Draft Confidential RUF Apppeal Judgment

Home , Split Agreement

Bosna i Hercegovina Босна и Херцеговина

Sud Bosne i Hercegovine Суд Боснe и Херцеговинe

Case number: S1 1 K 005207 12 Kžk (Ref. to X-KR-06/213)

Delivered on: 7 May 2013 Written Judgment sent out on: 29 November 2013

Before the Appellate Division Panel composed of Judges:

Dragomir Vukoje, LLM, Panel Presiding Senadin Begtašević Mirza Jusufović

PROSECUTOR’S OFFICE OF BOSNIA AND HERZEGOVINA v. GOJKO KLIČKOVIĆ MLADEN DRLJAČA

SECOND INSTANCE JUDGMENT

Prosecutor of the Prosecutor’s Office of Bosnia and Herzegovina: Mr. Dževad Muratbegović

Counsel for the accused Gojko Kličković: Mr. Dušan Tomić, Attorney

Counsel for the accused Mladen Drljača: Mr. Milan Trbojević, Attorney Sud Bosne i Hercegovine, Sarajevo, ul. Kraljice Jelene br. 88 Telefon: 033 707 100, 707 596; Fax: 033 707 225

CONTENTS

SECOND INSTANCE JUDGMENT ...... 1

J U D G M E N T ...... 4

I. PROCEDURAL HISTORY ...... 12

A. EVIDENTIARY PROCEEDINGS BEFORE THE APPELLATE DIVISION PANEL ... 13 1. Closing Arguments ...... 15

II. CONCLUSIONS OF THE APPELLATE PANEL ...... 20

1. Indictment ...... 20 2. Presumption of innocence and burden of proof ...... 21 3. General assessment of evidence in the proceedings ...... 23

III. GENERAL ELEMENTS OF THE CRIMINAL OFFENSE OF CRIMES AGAINST HUMANITY ...... 29

A. WIDESPREAD AND SYSTEMATIC ATTACK ...... 33 1. Contextual basis of the charged events ...... 33 2. Establishment of the Serb Municipality of Bosanska Krupa ...... 41 3. The outbreak of armed conflict caused by the Serb forces attack ...... 52 4. Final conclusion of the Appellate Panel on the existence of widespread or systematic attack ...... 93 B. THE ACCUSED’S ACTS MUST FORM PART OF THE ATTACK...... 93 C. THE ATTACK MUST BE DIRECTED AGAINST ANY CIVILIAN POPULATION ..... 95 D. DISCRIMINATORY INTENT AND PERSECUTION ...... 95 E. INDIVIDUAL CRIMINAL RESPONSIBILITY ...... 100 1. Application of the joint criminal enterprise doctrine (JCE) in the present case ..... 100 F. INDIVIDUAL CHARGES UNDERLYING THE CRIMES ...... 109 1. General considerations ...... 110 2. The accused Gojko Kličković (Count 1 of the Indictment) ...... 111 3. The accused Gojko Kličković (Counts 2 and 3); the accused Mladen Drljača (Counts 4 and 5) ...... 115 4. The accused Gojko Kličković and Mladen Drljača (Counts 6 and 7 of the Indictment) ...... 136

IV. FINAL CONCLUSION OF THE APPELLATE PANEL ...... 139

S1 1 K 005207 12 Kžk 7 May 2013

V. DECISION ON THE COSTS OF CRIMINAL PROCEEDINGS ...... 140

VI. DECISION ON CLAIMS UNDER PROPERTY LAW ...... 141

VII. ANNEX I AND ANNEX II ...... 142

PROSECUTION DOCUMENTARY EVIDENCE ...... 144 DEFENCE WITNESSES ...... 162 DEFENCE DOCUMENTARY EVIDENCE ...... 165 EXHIBITS OF THE ACCUSED GOJKO KLIČKOVIĆ ...... 165 EXHIBITS OF THE ACCUSED MLADEN DRLJAČA ...... 181 EXHIBITS OF THE ACCUSED JOVAN OSTOJIĆ ...... 182

S1 1 K 005207 12 Kžk 7 May 2013

IN THE NAME OF BOSNIA AND HERZEGOVINA!

The Court of Bosnia and Herzegovina, Section I for War Crimes, sitting on the Appellate Division Panel composed of Judge Dragomir Vukoje, LLM, as the Panel Presiding, and judges Senadin Begtašević and Mirza Jusufović, as members of the Panel, with the participation of Legal Advisor Medina Džerahović, as the Record-taker, in the criminal case against the accused Gojko Kličković and Mladen Drljača for the criminal offense of Crimes against Humanity in violation of Article 172(1)(h) of the Criminal Code of Bosnia and Herzegovina (CC BiH), as read with Article 180(1) of the CC BiH, deciding upon the Second Amended Indictment of the Prosecutor’s Office of BiH number T20 0 KTRZ 0005033 08 of 29 March 2013, after the hearing held in the presence of the Prosecutor of the BiH Prosecutor's Office, Mr. Dževad Muratbegović, the Accused and their respective Defense Attorneys, Mr. Dušan Tomić and Mr. Milan Trbojević, on 7 May 2013 delivered and publicly pronounced the following:

J U D G M E N T

The Accused:

1. Gojko Kličković, son of Ilija and Sava, born on 25 March 1955 in the village of Donji Petrovići, Municipality of Bosanska Krupa, residing at ..., PIN: .... , holder of a degree in sociology and of a Master’s degree in Socio-Economic Sciences, married, father of two children, citizen of … , ethnicity ... .

2. Mladen Drljača, son of Stevo and Jela, born on 5 March 1958 in Bosanska Krupa, residing at … , PIN: … , university education, lawyer by qualification, employed as secretary for the Commission for Concessions of Republika Srpska, married, father of one daughter, citizen of … , of … ethnicity.

Pursuant to Article 284(c) of the Criminal Procedure Code of Bosnia and Herzegovina

ARE ACQUITTED OF THE CHARGES

S1 1 K 005207 12 Kžk 7 May 2013

That:

During the period between 21 April 1992 and late August 1992, during the war in Bosnia and Herzegovina, within a widespread and systematic attack of members of the Podgrmeč Brigade, subsequently the 11th Krupa Light Infantry Brigade and the police of the Public Security Station of the Serb Municipality of Bosanska Krupa, supported by members of the VI Company of the former JNA Infantry Brigade from Lušci Palanka, directed against the non-Serb civilian population of the Municipality of Bosanska Krupa, knowing about this attack, the accused Gojko Kličkovć, as the Commander of the Crisis Staff of the Serb Municipality of Bosanska Krupa, subsequently the President of the War Presidency of the Serb Municipality of Bosanska Krupa, and the accused Mladen Drljača, as a member of the Crisis Staff of the Serb Municipality of Bosanska Krupa, subsequently a member of the War Presidency of the Serb Municipality of Bosanska Krupa, and at the same time in the capacity of the Panel President of the Provisional Military Court of the Serb Municipality of Bosanska Krupa and President of the Commission for Exchange of Prisoners of the Serb Municipality of Bosanska Krupa, knowingly participated in a Joint Criminal Enterprise, together with Miroslav Vještica, representative in the Serb People Assembly in the Republic of Bosnia and Herzegovina and President of the Municipal Board of the Serb Democratic Party of the Serb Municipality of Bosanska Krupa, Milan Štrbac a.k.a. Bijeli, Commander of the Podgrmeč Brigade, Milan Vojinović, Chief of the Public Security Station of the Serb Municipality of Bosanska Krupa, Lazar Stupar, Commander of the Public Security Station of the Serb Municipality of Bosanska Krupa, Dmitar Ciganović and Mirko Orelj, judges of the Provisional Military Court of the Serb Municipality of Bosanska Krupa and other prominent members of the municipal leadership of the self-proclaimed Serb Municipality of Bosanska Krupa, acted with discriminatory intent in furtherance of the common design to persecute the non-Serb civilian population from the territory of self-proclaimed Serb Municipality of Bosanska Krupa at the session of the Serb Assembly of Bosanska Krupa held on 11 December 1991, whose borders were determined in the Analysis of the Establishment of the Serb Municipality of Bosanska Krupa, which formed part of the Autonomous Region of Krajina, on ethnic and religious grounds; thus for the realization of this goal, through members of the Public Security Station and Podgrmeč Brigade of the Serb Municipality of Bosanska Krupa subordinated to him, and supported by members of the VI Company of the former JNA Infantry Brigade from Lušci Palanka, the accused Gojko Kličković planned and ordered persecution of the non-Serb civilian population from the territory of the self-proclaimed Serb 5

S1 1 K 005207 12 Kžk 7 May 2013

Municipality of Bosanska Krupa by organizing an infantry and artillery attack against the non-Serb population, unlawfully imprisoning able bodied Bosniaks and Croats from the Bosanska Krupa Municipality in detention facilities, and by ordering removal of the non- Serb population from the territories which were, under the decision of the self-proclaimed Transitional Assembly of the Serb People of Bosanska Krupa of 25 October 1991, declared the territories populated by Serbs which belong to the Serb people for the state territories of the Serb people, of which he was regularly notified at the meetings of the War Presidency of the Serb Municipality of Bosanska Krupa by Milan Vojinović, Chief of the Public Security Station of the Serb Municipality of Bosanska Krupa and Milan Štrbac a.k.a. Bijeli, Commander of the Podgrmeč Brigade of the Serb Municipality of Bosanska Krupa, and the accused Mladen Drljača participated in the unlawful confinement of able bodied Bosniaks and Croats from the Municipality of Bosanska Krupa in detention facilities and in the forcible removal of the detained non-Serb civilian population, and accordingly informed at the meetings members of the War Presidency of the Serb Municipality of Bosanska Krupa, despite being aware, due to their respective positions, that the common goal could only be achieved by using force and fear, and that they were contributing to the realization of crimes in furtherance of the common purpose, in as much as:

The accused Gojko Kličković,

1. Between 21 and 25 April 1992, members of the Podgrmeč Brigade and Public Security Station of the Serb Municipality of Bosanska Krupa, who were under his influence and control, aided and abetted by members of the 6th Infantry Brigade of the former JNA from Lušci Palanka, with the intent to implement the common design, persecuted the non-Serb civilian population from the Bosanska Krupa municipality, by launching from their positions at the hills of Lipik, Vučjak, Pučenik, etc., an infantry and artillery attack against the non-Serb civilian population in the settlements of Sokak, Mahala, Hodžinac, Pazaradžik, Krćana, Zalug and Ostružnica, the Municipality of Bosanska Krupa, which lasted for several days and resulted in the death of Bosniak civilians, namely: Husein Alidžanović a.k.a Buko, Arif Badnjević, Smajo Ćehajić, Rasim Harambašić, Emin Kabiljagić, Ferida Mulalić, Rasim Mulalić, Hilmija Musić a.k.a Hilmo, Suljo Redžić, Mujo Šarić, Mithat Piralić a.k.a Mita and Dževad Velagić, also including the search, looting, intentional destruction and burning of houses owned by Bosniaks in the referenced settlements, the destruction of two 6

S1 1 K 005207 12 Kžk 7 May 2013

mosques and a Catholic church, despite being aware that those criminal offenses were possible consequences of such actions,

2. On 1 May 1992, armed members of the II, IV and V Battalions of the Podgrmeč Brigade and members of the Public Security Station of the Serb Municipality of Bosanska Krupa, under the order of Gojko Kličković of 28 April 1992, in furtherance of the above referenced common design, they called out the Bosniak population from the villages of Ostružnica, Veliki and Mali Badić, Zalin, V. Jasenica, Arapuša, V. Dubovik and Potkalinje, which had been surrounded by and under the control of the Serb forces, and informed them about the said order, and when all villagers gathered, armed members of the police and the Podgrmeč Brigade escorted and transported them by buses, freight vehicles, tractors and horse-drawn carts towards Budimlić Japra, Kamengrad and Fajtovac, in the territory of the Municipality of Sanski Most, controlled by the Serb forces,

3. On 24 May 1992, armed members of the military police of the 11th Krupa Light Infantry Brigade and members of the police of the Public Security Station of the Serb Municipality of Bosanska Krupa, under Gojko Kličković's order of 22 May 1992, in furtherance of the above mentioned common design, called the remaining civilian Bosniak population from the village of Zalug and the town of Bosanska Krupa, on the Una River right bank, as surrounded and controlled by the Serb forces, and informed them about the said order, and when they all gathered, armed members of the police escorted them to the buses and freight vehicles which transported them via Radić and Grabež to the territory of the municipality of Bihać, controlled by the Army of Bosnia and Herzegovina,

the accused Mladen Drljača,

4. In early May 1992, in furtherance of the common design, participated in the persecution of civilian Bosniak and Croat population of the Municipality of Bosanska Krupa, by making lists of detainees who were supposed to be exchanged, whereupon, on the basis of such lists, on 10 May 1992, twenty four detained Bosniak civilians were exchanged in the village of Ripač near Bihać, namely: Kasim Balkić, Asim Balkić, Hamdija Balkić, Ekrem 7

S1 1 K 005207 12 Kžk 7 May 2013

Mulalić, Faik Redžić, Silvester Štancel, Šerif Bajraktarević, Džemal Grošić, Dževad Grošić, PWS-03, Smajil Arnautović, Zuhdija Mehić, Adem Balkić, Elvir Rekić, Husein Dizdarević, Emir Hasić, Zarif Mehić, Damir Selimagić, Dževad Arnautović, Enes Arnautović, Salih Salkić, Emir Arnautović, Ahmet Ćehajić and Nermina Ćehajić, who were imprisoned in the Petar Kočić elementary school in Bosanska Krupa in inhumane conditions, with insufficient water supply, no glass on the windows, lacking adequate food and proper medical attention, where on several occasions detainees Kemal Šepić, Nusret Malkoć, Mirsad Budimlić, Fehim Kadić and others were brutally beaten and sent to perform forced labor, through the exchange for twelve persons of Serb ethnicity, namely Slobodan Štrbac, Slavko Rajić, Ranko Vukojević, Borko Vukojević, Stana Prica, Boško Škorić, Boro Prica, Milo Vojinović, Mirko Stojanović, Pero Stojanović, Marko Jovičić and Dušan Ugorčin, who had been imprisoned in Cazin,

5. On 22 May 1992, in the village of Pritoka near Bihać, in furtherance of the common design, took part in the persecution of civilian Bosniak population from the Municipality of Bosanska Krupa, by making lists of detained non-Serb civilians to be exchanged and by attending the exchange of sixteen detained Bosniak civilians, namely: Hilmija Ezić, Idriz Bužimkić, Redžo Delić, Hazim Bajramović, Osman Mušić, Esad Mesić, Ibrahim Velagić, Euzebijo Rekić, Enver Ezić, Ilijas Rekić, Senad Kasumović, Ismet Kasumović, Mirsad Palić, Nurija Rekić, Sead Palić and Šemso Šepić, who were imprisoned in the Petar Kočić elementary school in Bosanska Krupa, in inhumane conditions, with insufficient water supply, with no glass on the windows, lacking adequate food and proper medical attention, where on several occasions detainees Kemal Šepić, Nusret Malkoć, Mirsad Budimlić, Fehim Kadić and others were brutally beaten and sent to perform forced labor, for fifteen imprisoned Serb civilians: Mirko Rašetić, Goran Kovačević, Branko Žujić, Milan Radić, Vida Radić, Desa Kašetić, Krunoslav Ćulibrk, Golub Miladinović, Gina Miladinović, Maja Miladinović, Marijan Miladinović, Vojo Štrbac, Stojica Štrbac, Danica Nedimović and Radovan Stanković, who were imprisoned in Cazin, and accordingly made an exchange report,

S1 1 K 005207 12 Kžk 7 May 2013

The accused Gojko Kličković and Mladen Drljača,

6. During the period between 21 April and 1 May 1992, members of the police of the Public Security Station and the Podgrmeč Brigade of the Serb Municipality of Bosanska Krupa, who were under their influence and control, in furtherance of the common design, persecuted the non-Serb civilian population from the Municipality of Bosanska Krupa by depriving of liberty around fifty Bosniak and Croat civilians, including: Muradif Alić a.k.a. Nuno, Albin Bajrambašić, Hazim Bajramović, Šerif Bajraktarević, Adem Balkić, Asim Balkić, Hamdija Balkić, Kasim Balkić, Mirsad Budimlić, Idriz Bužimkić, Abdulkadir Ćurt, Redžo Delić, Sadrija Đuđa, Nedžad Đuđa, Dževad Đuđa, Hilmija Ezić, A-3, Džemal Grošić, Dževad Grošić, Emir Hasić, Fehim Kadić, Ibrahim Krupić, Sabahudin Mahić, Nusret Malkoč, Zarif Mehić, Zuhdija Mehić, Esad Mesić, PWS-03, Ekrem Mulalić, Osman Mušić, Šefkija Osmanagić, Fikret Palić, Mirsad Palić, Osman Palić, Redžep Palić, Rifet Patković, Mirsad Piralić, Faik Redžić, PWC-31, Damir Selimagić, Zijad Selimović, Šemso Šepić, Kemal Šepić, Ferid Šertović, Silvester Štancl and others, and imprisoned them in inhumane conditions, with insufficient water and food supply, on the premises of the Dušan Košutić elementary school in Jasenica guarded by armed members of the Podgrmeč Brigade until early May 1992, when around thirty detainees, including Adem Balkić, Asim Balkić, Hamdija Balkić, Mirsad Budimlić, Redžo Dedić, A-3, Džemal Grošić, Dževad Grošić, Nusret Malkoč, Mirsad Palić, Kemal Šepić, Šemsa Šepić and others, after being interrogated before the Provisional Military Court of the Serb Municipality of Bosanska Krupa, were escorted by members of the police of the Public Security Station and the Podgrmeč Brigade, transferred and detained on the premises of the Petar Kočić elementary school in Bosanska Krupa and held imprisoned until 21 August 1992, in inhumane conditions, without glass on the windows, with insufficient water and food supply, lacking proper medical aid, whereas the other detainees were escorted by members of the police, bussed to the settlement of Arapuša, the Municipality of Bosanska Krupa, where they were guarded by members of the police and the Podgrmeč Brigade of the Serb Municipality of Bosanska Krupa.

7. On or about 3 May 1992, members of the Public Security Station of the Serb Municipality of Bosanska Krupa, who were under their influence 9

S1 1 K 005207 12 Kžk 7 May 2013

and effective control, in furtherance of the common design, persecuted the civilian Bosniak population from the villages of Zalug and Ostružnica, the Municipality of Bosanska Krupa, by depriving of liberty able bodied Bosniak civilians, namely: Enes Arnautović, Smail Arnautović, Emin Arnautović, A-4, Enver Ezić, Sead Palić, Euzebijo Redžić, Ilijas Redžić, Nurija Rekić, Mirsad Šabić, Salih Salkić a.k.a. Braco and Ibrahim Velagić, and detained them on the premises of the Petar Kočić elementary school in Bosanska Krupa, wherefrom armed members of the military police of the Podgrmeč Brigade escorted them to Jasenica, where they were interrogated on the premises of the Provisional Military Court of the Serb Municipality of Bosanska Krupa by judges of the referenced Court, and on the basis of decisions of the Provisional Military Court, subsequently escorted by members of the military police of the referenced Brigade, and detained again on the premises of the Petar Kočić elementary school in Bosanska Krupa, in inhumane conditions, without glass on the windows, with insufficient water and food supply and inadequate medical aid,

Therefore,

Gojko Kličković, within a widespread and systematic attack directed against the civilian population of the territory of Bosanska Krupa municipality, knowing that such an attack existed, and as a participant in a joint criminal enterprise, undertaken with the intent to discriminate against the entire non-Serb population on national and ethnic grounds, persecuted them by murder, forcible transfer of population, imprisonment or other severe deprivation of physical liberty in violation of the fundamental rules of international law, and by other inhumane acts of a similar character, intentionally causing great suffering, or serious injury to body or to physical or mental health, by way of shelling undefended towns, villages or buildings by any means, as well as by plunder, destruction of religious institutions and looting of the private property;

Mladen Drljača, within a widespread and systematic attack directed against the civilian population in the territory of Bosanska Krupa municipality, knowing that such an attack existed, and as a participant in a joint criminal enterprise, undertaken with the intent to discriminate against the entire non-Serb population on national and ethnic grounds, persecuted them by forcible transfer of population, imprisonment or other severe deprivation of physical liberty in violation of the fundamental rules of 10

S1 1 K 005207 12 Kžk 7 May 2013

international law and by other inhumane acts of a similar character, intentionally causing great suffering or serious injury to body or to physical or mental health,

Whereby they would have committed the criminal offense of Crimes against Humanity in violation of Article 172(1)(h) of the Criminal Code of Bosnia and Herzegovina, as read with Article 180(1) of the Criminal Code of Bosnia and Herzegovina,

namely: the accused Gojko Kličković,

- by the acts described under Count 1 of the Amended Indictment – murder, by way of shelling undefended towns, villages or buildings by any means, plunder, destruction of religious institutions and looting of the private property,

- by the acts described under Counts 2 and 3 of the Amended Indictment – forcible removal of the population, and

- by the acts described under Counts 6 and 7 of the Amended Indictment – imprisonment or other severe deprivation of physical liberty in violation of the fundamental rules of international law and by other inhumane acts of a similar character, intentionally causing great suffering or serious injury to body or to physical or mental health,

the accused Drljača Mladen,

- by the acts described under Counts 4 and 5 of the Amended Indictment – forcible transfer of the population, and

Pursuant to Article 189(1) of the CPC BiH, the costs of criminal proceedings under Article 185(2)(a) through (f) of this Code, and the necessary expenditures and remuneration 11

S1 1 K 005207 12 Kžk 7 May 2013

of defense attorneys shall be paid from within the budget appropriations of the Court.

Pursuant to Article 198(3) of the CPC BiH, the injured parties are instructed that they may pursue their claims under property law in a civil action.

R E A S O N I N G

I. PROCEDURAL HISTORY

1. The Prosecutor's Office of BiH (Prosecution) filed against the accused Gojko Kličković an Indictment number: KT-RZ-100/06 dated 14 December 2007, which was confirmed on 19 December 2007. The Indictment charged the accused that, by having participated in the Joint Criminal Enterprise (JCE) at the Republic and the municipal levels, he committed the criminal offenses of Crimes against Humanity in violation of Article 172 of the CC BiH, War Crimes against Civilians in violation of Article 173 of the CC BIH and War Crimes against Prisoners of War, all in conjunction with Article 180(1) and (2) of the CC BiH. The accused Mladen Drljača was charged with the same criminal offenses and the participation in the joint criminal enterprise at the Republic and the municipal levels under the Indictment of the Prosecutor’s Office No. KT-RZ-22/08 dated 19 March 2008, confirmed on 21 March 2008, and the accused Jovan Ostojić, under Indictment No.: KT- 19/08 dated 12 March 2008, confirmed on 13 March 2008.

2. By the Decisions dated 22 April 2008 and 23 April 2008, the Court of BiH merged the cases and conducted joined proceedings pursuant to the referenced Indictments of the Prosecutor’s Office. The main trial in these proceedings commenced on 6 May 2008 by reading the Indictments at issue. On 21 August 2008, the Prosecution filed a joint Indictment number KT-RZ-100/06.

3. By its written submission dated 31 March 2009, the Prosecution stated that it had withdrawn the charges for the joint criminal enterprise as the grounds for the responsibility of the accused Jovan Ostojić. On 21 September 2010, the Prosecution filed an Amended Indictment against the accused Gojko Kličković and Mladen Drljača No. KT-RZ-100/06, whereupon the Trial Panel rendered a judgment, pursuant to Article 284(c) of the CPC BiH, acquitting the accused Gojko Kličković, Mladen Drljača and Jovan Ostojić of the charges on all Counts of the Indictment that, by the acts comprehensively described in the

S1 1 K 005207 12 Kžk 7 May 2013

Operative Part of the Judgment, namely the accused Gojko Kličković, under Sections 1, 2 (a-d), 3(a-c), 4(a-d), 5, 6, 7, 8 and 9, and the accused Mladen Drljača, under Sections 2 (a- d), 3 (a-e), 4 (a-d), 5, 6 and 7, they committed the criminal offense of Crimes against Humanity under Article 172(1)(h), in connection with subparagraphs a), d), e), f), g) and k) of the CC BiH, all as read with Article 180(1) of the CC BiH, and that the accused Jovan Ostojić, under Sections 10(a-e) committed the criminal offense of Crimes against Humanity under Article 172(1)(h), in connection with subparagraphs a), e), f) and k), all as read with Article 180(2) of the CC BiH.

