case No. IT-96-21-T, Judgement (TC), 16 November 1998, para. 590:

“590. In this connection, it is to be observed that the prohibition against the unjustified appropriation of public and private enemy property is general in scope, and extends both to acts of looting committed by individual soldiers for their private gain, and to the organized seizure of property undertaken within the framework of a systematic economic exploitation of occupied territory.. […]”