4. On 22 February 2012, deciding upon the Prosecution's appeal number KT-RZ- 100/06 of 27 January 2011 filed from the referenced Judgment, the Appellate Panel of this Court handed down the Judgment No. S1 1 K 005207 11 Krž granting the appeal in part, revoking the Judgment of the Court of BiH No. X-KR-06/213 of 5 November 2010 in the part concerning the accused Gojko Kličković and Mladen Drljača, and ordering in this part a hearing before the Panel of the Appellate Division of Section I for War Crimes at the Court of BiH, refusing the appeal in relation to the accused Jovan Ostojić as ill-founded and upholding the Judgment in the referenced part.

A. EVIDENTIARY PROCEEDINGS BEFORE THE APPELLATE DIVISION PANEL

5. The Appellate Panel of the Court of BiH held a hearing pursuant to Article 317 of the CPC BiH. During the evidentiary proceedings, both the Prosecution and the Defense were called upon to comment on the evidence they intended to present during the proceedings, being led by their respective appellate grounds and the revoking decision.

6. Pursuant to the Appellate Panel’s Letter of 18 May 2012, on 31 May 2012 the Prosecution submitted their Proposal of evidence they intended to present before the Appellate Panel, with a summary of the factual circumstances in relation to which the evidence was to be presented. After the status conference, held in accordance with the instructions of the Appellate Panel seised of the case, on 26 June 2012 the Prosecution submitted its amended Proposal with a reduced list of the evidence to be presented. In addition to their request to reproduce the testimonies of the witnesses listed in the Proposal, the Prosecution also proposed that new evidence be presented in relation to the appellate arguments, namely the examination of witnesses: Emir Rekić, Ismet Kadić, Sadrija Džudža and Šefkija Osmanović in relation to the circumstances pertaining to Counts 1 and 2 of the Amended Indictment, that is, to the artillery and infantry attack 13

S1 1 K 005207 12 Kžk 7 May 2013

launched by members of the Podgrmeč TO Brigade and the Public Security Station of the Serb Municipality of Bosanska Krupa against the non-Serb civilian population, its consequences and other circumstances. The Defense also submitted its Proposal for direct presentation of evidence dated 1 December 2012 by reproducing audio-video recordings of the testimony of several witnesses examined during the trial proceedings.

7. At the hearing held on 20 November 2012, the Court invited the Defense to comment on the presentation of the Prosecution's new evidence. The Defense objected to this presentation submitting that the testimony of ten witnesses had been already heard in relation to the referenced circumstances, that nothing new would be accomplished, and that, in that case, the Defense would have to propose the examination of 17 additional witnesses.

8. Deciding upon the referenced Proposal, on 27 November 2012, the Appellate Panel issued a procedural decision dismissing the referenced Proposal considering that the Prosecution presented no convincing reasons explaining why it failed to present it in before in terms of Article 295(4) of the CPC BiH.

9. At the hearing held on 3 December 2012, the Appellate Panel decided not to reproduce the introductory presentation by Prosecutor Phillip Alckok since pursuant to the CPC provisions, they did not constitute evidence.

10. The Panel granted the Prosecution’s and the Defense’s proposals related to the reproduction of the witnesses’ testimonies. Thus, upon the Prosecution’s proposal, the testimonies of the following witnesses were reproduced during the hearing before the Appellate Panel: Hašim Đulić, Jadranko Šaran, Hamdija Balkić, Mirsad Palić, Mirsad Šabić, Enver Ezić, Dževad Grošić, witness A-3, Ibrahim Sivić, PWS-03, Abdulkadir Ćurt, Ešref Hadžić, Adem Balkić, Ismet Kasumović, Redžep Medžedović, Kasim Kulauzović, Sabid Alijagić, Smajo Sefić and Esad Hasanović, and the following witnesses upon the Defense's proposal: Slobodan Majkić, Bajro Šabić, Zdravko Marčeta, Božo Erceg, Vejsil Palić, Mile Mudrinić, Dragan Lukač, Ramo Brkić, Muharem Begić, Nenad Bokan, Dragan Japundža, Đorđe Jež, PWS-92, Dragomir Lujinović, Mićo Kačavenda, Momo Grubiša, Mile Bjeljac, Milan Obradović, Rajko Senić, Hamdija Arnautović, Nurija Rekić, Jasmin Ramić, Boško Plavšić, Zdravko Latinović, Đorđe Latinović, Zaim Alijagić, Zdravko Narandžić, Dušan Stojisavljević, Dragomir Damjanović, Sead Palić, Emir Hasić, A-4, Dmitar Ciganović, Mirko Orelj, Rajko Kličković, Ejub Topić, Ratko Beronja and Ešref Hodžić.

S1 1 K 005207 12 Kžk 7 May 2013

11. The Panel accepted all the Prosecution's and the Defense’s evidence adduced in the trial proceedings, objective and circumstantial, as presented in Part VII herewith – ANNEX I AND ANNEX II, which form part of this Judgment.

1. Closing Arguments (a) Prosecution

12. The closing arguments presentation commenced on 8 April 2013, when the Prosecutor1 in the case referred to the testimonies of the examined witnesses and the adduced documentary evidence supporting each Count of the Amended Indictment. In examining the elements of the criminal offense, the Prosecution primarily analyzed the existence of a widespread or systematic attack, and, in this context, referred to the case law of the International Criminal Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law in the Territory of the Former Yugoslavia since 1991 (ICTY) and the witnesses’ statements, on the basis of which it concluded that, on 21 April 1992, the Serb forces launched an attack from the hills of Lipik and Vučijak, and the villages of Petrovići, Pučenik and Vranjska, on the villages with the majority Muslim population, which was followed up by systematic arrests and detention of mostly civilians, burning of houses, unlawful interrogations, forced labor, torture, beating, killing and forcible transfer of the non-Serb population. According to the Prosecution, all these actions were taken with the intent of establishing the Serb Municipality of Bosanska Krupa (SoBK).

13. In the Prosecution’s view, the first-accused Gojko Kličković and the second- accused Mladen Drljača were aware of the attack on the non-Serb population of the Municipality of Bosanska Krupa because, unlike other citizens, they were in a position to have an overall insight in the situation and thereby knew what was happening in the territory of the Municipality of Bosanska Krupa and its wider area. Such a conclusion follows from the fact that the accused were officials of the SDS and, as such, present in the places where the crimes took place. Therefore, given the functions that he had discharged, the accused Gojko Kličković had a leading role in the implementation of the joint criminal enterprise in the manner that he established and controlled the system of government in the so called Serb Municipality of Bosanska Krupa. During the critical

S1 1 K 005207 12 Kžk 7 May 2013

period, the second-accused Mladen Drljača was a member of the Crisis Staff and the War Presidency of the Serb Municipality of Bosanska Krupa, the President of the Provisional Military Court, President of the Commission for the Exchange of Refugees and a member of the SDS Secretariat, due to which he contributed to the establishment of the Serb Municipality of Bosanska Krupa, and thus was aware that his actions constituted part of this attack.

14. The Prosecution submitted that, in furtherance of the common design of persecution of the non-Serb civilian population from the territory of the self-proclaimed SoBK, the accused Gojko Kličković planned and ordered persecution of the non-Serb civilian population by organizing, through members of the Public Security Station (SJB) and the Podgrmeč Brigade of the SoBK subordinated to him, infantry and artillery attack against this population and unlawful imprisonment of able bodied Bosniaks and Croats, and ordered the removal of non-Serb population from the territories proclaimed under the decision of the self-proclaimed Provisional Assembly of the Serb People of Bosanska Krupa of 21 October 1991 as the state territory of the Serb people.

15. The Prosecution charged the accused Gojko Kličković and Mladen Drljača that they together had effective control over and influence on members of the police of the SJB and the Podgrmeč Brigade who committed persecution of the non-Serb civilian population of Bosanska Krupa in the way that they had arrested about fifty Bosniak and Croat civilians and imprisoned them in inhumane conditions, with insufficient water and food supply; that after being interrogated on the premises of the Provisional Military Court they were transferred to the Arapuša settlement, where they were secured and guarded by members of the police and the Brigade; that on 3 May 1992, police officers and soldiers under their effective control committed persecution of the Bosniak civilian population from the villages of Zalug and Ostružnica by transferring them to Jasenica, where they were interrogated on the premises of the Provisional Military Court, and, subsequently, based on the decisions of that Court, again detained on the premises of the Petar Kočić elementary school in Bosanska Krupa.

16. In the Prosecution’s view, not only that both the accused were aware, due to their positions, that the common design could only be achieved by the use of force and fear, but also that by their contribution they aided and abetted in the realization of crimes committed

1 Further in this Judgment, the Appellate Panel will use the term Prosecution. 16

S1 1 K 005207 12 Kžk 7 May 2013

within furtherance of the common design. Believing that it has proved that the accused committed the criminal offense as charged, the Prosecution ultimately proposed to the Panel to render a convicting judgment and impose on the accused a sentence of long-term imprisonment.

(b) Defense for the first-accused Gojko Kličković

17. Attorney Milan Trbojević, as a substitute defense counsel for the accused Gojko Kličković, submitted in his closing address that this accused's Defense stood entirely by its earlier closing arguments of both the accused Kličković and his Defense Attorney Duško Tomić, presented at the end of the first-instance trial. Counsel Trbojević thereupon commented on the two latest Indictments, of the total of six Indictments filed to date, that is, the texts of the Indictments dated 21 September 2010 and 29 March 2013. In Counsel's view, the Prosecution arbitrarily amended the most recent Indictment, including the prohibition on amending the indictment by charging the accused with more severe charges, which will be addressed further below. In the last amended Indictment, the Prosecution withdrew the charges related to the existence of a widespread and systematic attack which was connected with the ARK, and instead of this geographical region connected the attack with the persecution of the then non-Serb civilian population from the Municipality of Bosanska Krupa by the Podgrmeč Brigade, SJB SoBK and members of the VI Company of the JNA Infantry Brigade (that is, rather than with the military and police of the Serb Republic of BiH). In its Indictment, the Prosecution also abandoned the submission that the state policy or the policy of certain organization, followed by the accused, was thereby implemented, directed at the establishment of a separate state of Bosnian Serbs from which the majority of the non-Serb population would be permanently removed.

18. In relation to Count 1 of the last Amended Indictment, the Defense for the accused Kličković submitted that, during the proceedings before the Appellate Panel, the Prosecution failed to prove that this accused had planned and/or ordered anything in the armed operations carried out during April 1992; or that he took part or eye-witnessed these events; or that he was superior to the military police which secured the facilities in which non-Serbs were confined. The accused had no competences over the military and he had no legal obligation to control their work. There is not a single regulation from the critical time which would point to the command function of the Commander of the Crisis Staff

S1 1 K 005207 12 Kžk 7 May 2013

and/or the President of the Municipal War Presidency, which functions were held by the accused Kličković. Also, the accused cannot be held liable for something he knew nothing about. In relation to Counts 2 and 3 of the Indictment, concerning the relocation of the Muslim population on 1 May 1992 to the territory of the Municipality Sanski Most, and on 24 May 1992 to the Bihać territory upon the accused Kličković's orders, the Defense submitted that these cases do not pertain to forcible transfer of the population with the aim of persecution but rather to a temporary evacuation.

19. Counts 4 and 5 of the last Amended Indictment charged the accused Mladen Drljača that in furtherance of the common design-persecution of the non-Serb population, he made lists of detainees to be exchanged, after which the exchange was carried out on 10 May 1992 in the village of Ripač; that he made lists of detained non-Serb civilians for the exchange which was carried out in his presence on 22 May 1992.

20. In addition, the Defense teams for both these accused denied that the Prosecution has proved its allegations under Counts 6 and 7 of the Indictment, which charged them both with having effective control over members of the SJB.

21. In his closing argument, the accused Gojko Kličković primarily contested the existence of any widespread and systematic attack of the Serb forces against the non- Serb civilian population of the Municipality of Bosanska Krupa (primarily in relation to the events whose factual description was provided in Count 1 of the Indictment). The accused submits that on 21 April 1992 a conflict arose between the Muslim and the Serb territorial defense forces. This conflict lasted for 3 or 4 days with sporadic exchanges of fire. Therefore, such an attack would not satisfy any of the statutory alternatively prescribed characteristics. The attack could not have been launched against civilians because, prior to the conflict outbreak, almost all civilians had left the town and went to the Una River left bank, while most Serb civilians went towards Jasenica and the neighboring villages. The accused also contested the application of the institution of joint criminal enterprise, which was not prescribed as a form of responsibility by either the Criminal Code of Bosnia and Herzegovina, or the CC SFRY which was in force at the time of the criminal offense commission. Therefore, the accused cannot be responsible for the crimes committed. In his further presentation, the accused referred to the legal regulations applicable during the relevant period, in which he found the basis for his actions. Furthermore, the accused does not think that he committed the criminal offense of Forcible Transfer of Population by the evacuation of the Muslim population from the places of Arapuša, Zalug, Podkalinje 18

S1 1 K 005207 12 Kžk 7 May 2013

etc. to the Una River right bank given that the evacuation was justified for military and security reasons and based on positive international and national regulations.

22. Defense Counsel for the accused Mladen Drljača, Attorney Milan Trbojević, also considers unproved the allegations from the referenced Amended Indictment and the participation and the responsibility of this accused for the crimes committed during the charged period. The accused’s participation in the Provisional Military Court cannot be categorized as any criminal charge within the criminal offense of crimes against humanity, because that was but a formal taking of personal details from the detained persons. In all this, it was not proved that the accused decided who will be brought for interrogation, or that he made decisions on these persons’ further destiny and unlawful imprisonment. The accused’s participation in the exchange has a humane character and was a result of the agreement made between the two warring parties. Therefore, Defense Counsel submitted that this accused’s role also was not incriminating. Finally, Defense Counsel concluded that no facts existed justifying the allegations on the accused’s participation in the joint criminal enterprise. With regard to the legal qualifications, there is no evidence supporting the allegation that the accused persecuted any person, deprived anyone of his liberty or tortured anyone. Also, it was not proved that the accused had planned, ordered, prepared, aided and abetted any criminal offense referenced in the Indictment.

23. In support of his Defense Counsel’s closing argument, the accused Mladen Drljača stated that none of the examined witnesses brought him in the context of establishment of the Serb Municipality of Bosanska Krupa, but that he indeed participated in these activities through the Commission for Implementation of Plebiscite and Referendum. His work in the Provisional Military Court was based on taking statements from persons who were further referred to the relevant authorities. In doing so, the accused had no authority over the military police members who had apprehended people for interrogation, nor did he make any decisions on further destiny of the apprehended persons. Also, during the proceedings, the accused did not contest his participation in the Commission for the Exchange of Prisoners, but he stated that he could in no way select persons to be exchanged and that his role was not decisive in any respect.

24. Pursuant to the foregoing, both the accused and their respective Defense teams

S1 1 K 005207 12 Kžk 7 May 2013

proposed that a judgment of acquittal be rendered.

II. CONCLUSIONS OF THE APPELLATE PANEL

1. Indictment

25. After the evidentiary proceedings completion on 29 March 2013, the Prosecution filed its last Amended Indictment in relation to the accused Gojko Kličković and Mladen Drljača and charged them with the existence of a widespread and systematic attack against the non-Serb civilian population and connecting this attack only with the Municipality of Bosanska Krupa, rather than with the Anonymous Region of Krajina (ARK); and also that the attack was launched by members of the Podgrmeč Brigade, Public Security Station of the Municipality of Bosanska Krupa (SoBK) and the 6th Company of the JNA Infantry Brigade. The persecution omitted the army and the police of the Serb Republic of Bosnia and Herzegovina from the factual description, and determined that the crimes were committed during the period between 21 April 1992 and late August 1992; omitted the allegation concerning the implementation of the state policy (also followed by the accused), the policy of certain organizations aimed at the establishment of a separate state of Bosnian Serbs from which the majority non-Serb population would be permanently removed, and also omitted from the participants in the JCE the names of Radovan Karadžić, Momčilo Krajišnik, Vojislav Maksimović and other members of the SDS Main Board, at both national and regional levels, as well as Mile Drljača a.k.a. Teho at the local level. The referenced Indictment charged both of the accused with participation in the JCE in the context of individual criminal liability, namely the accused Gojko Kličković was charged with both the basic and extended forms of JCE, while the accused Mladen Drljača was charged with the basic form of JCE only.

26. Generally, in its closing argument, the Defense objected to the amendments to the Indictment and argued that there was no basis for the application of Article 275 of the CPC BiH, considering that no new evidence was presented at the hearing before the Appellate Panel, nor were any new facts established to which the indictment should be adjusted. In the Defense’s view, the last Amended Indictment of 29 March 2013 had no basis in the tendered evidence and, in relation to the previous Indictment, it contains a graver legal qualification concerning the accused persons. The foregoing is apparent from the changed factual description “that the accused should have reasonably anticipated that crimes would occur”, which would pursuant to our Criminal Code correspond to the JCE Form III, or 20

S1 1 K 005207 12 Kžk 7 May 2013

inadvertent (simple) negligence, and instead charged them with the intent to effect the common purpose, or the JCE Form I or direct intent.

27. In the Appellate Panel’s view, such Defense’s appellate objections are ill-founded and irrelevant. In terms of the quoted statutory provision, to amend an indictment it is not necessary to present new evidence in the reopened proceedings, but rather a new subjective evaluation of evidence will suffice. In the concrete Indictment, the factual description of the offense was amended in the way that certain actions were omitted, and the remaining actions, including the form of participation of the accused in furtherance of the common design/purpose as participants in the JCE, were concretized. The legal qualification of the offenses originally charged against these accused remained unaltered, that is, the Amended Indictment still charged the accused with the commission of the criminal offense of Crimes against Humanity in violation of Article 172(1)(h) of the CC BiH, as read with Article 180(1) of the CC BiH.

28. Therefore, pursuant to its very definition, the indictment amendment means changing of the factual description of the offense in the indictment which should not cause any changes to the legal qualification of the criminal offense which would bring the accused into a more difficult procedural position. The Prosecutor did not do so by filing the last amended Indictment, but rather, based on the existing evidentiary documents, he made different factual conclusions, and at the same time maintained the identity between the previous Indictment and the description of the offense in the Amended Indictment.

29. Ultimately, bearing in mind that the accused were acquitted of all acts charged against them, any further addressing and dealing with the related appellate grounds is irrelevant.

2. Presumption of innocence and burden of proof

30. In order to fully address the burden of proof required for the accused’s conviction, it should be understood that the presumption of innocence means that:

(i) the burden of proving that the accused is guilty of the criminal offenses charged against him always lies on the prosecutor; (ii) the accused need not prove his innocence; (iii) in order to prove that the accused is guilty of the criminal offenses charged against him under the indictment the Court needs to adjudicate that the prosecutor 21

S1 1 K 005207 12 Kžk 7 May 2013

has proved beyond a doubt the charges he had brought.2

31. This Appellate Panel has followed the case law established by the ICTY Appeals Chambers (and by the ICTR to a lesser extent), pursuant to which the standard of proof beyond reasonable doubt is not strictly limited to the final issue of guilt – it also concerns the material facts,3 that is, the essential and starting facts necessary for proving the guilt. Accordingly, the Appellate Panel has also held that the Trial Panel's recognized obligation to asses all the facts „does not relieve it of the obligation to subject any facts to the required standards of proof.“4

32. The necessary consequence of the presumption of innocence and the 'proof beyond doubt' standard is that any ambiguity or doubt arising from the evidence adduced during the trial will be dealt with in favor of the accused pursuant to the principle of in dubio pro reo. In its essence, this principle is a material element required to prove guilt beyond a reasonable doubt.5

33. Further in the Judgment reasoning, the Appellate Panel will refer to the principle of in dubio pro reo, that is, if in doubt in favor of the accused, pursuant to Article 3(2) of the CC BiH (sic!), both in relation to the starting material facts and the final factual findings relevant to the decision on the accused's guilt, whenever the evidence adduced indicates that the required application of this principle is satisfied.

34. The substance of the referenced principle is defined by its foregoing premise indicating that the facts standing to the detriment (in peius) of the accused must be proved with full certainty by applying the standard of “proof beyond reasonable doubt”. This means that, when there is a doubt into the existence of those facts, they will be considered as unproved; thus, the application of the latter premise of this rule is related to the facts in favor of the accused (favor rei). In that case, such facts will be considered as proved even

2 In relation to the presumption of innocence and the related rights, see Article 3 of the CPC BiH, Article 21(3) of the ICTY Statute, Article 20(3) of the ICTR Statute, Article 17(3) of the Statute SCSL, Article 66 of the ICR Rome Statute MKS, Article 14(2) of the ICCPR, Article 6(2) of the ECHR, Article 8(2) of the Interamerican Convention on Human Rights, Article 7(b) of the African Convention on Human Rights and Article 40(2)(b)(i) of the Convention on the Rights of Children. 3 See, e.g. Prosecutor v. Kupreškić et al, IT-95-16-A, Appeals Chamber Judgment, 23 October 2001, para. 226; Prosecutor v Halilović, IT-01-48-A, Appeals Chamber Judgment, 16 October 2007, para. 111-125. 4 Prosecutor v. Ntagerura et al., ICTR-99-46-A Appeals Chamber Judgment, 7 July 2006, para. 172. 5 Prosecutor v. Limaj et al., IT-03-66-A, Appeals Chamber Judgment, 27 September 2005, para. 10.

S1 1 K 005207 12 Kžk 7 May 2013

if they are just probable, even when the existence of facts to the prejudice of the accused is more likely.6

35. Besides, this approach is compliant with the case law of international ad hoc courts; it is logical, considering that, in the context of issue of fact, the principle of in dubio pro reo is essentially just one aspect of the requirement that the guilt must be proved beyond a reasonable guilt7. “It is not sufficient that it is a reasonable conclusion (of the Trial Panel) available from that evidence. It must be the only reasonable conclusion available. If there is another conclusion which is also reasonably open from that evidence, and which is consistent with the innocence of the accused, he must be acquitted.”8

3. General assessment of evidence in the proceedings

36. The fact that the Defense did not contest certain factual allegations covered by the Indictment does not mean that the Panel has accepted them as proved. The burden of proof is still on the Prosecution for each count during the entire trial. Accordingly, in determining whether the Prosecution proved the case beyond reasonable doubt, the Panel carefully examined if there was any other reasonable interpretation of the tendered evidence, other than that accepted by this Panel, when it decided, pursuant to the principle of in dubio pro reo9 that the commission of the criminal offense charged against the accused was not proved.

37. The Appellate Panel took into account that the evidence presented by the Defense teams for the accused in this case was mostly aimed at contesting the reliability or the solidity/strength of the Prosecution evidence regarding the existence of general elements of the criminal offense at issue, as well as regarding the individual charges related to the criminal offenses of crimes against humanity charged against them under the Indictment in relation to the form of the accused persons' participation in the commission thereof. For the foregoing reason, to resolve this criminal matter, it was sufficient for the Defense just to express a reasonable doubt into the reliability of the Prosecution's evidence and thus

6 Group of authors, Commentary of the Criminal Procedure Code in Bosnia and Herzegovina, Joint project of the Council of Europe and the European Commission, 2005, p. 50. 7 Appeals Chamber Judgment in Limaj, para. 21; also see Appeals Chamber Judgment in Naletilić and Martinović, para. 120. 8 Appeals Chamber Judgment in Delalić, para. 458. 9 Article 3(2) of the CPC BiH.

S1 1 K 005207 12 Kžk 7 May 2013

acquire the right to acquittal since the raising of reasonable doubt unconditionally reveals that the Prosecution failed to prove its theory.

38. Pursuant to Article 15 of the CPC BiH, the Panel is entitled to a free assessment of evidence.10 Accordingly, the charges against these accused were carefully examined, as provided for in the referenced provision, also including all tendered evidence. In assessing the evidence presented during the proceedings, the Panel paid due attention, inter alia, to individual circumstances pertaining to the witnesses, including their possible participation in the events and the risk of self-incrimination, as well as to their relationship with the accused. This Panel also examined the consistency of each witness’s testimony individually during direct or cross-examination, and compared it with the statements they gave during the investigation.

39. The witnesses’ oral testimonies sometimes differed from the statements they had given during the investigation phase. However, the eighteen-year period of time elapsed since the occurrence of the events covered by the Indictment should also be taken into account. Thus, it is justified to expect that the elapsed period of time affected the accuracy and reliability of the witnesses' memories. Also, the fact is that because of the nature of the criminal proceedings, at the trial the witness may be asked questions other that those he was asked in previous examinations. Thus, it is justified to expect that, after concretization of certain questions, the witness may remember additional details. Of course, the Panel has carefully assessed such situations in determining the weight to be given to such evidence.

40. The assessment of oral testimonies given before the Panel, certain inconsistencies and incorrectness between the previously given statements and the witnesses’ oral testimonies is a relevant factor in the assessment of gravity, and does not necessarily discredit the witness’s testimony in whole, if the witness gave a detailed account of the essence of the events at issue. Slight deviations did not necessarily bring into question the truthfulness of such evidence. The reasons of admissibility of certain witnesses’ testimonies, particularly of the key/crucial ones, and the assessment of their credibility and justifiability, were comprehensively explained further in the Judgment reasoning.

10 Article 15 of the CPC BiH provides that „... the existence or non-existence of facts shall not be related or limited to special formal evidentiary rules“.

S1 1 K 005207 12 Kžk 7 May 2013

41. The Appellate Panel has also noted that, in the concrete case, the documentary evidence was abundant and particularly significant during the trial. Several documents were admitted into evidence that was challenged by the Defense, while a larger number of the Prosecution exhibits were also admitted as Defense evidence. In any case, the Panel has examined each document contested by the Defense to determine its individual reliability and probative value.

42. Newspapers articles and excerpts from the books proposed as documentary evidence by the accused Gojko Kličković were admitted as evidence, even though they were not included in the primary assessment in rendering the judgment. Specifically, considering that they amount to the secondary source of information, which is a subjective and often arbitrary experience of the events by the authors (of an article or a book), they are as such only suitable for placing the relevant events in the time frame relevant to the Indictment, or they are, essentially, testimonials inappropriately corroborated with any other supporting evidence. By such an assessment, the Appellate Panel essentially upheld the Prosecution's position taken in its closing argument, concerning the Defense's objecting to the referenced evidence because it is not authentic, or because it is “personal opinion of its author who was not examined during the evidentiary proceedings.”11 Unlike this example, however, the Prosecution itself was inconsistent in this matter because, in the context of the accused's participation in furtherance of the common design, it referred to the TV broadcast by the TV Banja Luka in which, according to witness Kabiljagić, the accused Gojko Kličković allegedly told the reporter of the referenced TV house that “The Una River right bank belongs to the Serbs and that the Turks will never march on that ground” (Exhibit T-304),12 although essentially the quality of evidence is the same as that of the Defense's evidence to which the Prosecution itself objected. The Appellate Panel has noted that the Defense need not prove that any of the Prosecution's documents was

11 Prosecution final submission, 6 April 2013, p. 38. 12 That the Prosecution has selectively approached this exhibit too (DVD recording made by the TV Banja Luka and its transcript, Prosecution Exhibit T-304), to which the Defense rightfully objected from the aspect of its authenticity since it cannot be seen who has made this transcript and when, by separating only what is suitable for the Defense's theory, is apparent from its content, which stated, among other things, that around 250 Serb houses on the left bank of the Una River were looted, and many of them set on fire, including Miroslav Vještica's house which was burnt down to the ground; that in relation to the Una River, Gojko Kličković stated that it is a border of the Serb State of Bosnia and Herzegovina, that the areas where (Muslims) are currently present had previously been clean ethnic areas inhabited by the Muslim people and that (Serbs) have no ambitions whatsoever to conquer and take that area.

S1 1 K 005207 12 Kžk 7 May 2013

forged, unreliable or inadmissible: the burden of proving that these documents are authentic, reliable and admissible lies on the Prosecution at all times.13

43. In view of the foregoing assessments, this Panel has concluded that both the above presented evidence and the similar evidence did not to a decisive extent affect the Panel's decision.

44. In relation to the expert analyses carried out by expert witnesses Hanson and Butler in this case, being led by its previously taken position14 and after a comprehensive evaluation of this evidence, the Appellate Panel in principle admitted this evidence without finding it relevant in relation to all the findings of fact resulting from the configuration of the other evidence this Panel obtained.

45. The Panel bore in mind that expert witness Hanson produced her report15 for the ICTY's needs in Momčilo Krajišnik, which was subsequently revised and adjusted to the needs of the Kličković et al. case. The Panel has held that there are no formal obstacles for admitting such evidence in the case record, pursuant to Article 6 of the Law on the Transfer of Cases16, because during the proceedings the Defense was provided with an opportunity to cross-examine this expert witness. However, in assessing all the evidence, the Panel also analyzed the objectivity and impartiality of the contents of this very Report and concluded that it contained imprecise and contradictory facts in relation to the facts established by the Panel during the evidentiary proceedings. During cross-examination, the referenced expert witness primarily confirmed that, in producing her Report, she had not used any positive statutory provisions of the SFRY legislation that were in effect at the time covered by the Indictment at issue, which should have been done in the context of determination of lawfulness of the activities carried out by the Crisis Staff and the War Presidency, and partially for the reasons of checking the assertions of the accused Kličković’s Counsel, who referred to the fact that the accused had acted in his capacity of

13 See Prosecutor v. Brđanin, Trial Chamber II, ICTY case No. IT-99-36-T, Judgment, 1 September 2004, para. 32. 14 Judgment of the Appellate Panel of the Court of BiH, No. S1 1 K 005207 11 Krž of 22 February 2012, paras. 34 and 35. 15 Report of expert witness Dorothee Hanson, Prosecution Exhibit T-279; Testimony transcripts dated 27 and 28 January 2009. 16 The Law on the Transfer of Cases from the International Criminal Tribunal for the Former Yugoslavia to the Prosecutor's Office of Bosnia and Herzegovina and the Use of Evidence Collected by the ICTY in the Proceedings before the Courts in Bosnia and Herzegovina, „Official Gazette of Bosnia and Herzegovina“, No. 61/04.

S1 1 K 005207 12 Kžk 7 May 2013

the President of the referenced bodies exactly on the basis of the referenced regulations.17 Also established during the cross-examination was that, over the time, expert witness Hanson’s Report had evolved in the way that the Crisis Staffs of the Serb people in BiH were transformed from an unlawful SDS creation, as initially treated, to a lawful category, as it ultimately implied that the formation thereof was not unlawful at all. Ultimately, this evidence did not to a major extent affect the rendering of a final decision.

46. With regard to the applicability of the Report produced by Richard Buttler, professional military intelligence officer who had worked for the ICTY’s Office of the Prosecutor,18 considering that he also produced his findings and opinion in the cases of Krstić, Blagojević and Jokić, that were modified in order to be applied in the case of Kličković et al., this Panel has held that the requirements for admitting expert witness Buttler’s Report on the basis of Article 6 of the Law on Transfer of Cases were satisfied, without disregarding the fact that the expert witness did not review the case record, and that he has no knowledge about the circumstances pertaining to the case at issue. The Report was primarily produced for the Srebrenica area in July 1995 in relation to the Bratunac and Zvornik Brigades, which was originally intended for the ICTY investigators. However, the witness expert explained at the hearing that certain sections of the Report and the military rules may be generally applied for a better understanding of the structure of the Republika Srpska Army (VRS), its organization and functioning, on the basis of which he provided his opinion on the organization and functioning of the 11th Krupa Light Infantry Brigade during 1992. Along this line, the Panel has accepted the parts of the findings and opinion presenting a detailed general structure of the VRS organization and functioning, as well as the universal rules concerning the military organization and activities pursuant to the legal provisions effective at the critical time. The expert witness explained in his address that the major portion of the Report analyzed the Commander’s de iure powers. This fact was irrelevant to the criminal liability of the accused persons because the Indictment did not charge them with the command responsibility existent on their part.

17 See Brđanin, para. 94: “The Constitutions of the SFRY and the SRBH provided that in state of war or imminent threat of war, emergency governments could be established at both the republic and municipal levels. These emergency governments, called Crisis Staffs or War Presidencies, would take over the functions of the Assembly if the latter was unable to sit. Footnote 201: Patrick Treanor, T. 18706-18708; DP P2351, „Expert Report of Patrick Treanor“, p. 18-20; Amir Džonlić, T.2322“. 18 Main trial transcripts dated 9 and 10 December 2008.

S1 1 K 005207 12 Kžk 7 May 2013

47. Considering many expert analyses that were carried out in these proceedings19, it should be noted that none of them was unconditionally binding upon this Panel in making its final decision, nor was the expert witness’s opinion accepted if it was proved to fully contradict the facts established by this Panel during the evidentiary proceedings. Such Panel’s conclusion also refers to the expert findings in the part to which the Prosecution objected, such as the Finding and Opinion of expert witness, Prof. Dr. Radomir Lukić, who gave evidence in relation to the constitutional and legal position of the SRBiH within the SFRY during the period 1990-1992,20 and of Prof. Dr Radovan Radinović, who gave evidence in relation to Gojko Kličković’s managerial responsibilities in 1992.21

48. In assessing the evidence, the Appellate Panel took into account the standards developed by other panels of the Appellate Division of the Court, pursuant to which there is no need to separately explain each piece of the evidence adduced during the proceedings individually, which does not mean that it was not subject to a general or individual assessment by this Panel. The Panel has highlighted here that there is no legal obligation to present in a judgment all pieces of evidence individually. The Panel’s legal obligation in rendering its judgments is to evaluate all the presented evidence, which was done by the Panel in the concrete case.22 It would be irrelevant to oblige any trial panel to reason each piece of evidence, or every testimony and documentary evidence presented during the main trial/ hearing before the Appellate Panel,23 individually in the judgment.24

19 Also including the Findings and Opinion of expert witness in graphology, Zlatko Dugandžić, produced in relation to the accused Mladen Drljača's handwriting on the exchange lists. Prosecution Exhibit T-275. 20 Findings and Opinion of expert witness Prof. Dr Radomir Lukić, May 2010, Defense Exhibit O-1-405. 21 Findings and Opinion of expert witness Prof. Dr Radovan Radinović „The Managerial Responsibilities of Gojko Kličković in 1992“, Defense Exhibit O-1-374. 22 This position has been confirmed and explained in detail in the ICTY case law, which is also followed in this Court's the case law. Thus, for example, in the Appeals Chamber Judgment in Kvočka, in para. 23-25, the ICTY stated as follows: „The Appeals Chamber recalls that every accused has the right to a reasoned opinion under Article 23 of the Statute and Rule 98ter(C) of the Rules. However, this requirement relates to the Trial Chamber’s Judgement; the Trial Chamber is not under the obligation to justify its findings in relation to every submission made during the trial. (...)The Appeals Chamber recalls that it is in the discretion of the Trial Chamber as to which legal arguments to address. With regard to the factual findings, the Trial Chamber is required only to make findings of those facts which are essential to the determination of guilt on a particular count. It is not necessary to refer to the testimony of every witness or every piece of evidence on the trial record.“ 23 Thus, on the Prosecution’s proposal, the total of 61 witnesses were examined and 309 pieces of documentary evidence presented; on the proposal of the Defense for the accused Gojko Kličković and Mladen Drljača, the total 99 witnesses were examined; on the proposal of the Accused Kličković, the total of 405 pieces of documentary evidence was presented, and on the proposal of the accused Mladen Drljača, the total of 91 pieces of documentary evidence; and, upon the Court’s decision, one evidence was presented (expert witness Findings and Opinion).

S1 1 K 005207 12 Kžk 7 May 2013

49. In this context, the Panel took into account the fact that majority witnesses, both the Prosecution and the Defense witnesses, gave reliable testimonies which did not lose their authenticity, even despite certain inconsistencies existed among them as a result of their subjective experiences, or their highlighting of certain segments of the events they attended, rather than as of their insincerity. Therefore, the Appellate Panel has generally accepted the witnesses’ testimonies proposed by both the Prosecution and the Defense, particularly in relation to the Prosecution factual allegations which were uncontested in relation to the individual Counts of the Indictment, except if this was not, to the contrary, explicitly emphasized further in the reasoning herein.

50. In the concrete case, the Panel was mindful of the fact that the strategy of the Defense for the accused was not based on contesting the general factual context, although it attributed a distinct significance in this context in relation to the Prosecution’s view, but rather on the challenging of the Prosecution’s allegations concerning all the Accused personally. Accordingly, in evaluating the evidence, the Panel primarily focused on the evidence concerning the accused persons concretely, as well as other relevant facts which may serve as control factors in assessing the crucial evidence credibility.

51. The Appellate Panel has also noted, more as an obiter dictum, that the Prosecution’s ambition in this case was to cover all criminal events and the related episodes in Bosanska Krupa at the critical time, which resulted in certain controversies to be presented in the Judgment reasons, and thereby also in the fact that the Prosecution’s factual assertions are often based on the evidentiary material which allows different interpretations, which were difficult to avoid while going deeply in the contextual (chapeau) elements of crimes against humanity.25 Such Prosecution’s approach necessarily affected the ultimate outcome of the hearing in favorem of the accused persons.

III. GENERAL ELEMENTS OF THE CRIMINAL OFFENSE OF CRIMES AGAINST HUMANITY

52. Article 172(1)(a) through (k) of the CC BiH listed the criminal offenses which, if committed as a part of a widespread or systematic attack directed against any civilian

24 See Prosecution of BiH v. the accused Muhidin Bašić et al.., case number S1 1K 007209 12 Kri, Trial Panel Judgment of 18.01. 2013, para. 50. 25 See. M. Damaška, Pravi ciljevi međunarodnog kaznenog pravosuđa (Real Goals of International Criminal Justice,) Hrvatski ljetopis za kazneno pravo i praksu, Zagreb, vol. 15, no. 1/2008, p. 13-33.

S1 1 K 005207 12 Kžk 7 May 2013

population, with knowledge of such an attack – constitute crimes against humanity. According to the ICTY's established case law, also followed by this Court's case law, the required general elements for actus reus in relation to crimes against will be satisfied when:26

(a) there is an "attack";27 (b) the acts of the perpetrator must be part of the attack;28 (c) the attack must be directed against any civilian population;29 (d) the attack must be widespread or systematic;30 while in relation to the mens rea element it is required that: (e) the accused must know that his acts constitute part of a pattern of widespread or systematic crimes directed against a civilian population, and know that his acts fit into such a pattern.31

53. In view of the foregoing, it is clear that for the criminal offense under Article 172(1) of the CC BiH to exist it is necessary, prior to the explanation of the concrete acts of the accuse, to elaborate on the finding that all the referenced general elements were proved.

54. The case law of international ad hoc criminal tribunals has comprehensively dealt with the notion of “attack”. Thus, an “attack” was described as a “course of conduct involving the commission of acts of violence”.32 In the context of crimes against humanity, the “attack” is not limited to the use of armed force; it encompasses any mistreatment of the civilian population.33 The concepts of an “attack” and “armed conflict”34 are distinct and

26 Appeals Judgment in Kunarac, para. 85; Trial Judgment in Kunarac, para. 410; Trial Judgment in Krstić, para. 482; Trial Judgment in Kvočka, para. 127; Trial Judgment in Krnojelac, para. 53; Prosecutor v. Mitar Vasiljević, case No. IT-98-32-T, Judgment, 29 November 2002 (hereinafter: Trial Judgment in Vasiljević), para. 28. In relation to the ICTR's case law, see Prosecutor v. Jean-Paul Akayesu, case No. ICTR-96-4-T, Judgment, 2 September 1998 (hereinafter: Trial Judgment in Akayesu), para. 565-584; Prosecutor v. Alfred Musema, case No. ICTR-96-13-T, Judgment of 27 January 2000 (hereinafter: Trial Judgment in Musema), para. 199-211; Prosecutor v. Georges Anderson Nderubumwe Rutagande, case No. ICTR-96-3-T, Judgment and Sentence, 6 December 1999 (hereinafter: Trial Judgment in Rutaganda), para. 64-76; Prosecutor v. Clement Kayishema and Obed Ruzindane, case no. ICTR-95-1-T, Judgment, 21 May 1999 (hereinafter: Trial Judgment in Kayishema), para. 119-134; Prosecutor v. Jean-Paul Akayesu, case no. ICTR-96-4-A, Judgment, 1 June 2001 (hereinafter: Appeals Judgment in Akayesu), paras. 460-469. 27 Appeals Judgment in Tadić, para. 251; Appeals Judgment in Kunarac, par. 85-89. 28 Appeals Judgment in Tadić, para. 248; Appeals Judgment in Kunarac, paras. 85, 99-100. 29 Appeals Judgment in Kunarac, paras. 85, 90-92. 30 Appeals Judgment in Kunarac, paras. 85, 93-97. 31 Appeals Judgment in Tadić, para. 248; Appeals Judgment in Kunarac, paras. 85, 102-104. 32 Trial Judgment in Kunarac, para. 415; Appeals Judgment in Kunarac, paras. 86, 89. 33 Appeals Judgment in Kunarac, para. 86. 34 In the international case law, it has been considered that an armed conflict is said to exist “whenever there is a resort to armed force between States or protracted armed violence between governmental authorities

S1 1 K 005207 12 Kžk 7 May 2013

separate from each other. The attack could precede, outlast or continue during the armed conflict, but it need not be a part of it.35 Each attack on the other's civilian population would be equally illegitimate, and crimes committed as part of this attack could, all other conditions being met, amount to crimes against humanity.36 The acts of the accused objectively must “constitute part” of the attack by its nature or consequences,37 unlike the acts committed in isolation, but they need not be committed in the midst of the attack.

55. The civilian population is the primary object of the attack.38 To this effect, the expression “directed against” “[specifies] that in the context of a crime against humanity the civilian population is the primary object of the attack”.39 Each individual member of that population need not be a civilian – it suffices that the population is by its nature predominantly civilian, and it may also encompass, e.g. individuals placed hors de combat.40 “Civilians shall enjoy the protection afforded under Article 51 of Additional Protocol I unless and for such a time as they take a direct part in the hostilities (see Article 5(3) of Additional Protocol I).”41

56. The requirement that the attack must be “widespread” or “systematic” is disjunctive, rather than cumulative.42 To qualify an attack as “widespread”, it connotes the large scale nature of the attack and the large number of victims;43 while the expression of “systematic” signifies the organized nature of the acts of violence and the improbability of their random occurrence.44 Therefore, the expression systematic conduct is not placed in the context of and organized armed groups, or between such groups within a State“. See Prosecutor v. Dragoljub Kunarac, Radomir Kovač and Zoran Vuković, case No. IT-96-23 and IT-96-23-A, Judgment of 12.6.2002; Kunarac et al., Appeals Judgment, para. 56. 35 Appeals Judgment in Tadić, para. 251; Appeals Judgment in Kunarac, para. 86; Trial Judgment in Krnojelac, para. 54. 36 Appeals Judgment in Kunarac, para. 87. 37 Appeals Judgment in Tadić, para. 248; Appeals Judgment in Kunarac, paras. 85, 99-101. 38 Appeals Judgment in Kunarac, para. 91. 39 Trial Judgment in Kunarac, para. 421, confirmed in the Appeals Judgment in Kunarac, para. 91. 40 Trial Judgment in Jelisić, para. 54; Appeals Judgment in Blaškić, paras. 111-113. As to the case law of the ICTR, see the Trial Judgment in Akayesu, para. 582; Trial Judgment in Kayishema, para. 128. 41 Trial Panel in Kupreškić has explained it as follows: „Protection of civilians and civilian structures guaranteed under contemporary international law can be fully lifted, or reduce or discontinued [...] if a group of civilians [...] takes up arms and engages in fighting against the enemy belligerent, they may be legitimately attacked by the enemy belligerent, whether or not they meet the requirements laid down in Article 4(A)(2) of the 1949 Geneva Convention III.“ 42 Trial Judgment in Kupreškić, para. 544; Prosecutor v. Darijo Kordić and Marijo Čerkez, case No. IT-95- 14/2-T, Judgment, 26. February 2001 (hereinafter: Trial Judgment in Kordić), par. 178; Appeals Judgment in Blaškić, para. 101. 43 Trial Judgment in Kunarac, para. 428; Appeals Judgment in Blaškić, para. 101; Trial Judgment in Akayesu, par. 580. 44Trial Judgment in Kunarac, para. 429; Appeals Judgment in Kunarac, par. 94; Appeals Judgment in Blaškić, para. 101.

S1 1 K 005207 12 Kžk 7 May 2013

existent plan or policy, but rather defines it as a conduct distinct from random conduct.45 Only the attack, not the individual acts of the accused, must be widespread or systematic.46

57. The ICTY case law has defined certain factors which should be taken into account in assessing what constitutes a widespread or systematic attack: (i) the consequences of the attack, (ii) the number of victims, (iii) the nature of the acts and (iv) the possible participation of officials or authorities or any identifiable pattern of crimes.47 In addition to these factors, also added are the means and methods used in the attack, the resistance offered to the attacking force, and the extent to which the attacking force may be said to have complied or attempted to comply with the precautionary requirements of the laws of war.

58. The ICTY Trial Chamber in Blaškić48 highlighted that for the “underlying crimes”, each with its own character, to be characterized as a crime against humanity, they must be part of a single category – that of a widespread or systematic attack against a civilian population – which gives this offense its specificity and distinguishes it fundamentally from other violations of humanitarian law (para. 198).

59. In contesting the Trial Judgment’s finding, that Brđanin aided and abetted the wanton destruction or devastation not justified by military necessity in Bosanska Krupa, the Appeals Chamber in Brđanin has held that: “[...] The Trial Chamber erred in categorizing this incident [emphasis added by this Appellate Panel] as the offenses of wanton destruction of cities, towns or villages on which it based its convicting judgment against Brđanin (para. 670 of the Trial Judgment).” Therefore, this Judgment tendered as Defense evidence in this case (O-1-403), uses the term incident for the events concerning the place of Bosanska Krupa, which can be in no case subsumed under the notion of “systematic attack” as the required condition in terms of the charges at issue.

60. The term “systematic”, as one of the two disjunctively set up requirements for the existence of general (chapeau) elements of a crime against humanity, implies the existence of a recognizable pattern of the criminal activities of the accused persons. The

45 ICTY, Dragoljub Kunarac et al., Appeals Chamber, Judgment, 12. June 2002, para. 94. 46 Trial Judgment in Kunarac, para. 431; Appeals Judgment in Kunarac, par. 96; Appeals Judgment in Blaškić, par. 101. 47 Appeals Judgment in Kunarac, para. 95.

S1 1 K 005207 12 Kžk 7 May 2013

Trial Judgment in Brđanin, para. 118 stated, inter alia, that: “The ethnic cleansing was not a by-product of the criminal activity; it was its very aim and thus an integral part of the Strategic plan. [...] As it was intended to permanently remove these people from the territory of the Serb Republic of BiH, many of their homes were destroyed in order to prevent them from returning.” The factual part in this case does not in any way indicate, based on the evidence adduced, that such or similar pattern of criminal activities existed in relation to the removal of Muslim civilian population from the Muslim enclaves within the Serb Municipality of Bosanska Krupa, in the way which could be qualified as “systematic”. Thus, e.g. in the Muslim enclaves from which the population was evacuated, there were no destruction of their homes or devastation of their property after being abandoned (such as was generally the case in other places in the ARK, as noted by the Appellate Panel). On the contrary, the Serb authorities took measures to safeguard them, and this will be addressed in more detail in the explanation concerning individual charges under Counts/Sections 2, 3, 4 and 5 of the Indictment/Judgment – forcible transfer of the population.

A. WIDESPREAD AND SYSTEMATIC ATTACK

1. Contextual basis of the charged events

(a) History of the events

61. According to the arguments in the Amended Indictment, a widespread and systematic attack,49 directed against the civilian population of the Municipality of Bosanska Krupa, was launched on 21 April 1992. The examined witnesses consistently testified that the period prior to 21 April 2010/sic/ was marked with certain incident situations which, after the multipartisan elections, intensified the tensions among the local population, and resulted in the state of fear, tensions and uncertainty, which culminated in a mutual conflict.

62. The Defense witness Ismet Mujanović, the then Chief of the military security of the TO Bihać District Staff, was aware of the incidents of security interest that had occurred prior to the conflict outbreak. Based on the information the witness obtained from his

48 Prosecutor v. Blaškić, Judgment, IT-95-14-T, 3. March 2000, Judges Jorda, Rodrigues & Shahabuddeen. 49 The Indictment set up this general (chapeau) element conjunctively although the law set it up disjunctively.

S1 1 K 005207 12 Kžk 7 May 2013

unidentified sources, the witness knew that the accessories and initiators of the incidents were leaders of the SDS, primarily Miroslav Vještica and the accused Kličković. However, no evidence in support of such assertions beyond any reasonable doubt was adduced during the proceedings.50 The only piece of evidence tendered by the Prosecution in terms of the existence of the SDS hostile policy was a leaflet produced by the Municipal Board of this Party. According to the Panel, it used an inappropriate and incendiary language, inviting the Serb population, under the threat of “Lazar’s curse,” to boycott “Alija’s referendum for an independent Bosnia and Herzegovina”.

63. It is clear to the Panel that this is the party that won majority votes of the Serb people at the elections, and that its members were free to implement their program’s goals. The view of the Panel, however, is that the foregoing could have been done in a different manner, pursuant to the morale standards of the society and the principles stated in the very Statute of the Serb Democratic Party. In his testimony, the accused Kličković also evaluated the SDS rhetoric in the same manner.

(b) Ban on the construction of a monument for Branko Ćopić

64. The witnesses for both the defense and the prosecution testified differently about this incident, but did not contest that the incident had indeed occurred. The differences in their testimonies already give an impression of ethnic division and the rising tensions among the population after the multipartisan elections. According to witness Jadranko Šaran, pursuant to an initiative of the SDS representatives, there was a plan to put up a monument to writer Branko Ćopić in a small park in Bosanska Krupa. The municipal authorities, however, prohibited the erection of the monument because no construction license had been obtained. In addition, according to witness Jadranko Šaran, a bust of Branko Ćopić had been already erected on a couple of locations, and there was no need for another one. In this context, protected witness A2 added that the reasons for refusal were not nationalistic, nor was Branko Ćopić experienced exclusively as a Serb writer. He was Krajina’s writer, and in the Bosanska Krupa society he already had a place he deserved for his literary achievements. Thus, Ćopić’s village was under construction, while

50 Nevertheless, in order to gain a better impression about unilateral and unprovoked moves of the SDS leadership in Bosanska Krupa, one may read the Information of the OO SDS Bosanska Krupa of 03.6.1991 (Prosecution Exhibit T-65) concerning the SO Bosanska Krupa session of 01.6.1991, which was not

S1 1 K 005207 12 Kžk 7 May 2013

a literary club existed in the town itself. Therefore, there were sufficient appropriate marks of the importance Branko Ćopić had in the literature of Bosnia and Herzegovina.

65. At the time, Miroslav Vještica, as a chief of an administrative body, nevertheless approved that Branko Ćopić’s bust be unlawfully erected without the Municipality consent, to which the relevant authorities objected, and the media covered it as an incident. Contrary to the foregoing, Defense witness Miroslav Vještica submitted that a proper documentation to erect the monument existed, but it was stolen and hidden after the erection, which resulted in Serb citizens’ revolt. In any way, it obviously ensues from the referenced testimonies that this incident was among the first incidents that instigated intolerance between the Serb and the Muslim citizens.

66. As established based on the admitted facts, the war and the secession of Slovenia, and particularly the secession of Croatia, significantly affected the social and political situation in BiH. By the end of summer 1991, many able bodied men in BiH were called for military conscription in the JNA to fight in Croatia. A large number of Bosnian Serbs responded, but Bosnian Muslims and Croats, supported by their leaders, mostly did not respond to such a call, which caused increased tensions among national groups, particularly in the Bosanska Krajina region along the border with Croatia.

67. Pursuant to the positive statutory regulations, the Municipal Secretariat for General National Defense was at the time responsible for keeping the military conscripts’ records. This was preceded by the decision of the Federal Secretariat for General National Defense, by which the activities of the kind had to be transferred into the jurisdiction of military-territorial authorities in the Bihać, Cazin and Kladuša regions respectively, while the executive organs to this end were to be the military-territorial authorities. Pursuant to the SDA instructions, Muslims ceased responding to the conscription calls already in April. In August 1991, some Muslim citizens, in cooperation with the employees of the Municipal Secretariat of Bosanska Krupa, relocated the conscripts’ files-records by taking them out through the windows. According to the witnesses’ testimonies, the foregoing constituted a theft for Serbs and a destruction of the earlier established system, because Serbs wanted

attended by the SDS delegates, that is, the Serb people representatives, which clearly shows their

S1 1 K 005207 12 Kžk 7 May 2013

to respond to the conscription calls and go to the frontline in Croatia. The Republic Secretariat for General National Defense was informed accordingly, but despite this the incident caused a government crisis, in such a way that the SDS representatives no longer attended the regular sessions of the Assembly of the Municipality of Bosanska Krupa, until the files were returned from Bužim, where they had been taken.

(d) Arrest of Milan Martić

68. According to witness Hašim Đulić’s testimony, this incident significantly violated the security situation in the Municipality. Šemsudin Velić, the then Chief of the PS Bosanska Krupa, monitored the entire event. The witness clarified that, already during the 1991 summer, paramilitary formations and groups of armed soldiers were frequently arriving from the neighboring Croatia, causing unrest among the population. These persons carried arms illegally and behaved unlawfully. Most frequently, they stayed in Dvor at the Una River, some 20 km away from the town. A group of them, called Martić’s men, mostly stayed at the Splav Restaurant. There were a number of isolated attempts to arrest them, but at the time the interventions of the SDS leaders were getting more frequent, and if members of these units were apprehended they would not be placed into custody, and their arms, if seized, would be returned to them.

69. Witness Velić testified that Martić and his group were arrested on 8 September 1991, when a number of police officers came to inform him that 6 persons were at the Splav Restaurant, armed with automatic rifles and machine guns. The witness ordered their apprehension because those were paramilitary formations. After they were brought to the premises of the police station, two trucks with Martić’s police officers arrived, blocked the city and turned hand-held launchers and Zolja hand-held rocket launchers towards the police station, demanding that the arrested persons be released. After contacting the then Minister of Interior of the R BiH, Alija Delimustafić, the witness was instructed to release the arrested persons without resistance and let them go to Dvor on the Una River. However, the witness was informed that, after leaving the station, Martić was with his group again stopped by Muslim citizens on a bridge in Bosanska Otoka.

discontent resulting from the referenced action.

S1 1 K 005207 12 Kžk 7 May 2013

70. The Defense witness, Radomir Njeguš, was at the time ordered by the Regional Ministry of Interior to liberate Martić with his units, whereupon he started off towards Bosanska Otoka. Having arrived in front of the police station in which Martić was detained, they saw around 50-60 Muslims shouting angrily and, according to his conclusion, “intending to burst into the room and liquidate the prisoners”. At that moment, the witness was ordered not to take any activity until Assistant Minister Avdo Hebib came. Thus, for a couple of hours, the facility was secured by members of the active and reserve police force. According to the witness, the situation was getting worse every minute. People threw stones at them, shot in the air, and threatened that Martić would be liquidated. After his arrival, Hebib addressed the gathered people via megaphone and tried to ease the tensions. He failed in doing so, and thereupon police officers blocked the premises, took out Martić and his escort and drove them towards Novi Grad. Witness Njeguš was the last person to leave the site. On the occasion, he noticed that the police vehicles were damaged by stones thrown at them, while police officers themselves were in jeopardy due to the shots fired. After returning to the police station, the witness made a detailed report, but never found out who had ordered Martić’s arrest.

71. All witnesses consistently testified that, after this incident, tensions among the population in the Municipality were intensified due to an “absolute lack of understanding”. According to witness Velić, after the incident, all Serb members of the police left their jobs at the Public Security Station of Bosanska Krupa and went to the newly-established department relocated to Jasenica. His testimony relating to this fact was fully corroborated by witness Slavko Drašković. Witness Drašković added that they had tried to reconcile the conflicts within the then police, which were in his opinion caused by the fact that the minority Serb population felt endangered and unsafe among the majority Muslim population, and the fact that the MUP Bosanska Krajina was led by the personnel appointed by the SDA.51

72. Thereupon, the town was sealed off by barricades with paramilitary units located there. Thus, not even the witness, as the Chief of Police, was allowed to cross over these check points. On the third day, the witness went to Jasenica to persuade the police station members to return to work. They did so only after certain members of the SDS have

51 Slavko Drašković's testimony, trial transcript dated 03.09. 2009. Until the war outbreak, this witness was employed with the RSUP, and just before the war activities had started he performed the function of the Chief of Public Security Sector of the Regional SUP Sarajevo.

S1 1 K 005207 12 Kžk 7 May 2013

reached an agreement at the Ministry in Sarajevo. In his opinion, this was understandable because, as the two leading parties at the time, the SDS and the SDA created the policy and all activities in Bosanska Krupa. According to witness Jadranko Šaran, although the police was unified again as of that moment, such joint work seemed unnatural and enforced, and was ultimately destined to fail.

73. Given that, as the Chief of Police, witness Velić still had no access to the parts of the Municipality inhabited by the Serb population, he requested an explanation from the station commander, Lazar Stupar, who responded to him by stating that „the Serb police and the Serb Municipality of Bosanska Krupa have been established“. After a while, it was proposed that the town itself be divided.

(e) Incident in the village of Arapuša

74. The last incident that took place in the territory of the Municipality and which according to the witnesses’ testimonies immediately preceded the conflict in Bosanska Krupa, occurred at the entrance to the village of Arapuša, where a check point with Muslim members of the reserve police force was set up. In the night of 19/20 April 1992, a group of young Serbs was passing by in a vehicle from which, according to the Prosecution witness, they opened fire at the people manning the check point. They responded with fire and wounded two persons, one of them seriously. On the other hand, Defense witnesses submit that the shooting and wounding of the Serb young men was unprovoked. However, all the witnesses consistently stated that, after this incident, members of the Serb Territorial Defense set up check points at the entrances to the villages of Arapuša, Gornji and Donji Petrovići, after which, in fact, the village became encircled.

75. In its closing argument, the Prosecution referred to witness Marijan Šimić’s testimony. This witness testified that he did not actually eye-witness the incident, but this did not prevent him from using his allegations concerning the two existent versions of the incident to conclude that “until today, it has not been fully explained how the incident at the Arapuša check point actually occurred”.52 It is clear that the Prosecution needed such a conclusion to uphold its theory that there existed a plan of the Serb military and civilian authorities to attack Bosanska Krupa. For this very reason, the Prosecution also

52 Prosecution’s closing argument of 8 April 2013, p. 5.

S1 1 K 005207 12 Kžk 7 May 2013

disregarded the testimony of witness Nenad Bokan, the victim of this incident, which is compromising for its theory. Witness Bokan testified precisely and decisively about the circumstances under which the incident had occurred. Specifically, the incident occurred while he and his colleagues were returning from the neighboring village in a PMV make “Jugo” in the evening hours of 19 April 1992. A group of persons standing by the road shot them in their back. The witness identified them as members of the Police reserve force. The witness was injured in his left shoulder. He and his colleagues in the vehicle were not armed; and they received medical assistance in the Bosanska Krupa Health Center. In addition to the other witnesses’ testimonies, this version of the incident was supported by the testimony of Muharem Begić. This witness stated that, due to this incident, the (local) Serb population rose up requesting an investigation and arrest of the perpetrators.

(f) Abandoning the town of Bosanska Krupa by the population

76. Witness Suad Komić confirmed the event related to the abandoning of the town by the population. At the time, as an investigative judge, the witness carried out an on-sight investigation in Arapuša. According to him, the on-sight investigation was carried out in compliance with the law and in a professional manner. However, after his return to the town, on Monday, in the early evening hours, around 17:00 or 18:00 hrs, he noticed tensions all over the place, which also continued into the following day. On that day, at around 09:00 hrs, a woman-employee contacted him from the Court Registry and informed him that men were jumping out of the trucks on the hill of Lipik. Therefore, the witness decided to let the employees go home, and after a while, he also went to the Una River left bank. According to the witness, around 90% of the Muslim population did the same.53

77. Almost all the Prosecution and Defense witnesses described in the same manner the uncontrolled crossing of the population from one river bank to the other. It follows from the foregoing that, prior to the armed conflict outbreak and on 21 April 1992, in the early morning hours, most Muslim citizens had already crossed over to the Una River left bank, and Serb citizens to its right bank some time earlier. The reason for such removal of the population was primarily the armed groups of people who were deploying around the

53 The judgment reasoned that the term „Muslim“ will be used just like it was used as a national determinant, at the relevant events, which is a common practice adopted in the ICTY judgments.

S1 1 K 005207 12 Kžk 7 May 2013

surrounding hills,54 as well as the spike strips being set up in the very town,55 but the situation in the town had already been under tensions due to the earlier incidents which triggered additional hostile tensions among the population.

78. Protected witness A2 testified that “the events that took place clearly indicated possible events; there was a mass-scale removal”. Witness Sabahudin Mahić, as most of the other witnesses, had transferred his family to Cazin already prior to 21 April. Thus, on the day the conflict broke out “the town was already empty at 16:00 hrs”. Witness Osman Palić also transferred his family to Cazin, as well as witness Hamdija Balkić. Witness Hašim Đulić testified that, during the three or four days after the hostilities’ commencement, the remaining population crossed over to the Una River left bank.56 On the other hand, the Serb civilian population had moved towards Podgrmeč already before 21 April 1992, where they had their weekend houses. The town was almost empty, particularly the Lamela neighborhood where the Serbs formed majority.

79. The Prosecution sees the migration of the Serb population from the Bosanska Krupa downtown to the Podgrmeč villages as a proof for the existence of the plan and preparations to attack the town itself, wherein the accused Gojko Kličković played an active role in the capacity of Commander of the SoBK Crisis Staff by issuing orders, or initiatives for the establishment of separate police and TO, general TO mobilization and supply of weapons for the needs of the Podgrmeč Brigade.57

80. The accused Gojko Kličković’s Defense, however, submitted that it was an isolated conflict which occurred on 21 April 1992 only in the territory of the Local Community Krupa Center, and that it cannot be subsumed under the notion of a widespread or systematic attack. After the conflict outbreak in Krupa, there were no Muslim civilians on the Una River right bank, but rather just Serbs who had stayed encircled, and there were no

54 Jadranko Šaran’s testimony. 55 Testimonies of witnesses of A2, Hašim Đulić, Sabahudin Mahić and Slobodan Majkić. 56 The referenced witnesses' testimonies substantially support the assertions the accused Kličković presented in his analysis concerning the non-existent general elements constituting the criminal offense at issue, that none of the witnesses stated during the proceedings that they did not see their children, elderly or women in the armed conflict zone at the gas station site and the department store, because adult Muslim men had transported their families to the villages located along the left bank of the Una River, and thereupon returned to the places where they were deployed pursuant to war plan. Additionally, this conclusion is also supported by the testimony of Jadranko Šaran, the then Uniformed Police Chief, who claimed that their primary objective was to evacuate the (Muslim) population to the left bank of the Una River, on which occasion Muslims mostly succeeded in leaving the town. 57 Prosecution Closing Argument, p. 6.

S1 1 K 005207 12 Kžk 7 May 2013

uniformed Serbs in Krupa but rather Muslim armed formations, namely: police maneuver units from Bihać, members of the Patriot League58 and TO units from Cazin. Also, with regard to the TO SoBK activities, the accused Kličković referred to the referenced time- related documents concerning the ONO and DSZ doctrine directed at offering defensive armed resistance rather than attacking actions.59

81. Based on the referenced evidence, the Appellate Panel has concluded that the majority civilian population had left the town already before the attack was launched. Accordingly, the Panel could not reach the only reasonable conclusion proving beyond a reasonable doubt that the civilian population of Bosanska Krupa was the primary target of the artillery and infantry attack launched by armed members of the Serb forces mentioned in the Indictment, and that, thereby, in view of the principle of in dubio pro reo, the Prosecution did not prove that the required substantive statutory prerequisite “that the attack is directed against a civilian population” was satisfied, as one of the essential elements constituting the criminal offense set forth in Article 172(1) of the CC BiH.

2. Establishment of the Serb Municipality of Bosanska Krupa

82. In view of the foregoing chronology and speed of the events’ development at the time preceding the war outbreak in Bosnia and Herzegovina, the Serb population from the Bosanska Krupa territory reacted to the ongoing situation by initiating the procedure to establish the Serb Municipality of Bosanska Krupa. The Analysis of the Social and Economic Justifiability of the Establishment of the Serb Municipality of Bosanska Krupa was drafted in October 199160; on 25 October 1991, a Decision was issued establishing the Provisional Assembly of the Serb People as the highest body of the Serb authorities in the Serb territories61; the Decision was made publicly, and members of the SDA, as political partners in the authorities, and the highest Republic bodies in BiH62 were informed

58 Witness Jadranko Šaran testified that the Patriotic League Company in Bosanska Krupa was led by Sead Šehić (Trial Record of 20.05.2008). 59 See para. 173 of the Trial Judgment in Brđanin showing that the Municipal and Republic authorities could be holders of the ONO. The Defense teams for the accused pointed to this very fact, namely that the accused acted in accordance with the organization, preparations and plans of the SRBiH and JNA, that those regulations stayed in force unless they conflicted the RS Constitution, and that, to this effect, they did not act in violation of the law. 60 Prosecution Exhibit T-9. 61 Prosecution Exhibit T-67. 62 In this regard, see the contents of the Declaration on the Establishment of the SoBK of 18.12.1991 delivered to the Assembly of Bosnia and Herzegovina (Prosecution Exhibit T-87), and the Letter of the Assembly of the Serb Municipality of Bosanska Krupa forwarded to the SDA, number 21/91 of 18.12.1991 (Exhibit T-85).

S1 1 K 005207 12 Kžk 7 May 2013

about it; the Provisional Assembly issued the Decision proclaiming the territories inhabited by Serbs, and that which belong to the Serb people as “the state territory of the Serb people in Bosanska Krupa”63; in early November 1991, a referendum of citizens was held and its results proclaimed64; the SoBK Statute was adopted65 and the Decision proclaiming this Municipality was made66, and all relevant Municipal and Republic bodies were notified of these activities67. At its 2nd session held on 21 November 1991, after Miroslav Vještica’s address, the Assembly of the Serb people in BiH joined the SoBK with the Autonomous Region of Krajina (ARK).68 On 11 December 1991, at the 2nd session of the Provisional Assembly of the Serb people of Bosanska Krupa, a decision was issued establishing the SoBK, and a Referendum Report and the SoBK Statute were adopted. Article 1 of the Statute stipulated that the SoBK will be merged with the ARK, with its seat in Banja Luka.69

83. In its closing argument, the Prosecution referred to the fact that the SDS BiH Main Board adopted the Instruction on the Organization and Activities of the Serb People in Bosnia and Herzegovina in Extraordinary Circumstances70. The Panel has reviewed this evidence. However, since the Prosecution omitted from its last Amended Indictment the part stating that the state policy which was being implemented was also followed by the accused, namely the policy of certain organizations directed at the establishment of a separate state of Bosnian Serbs from which majority non-Serb population was removed, focusing instead only on the existence of persecution in the Bosanska Krupa Municipality, the Panel will not particularly refer to the presented Prosecutor’s allegations and the supporting evidence from his closing argument71 taking into account Article 280(1) (Correspondence between the Judgment and Charges) and Article 290(6) (Contents of the Judgment) of the CPC BiH.

63 Prosecution Exhibit DT-68. 64 Report on the Referendum Results in the Bosanska Krupa Municipality of 11.11.1991, signed by Mladen Drljača. 65 Verified copy of the SoBK Statute, number 19/91, November 1991 (Exhibit T-79). 66 Decision on the Proclamation of the SoBK, number 17/91 of 11.12.1991(Exhibit T-77). 67Prosecution Exhibit T-88; accordingly, see the contents of Declaration on the Establishment of the SoBK of 18.12.1991 delivered to the Assembly of Bosnia and Herzegovina (Prosecution Exhibit, T-87). 68 Prosecution Exhibit T-193. 69 Prosecution Exhibit T-79. 70 Prosecution Exhibit T-141. 71 Prosecution Closing Argument, p. 13.

S1 1 K 005207 12 Kžk 7 May 2013

84. The Appellate Panel has observed that the Prosecution focused on the role of the Accused in their political engagement within the SDS72 at the municipal level, with the aim of proving the allegation that “the attack was carried out on the basis of or in furtherance of the state policy, or the policy of certain organization”. In relying on these facts, the Prosecution made efforts to find the grounds on which the activities of the accused could be attributed to their guilt, although the direct roots of the application of such a position originate from the terms of collective guilt and the guilt by association, which is unrecognized in either international or national law73 as a form of criminal responsibility. The mere fact that, during the period indicated in the Indictment, the accused discharged certain functions, as well as the fact that the accused were present in the wider area where the armed conflict occurred, including the commission of crimes, cannot a priori constitute any grounds for finding the accused Gojko Kličković’s and Mladen Drljača’s responsibility.74

85. The Defense teams for the accused repeatedly submitted (in their closing arguments and the accused Kličković’s testimony), with no denial of the SoBK and their involvement in it, that the very idea about the establishment of SoBK cannot be attributed to the accused persons and others, because the area of the former Municipality of Bosanska Krupa was after World War II divided in several municipalities in consideration of the ethnic principle; thus the area which became the SoBK during the war in BiH had earlier existed as a separate municipality - Jasenica. After the initialing of the General Framework Agreement for Peace in Bosnia and Herzegovina, which was drafted in Dayton (1995), the SoBK continued existing under the name of Krupa on the Una River (Krupa na

72 The Prosecution argues that the attack “was launched in furtherance of the policy of the Serb Democratic Party of the Serb Municipality of Bosanska Krupa considering that, prior to the attack, the Serb leadership in the Serb Municipality of Bosanska Krupa had established a separate political structure.” Prosecution’s Closing Argument, p. 13. However, no international criminal tribunal has proclaimed the SDS a criminal organization. Besides, para. 137 of the Trial Chamber Judgment in Brđanin (IT-99-36), of 1 September 2004, stated that: “There is no requirement under customary international law that the acts of the accused need to be supported by any form of policy or plan.” 73 Too broad interpretation of the element of the policy of a state or organization would additionally render senseless the national criminal jurisdiction, due to which the element of the policy of state or organization in the substance of a crime against humanity must be interpreted restrictively. This is all the more so because the concept of individual criminal responsibility in its very root seeks to eliminate the state and/or organization from the construction of the notion of crimes against humanity. For more detail see: Robinson D., The Identity Crisis of International Criminal Law, Leiden Journal of International Law. Vol.21, No4, 2008, p. 925-963 U: See Dr Tijana Šurlan, “Telos zločina protiv čovječnosti” (Telos of Crimes against Humanity), XII Thematic International Scientific Meeting „International Criminal Offenses, Tara, 2013. 74 Accordingly, see the case of the Court of BiH, number X-KR-09/823-2, Prosecution of BiH v. Dragan Nešković et al., Trial Panel, Judgment (25.12. 2012), para. 49.

S1 1 K 005207 12 Kžk 7 May 2013

Uni), which is also verified by the present constitutional and legal system in Bosnia and Herzegovina. The Prosecution did not contest these facts either.75

86. The Prosecution, however, attributes to these facts a different context and character by correlating the SoBK establishment with both the local level and general circumstances that had existed there prior to the conflict outbreak, the policy of the SDS leadership and the Decision of the Assembly of the Serb people in BiH. To this effect, the Prosecution highlights in its closing argument the fact that only Serbs took part in the referendum, and voted for the establishment of the SoBK, thereby bringing into question the legitimacy of the decisions made by only one of the three constituent nations.76

87. Contrary to the foregoing, the Defense for the accused submitted that the Prosecution had fully ignored the fact that the attack against the state and legal status and structure of the SFRY as a state, and of the SR BiH within it, undoubtedly started on 15 October 1991 by the adoption of the Declaration on Independence of Bosnia and Herzegovina without presence of the Serb delegates in the SRBiH National Assembly.77

88. The Prosecution provides a contextual basis to the establishment of SoBK pursuant to which all events in Bosanska Krupa formed part of comprehensive planning, organization and coordination with the aim of implementation of what had in fact occurred, in the Prosecution’s view, namely the persecution of the non-Serb population from the territory of the self-proclaimed SoBK. In developing this theory, the Prosecution considers that the attack against Bosanska Krupa launched on 21 April 1992 was systematic because it had been planned already since 25 October 1991, when the Municipal Board of

75 Counsel Trbojević’s assertions should also be added to this, in which he quoted p. 130 from the book „In the Encirclement“ („U obruču“), written by General Ramiz Dreković, who stated that the first brigade established in the Bihać region on 9 April 1992 in the village of Mrazovac, Bužim was the 101st Muslim Independent Krajina Brigada, which is significant for two reasons. First, at that time, in April 1992, Bužim was a municipality, which is being disregarded because the creation of a new municipality had to be represented as a part of the Serbs' JCE, and that the establishment of the 101st Muslim Brigade denies the Prosecution's position that all Muslims were just civilians. 76 Truly, the Prosecution argued in its closing argument that, after the multi-partisan elections, the SDA won majority votes in Bosanska Krupa, and that, thereupon, this party and the SDS opened negotiations on the division of functions based on the election result, which inevitably led to the discontent of the SDS representatives. 77 See the ICTY case, IT-99-36-T, Brđanin, Trial Judgment (1 September 2004), para. 63: “In early 1992, the SDA increased pressure to secure independence of the SRBiH from the SFRY. A referendum on the question of independence was held on 29 February and 1 March 1992. It was largely boycotted by the Bosnian Serbs and yielded an overwhelming majority of votes in favor of independence of BiH. (...). Para. 64: „The referendum and subsequent recognition by the international community of BiH as an independent state increased the tension between Bosnian Serbs on the one hand and Bosnian Muslims and Bosnian Croats on the other hand. The armed conflict in BiH broke out shortly after.“

S1 1 K 005207 12 Kžk 7 May 2013

the SDS Bosanska Krupa, with Gojko Kličković as its President, made a Decision on the Establishment of Provisional Assembly of the Serb People as the highest body of the Serb people’s authority over the Serb territories,78 and the other decisions stated in para. 77 herein. In other words, the Prosecution brings the referenced activities of the accused persons related to the SoBK establishment, and particularly of Gojko Kličković, for whom he uses the prosecutorial phrase indicating that he was “on the top of the crime pyramid”,79 in terms that the first general element of the criminal offense of Crimes against Humanity – the existence of a widespread or systematic attack, was satisfied.

89. In elaborating on the theory of the attack planned by the Serb forces,80 the Prosecution argues that the objective of the attack were not only Muslim houses, but also the police station building, the Health Center and the railway station, as well as armed (sic!) civilians who were escaping from the Una River right bank to the left one. The participation of members of the VI Company of the Brigade from Lušci Palanka indicates that the preparations for such an attack were made in advance. The Prosecution draws the same conclusion from the circumstances of the events preceding the armed conflict in Bosanska Krupa, in relation to Arapuša, Milan Martić's arrest and the shooting at the gas station, which, in the Prosecution's view, the Serb party only used as “an excuse to commence a large-scale armed conflict in this Municipality directed against the non-Serb civilian population”.81 The Prosecution did not prove this, but rather just further contradicted itself by using the notion of “armed conflict”, which should be viewed, in terms of international criminal law, separately from the notion of “a widespread or systematic attack”, as already explained”.

90. In doing so, the Prosecution disregarded that: (i) all the indicated documents were adopted pursuant to the procedure which is beyond “the period between 21 April and late August 1992”, as the period charged in the last Amended Indictment. For this reason, the Appellate Panel attributes to the mentioned evidence only the significance of confirmation of the fact that the SoBK was simply established in December 1991, that is, before the outbreak of both the war in BiH and the armed conflict in Bosanska Krupa. This implies a logical conclusion, contrary to the Prosecution’s theory, that (ii) the referenced activities of

78 Prosecution Exhibit T-67. 79 Prosecution of BiH’s closing submission, para. 2, p. 40 80 The Appellate Panel uses this phrase to encompass military units, Territorial Defense units, members of the police and armed local population in the SoBK territory. 81 Prosecution’s submission and closing argument, para. 3, p. 9.

S1 1 K 005207 12 Kžk 7 May 2013

the accused persons and the issued decisions were not of planning and preparatory character aimed at launching the attack on a widespread and systematic basis against Bosanska Krupa on 21 April 1992, by which alleged commission of the criminal offenses they would establish the SoBK, which was unnecessary because the SoBK had already been established. The foregoing conclusion is supported by the fact, also undisputed by the Prosecution, that after a short armed conflict and seizure of the town, the Serb forces withdrew from the Una River left bank to its right bank, that is, to the SoBK territory which they considered as their own.82

91. Ultimately, in the context of presenting the theory of forcible transfer of the non-Serb civilians, the Prosecution argued that: “The establishment of the Serb Municipality of Bosanska Krupa in the institutions pertaining to the system of the lawful Municipality of Bosanska Krupa is not a criminal offense.”83

92. In assessing the Prosecution’s allegation concerning the planning of the attack against the non-Serb civilian population in Bosanska Krupa by the Serb forces, the Appellate Panel was mindful of the ICTY-established jurisprudence pursuant to which “the existence of a plan need not be proven”84 because the existence of a plan is not a legal element of a crime.85 This Panel nevertheless elaborated on this issue in broader terms by starting from the ICTY Appeals Chamber conclusion in Blaškić that the existence of a plan “may be useful in establishing that the attack was directed against a civilian population and that it was widespread or systematic”.86

93. In support of its version that the preparations for and planning of the attack against Bosanska Krupa had started much earlier, that they comprised the establishment of the separate police and the Podgrmeč Brigade, procurement of weapons and ammunition from the X Corps and the 530th logistic Brigade of the former JNA for the needs of the Podgrmeč Brigade, with requested division of weapons and military equipment of the TO

82 The fact that the Serb forces withdrew from the town additionally points that the requirement concerning the “systematic” nature of the attack by the Serb forces was not satisfied because the facts in the case show that the attack was not launched with the aim to capture the territory, which would be one of factors pointing to its systematic character. 83 Prosecution closing argument, p. 43. 84 ICTY, case No. IT-95-11-T, Trial Panel I, Prosecutor v. Milan Martić, Judgment (12 June 2007), para. 49. 85See Appeals Judgment in Kunarac, paras. 98-101; Trial Judgment in Simić, para. 44; Appeals Judgment in Blaškić, para. 101. 86 ICTY, Appeals Chamber in Blaškić, para. 120 (with further references).

S1 1 K 005207 12 Kžk 7 May 2013

Bosanska Krupa87, the establishment of the SoBK Crisis Staff88, the issuance of orders of the Crisis Staff, whose Commander was Gojko Kličković89, as well as the Serb population leaving downtown Bosanska Krupa and moving to the Podgrmeč villages inhabited by Serbs, the Prosecution sees the criminal responsibility on the part of the accused Kličković in the fact that he had played an active role in those activities in his capacity of the Crisis Staff Commander.

94. Furthermore, at least majority Prosecution witnesses testified that they had taken their families to the villages on the Una River left bank on 20 and 21 April 1992, and thereupon returned to the right bank to guard their houses, while some of them, like witness Palić, participated in the evacuation of the Health Center located above the Krušnica River, at the far end of the town settlement towards Govedarnica. What does this imply from the aspect of the assertions of the Defense for the Accused? By evacuating their families beyond the areas where the war activity could occur, Muslim civilians were removed from the war zone or conflict zone, whereby Serb civilians were left as a possible target of the attack by Muslim legal and paramilitary formations. Accordingly, the foregoing shows that, besides the Prosecution's theory, that the Serb party and the accused had in advance planned the attack against Bosanska Krupa, also legitimate is another reasonable conclusion which ensues from the Defense's theory concerning the preparations of the other party to trigger the armed conflict, that is, to remove the civilian Muslim population from the expected conflict zone at the moment when armed Muslim formations had already arrived in the town.

95. Contrary to the Prosecution, the accused Kličković’s Defense drew different factual conclusions in relation to the same evidence, connecting them with the general situation caused by the described events, which led to the state of fear, uncertainty and profound misunderstanding on the Serb side too, which ultimately required defense preparations, including military ones, rather than preparations for an attack.

96. Đorđo Jež, Battalion Commander at the relevant time, testified that, originally, his TO Staff comprised a multi-ethnic group of persons, and that they could not believe that an armed conflict would occur. This witness stated that the rationalization in the TO body in

87 Prosecution Exhibit T-2. 88 Prosecution Exhibit T-90. 89 Prosecution Exhibits T-3, T-57, T-97, T-98 and T-99.

S1 1 K 005207 12 Kžk 7 May 2013

Bosanska Krupa was effectuated to the prejudice of Serbs. The witness considers that the Serbs' priority was the defense of their villages considering that they had had information that “Green Berets” intended to launch an attack; that they were insufficiently organized as a people, that there were those among them who did not serve the compulsory military service, peasants as well as intellectuals, and that everything functioned in the way that everyone worked for himself.

97. It is logical to expect that witness Jež, who stated that he was a professional given the function he had discharged, should have information about any plans to attack Bosanska Krupa had it indeed existed. If this were true, the witness would not have come to work in his TO Staff in Bosanska Krupa, on the very day before the attack, 20 April 1992, when he saw men unknown to him gathering, and when he received the information, obviously from the Muslim side that: “There was no work anymore and that it was no longer advisable to them to come there.” This testimony brings into question the accuracy of the Prosecutor's allegation that the Serbs abandoned Bosanska Krupa in a planned manner.

98. The testimony of Mićo Kačavenda90 shows that the Serbs were surprised by the events as equally as Muslims. This witness stated that when he came to work, on 21 April 1992, the work was over considering that he was then told at the Krupa-Trans Company “to get out from the car and leave the company perimeter”, and when he asked why, Osman responded to him that the Krupa Civil Protection took over the Company and that therefore he should surrender the vehicle keys. The witness confirmed that the Serb population from the town of Krupa came thirsty and hungry from the left bank, and that they were arriving there after they had managed to escape.

99. Similarly, the accused Drljača also came to work in Bosanska Krupa, which he certainly would not have done had he indeed played the role of an active participant in planning the attack, as attributed to him by the Prosecution. Such a conclusion also refers to the fact that Rajko Kličković, the accused Kličković’s brother, also came to work on 21 April 1992. Ultimately, the accused Gojko Kličković also testified that he had left for work on the same day, and along the way saw metal spike strips and uniformed men, with other marks; he concluded that those men were not from Bosanska Krupa, and therefore looked

90 Main trial record of 24.3.2010.

S1 1 K 005207 12 Kžk 7 May 2013

for another exit from the town in the direction of the places of Pendrekovac and Radić on 21 April 1992.

100. Witness Dragomir Luinović91 testified that Serbs had to leave Bosanska Krupa due to the general circumstances rather than abandon their households on a voluntary basis and in a planned manner. This witness testified that, on the critical day, he was present on the premises of the Šumarija Company where he worked, when he learned, around 12:00 hrs, that the Muslim forces had blocked the town, wherefore he escaped from the work post. While he was running away by his car, he saw armed men in uniforms. He knew that those men were Muslims because, had they been Serbs, he would have known this as the Serb forces commander (in the beginning the commander of the TO mixed composition unit). Also, witness Luinović stated that no Serbs were issued with any weapons in the TO, because, as the commander, he also received none. The Serbs were expelled from the territory of Bosanska Krupa Municipality, namely from the following villages: Veliki Radić, Mali Radić, Vranjska, Gudavac, Vojevac, Jasenik, Pučenik, Zaliv and Gornji Petrovići.

101. The testimony of witness Muharem Begić, the SJB Bihać Commander, should certainly be taken into account in support of the arguments of both accused's Defense denying the existence of a plan to attack the non-Serb population of Bosanska Krupa. As a person who was in a position to take part in the events at issue, this witness convincingly testified that Zijad Kadić’s appointment to the post of the CSB Bihać Commander,92 as the SDA personnel, was problematic because this person had a criminal background, and Bosniak police officers, particularly Serb ones, had no positive opinion about him, and wanted to leave the Bihać Center. Witness Begić stated that, after the wounding of young Serb boys in the village of Arapuša, the Serb inhabitants rose against it, and requested that the truth be established. Efforts were made to reconcile them in order to avoid any conflicts, wherein General Špiro Niković played a special role; and the witness had an impression that “he is the man of golden value for that area.” General Špiro personally went to Krupa intending to prevent the conflict, but fire was opened at his vehicle, forcing him to go back. Witness Begić testified that Zijad Kadić ordered General Niković's liquidation, about which a video-recording was made. After returning from Krupa, where Zijad Kadić was also present with his group of police officers, police officer Jandrić cried and said he could not be a police officer any longer and asked witness Begić to let him

91 Main trial record of 08.12.2009.

S1 1 K 005207 12 Kžk 7 May 2013

leave Krupa with his family; and the witness let him go. Members of the SJB Bihać (Serbs) also left the service as there was no survival for them any longer. Witness Begić also added that he feels that his life is under threat because the men he gave evidence about still hold positions within the police.

102. Muharem Begić's testimony about the role of General Špiro Niković, who made efforts to re-establish the deteriorated trust between the Muslim and the Serb local community, was confirmed by the other witnesses who gave evidence about these circumstances. This testimonial evidence, also undisputed by anyone, shows a serious doubt into the lack of grounds for the Prosecution's theory about the existent plan of the Serb side and the Accused to launch a widespread and systematic attack against the non- Serb population in the town of Bosanska Krupa and its settlements. General Špiro Niković, the Commander of the II Military District, went to Bosanska Krupa to negotiate with Muslims, and exposed himself to a great risk in order to prevent the war outbreak, as it was subsequently showed according to the testimony of Miroslav Vještica, who had been present at Vranjska together with the General. Therefore, why would a general of the JNA (predominantly composed of Serbs) do so if the military, over which he commanded, indeed planned the attack at issue?

103. As also acknowledged by the Prosecution in its closing argument, why would the accused Gojko Kličković and Miroslav Vještica ultimately had any need to come to a coffee bar in Bosanska Krupa in order to show that the situation in the town was still normal if the Serb authorities had planned to attack the town with the accused. Additionally, in line with the testimony of witnesses Jadranko Šaran, Hamdija Kabiljagić and A-2, why would the accused Kličković had any need to meet witness A-2 and Esad Velić, Fikret Abdić and Hamdija Kabiljagić just before the very attack on 20 April 1992, after his return from the village of Arapuša, to make arrangements regarding the Municipality division, as they said,93 on which the SDS allegedly insisted, if the accused Kličković had planned the attack.

104. It follows from the testimony of witness Jadranko Šaran, who is certainly not the accused Kličković's friendly witness, that after his return from Arapuša and after the

92 DVD from his trial testimony of 25 August 2009. 93 In his closing argument, the accused Kličković denies that the subject of the meeting was the Municipality division since the SoBK had already been established.

S1 1 K 005207 12 Kžk 7 May 2013

incident which had occurred there, the witness went together with Esad Hasanović, A-2 and Kličković himself to the hill of Nebešić to talk to Serb soldiers and their leader Milorad Kotur, who requested that the members of the reserve police force who had participated in the shooting in Arapuša be arrested. Witness Šaran testified that, on their way back from the direction of Hašani, the accused Kličković spoke, in connection with the relations among the national groups, about the need to find a peaceful solution rather than other, non-peaceful alternatives.

105. The Appellate Panel took into account the fact by which the Prosecution recognized that no written plan to attack Bosanska Krupa existed94. The Panel also took into account that the Prosecution drew its conclusion about the existence of that plan from the Order of the SoBK War Presidency to Cease Combat Operations of 25 April 1992 (Prosecution Exhibit DT- 105) and from the order issued by Milan Štrbac, Commander of the 1st Krajina Brigade, number 30/92 of 5 April 1992, to all Brigade units to cease all combat operations on all frontlines on that very day, at 21:00 hrs, and to stay entrenched at all the reached positions until his further order (DT-106). Based on the foregoing evidence, the Prosecution logically reasoned that, if the SoBK War Presidency had powers to order the referenced Brigade to cease combat operations, it also had powers to order the onset of combat operations a few days before.

106. The Appellate Panel has observed at this point that the referenced Prosecution’s arguments cannot overweight the proved deficient lack of the direct nexus between the order to cease combat operations with just an assumed order to start these operations and the related accused Kličković’s role in all that, as the Prosecution sees it. In other words, with its assumed theory presented in the foregoing paragraph, the Prosecution did not successfully eliminate, beyond a reasonable doubt, potential multiple connections between the SoBK War Presidency’s order to cease combat operations with just a hypothetical order related to the onset of the attack by attributing this connection, excluding all other options, only to the War Presidency, even as the then collective body rather than to Gojko Kličković (and Mladen Drljača) personally.

107. Such Appellate Panel’s conclusion is supported by the fact that the accused Kličković himself asserted that the attack order came from the other, opposing (Muslim) party, and that the truce order was issued by the Serb authorities as a result of their

S1 1 K 005207 12 Kžk 7 May 2013

negotiations with the authorities’ and political representatives from Bihać.95 Considering such a state of facts, when there is also another reasonable explanation regarding the fact presented by the Prosecution to the prejudice of the Accused, it was necessary to apply the principle of in dubio pro reo, which in the concrete case concerns the existence of a substantial fact, such as the alleged order to launch an attack against Bosanska Krupa.

108. Since both presented conclusions, rather than just the one in favor of the Prosecution, can be reasonably drawn from the presented evidence, the Panel has held that it was justified to apply the principle of in dubio pro reo in relation to the essential fact of the existence of a plan and preparations for the attack to prove that the general element of the criminal offense of crimes against humanity, such as a widespread and systematic attack, was satisfied and thus to conclude that the Prosecution did not prove the referenced fact beyond a reasonable doubt.

3. The outbreak of armed conflict caused by the Serb forces attack

109. Ramo Brkić confirmed that, after arriving in Krupa, they first heard mortar fire; that he saw shells being fired from the positions alleged to have been the Serb positions in the town area; and that he saw no soldiers in the Lipik area. The Muslim side was in total chaos; the civilian and police structures were disorganized, all but his maneuver unit. There were shelling and shooting all around the place; and rumors about tanks caused panic, even though he did not see them.96

110. Therefore, it is obvious from witness Brkić's testimony about disorganization and chaos, accepted by the Panel as convincing, that the Prosecution made efforts to minimize the strength of the Territorial Defense Bosanska Krupa (TO BK) and the armed formations from the neighboring municipalities, for at least two reasons. Firstly, in order to consciously disregard the fact that these formations came to Bosanska Krupa from the neighboring places and set up physical obstacles on roads under the orders of the Commander of Civil Protection in Bosanska Krupa (CZ BK), prior to the armed conflict onset. The referenced facts point to the conclusion that the Muslim side also made preparations for an attack, to

94 Prosecution closing submission of 8 April 2013, para. 2, p. 21. 95 See, Gojko Kličković's closing argument in the trial proceedings, presented at the war crimes trial before the Court of BiH in case No. X-KR-06-213, Prosecution v. Gojko Kličković (the spoken truth about genocide and persecution of Serbs in Bosanska Krajina in 1941-1945), p. 3, para. 2, which forms an integral part of the closing argument in the proceedings before the Appellate Panel (note by the Appellate Panel).

S1 1 K 005207 12 Kžk 7 May 2013

which the Accused's Defense particularly pointed. Secondly, the Prosecution used the foregoing for its theory that the attack was exclusively launched by the Serb armed forces, superior in all aspects, while fully ignoring at the same time the testimony of witness Jež and of other Defense witnesses, who also testified that the Serb defense was not organized97; that those were just armed village guards (at least in the beginning, when the conflict began); that they even opened fire against each other since they did not even know that they were firing at the company which had come from Lušci Palanka to support them; or the testimony of Zdravko Marčeta, who claimed that, in the beginning, the TO SoBK was poorly equipped, that they only had sidearms, but that subsequently they got more and better equipment.

111. Witness Dragan Japunža testified that he had seen armed men in a park near the Health Center in Bosanska Krupa, wearing “camouflage uniforms standing behind the trees and a small wall” on 21 April 1992, before the shooting; that he knew that they were Muslims because the Serbs had left Krupa, and, besides, because he was present when the Muslims were setting up barricades near the hospital; that he had worked in the Elektroprivreda Company up until 15:00 hrs, and that Muslims arrested him in the morning of 22 April 1992, at around 08:00 hrs. The witness stated that, when the shooting started, he could not determine what is coming from where, but that he mostly heard machine guns. While he was in Bosanska Krupa, the witness saw civilians going down the street in the direction of Bosanski Novi and Cazin, and that he knew by their faces that they were Muslims.

112. Contrary to the Prosecution's allegations, witness Dragomir Luinović stated that the Muslims had heavy weapons which they used on the day after the attack, that is, on 22 April 1992. On that morning, the shooting started from all sides; it was a chaos, and random shooting, in which no one had any specific target; when reinforcement arrived on the second day, they went out from their natural shelters and headed towards the town. Prior to setting off towards the town, they learned that a company would come to provide support to them, and that his task was to unblock a number of people who had stayed in Mahala, that they successfully did so, and immediately thereafter withdrew to avoid being

96 See, Defense documentary Exhibit O-1-1, Report by Ramo Brkić. 97 Thus, e.g., it is obvious from witness Jež's testimony that, as much as the Prosecutor (Alcock) insisted on getting the answer that the formation under command of witness Jež was organized in military terms, the witness denied it by explaining that the inhabitants of the Podgrmeč villages had organized themselves, namely, that they had village guards.

S1 1 K 005207 12 Kžk 7 May 2013

killed. Prior to this, he told the Serbs from the Rasim Redžić Street stretching above the gas station, who had been blocked, to stay there and defend their homes, and that they would come to release them. The witness explicitly stated that Gojko Kličković was in no way connected with the defense line establishment at the Una River banks. Similarly to this witness, witness Jež stated that representative Miroslav Vještica was the Serb leader in Krupa.

113. Unlike the Prosecution, the accused's Defense summarized in its closing argument that the conflict in Bosanska Krupa commenced on 21 April 1992, at around 17:00 -18:00 hrs, with the attack launched by the TO BK against the Serbs encircled in the town, on the Una River right bank, in the area between the storehouse and the gas station at Šujinovac, Lipik and Health Center; that none of the examined Prosecution witnesses saw any armed or uniformed Serb either in the Bosanska Krupa downtown or on the Una River right bank, in the area around the gas station. Contrary to the foregoing, the witnesses who testified about these circumstances, saw on the right bank of the Una River members of the Police Maneuver Unit (MJM) from Bihać, the Police Reserve Force, the TO and other armed men, who were not fully uniformed, but who did have certain insignia, who opened fire at the encircled Serbs in Rasim Redžić Str. near the gas station, between 17:00 and 18:00 hrs.

114. In his comprehensive testimony, the accused Kličković provided a detailed analysis and chronology of the events, in terms of both the time and the space, which are the subject of charges and which had led to the conflict. The accused stated that the Prosecution mentioned many elevations surrounding the town from which the Serbs controlled the town, but did not mention that the dominating elevations, Tećija, Stari Grad fortress and Hum were held by the Muslims, who had also controlled the town from these strategic spots. The same refers to the elevations of Kobiljanjak, Šarići, and Zorići with the most prominent elevation of Ostružnica, the hill of Kalajevac (where mortars and recoilless guns were placed and where they stayed through 1 May 1992),98 which were inhabited by Muslims, and from which the town could be fired at even without scopes, according to the

98 The accused Kličković’s assertions were confirmed by witness Milan Štrbac. In response to the Court's question, witness Štrbac stated that the TO Bosanska Krupa heaviest weapons were a 120 mm mortar and a recoilless gun (main trial transcript of 15.12. 2009.). The same witness stated that the opposite Muslim side had received anti-aircraft machine guns (PAM), which they verified after examining the corpses of the soldiers who had been killed by these weapons at Lipik, behind a curve near Perna.

S1 1 K 005207 12 Kžk 7 May 2013

accused.99 The only two elevations inhabited by the Serb population were Pendrekovac, which was lower than the mentioned ones controlled by the Muslims, and somewhat higher town cemetery of Lipik, which was held by the Muslim forces on 20 April and 21 April, under Sead Šehić's command. His unit was the first unit which got into conflict with the encircled Serbs when passing along Rasim Redžić Str., and headed towards the Lipik town cemetery.

115. The accused Kličković also testified that, no sooner than the second day after the conflict outbreak, or on 22 April 1992, members of the TO SoBK decided to launch an action to unblock their compatriots who had been surrounded. The action lasted as long as it was necessary to withdraw them with the assistance of members of the 6th Krajina Brigade which had come from Sanski Most. After the surrounded Serbs had been unblocked, members of the SoBK TO unit returned to their defensive positions. In relation to the foregoing circumstances, the accused Kličković's testimony is supported with the testimony of the Commander of the Battalion nearest to the surrounded Serbs, Captain Dragomir Luinović100, and the Commander of the SoBK TO unit, Milan Štrbac.101 On the first day, the conflict lasted very shortly, for around 2-3 hours; on the second day, or on April 22, it lasted between 12:00 and 17:00 or 18:00 hrs; and as soon as all Serbs had left the settlement of Krupa, the SoBK TO units and the JNA company from Lušci Palanka abandoned the town; the company returned to its base, and the TO members assumed defense positions above Krupa, in front of the Serb villages of Radić, Vranjska and Pučenik. There were no combats after this; this is also confirmed by the truce signed on 23 April 1992 in Petrovac, and the statement of Hašim Đukić that Krupa was empty on 23 and 24 April 1992, and that no one was there. On 24 April 1992, combats started again when, during the night of 23/24 April, over 200 saboteurs from Cazin and Bihać sneaked on the Una River right bank and from an ambush killed Vuk Cimbaljević, Commander of the SoBK TO Company, and wounded the SJB Commander, Lazar Stupar and 8 other TO members. Thus, only subsequently the Serb forces responded to this Muslim action carried out during the negotiations with the Serb party in Bihać on 23 April 1992, by the

99 From the hill of Lisnik, from which the routes towards the villages of Arapuša and Hašani were controlled, the road along Svetinja, where the military and civil police subsequently apprehended 6 able bodied Muslims, who had held an Ostružnica forward defense post; there were no civilians; this was the post from which the Muslim artillery at Kalajevac was protected, as well as from the hill of Cer and the school in Cer, as dominant elevations towards the Serb villages of Pučenik, Zalin, Gornji Petrovići and Bušević. 100 Testimony transcript of December 2009. 101 Transcript of 15.12. 2009.

S1 1 K 005207 12 Kžk 7 May 2013

action to cleanse the infiltrated groups and by implementing the order to reach the Una River bank and take over its right bank since Muslims could not be trusted any longer, as Milan Štrbac testified at the main trial on 15 December 2009. It can be concluded from both this testimony and other similar testimonies that, contrary to the Prosecution's theory, the goal of the Serbs from the SoBK was to protect their villages and homes.

116. In this manner, when it is possible to draw another, in this case fully opposite conclusion based on the same factual circumstances of one and the same event, the facts at issue, pointed out by the Prosecution, cannot be considered as proved beyond a reasonable doubt, which in consequence also required the application of the principle of in dubio pro reo, wherein certain requisite elements for the existence of an attack with the described characteristics were not satisfied.

117. The Appellate Panel has accepted as established the fact that, on the critical occasion, the Serb party102 indeed launched an artillery103 and infantry attack on Bosanska Krupa, about which the Prosecution tendered abundant evidence during the trial, which the Accused's Defense did not contest either. Truly, the Defense attributed to this attack a defensive character, since, in their opinion, the Serb party did not launch the attack first, However, even if these Defense's arguments were accepted as accurate or at least probable, one should bear in mind that Article 49 of Additional Protocol I defines the term “attack” as the “act[s] of violence against the adversary, whether in offense or in defense”.104 For this reason, the Appellate Panel will focus on examining whether the requirements for the existence of general elements in relation to the criminal offense at issue were satisfied.

118. In any case, in relation to the foregoing, the issue of whether the “widespread or systematic attack” is proved is separate from the issue of existence of an “armed conflict”. If the practice of crime commission subsumed under the definition of crime against humanity in terms of international law became a reality at the level of the Autonomous Region of Krajina (ARK), whose bodies were formed on 5 May 1992, that is, after the

102 The Appellate Panel has used this and similar syntagms in common terms, in addition to the specifics of this case, in the same way as the Appeals Chamber did in Brđanin by explaining that the phrase „Bosnian Serb forces“ covers „military and paramilitary units, Territorial Defense units, police units and civilians armed by these forces“, while in the most restrictive terms, this phrase „might imply the forces whose members are „originally“ or ethnically “Bosnian Serbs.“ paras. 230-238. 103 Although, the evidence tendered in the case records does not clearly indicate whether those were mortars cal. 120 mm, which are artillery weapons or mortars cal. 88 mm, which are the infantry weapons.

S1 1 K 005207 12 Kžk 7 May 2013

events in Bosanska Krupa,105 such a conclusion cannot be inferred, beyond a reasonable doubt, also in relation to the events in Bosanska Krupa.

119. In support of this finding of fact, the Appellate Panel has examined, in the context of adduced evidence, whether the Prosecution succeeded in proving the satisfaction of the prerequisites concerning the following: the duration of the attack, the width of the geographical area, the scope and intensity of the attack, the engaged logistics and the existence of the plan of attack, which was already addressed in part, and the developed pattern which would give the necessary continuity to the criminal activity. As regards individual existence of the foregoing prerequisites, the Appellate Panel has concluded, applying the principle of in dubio pro reo, that they were not proved, wherefore the general elements of the criminal offense of Crimes against Humanity were not proved beyond a reasonable doubt either.

120. Through the testimonies of Šemsudin Velić, Jadranko Šaran, Sabahudin Mahić, Osman Palić, Sead Komić, Mirsad Suljić, Ejub Topić, Dragan Japundža and Fahrudin Dizdarević the Prosecution was proving that the Serb forces had advantage in terms of the arms and the manpower engaged. Not only that the referenced witnesses consistently testified that the attack on Bosanska Krupa was launched on 21 April 1992, but were also consistent about the fact that the fire from the infantry and artillery weapons was heavy. In addition, witness A-2 added that the shelling was so heavy that one could not hear the infantry fire. Witnesses Hašim Đulić, Adem Balkić, Hamdija Balkić, Emir Ezić, Ramo Brkić and Mirsad Suljić specified that the artillery fire came from the Serb posts on the following day, on April 22, at around 06:00 hrs, and that it was particularly heavy on the Una River left bank, in Tećija and in the town. Starting from these testimonies, considered as convincing, the Appellate Panel accepted as established the fact that the Serb party was better organized and armed.

121. On the other hand, correlating the testimonies of the Prosecution witnesses with what some of these same witnesses stated (Šemsudin Velić, Hamdija Balkić, Sead Komić, Ramo Brkić and Mirsad Suljić), together with witnesses Hamdija Kabiljagić, Dževad Grošić, Abdulkadir Ćurt, Dragan Lukač, that the town defense was not organized well, that

104 This definition of the attack was upheld in the Appeals Judgment in Kordić and Čerkez, para. 47. 105 See, the ICTY Trial Judgment in Brđanin (1 September 2004), para. 256, Appeals Judgment (3 April 2007), para. 351.

S1 1 K 005207 12 Kžk 7 May 2013

their equipment was inadequate, and that they only had light weapons, as also confirmed by witnesses Smajil Arnautović and Muratif Alić,106 will lead to the same and general conclusion that the Serb party had military advantage, but not to the extent presented by the Prosecution, bearing in mind the testimonies of the witnesses for the Defense107 and the accused Kličković himself. However, in the Appellate Panel’s view, this fact is still insufficient to conclude beyond a reasonable doubt that there existed a plan according to which the launched armed attack would be widespread and systematic by its character.

122. Accordingly, based on the above adduced evidence, the Appellate Panel established the following facts:

 just before the armed conflict, both parties to the conflict had effective weaponry in the areas they dominantly controlled;  the situation on both sides was intense just before the conflict caused, among other things, by the described events which preceded the conflict;  majority civilian population had left Bosanska Krupa and went deeper into the one or the other territory (the left and the right banks of the Una River); as a result of which the town itself appeared abandoned (testimonies of witnesses Lukač, Brkić, Šaran, Osman Palić et al.);  armed forces from other places, Cazin and Bihać, arrived in Bosanska Krupa prior and/or just before the conflict, and the Serbs were assisted by a company from Lušci Palanka;  the Serb party directed its artillery fire at the vital objects controlled by the Muslim armed formations (as a result of which these objects became military objectives, in accordance with the IHL rules108 considering that these objects were transformed into significant military advantage of one party to the conflict, or at least into a possibility to significantly decrease the military primacy of the hostile party;

106 See the Witness Examination Records for Smajil Arnautović of 4 May 1992 for Muratif Alić of 30 April 1992 regarding the possession of weapons and the participation in the conflict. 107 E.g., see the testimony of witness Dragomir Luinović. 108 Jean-Marie Henkaerts, Study on customary international humanitarian law: A contribution to the understanding and respect for the rule of law in armed conflict; Annex: List of customary Rules of international humanitarian law, p. 32-33. Rule 7: The parties to the conflict must at all times distinguish between civilian objects and military objectives. Attacks may only be directed against military objectives. Attacks must not be directed against civilian objects [IAC/NIAC]; Rule 9. Civilian objects are all objects that are not military objectives [IAC/NIAC]; Rule 10. Civilian objects are protected against attack, unless and for such time as they are military objectives. [IAC/NIAC]. Note by the Appellate Panel: the abbreviation IAC

S1 1 K 005207 12 Kžk 7 May 2013

 the same goes for the proposal of the SoBK War Presidency to prepare the bridges in Bosanska Krupa and Bosanska Otoka for destruction until the right bank of the Una River is better secured109; as well as for the destruction of buildings located along the Una river bank, from which snipers fired against the bank controlled by the Serb party, which resulted in the killing of one person during the truce, whereby the referenced buildings were not fully excluded as a military threat;110  ultimately, the hostilities, including the armed attack carried out by the Serb military and police, lasted for a short period of time, just a couple of days in the narrow geographic area such as is the downtown itself. Truly, the consequences of the attack carried out by the Serb forces, in terms of the number of killed persons and the material damage, were significantly much more to the detriment of the Muslim party rather than of the Serb party.

123. In relation to the foregoing circumstances, the Prosecution argued in their closing argument that “[N]o military objects existed in Bosanska Krupa”.111 This Prosecution's allegation is true just in part because a military TO warehouse existed in the town; regardless of that, however, the foregoing still does not mean that no military objectives existed in the town. As already noted, pursuant to the principle of distinction and the principle of protection of civilian population, only military objectives can be legally attacked.112 Article 52(2) of Additional Protocol I provided a generally recognized definition of military objectives, and described them as “those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.” means customary rules applicable to international armed conflicts, and the abbreviation NIAC concerns the customary rules applicable to national armed conflicts. 109 Prosecution Exhibit T-198, War Presidency of the SoBK, Proposal to the Command of the First Krajina Podgrmeč Brigade in Srpska Jasenica, dated 25.5.1992. 110 In relation to this Prosecution exhibit, it should be explained that the Defense for the accused Kličković differently views the reasons concerning the Accused's order and the proposal for the destruction of bridges and buildings. In his closing argument (Part 9. Crime against Humanity – Persecution, p. 7), the Accused stated that the destruction of bridges had to prevent the crossing over from one bank of the Una River to the other and thereby prevent any retaliation and personal score-settlings, killing of non-combatant population, plunder, setting on fire and all other inhumane acts, wherefore a number of solid objects along the Una River bank had to be destroyed too in order to neutralize the sniper fire from those locations, since they were usually used during the truce; thus it happened that, during the first truce over the holiday on 1 May 1992, Muslims killed teacher Đukić who had trusted the signed truce and carelessly walked along a street on the Una River right bank. 111 Prosecution Closing Argument of 8 April 2013, p. 7. 112 Article 52(2) of Additional Protocol I. See, Trial Judgment in Kordić, para. 327.

S1 1 K 005207 12 Kžk 7 May 2013

124. In order to thoroughly examine the criteria concerning the determination of factors or the “means and methods used during the attack”, as well as “the resistance offered to the attacker”, the following should also been taken into account: civilian objects will lose protection against attack if they are being used for combat actions. The Trial Chamber in Kupreškić et al. pointed to the provisions of Geneva Convention IV article, pursuant to which the protection enjoyed by civilian hospitals against attack will cease if, apart from the humanitarian purposes, the hospital is “also used for causing damage to the enemy if, for e.g., an artillery post is mounted on the hospital roof.” The similar also refers to double purpose objects, e.g. gas stations, offices of political leaders who are military commanders at the same time, electric supply network and electric facilities bridges, factories with redirected military production, whose function is strictly civilian at times of peace, but are in war circumstances being alternatively used for both civilian and military needs and become legitimate military objectives if they satisfy the requirements of Article 52(2) of Additional Protocol I concerning “effective contribution to military action” and “certain” (concrete, manifested) military advantage in case of destruction, capture or neutralization. Given the need of belligerent parties to undertake military activities, it cannot be expected that in such a case the parties abandon attacking so as to fully avoid the risk of killing civilians. Therefore, instead of complete prohibition of attack, international law imposes significant restrictions which should decrease the risk of the killing of civilians and civilian property destruction.113 In our view, it is important to address this issue from the legal point of view considering that the Prosecution highlighted it in its closing argument in relation to the Serb forces attack on the five referenced vital objects in the town.

125. Also, the Panel took into account the ICTY case law, pursuant to which: “[P]rohibition on the targeting of civilians does not exclude the possibility of legal civilian casualties”.114 The Panel also took into account the view pursuant to which the casualties must not be disproportionate to the concrete and direct military advantage anticipated before the attack.115 The Panel bore in mind the undisputed facts that the number of Muslim victims was significantly larger (12 killed)116 in relation to the Serb victims (1 killed and 8 wounded persons). However, in order to address the proportionality of the attack, to

113 A Guide through the Hague Tribunal, p. 55. 114 Appeals Judgment in Galić, para. 190. 115 Ibidem. 116 Identification records concerning the found corpses, Prosecution of BiH Exhibits T-23 - T-34, and extracts from the Mortuary register containing the seal of the Cantonal Hospital “Dr. Irfan Ljubljankić”, Bihać, Exhibit T-35.

S1 1 K 005207 12 Kžk 7 May 2013

which the Prosecution referred, the Panel could not find comparable parameters to evaluate all the effects in relation to the expected military advantage because there were no evidentiary proposals to this effect. This is also one of the reasons to apply the principle of in dubio pro reo to this issue too.

126. The adduced evidence, that is, the testimony of both the Prosecution's and the Defense’s witnesses, shows that the attack was directed against five vital objects/constructions in the town, which were military objectives at the time, since they were occupied by armed formations. This is an important fact which necessarily implies the conclusion that it was impossible to prove beyond a reasonable doubt the fact that the attack was indiscriminate, namely that it was directly directed against the civilian population.117

127. The situation referred to in the foregoing paragraph occurred exactly when Muslim armed formations118 had occupied the civilian objects the morning before the armed conflict broke out in Bosanska Krupa. Thus, the Panel took into account mutually consistent pieces of evidence proving these factual circumstances, including the following: Osman Mušić's testimony that the response to the fire opened by Serb soldiers came from the hospital in the Lipik direction; Dragan Lukač's testimony that the police maneuver unit from Bihać was stationed in the hospital area under Ramo Brkić’s command, and that Brkić, who was examined as a witness, precisely stated that the maneuver unit had been deployed in front of the five vital objects in the town, namely: the hospital/Health Center, Post Office, Police Station and the Municipality building, that is, exactly at the places which the shelling targeted, as the Prosecution alleged.119

117 On this occasion, the Panel evaluated Defense Exhibit O-1-115 – List of injured and wounded persons in the Bosanska Krupa territory concluded with 25 April 1992 up until 20:00 hrs, Republic of Bosnia and Herzegovina, MUP, CSB Sector SJB Bihać, which shows that a majority of 46 individuals wounded by fire weapons were members of the TO Bosanska Krupa or TO Cazin, or SJB police officers, or 32 persons in total, and one member of the TO SoBK, while the rest of them were civilians. 118 Similarly to the phrase „Serb forces“, the Panel gives to the armed formations present in the territory of the town of Bosanska Krupa, which were not composed exclusively of members of the TO Bosanska Krupa but also of members of the MJM from Bihać, Patriotic League and the TO Cazin unit, the prefix „Muslim“ in terms of a general name because they were such essentially, as they comprised Muslims predominantly although members of other ethnic groups also formed part thereof. Otherwise, it would be difficult to avoid a possible confusion as to who waged war with whom in the armed conflict in BiH, which was an inter-ethnic war. Ultimately, the Trial Judgment in Brđanin, footnote 184 stated the following concerning para. 89: „In April 1992, the TO units in Muslim-led municipalities were placed under a unified control and eventually became the Army of Bosnia and Herzegovina [...]. “ 119“The buildings of the Police Station and the Municipality were also the targets of shelling.“ Prosecution closing argument, para. 2, p. 7.

S1 1 K 005207 12 Kžk 7 May 2013

128. The foregoing clearly shows that the referenced objects became double-purpose objects, that after the war outbreak they were attributed the military purpose in addition to their civilian purposes, and that it was illusory to expect from the belligerent party not to attack them in order to fully avoid the risk of causing civilian casualties. Accordingly, from the aspect of international law in this case, there can be no discussion about strictly civilian objects, or that the town was not defended, as the Prosecution alleged. Ultimately, the Prosecution itself recognized in its closing argument the following:, “Truly, members of the TO Bosanska Krupa opened fire at Serb soldiers who were approaching the Una River from the direction of the surrounding hills...”120 The Prosecution's logic, that the fire opening by members of the TO Bosanska Krupa was a tactical move calculated to provide additional time to Muslim civilians on the Una River right bank to cross over the bridges to the left bank, cannot contribute to the drawing of any other different conclusion than the foregoing one.

129. The above presented evidence cannot support beyond a reasonable doubt the Prosecution's indictment allegation, that the town of Bosanska Krupa was undefended, and, in this context, that the civilian population was the sole objective of the attack launched by the Serb forces.

130. The ICTY Trial Chamber's Judgment in Kordić and Čerkez (26.2.2001), number IT- 95-14/2-T, para. 179, defined a wide spread attack as “[t]he cumulative effect of a series of inhumane acts or the singular effect of an inhumane act of extraordinary magnitude”; while a systematic attack is defined in terms that it involves the: “[p]attern of crimes – that is the non-incidental repetition of similar criminal conduct on regular basis” (see Kunarac et al., No. IT-96-23/1-A (12.6. 2002), para. 94).

131. Since the attack cannot be isolated, it must follow the pattern of previously committed unlawful acts of violence in order to satisfy the required characteristics of the underlying elements of this criminal offense. In the concrete case, this did not exist in the Bosanska Krupa municipality. Thus, the Panel could not conclude so beyond a reasonable doubt on the basis of the overall evidence adduced by both the Prosecution and the Defense.

120 Prosecution’s closing argument, 8 April 2013, para. 4, p. 9.

S1 1 K 005207 12 Kžk 7 May 2013

132. In using the phrases “ample military operations”,121 and “the number of engaged soldiers”, in its theory that the Serb forces were entitled to respond to the shooting, or that they “were entitled to self-defense”, but that “any response by arms must be proportionate with the attack”122, not only that the Prosecution presented no evidence in terms of physical or numeric determinant which will provide those phrases with the convincing substance (e.g. the fire power of the engaged forces), but, by introducing the issue of self-defense, it directly gives legitimacy to the Defense arguments contesting the Prosecution allegation that it is not important who attacked whom first, all in the context of the need to respond to the questions of – whether the defense was necessary or whether it was excessive.123

133. Among other things, the Prosecution’s theory, that the Serb forces prepared and planned the attack against the non-Serb population in Bosanska Krupa, was based on the documentary evidence – Activity Analysis and b/d for 1992 of the Light Infantry Brigade (Prosecution Exhibit T-183) and the Report on the Activities of the Municipal Assembly and the War Presidency for the period between 1 January 1992 and 20 April 1993. The evidence concerning the activity analysis and the b/d for 1992 is related to the Brigade formation, preparations for armed combat, and launching of an attack on Bosanska Krupa during the period 21-25 April 1992, and forcing the Army RBiH units to the Una River left bank, whereupon the Brigade was deployed to actively defend its right bank. The Report on the Activities of the Municipal Assembly and the War Presidency shows the chronology of the activities performed during both the first half of 1991 and 1992, in relation to the tasks of the new authorities established in the SoBK, the attempted negotiations with the Muslim party based on the Analysis on the division of the Municipality peacefully or, if this failed, by military means; that the first and basic task of the War Presidency was military liberation of the territory on the Una River right bank; to organize the functioning of the Military Court, to secure logistics for Serb units, to resolve the issue of captured Muslims who wanted to leave the Serb territory, as well as a series of other operative activities.

134. The Appellate Panel has held that, in a situation when another conclusion can reasonably be drawn from the same facts contrary to that advocated by the Prosecution it is necessary to apply the principle of in dubio pro reo pursuant to which the facts to the

121 The Appellate Panel notes it is more appropriate to use the term „large-scale“ rather than „ample“ military operations. 122 Prosecution closing argument, paras. 2 and 3, p. 9. 123 Defense closing argument by Counsel Trbojević, para. 9, p. 8.

S1 1 K 005207 12 Kžk 7 May 2013

prejudice of the accused must be proved with full certainty. This was not done in the concrete case, whereby the standard of proof “beyond a reasonable doubt” was not satisfied for the existence of: (i) a plan on a widespread and systematic attack; (ii) which party started the attack first (even the Prosecution is uncertain about this fact as it argued in its closing argument that this is irrelevant); (iii) the civilian population could not be the primary objective of the attack, as the Prosecution alleged because the majority of both the Serb and Muslim population had withdrawn from the town; and ultimately (iv) that the acts of the accused persons formed “part of the attack”, because not only that the Prosecution presented no evidence to prove the physical commission of the actions charged against them, but because in discharging the referenced functions the accused, including the accused Kličković, were not superior to either the military or the police forces, which will be addressed in more detail in the reasoning concerning their individual criminal responsibility.

135. Generally, it can be stated that, in the absence of relevant evidence in support of its allegations on the planned attack, the Prosecution used the method of piling deductive conclusions, drawing them either from each other or from the premises, which are either arbitrary or pertain to the events which are at the very least disputable. For example, such is the case of the used phrase “superior military force”124 available to the Serb authorities125 or the realization of “the previously defined goal” of establishing the SoBK in the territory inhabited by majority Serb population.126 In doing so, the Prosecution does not even make any effort to resolve the logical paradox it faced, pursuant to which one should ask why would the Serb authorities have any need to use military force when they had already successfully established the SoBK by peaceful means.

136. Similarly, the prosecution argument concerning the conduct of „ample military operations“ (the Prosecution often uses such attributes which should supposedly suggest that the general elements of the offense are satisfied in relation to the 'wide' and

124 Considering the set of the testimonies of the witnesses for the accused's Defense, which are related to the factual circumstance addressed in para. 105 herein, it is obvious that the Prosecution uses this term too strongly. 125 Thus, e.g., the Prosecution argues in paragraph seven, on page 8 of its closing argument, that in addition to members of the VI Company of the JNA, an armored vehicle also arrived, even though in its previous closing argument, on page 7, paragraph one, the Prosecution even mentioned two armored personnel carriers, which shows that the Prosecution was uncertain in presenting its evidentiary materials, which were simply reproduced in the proceedings before the Appellate Panel. This is all the more so considering the rule – that the facts to the prejudice of the accused/accused persons must be proved with full certainty, or „beyond a reasonable doubt“ pursuant to the Anglo-American standards of proof, also adopted by this Court.

S1 1 K 005207 12 Kžk 7 May 2013

’systematic’ nature of the attack)127 only one day after the conflict outbreak, and that the alleged „reaction/response“ by the Serb party „had been already prepared“. The Prosecution makes such a conclusion based on the position and strength of the forces which shelled the town128, without offering any piece of documentary evidence to support such allegations, other than mere allegations. Truly, in developing its theory, the Prosecution refers to the testimony of witnesses: Šemsudin Velić, Jadranko Šaran, Sabahudin Muhić, Osman Palić at al., as well as Sead Komić, Mirsad Suljić, Ejub Topić, Dragan Japunđa and Fahrudin Dizdarević. However, the reference to the testimonies of the Prosecution witnesses who spoke about the events at issue would be unilateral without presenting any additional supporting evidence of objective significance, which lacked in the proceedings because the witnesses for the Prosecution,129 just like the witnesses for the Defense on the other, sometimes opposing party, were themselves mostly active participants in the events at issue.

137. Also, it should be taken into account that reinforcement forces were sent to both belligerent parties. A company of the former JNA from Lušci Palanka came to assist the Serb party, while the reinforcement for the Muslim party had arrived from the Una River left bank even before the armed conflict outbreak, from the place of Stijene, located at the Krupa-Cazin border. Ismet Kasumović testified that it was a group of around 200 men under Hamdo Delalić’s command; that around 50 members of this group were transferred by a tractor to the place of Zrić, from where they continued marching. Their uniforms were made of tent-halves; green ribbons were used as their insignia; and they had only a few automatic rifles, while the rest of the men were armed with hunting rifles. The witness was issued with a PM72 (light machine-gun). The task of this group was to stop members of the JNA near the place of Lipik. Jasmin Romić testified that, on 19 April 1992, the Muslim authorities issued to him a semi-automatic rifle (PAP) with 45 rounds, a uniform and a military rucksack, and to many other men too; that the arms were conserved and kept in wooden cases. On the following day, on 20 April 1992, the Main Staff ordered them to capture a position in Krupa. The witness was a member of Sulejman's Guard, which was

126 See, the Prosecution closing argument, paragraphs two and three, p. 9. 127 We note that it is more proper/appropriate to use the term „large-scale“ rather than „ample military operations“ (Appellate Panel's note). 128 Ibidem. 129 E.g. witness Sead Komić also took part in the referenced events as the Commander of “Green Berets” (Zelene beretke).

S1 1 K 005207 12 Kžk 7 May 2013

within the Crna Garava unit, the commander of which was Mehmed Hadžipašić from Bosanska Krupa, who was issued with a machine-gun M-72; the unit had 350 men.

138. It is obvious from Dragomir Luinović's testimony (Exhibit O-I-191), that the Serb forces were weaker than that of the opposing party, because otherwise, it would not have been necessary to call a company from Lušci Palanka, on 22 April 1992, to assist them (as also confirmed by the very Indictment to a certain extent by the allegation that members of the VI Company of the former JNA Infantry Brigade “aided” the Podgrmeč Brigade and police officers of the SJB).130

139. The testimonies of other Defense witnesses were consistent with that of witness Luinović; they also stated that the Serb party was weaker in relation to the opposing party. However, many Prosecution witnesses, like Jadranko Šaran, testified quite contrary – that the Muslim party was poorly armed and organized.131 In this Panel's view, it is not important which belligerent party was better armed and equipped (this would be significant in measuring the military success, which is not the subject of this consideration), but rather the fact that both these parties had already been prepared for the conflict. Also, considering the time when witness Romić was issued with his weapon, ammunition and military equipment, it is clear that the Prosecution's theory, that only one party made preparations for the conflict, is but partial.

140. That the Prosecution's approach to the interpretation and evaluation of the evidentiary materials/documents presented at the hearing before the Appellate Panel is partial obviously ensues from their closing argument allegations that the attack was directed against the non-Serb civilian population of Bosanska Krupa, that the Muslim defense was inadequately armed and poorly organized, with no central command, with the conclusion that “[N]one could deprive (them) of the right to defense, the right to defend their town“ (emphasis added). These Prosecution's allegations, in fact, show that each

130 For such a conclusion, in addition to the fact that the both parties were armed, and that contrary to the Prosecution witnesses the Defense witnesses attempt to minimize the number and type of weapons (that they had hunter's guns, etc.), while the evidence from the referenced case records (e.g. in Brđanin, etc.) shows that each party to the conflict possessed storehouses of the former TO, which the Muslim party possessed as a rule, and which was the basis for the establishment of the future ARBiH, or from the former JNA and its transformation into the VRS on the Serb side, in the territory they captured; with other sources of weapons). In addition, Exhibit O-1-194, which is of objective significance, shows that, at the critical time, the national composition of the population in the Bosanska Krupa municipality was such that Muslims were absolute majority (72% Muslims, 26% Serbs and 2% of Others). 131 Thus, e.g., witnesses Esad Hasanović, Jadranko Šaran and A-2 stated that the Serbs on the surrounding hills were armed with rifles and heavy weapons.

S1 1 K 005207 12 Kžk 7 May 2013

belligerent party defended the part of the territory of the Bosanska Krupa municipality they considered as their own. In describing this short conflict, both the Prosecution and the Defense witnesses (including the accused examined in the capacity of witnesses), used in their testimonies the determinant “defense”, either in terms of “active defense”, as used by the Accused's Defense (considering that, according to the witnesses, the Serb party launched the attack in order to unblock their armed compatriots encircled by armed members of the Muslim TO near the gas station, and thereupon withdrew to their initial posts), or “defensive defense” (as described by majority Prosecution witnesses).

141. Anyway, the element of the control of territory, which each opposing party considered as “their own”, was also introduced in the consideration of the event at issue from the foregoing aspect, in addition to the Prosecution's theory that the primary goal of the Serb forces attack was the non-Serb civilian population, in which the Appellate Panel finds additional argumentation in the concrete case to apply the principle of in dubio pro reo. In its essence, this principle is a substantial element necessary for proving the guilt beyond a reasonable doubt.132

142. The Appellate Panel has held that the foregoing factual circumstances and the conclusions drawn from them indicate that the requirement of the principle of in dubio pro reo under Article 3(2) of the CPC BiH is satisfied. Pursuant to this Article, the facts in favor rei of the Accused shall be considered as proved even if they are likely to exist, that is, if there is a doubt into their existence, even when there is more likelihood that the facts to the prejudice of the accused exist. 133

143. In support of the foregoing, the Appellate Panel concludes that armed inhabitants (members of the TO SoBK) were present at one site for 24 hours, and that when the VI company from Lušci Palanka came to assist them, they fired at each other obviously being unaware of that (the so called „friendly fire“),134 which would not have been possible had this been a planned and organized attack or a systematic attack.

144. It follows from the statement of witness Osman Palić, the then employee of the Krupa-trans Company, given before investigative judge Hamdija Veladžić (T-54), that just

132 Prosecutor v. Limaj et al., IT-03-66-A, Appeals Chamber Judgment, 27 September 2005, para. 10. 133 Group of authors, Commentaries on the Criminal Procedure Codes in Bosnia and Herzegovina, Joint Project of the Council of Europe and the European Commission, 2005, p. 50. 134 See the testimony of Đorđe Jež concerning the so called „friendly fire“.

S1 1 K 005207 12 Kžk 7 May 2013

before the conflict outbreak he had noticed that no Serb employees were present in the company any more, and that he thereupon transported his family away from Bosanska Krupa; that a large group of armed men was seen at the Lipik site, and that the fire commenced at 17:55 hrs; that he saw three men, Cimbaljević, Majkić and a merchant, were consulting among themselves which house they would set on fire; that he spent a short period of time in Jasenica; that Mile Vojinović, his good neighbor, found a car for him and drove it to him, filled it up with gas and enabled him to leave towards Ostružnica and Badić.

145. Witness Luinović, as well as the Prosecution witnesses who testified about the same circumstances prevailing at the opposite side, testified about the panic aroused among Serb citizens in the area surrounding the town after they learned that "Green Berets" had blocked the town. Several Defense witnesses, and a few Prosecution witnesses, testified about this. In addition, witness Luinović confirmed that members of the TO SoBK kept under their control the areas of Lipik, Pendrekovac, and a part of Mahala (at the town outskirts in relation to the downtown); that the hill of Lipik could not be reached due to the active fire coming from Tećija (the Una River left bank), where Muslims held their positions. At first, witness Osman Mušić thought that “mortars fired first from (the hill of) Hum”, and in cross examination he added that: “Serb soldiers opened fire and the response (sic!) came from the hospital in the Lipik direction (emphasis added)”. Also obvious from this testimony is that the hospital, as well as other vital objects in the town, had been given a dual purpose, whereby they have lost humanitarian protection from the aspect of international law.

146. That Muslim positions were at Hum, the elevation towards Govedarnica, was confirmed by the following Defense witnesses: Duško Stoisavljević, who stated that, around 10-15 days prior to the conflict outbreak, Muslims had set up a parapet at that site; and Mladen Štrbac confirmed the foregoing and stated that howitzers fired from this site at the Serb positions at Vranjska and Govedarnica, and members of the TO SoBK fired back. Witness Adem Balkić confirmed that Krupa was shelled by the PAM and PAT mounted at Govedarnica; that a number of armed citizens (armed with three military rifles, while the rest of them were armed with hunter's rifles and pistols) from the Omladinska Street participated in it, including Hamdija Balkić and Senad Ćemalović. (Obviously, the Prosecution witnesses refer to the conflict that occurred in Omladinska Street as to “resistance”, while the Defense witnesses, who testified about participation of members of

S1 1 K 005207 12 Kžk 7 May 2013

the TO SoBK in the withdrawal of armed Serbs who stayed at this site to defend their homes, spoke about their “unblocking”). Many witnesses, including Defense witness Dragan Lukač, testified that the conflict first commenced at the gas station. Witness Lukač explained that the MJM Bihać was stationed at this site and that it was led by Ramo Brkić.

147. Brkić himself confirmed both this fact and the fact that, just before the conflict outbreak, the unit came there under the order of the CSB Bihać. Witness Lukač stated that: “The situation prevailing in the town streets was peculiar. There were no civilians, and the atmosphere was tense.” This witness, as well as witness Brkić, consistently testified that the basic task of the unit was to secure vital objects/facilities in the town. Witness Brkić confirmed that he had deployed the maneuver unit in front of the 5 vital objects in the town, namely: the hospital/Health Center, Post Office, Police Station and the Municipality building. (The Serb artillery fired at exactly these buildings, which means that the fact that they were held by armed formations made them military objectives in terms of the IHL). It was strange to both witness Lukač and witness Brkić that, after the unit had arrived, they did not report to the SJB premises, in compliance with the usual procedure, but rather were deployed to provide security in the upper part of the town, where according to Lukač a dispensary was located, near the Partisan cemetery. Witness Slobodan Majkić confirmed that a group of police officers from Bihać and Velika Kladuša moved around the gas station area. Witness Lukač, and essentially witness Ale Šiljdedić too, testified that they had seen armed men with Lily-pattern insignia (Majkić), who wore winter-uniform cloths (Ale).

148. The length of the attack135 can be limited to 4-5 days only (testimony of Jadranko Šaran and the consistent testimonies of all other witnesses), and thereafter to the time when nothing particular was going on in the territory of the Bosanska Krupa Municipality considering that each belligerent party held its own positions. This is indisputable because many witnesses confirmed so, including the Prosecutor in his closing argument. In the Panel's view, this time-related fact is significant because the length of the attack expressed in such a way cannot fit into the required element of the “systematic nature” of the attack.

135 This period of time concerns the length of armed conflict, and of the attack within this conflict; in broad terms, the attack (in terms of the essential element of this criminal offense) would last for additional several days if added to it is the unlawful imprisonment and forcible removal of the population, all viewed from the aspect of the charges.

S1 1 K 005207 12 Kžk 7 May 2013

149. Certainly, there can be no discussion about fear, or gravity of the crime, or the savagery as the standard established by the international court, bearing in mind the testimony of Đorđe Jež, one of the TO SoBK company commanders, uncontested in relation to this part by anyone. Witness Jež gave a comprehensive account of the organization of the transportation of the Muslim population from the referenced villages (e.g. Arapuša), in order that it be carried out in an organized and safe manner for the population. He stated that, in addition to the police escort, medical assistance was also secured (one physician and one medical technician); that the evacuated persons could bring along their personal arms for which they had licenses, as well as the entire movable property; that he ordered that a case be made for items to be carried out in it during the transportation thereof; that branches along the road be cut off; that their houses be secured, etc.., which is obvious from the DVD recording of the event. No Prosecution witness denied the foregoing, and this will be addressed further in the reasoning in relation to individual incriminations.

150. In this regard, there is no piece of evidence proving that the Accused and members of the alleged joint criminal enterprise had forced the Muslim population to any sites and the territory to be determined by the Serb party, but rather they mostly headed towards Cazin and Krajina, and if they could not do so due to combat actions at the Una River banks, they went toward Bihać through Petrovac or Sanski Most, as obvious from the testimonies of the witnesses who gave evidence about those circumstances.

151. The Prosecution's argumentation by referring to the fact that the armed activities ended on 25 April 1992 is aimed at two directions. Firstly, that there was no reason to evacuate the Muslim civilian population which occurred on May 1 and thereafter, and, secondly, that based on this fact, the Serb authorities were obliged from the aspect of international law to secure that the evacuated population return to their homes. In the Panel’s view, however, such Prosecution's reasoning is unfounded because it does not distinguish between the cessation of the state of war and the cessation of major armed activities.

152. Accordingly, it is absurd to state that, in terms of international humanitarian law, the Accused were obliged to return the evacuated population to their homes immediately after the cessation of armed conflict in Bosanska Krupa, for two reasons. Firstly because the Accused did not, in any way, control the territory to which the population was evacuated, since the opposing belligerent party did it and because there was no realistic way to 70

S1 1 K 005207 12 Kžk 7 May 2013

do it, e.g. to find out where precisely they were evacuated, and, secondly, because the war in BiH did not cease, but rather it was yet to heat up with full force in the years to follow. The evacuated Muslim population returned to their homes when it was possible, before the war cessation in BiH in late 1995.

153. The state of war in Bosnia and Herzegovina as such, as well as in the referenced geographic area, did not cease. This is, inter alia, also obvious from the documentary evidence, Combat Action Order issued by the TO Regional Staff number 02/162-1 of 10 June 1992 (O-1-172), signed by Commander Osmanagić, namely the order to carry out a demonstrative attack along the Perna-Bosanska Krupa-Vranjska route, and to make all preparations to hold the reached/captured frontline.

154. It ensues from the examined witnesses’ testimonies that, before the conflict, both parties had set up barricades around the town. Thus, witness A2 stated that General Nikolić, Commander of the Bihać Military Regions, once asked him to intervene in order to remove one of the barricades set up on the road towards Jasenica. According to the testimony of the protected witness and witness Hašim Đulić, fortification obstacles (spike stripes) had been set up already on 15 April 1992 under Šemso Šepić's order (Civilian Protection) at the town exit, on the roads towards Jasenica and Bihać, as also confirmed by witness Sabahudin Mahić. In this context, Defense witness Miroslav Vještica stated that, a day before the conflict outbreak, Serb inhabitants Halkić and Egrlić called the SoBK leadership and informed them that members of the “Patriotic League” were crossing over the Ostružnica bridge. On the following day, after he had left the town, the witness and several other persons were stopped at the Vranjska check point held by Green Berets. Beside this exit, other exits from the town towards Jasenica and Bihać were also blocked.

155. Witness Slobodan Majkić testified that in the morning hours of the day when the conflict broke out, he could not enter the town with his vehicle because barricades were set up near the explosives storehouse at the town entrance as well as near Hakija's inn, located by the road towards Bihać, where he saw Sead Šepić deploying his men. The witness subsequently learned that check points also existed at both the exit towards Govedarnica and the entrance to Arapuša where, according to witness Mladen Štrbac, members of the Muslim reserve police force, whom he had personally known, were present.

156. A couple of days prior to the conflict outbreak, witness Đorđo Jež noticed that

S1 1 K 005207 12 Kžk 7 May 2013

Hašim Đulić, Commander of the Bosanska Krupa Territorial Defense, arrived in a camouflage uniform with the insignia he had never seen before; it had lilies on its sleeves on a blue background and ranks on his shoulders.136 Therefore witness Jež left the Main Staff. Witness Hašim Đulić was at work on the day when the conflict broke out. At around 11:00 hrs, he received a call from citizens of the settlement of Mahala, where according to witness Jadranko Šaran, a checkpoint held by members of the TO BK was set up, who had also noticed soldiers coming down off a truck, and a group of persons heading towards the cemetery located at the slopes of the hill of Lipik, towards the hill of Alem, which the witness personally verified by visiting the site. At that moment, the witness knew that members of the TO SoBK were disembarking at the hill of Lipik.

157. The foregoing supports the theory contrary to the Prosecution's theory that the Muslim party also made active preparations for the armed conflict.

158. That the Lipik checkpoint was held by the Serb forces was also confirmed by witness Dževad Grošić.137 Witness Grošić was stopped there on his way towards Jasenica, where he had been sent by Duško Kokot, who had at the time worn the JNA infantry uniform. Witness Grošić stated that paramilitary formations formed of “Arkan's men and Šešelj's men”, moved around the town wherefore it was no longer safe to stay in the houses. The Municipality President then convened a meeting of the National Defense Council at which military commanders were appointed. On this occasion, witness Hašim Đulić was appointed Chief of the TO BK Main Staff, and Zijad Selimović, retired Colonel at the time, as the TO Commander.

159. During the proceedings, the Defense did not contest that the conflict in Bosanska Krupa commenced on 21 April 1992, between 17:00 and 18:00 hrs. The Panel, however, could not determine beyond a reasonable doubt, based on the examined witnesses' testimonies, the exact location where the conflict broke out on 21 April 1992, that is, from which direction the fire was opened first, and accordingly, could not determine which party commenced the attack.

160. In this context, the Prosecution witnesses were also unclear considering that witness Zuhdija Medić testified that the fire started from Lipik and Mahala, where the Serb

136 Exactly this fact concerning the uniform and visibly placed insignia supports the fact that the criteria for distinguishing civilians from combatants were satisfied from the IHL aspect. 137 Witness Dževad Grošić's main trial testimony of 25 June 2008.

S1 1 K 005207 12 Kžk 7 May 2013

forces were located, and that it was directed towards the hill of Hum (where Muslims forces were located), about which witnesses Mirsad Šabić, Enver Ezić and Arif Arnautović also gave consistent evidence.

161. According to witness Slobodan Majkić, the first shots also came from the Lipik direction, but they were directed towards Vranjska and Radić, where the Serbs held their posts. Contrary to the foregoing, Defense witness Mirsad Suljić considers that the first shells to fall on the street over the Court building in the Mahala area had come exactly from the direction of Vranjska.

162. If the assertions of the majority witnesses, that the first shots were fired from the hill of Lipik, were accepted, it remains unclear which party actually fired from that location. According to Ramo Brkić, the then Commander of the maneuver unit, members of the Municipal Staff of the TO Bosanska Krupa kept upon his arrival the posts in the settlements of Lipik and Donja Mahala – while at the very hill of Lipik he saw a fortified post – bulwark facing the town, but did not see the forces which had kept it; and after his arrival, the post was empty until the arrival of members of the TO Bosanska Krupa. Witness Ibrahim Međedović also confirmed that the Serb forces were stationed near Lipik, in the places of Šujinovac and Pendrekovac. Witness Ale Šiljdedić, member of the maneuver unit, had the same information.

163. Defense witness Dragomir Lujinović confirmed that members of the TO SoBK had held the areas of Lipik, Pendrekovac, part of Mahala (at the town outskirts in relation to the downtown). Witness Lujinović added that one could not approach the Lipik hill due to the firing coming from Tećija (the Una River left bank), where Muslims held their positions.

164. That the witnesses could not accurately determine the location where the shooting had started shows the testimony of Osman Mušić. This witness thinks that “the mortars from Hum opened fire first”, while in cross-examination he added that “fire was opened by Serb soldiers, to whom response came from the hospital towards Lipik”. According to Defense witness Stoisavljević, a bulwark was located at (the hill of) Hum, the elevation towards Govedarnica, which had been sat up by the Muslims around 10-15 days prior to the conflict outbreak, as witness Zdravko Marčeta also confirmed. According to Defense witness Mladen Štrbac, mortars fired towards the Serb positions at Vranjska and Govedarnica, in response of which members of the TO SoBK fired back.

165. According to witness Adem Balkić, the shooting and shelling of Krupa by anti- 73

S1 1 K 005207 12 Kžk 7 May 2013

aircraft gun (PAT) and anti-tank machine gun (PAM) was coming from the Govedarnica site. On the first day of the conflict, this witness and around twenty citizens from the Omladinska Street tried to organize some resistance. They had three military rifles in total, and the rest were hunter's rifles and pistols, but they had no additional ammunition. Witness Hamdija Balkić also took part in offering resistance. At the time, witness Balkić had a hunter's riffle, which he had received from his street neighbor, Senad Ćemalović. After fire was opened at around 18:00 hrs, his group was supposed to defend around 30 m of the road, that is, the first houses to be hit by the attack.

166. The question of which forces were located in the hospital area and which, according to witness Mušić, responded to the fire was clarified by Defense witness Dragan Lukač. This witness explained that an MJM unit from Bihać was deployed at this site, and that it was led by Ramo Brkić. According to the witness, this unit had come just before the conflict outbreak, under the order of the CSB Bihać, and at that moment “the situation on the town streets was strange; there were no civilians, and the prevailing atmosphere was tense”. There were other police officers from Bihać whom the witness had seen, but he did not know why they were sent there. Defense witness Slobodan Majkić also heard about the arrival of these units. The witness stated that a group of police officers from Bihać and Velika Kladuša was moving around the gas station area.

167. Witness Dragan Lukač further testified that, upon their arrival in front of the “Željeznički dom” building, camouflage uniforms were distributed to members of the units; they were explained that the police standard blue uniforms were inappropriate for providing security to the vital objects in the town, which was the Maneuver's Unit basic task, according to the witnesses' testimonies. Commander of the Army RBiH's Operative Group, Ramiz Dreković, was present during the uniforms and weapons distribution, but the witness was unaware of his role at the time. Besides, the witness wondered why they did not report to the SJB premises upon their arrival, which was a usual practice, but rather were immediately deployed to provide security in the upper part of the town, where an infirmary was located, near a partisan cemetery. Defense witness Ramo Brkić, leader of the Maneuver Unit, confirmed that they had not entered the SJB premises, but that Chief Velić was informed about everything, and that he was even supposed to select 10 members of the police station to join the Maneuver Unit. However, there were certain misunderstandings in relation to this issue, because the Chief's view was that there was no need to engage the Maneuver Unit since they had the Territorial Defense Municipal

S1 1 K 005207 12 Kžk 7 May 2013

Staff, to which he seconded members of the Police. Thus he did not even know the whereabouts of the 10 police officers whom witness Brkić had on the list, and who were supposed to form part of the Maneuver Unit.

168. Witness Brkić deployed the men present in the Maneuver Unit on the referenced day in front of the five vital objects in the town, including the Municipality building, where a meeting was held at around 17:00 hrs, which was allegedly attended by Commander Špiro Niković. At the time, the first shell fell and the shooting started, whereupon they received information that a member of the Maneuver Unit was wounded exactly near the Health Center. Witness Dragan Lukač, at the time deployed to provide security to the Health Center, also testified about the foregoing.

169. Witness Lukač explained that fire was opened from all sides in the afternoon hours, at around 17:30 hrs, when he got out of his car. A couple of minutes later, the witness saw a group of armed men shooting. When they subsequently came closer, he saw lilies as insignia on them. The wounded member of the Maneuver Unit was immediately transferred to Cazin. Chaos thereupon followed up and people were seeking shelter against the shooting. Unaware of the direction from which the shooting was coming, witness Lukač went towards the lower part of the town along with Jasmin Grošić, his unit member. In the town itself, they met armed men in various camouflage uniforms with the same lily-insignia. Member of the same unit, Ale Šiljdedić, examined as a Defense witness, similarly described the initial situation after the conflict outbreak; at the time, he was deployed in front of the Police Station, inside which he saw armed groups of men wearing winter-cloth police uniforms.

170. With the intent to leave Bosanska Krupa, witness Lukač and Grošić waited to cross over to the Una River left bank, on which occasion other men also gathered up, including a group of men from Arapuša (around 10 or 12). During this time, they heard shooting coming from infantry weapons. After they crossed over to the other river bank, they saw armed men in uniforms. While they were searching for transportation to Bihać, a truck with a trampoline came by with around 15-20 men wearing uniforms with the lily-insignia; these men told them that they had previously held some frontlines around the town and were moving towards Stijene near Cazin at that moment. Thus, the witness headed off with them further to Bihać.

171. Before crossing over to the Una River left bank, the Commander of the Maneuver

S1 1 K 005207 12 Kžk 7 May 2013

Unit himself tried to contact his superiors in order to get further instructions for his deployment and activities. The shooting ceased before dusk, and he had a chance to speak with members of the European Monitoring mission, who were present there. Thereupon, the witness decided to withdraw his unit to the Stari Grad Hotel, because the Željeznički dom facility was unfit for resting. However, after a roll call, they found out that two police officers from Bihać were missing. They had left the unit of their own initiative and returned to Bihać; these were exactly Dragan Lukač and Jasmin Grošić.

172. On that very day, at around 22:00 or 23:00 hrs, while he was in the Krupa Police Station, Chief Šemsudin Velić was phoned by Miroslav Vještica from Jasenica. Vještica asked for the phone number of protected witness A2, who had been on the Una River left bank at the time. The witness gave him the requested number and assumed that witnesses Miroslav Vještica and A2 succeeded to reach a truce agreement because the shooting fully ceased in the evening hours of 21 April 1992. Protected witness A2 testified about these negotiations' details. The witness stated that, in addition to him, the following persons were also present on behalf of the Muslim party: Nenad Ibrahimpašić, Zijad Kadić (on behalf of the CSB Bihać) and Fikret Abdić, while the Serb party was represented by Rajko Novaković, President of the Bosanski Petrovac Municipality, Mladen Drljača, Miroslav Vještica and General Niković. The subject of negotiations was the attempt to halt the development of any new situation and to create a tampon zone with joint forces, which would separate the two parties to the conflict. Ibrahimpašić even proposed that a joint action of the Banja Luka and Bihać police be carried out.

173. At the referenced meeting, Miroslav Vještica proposed that the Una River be the exclusive border, and categorically avoided the possibility of forming a tampon zone with a mixed composition of units, on which Muslim representatives insisted.

174. Obviously, the parties to the conflict were not able to reach any agreement. Thus, on the following morning of 22 April 1992, the shelling and “infantry weapons cannonade” commenced. During the day, members of the Maneuver Unit were tasked with eliminating the sniper fire. Thus, while moving in the direction from which snipers fired, witness Ale Šiljdedić noticed by a building located some 50 m away from the hospital building a group of 5- 6 men in uniforms made of groundsheets with TO and lily insignia on them, who were not “equipped as a formation, but rather as a disorganized group wearing parts of uniforms”. After seeing the referenced group, the witness entered a building and noticed two Serb civilians who were cursed at with abusive language because a semi- 76

S1 1 K 005207 12 Kžk 7 May 2013

automatic rifle and a pistol were found in their house under the bed. There were even threats hurled at them. Thereupon, one of the present men addressed the witness and told him to take the apprehended persons into custody. The witness did so, and handed them over to a duty officer in the Police Station. According to the subsequently obtained information, the tests carried out showed no powder traces on the apprehended persons' hands, which means that they did not shoot from the weapons found in their houses. On the referenced occasion, the witness saw that another Serb was apprehended to the Police Station, and they were all together locked up in the detention unit.

175. The referenced situation lasted until the units which had organized the resistance returned to the Police Station and notified Chief Velić that the Serb forces were some 100m away from the town entrance. Thereupon, Chief Velić and Maneuver Unit Commander, Ramo Brkić, made a decision on withdrawal “due to the situation complexity”.

176. The armed group from the Omladinska Street stopped offering resistance already in the morning hours of 22 April since they had spent all the ammunition at their disposal. Around 100 men withdrew from the street, including women and children who had not succeeded to leave the town before. According to witness Hamdija Balkić, the aim of withdrawal was to cross over to the other bank of the Una River, which was at that moment impossible for security reasons, because this was a very large group of people. Therefore, they withdrew to the Court building, in front of which the witness noticed around ten armed men in blue uniforms (which he had previously seen in the Omladinska Street); one of whom had a Zolja or Osa (hand-held rocket launcher). Shortly thereafter, one member of the unit offering resistance reported that a personnel carrier was entering the town; thus the group crushed the Court building’s side door and moved into the Register's Office, where they hid their weapons to prevent members of the TO SOBK, who entered the building shortly thereafter and captured them, from finding it.

177. At the time of the conflict of 22 April, the Chief of Security Body of the OŠ TO Bihać, Ismet Mujanović, was also present in the town, and in front of the Municipality building he met a number of individuals with arms and wearing parts of uniforms. They introduced themselves to the witness as the resistance holders - Sead Šehić and Edo Dizdarević. They told him when and how the attack had begun, and also that they had captured several snipers and took them to the police. Witness Mujanović testified that they “had some men of their own, signal men and that they had sent their men in the direction of the conflict lines”. On that day, witness Mujanović spent around 10-15 hours in the 77

S1 1 K 005207 12 Kžk 7 May 2013

town. During the referenced period, Šehić and Dizdarević were instructed to contact Commander of the Bosanska Krupa TO, Hašim Đulić, in order to supplement the Command personnel; however, it was no sooner than the following day that Đulić responded from the Una River left bank.

178. In addition to Hašim Đulić, a large number of people crossed over to the left bank during that day, including the Police Station Chief and members of the Maneuver Unit. Witness Velić testified that, in the evening hours of 22 April, they watched the burning of the parts of town inhabited by the Muslim population. The witness stated that “at first, the entire Ustikolina was on fire: mostly Muslim houses and the crafts-trade center, while the housing facilities were not fired at”. Witness Velić stated that the Police Station building was not immediately set on fire, but rather on the second day; and that each following night they watched houses being set on fire and burning. That was already the period when there were no combat actions at the Una River right bank because all Muslims forces had crossed over to the left bank, where a new police station was formed, and where witness Velić continued discharging his duties. The station was first located in the village of Jezersko, inhabited by the Muslim population, where all structures needed for the population and for the regulation of civilian life were organized; and the Una River officially became the border frontline. At the time, witness Brkić received an order to relocate the Health Center too. Thus, members of the Maneuver Unit, present at the left bank, assisted in executing this task and relocated the Health Center to Mesud Komić's house. Subsequently, Ibrahim Međedović, whose task was to regulate the war schedule for members of the SJB Bosanska Krupa reserve force, was tasked with finding a location to which the Police Station would be relocated, for which purpose the elementary school in Pištaline was selected.

179. It follows from the foregoing that the two parties participated in the initial negotiations to cease fire on an almost equal basis, by stipulating their respective conditions. This also indicates that both parties had previously taken part in the armed conflict, and obviously held position/elevations in the town surroundings and the town itself, and used them as their basis for negotiations and stipulating conditions. In this context, unacceptable are the assertions of witness Hamdija Kabiljagić, that the negotiations were “a farce and that there were no sincere intentions therein”, considering that he had not attended the negotiations, wherefore the basis on which he concluded so remains unclear. In addition, all witnesses consistently testified that the truce indeed

S1 1 K 005207 12 Kžk 7 May 2013

started in the evening hours on 21 April, that is, after contact had been made between witness A2 and Miroslav Vještica, who ordered Defense witness Mladen Štrbac (Commander of the SOBK TO Brigade) to cease any combat activities.

180. Witness Jadranko Šaran (Chief of the Uniformed Police) testified about the intensity of the conflict in Bosanska Krupa on April 21-22. The witness stated that during the first days of the conflict, only members of the SJB Bosanska Krupa (around 20-30 armed police officers) were offering resistance in the town and that, subsequently, a group from Cazin and a small group of poorly armed patriots from the town itself arrived. The witness resolutely stated that the primary objective was to evacuate the population to the left bank, as witness A2 also confirmed, adding that Muslims had in most part succeeded in leaving the town by crossing over to the Una River left bank.

181. However, it cannot be concluded based on the adduced evidence that the initially offered resistance was completely disorganized, considering that, in cross-examination, witness Adem Balkić confirmed that the group of armed men was assisted by members of the Police Station from Bužim. At the time, witness himself was a member of the Patriotic League, which he had become prior to the conflict outbreak, as well as witness Asim Balkić. These witnesses testified that, on the first day of the conflict, infantry shooting came from both sides to the conflict, and that they had also fired until they ran out of ammunition and until the decision on withdrawal was made. The foregoing was also confirmed by witness Abdulkadir Ćurt.

182. During the withdrawal from the town, Defense witness Suad Komić also saw a group of men in the Prvomajska Street, half of whom were armed and uniformed. Subsequently in the tunnel, the witness also met a group of members of a sabotage unit from Bihać. Witness Slobodan Majkić stated the same and added that much before the conflict outbreak he was stopped by a group of police officers with the Patriotic League insignia; that he asked them about these insignia to which they responded that the insignia were those of Bosnia and Herzegovina.

183. Witnesses for the Defense testified in more detail about the conflict outbreak. Before the conflict onset, witness Miroslav Vještica was present at Vranjska together with General Špiro Niković, Commander of the II Military District, because the General had thought they had to have an urgent dialogue with the Muslim party in order to prevent the war outset. From this site, he made efforts to contact witness A2 and Šemsudin Velić,

S1 1 K 005207 12 Kžk 7 May 2013

Chief of the Police. However, when he attempted to go to the town, as discussed, fire was opened at General Niković's vehicle and he withdrew back to Jasenica.

184. Witness Zdravko Marčeta, the then Chief of the TO SOBK Main Staff, testified that they thereafter heard infantry weapons fire and received information that the Serbs had been attacked in Mahala, and that they put up resistance. The rest of the TO personnel went off to assist the blocked Serbs and “that’s how the war in Bosanska Krupa started”. Witness Marčeta also stated that the Serbs had been attacked in the gas station area, some 100m away from the Vignjević family house, in Rasima Redžića Street, where at the time witness Milan Obradović was also present with several friends. Witness Obradović testified that, at around 18:00 hrs, he heard a loud cry: “Green Berets are coming!”, whereupon shooting started and lasted through the night hours. The witness’s group had automatic weapons with which they had been issued during military exercises held at the Željava Airport in Bihać. On the occasion, Momo Grubiša told the witness that a member of the Green Berets had been wounded; he thought that his family name was Kasumović; thereupon he secured his transportation through Šujinovac to Sanski Most.

185. Defense witnesses Duško Stoisavljević, Slavko Latinović and Mile Bjeljac also thought that the first fire was opened near the gas station. According to witness Štrbac, it was located towards the downtown, at the Novi Grad-Bihać transit road, across an iron bridge. The foregoing was also confirmed by Defense witnesses Zdravko Marčeta and Dragomir Lujinović, the then Commander of the I Battalion in charge of the parts of the town Vranjska and Radić. Witness Lujinović stated that at around 18:00 or 19:00 hrs “there was a detonation near the gas station, whereupon fire was opened from all sides”. Just before this, these two witnesses were ordered not to provoke the neighboring party, because, according to witness Marčeta, the RS army had been formed at the time, and rumors had it that all disputable issues would be resolved at the top political levels.

186. On the following day, the TO SoBK Commander informed them that a Sana Brigade Company would come to assist them, with the task to unblock the Company which had stayed encircled in Mahala, and which was led by Vlado Vignjević. According to the witness, the situation was chaotic and “there was no formation; I did not know which units I had, and who was a platoon or company commander; we all started off to reach the Una River; we were ordered to return as we would kill each other in the town”. On the third day, the Commander ordered them to come out to the Una River bank; this was done with no

S1 1 K 005207 12 Kžk 7 May 2013

major resistance; a frontline was established at the very river bank, and it did not significantly move in the period to come.

187. Witness Marčeta gave a comprehensive explanation of the then deployment and activities of the TO SoBK. Thus, one company was deployed at Pendrekovac under the command of Mile Štrbac aka Rodan; one company at Vranjska under Jovo Krčmar’s command; and one company in Radić, while the witness's unit was deployed opposite to the hill of Hum, across which the II Battalion was supposed to come, but could not get through because Hum was under fire coming from the dominant elevation at Ostružnica above the town, where a Muslim village existed at the time. The witness also stated that, during the first days, Govedarnica with Serbs was under fire, and that he could see from Pendrekovac the Muslim forces holding the position near the relay (communications) tower. Shells were also falling in the area of the Serb settlement of Šujinovac, near the gas station; and the operations were intensified no sooner than the following morning of April 22, even though the TO So BK's activity was also random at the time. As stated above, only on the third day of the conflict, that is, on April 23, did a company from the Sana Brigade come to assist them, and the order to enter the town was issued.

188. It follows from the foregoing that majority Prosecution witnesses think that the attack on Bosanska Krupa was started by the Serb party by mortars of the TO So BK from the hill of Lipik, while the Defense witnesses mostly think that the conflict started with the attack launched by the Muslim units against a number of members of the Serb TO in the gas station area at the town entrance, whereupon fire from infantry and artillery weapons was mutually exchanged.

189. Prosecution witnesses further consider that it was exclusively the attack launched by the Serb forces, while the offered resistance was insignificant and inappropriate as it ended in withdrawal. However, they do not dispute that a response to the fire came from the town itself, and that even prior to the conflict outbreak the Muslim forces had held certain positions and barricades at the town exit.

190. During this short conflict, the TO SoBK had the weapons issued to individuals who had responded to the mobilization recruitment. On the other hand, prior to the conflict outbreak, the TO BK weapons were, under the decision of the R BiH Presidency, given to the Police Station in Bosanska Krupa, because the police reserve force was increased. The Chief of the SJB Bosanska Krupa stated that, at the time, the police had in its

S1 1 K 005207 12 Kžk 7 May 2013

possession a mortar and a recoilless gun as heavy weaponry (which means that the Muslim party also had the artillery weapons within its equipment) and that it was re- subordinated to the Bosanska Krupa Territorial Defense. The foregoing supports Gojko Kličković's testimony in relation to the opposite party artillery weapons.

191. It was uncontested during the proceedings that certain persons had been killed during the conflict, as confirmed by the Corpse Identification Records and the War Presidency Order number 100/92 of 28 April 1992 to transport the corpses from Bosanska Krupa to the cemetery chapel. Considering that the existence of requisite mens rea for the attack on civilians in relation to the possession of direct or indirect intent138 was not proved by the application of standard of proof “beyond a reasonable doubt”, the accused Kličković’s guilt for the killing of Husein Alidžanović aka Buko, Arif Badnjević, Smajo Ćehajić, Rasim Harambašić, Emin Kabiljagić, Ferida Mulalić, Rasim Mulalić, Hilmija Musić aka Hilmo, Suljo Redžić, Mujo Šarić, Mithat Piralić aka Mita and Dževad Velagić under Count 1 of the Amended Indictment could not be proved. The foregoing will be addressed in the part of the Judgment dealing with individual charges. The Panel took into account that the facts concerning the existence of a widespread or systematic attack are interwoven with the individual charges described in Section 1 of the Operative Part of the Judgment.

192. However, before drawing any final conclusion in relation to the existence of the attack in Bosanska Krupa, one should take account of all the relevant facts about which a number of both the Prosecution and the Defense witnesses gave evidence, and who did not contest them.

193. Witness Hašim Đulić, in the capacity of the Chief of the TO Main Staff, controlled a company composed of around 45 men, whose task before the conflict outbreak was to make an incursion into the village of Arapuša and evacuate its Muslim population, because their movement was restricted after an incident in which young Serb boys had been wounded (among whom Nenad Bokan sustained severe injuries). Since they failed in

138 Article 85(3)(a) of Additional Protocol I qualifies grave breaches as the offense “when committed intentionally […] making the civilian population or individuals citizens the object of attack”. In relation to the referenced provisions, para. 3474 of the ICRC Commentary on the Additional Protocols provides as follows: “willfully: the accused must have acted conscientiously and with intent, i.e., with his mind on the act and consequences, and willing them (‘criminal intent) or “malice aforethought’; this encompasses the concepts of “wrongful intent” or “recklessness”, viz., the attitude of an agent who, without being uncertain of a particular result, accepts the possibility of it happening. Also see Appeals Judgment in Galić, para. 140.

S1 1 K 005207 12 Kžk 7 May 2013

realizing this task, witness Hašim Đulić withdrew them on the day of the conflict; thus they arrived in the town at around 18:00 hrs and headed towards the Lamele part of the town, where the Serb forces had also been located.

194. Witness Đulić stated that, on the first day, he succeeded in crossing over to the Una River left bank. On the following day, on 22 April 1992, he tried to enter the town with the reinforcements that had arrived from Cazin. On the occasion, while he was moving from the tunnel direction on the left part of the town (the river left bank), he met members of the reserve force fleeing from the right bank, who told him that “„Krupa had fallen” and the units were therefore withdrawn. After returning to Matinovac on the Una River left bank, where the defense had been organized, members of the Cazin enforcement forces started selectively returning to their homes, and only around twenty of them stayed. On the following day, witness Đulić went with them to the town again because, in his previous contact with the Commander of the TO District Main Staff, he was ordered to defend the Una River left bank wherefore the forces had to be grouped and unified.

195. There were no hostilities on 24 April 1992. Thus witness Đulić, along with the referenced group, crossed over to the right bank (of the Una River) and entered the town. Having arrived in the TO Main Staff, the witness contacted Major Hajrudin Osmanagić, who requested that, in the forthcoming period, the defense be organized by establishing a line at the level of the Hum hill. Shortly thereafter, the witness joined a group of around twenty persons who had been led by Sead Šehić.

196. Based on the testimonies of witnesses Hamdija Kabiljagić, Velić, Jadranko Šaran and other Prosecution witnesses who gave evidence with regard to the fact that the Muslim party was insufficiently armed and poorly coordinated, the Prosecution highlights these facts in order to point to the Serb forces’ superiority in terms of arms. However, even if these allegations were accepted as true, it does not change the essential facts that both parties to the conflict were armed and acted against each other by using fire arms and that on the critical occasion they took part in the armed conflict. The facts that the Serb forces successfully crossed over to the Una River right bank, captured a part of the town of Bosanska Krupa defended by the Muslim forces, and stayed there for a short period of time, and thereupon returned back and strengthened their positions on the Una River left bank, that is, on the territory under their control, or as the Prosecution alleged under control of the self-proclaimed SoBK, can be attributed to the consequences of the armed

S1 1 K 005207 12 Kžk 7 May 2013

conflict, in which crimes were undoubtedly committed, rather than to crimes being planned, as the Prosecution saw it.

197. Nevertheless, in assessing the conclusion as to which party to the conflict was better organized and armed, the Appellate Panel also took into account the fact related to the military success with which the conflict ended. What contributed to the foregoing is certainly the fact that, after two days, a company from Lušci Palanka got involved in the conflict. This was obviously a turning point after which the conflict practically ended on 24 April 2002 (sic!), when members of both this Brigade and the TO SO BK entered the town and when the separation line between the two parties to the conflict was established on the Una River.

198. If the facts that the conflict outbreak was preceded by a tense and complex situation in terms of security due to the previous events (Martić's passing by, the ban on posting Branko Ćopić's bust, the alienation of military personal files register, abandoning of the TO Bosanska Krupa by Serb members, personnel changes within the police composition in favor of Muslims, etc.), that an incident occurred which directly preceded the conflict in the Muslim village of Arapuša in which unprovoked fire was opened against a moving vehicle, wounding young Serb boys on their way back from a coffee bar in the neighboring village; that according to witness Jadranko Šaran a great fear prevailed among both Serbs and Bosniaks139, then all these facts structure the event differently from the perspective offered by the Prosecution, in the way that at least that two qualitatively different conclusions can be drawn from the very same event concerning the beginning of the armed conflict in Bosanska Krupa, namely to which party to the conflict suited to begin the conflict, which necessarily implies the application of the latter premise of the principle of in dubio pro reo also with regard to these factual circumstances. This rule requires that the facts in favor of the accused be taken as proved even when there is likelihood that they exist, namely when there is a doubt into their existence, and even if the existence of the facts to the detriment of the accused is more likely.140

199. The Prosecution argued “the fact that the first shots near the gas station were fired by members of the Muslim party does not in any case justify the attack of the Serb party

139 Main trail record of 20.05.2008. 140 Group of authors, Commentaries on the Criminal Procedure Codes in Bosnia and Herzegovina, Common Project of the Council of Europe and the European Commission, Sarajevo, 2005, p. 50.

S1 1 K 005207 12 Kžk 7 May 2013

that followed during the same afternoon, since the testimonies of the eye-witnesses, the Prosecution witnesses, show that the Serb forces' attack was a planned and coordinated military operation of extraordinary intensity.”141 In support of this theory, in the context of the repeatedly offered theory that “it does not matter who attacked whom first in Bosanska Krupa in the afternoon hours of 21 April 1992”,142 but what matters are the consequences of the attack, the Prosecution first argued that around 50 non-Serbs were arrested and imprisoned,143 while elsewhere alleging that “hundreds of persons were arrested and imprisoned.144 In the Panel's view, the noted inconsistences indicate that this Prosecution's theory in this case has no sufficiently justified grounds.

200. According to the Panel, the state of facts cannot be established on parts of the testimonies that best suit the Prosecution's theory in order to draw arbitrary conclusions lacking the required grounds in the total evidentiary materials contained in the case record. Thus, for example, in relation to the Prosecutor's closing argument assertions about the allegedly “planned and coordinated military operation of extraordinary intensity”, the Prosecution fully disregards the testimonies of both Prosecution and the Defense witnesses, who consistently stated that a general confusion on both the Muslim and the Serb sides prevailed in Bosanska Krupa.

201. To prove the assertion that the attack on Bosanska Krupa was planned in advance, the Prosecution uses the participation of the Lušci Palanka Company in the attack. In this regard, the Panel took into account the testimony of the accused Kličković, who explained how this unit came to be engaged at all. Specifically, this unit came to provide assistance to members of the TO SoBK, which the party preparing an attack would certainly not need because, logically, the attacking party must have a significant military supremacy for which it needs no assistance, at least initially. Besides, members of the TO SoBK would not open fire at members of the company coming from Lušci Palanka to provide assistance to them, had they been informed about them, and they should have been aware of them, had this attack been planned.

202. The Prosecution referred to the testimonies of witnesses Šemsudin Velić, Jadranko Šaran, Sabahudin Mahić, Osman Palić, Sead Komić, Mirsad Suljić, Ejub Topić, Dragan

141 Ibidem, para. 1, p. 9. 142 Ibidem, para. 6, p. 8. 143 Ibidem, para. 3, p. 8. 144 See, ibidem, para. 1. p. 9.

S1 1 K 005207 12 Kžk 7 May 2013

Japundža and Fahrudin Dizdarević. These witnesses consistently testified about the time when the attack against Bosanska Krupa commenced, namely that it started on 21 April 1992, between 17:00hrs and 18:00 hrs. Anyway, this is indisputable for this Panel, as well as the fact that the fire from infantry and artillery weapons was heavy. Contrary to witness A-2, who stated that the shelling was so heavy that he could not hear infantry fire, witness Hašim Đulić testified that the shooting was sporadic and that, in addition to the TO warehouse, there were no other military structures in Bosanska Krupa. Therefore, taking into account the assertion of this Prosecution's witness, one cannot accept the Prosecution’s categorical position that: “[N]o military objects existed in Bosanska Krupa (emphasis added)”145.

203. It ensues from the arguments of the accused Gojko Kličković’s Defense that the Prosecution made a certain inversion by presenting the attack launched by members of the TO BK against the part of settlement on the Una River right bank (which belonged to the SoBK) and which was captured and regained by the units146 of the SoBK and the JNA during the period 23-26 April, as a widespread and systematic attack prepared for a long period of time by the Serb authorities led by the accused Kličković.

204. In his last amended Indictment, the Prosecutor determined the time-frame of the widespread and systematic attack as the period between 21 April and late August 1992. The Prosecution defines such a time-frame in order to represent the scope and nature of the attack, which are the required preconditions in the description of the general essential elements of the criminal offense at issue. Contrary to the foregoing, the Accused's Defense correlated the time of the armed conflict with the period between 21 April and 25 April 1992, that is, with several days only, asserting that, after this time, nothing significant occurred in the territory of Bosanska Krupa municipality other than sporadic shootings and insignificant provocations until this territory was captured by the V Corps of the ARBiH in 1995.

205. Indeed, the veracity of these assertions is corroborated with a review of the order issued by the Commander of the 11th Light Infantry Brigade for Defense, of 3 August 1992 (O-3-79), as well as by the set of regular combat reports by: the Command of the 2nd

145 Prosecution’s closing argument, para. 2, p. 7. 146 Defense closing argument from the trial proceedings, para.1, p. 3.

S1 1 K 005207 12 Kžk 7 May 2013

Krajina Corps of 13 July 1992 (O-3-73), of 15 July 1992 (O-3-71); Command of the 11th Light Infantry Brigade of 13 July 1992.147

206. The issue relating to the determination of the length of the attack by the Serb forces is significant in terms of verification of the Prosecution's theory of whether the attack indeed had the requisite characteristics, beyond a reasonable doubt, in terms of the general (chapeau) elements of crimes against humanity or not.

207. The Appellate Panel has concluded that the ambiguity, or at least a doubt arising from the evidence adduced during the trial in relation to the time frame of a “widespread” or “systematic” attack, as one of its elements represented in the Indictment disposition, should be resolved in favor of the accused.

208. In relation to the theory presented in the Indictment disposition concerning the time span of the widespread and systematic attack, the Prosecution contradicted itself in its closing argument, being led by another reason. Specifically, the Prosecution presented the line of arguments pursuant to which the Serb authorities were obligated to return the evacuated (sic!) Muslim population to their homes, which did not occur after the hostilities ended in late April 1992, since when no major military actions were carried out in the territory of the Bosanska Krupa municipality and its close vicinity, other than occasional shootings across the Una River.148 Therefore, the Prosecution wanted to indicate by the foregoing that the Serb civilian authorities, led by the accused Gojko Kličković, for a short period of time after the completion of the armed activities in the described intensity and the relatively peaceful period of time, were obligated to ensure that the Muslim population return to their homes as provided for in Article 49(3) of the IV Geneva Convention.149 Not only that such Prosecution's theory concerning the length of the hostilities confirms the

147 Exhibits: (O-3-72), of 15.7.1992; (O-3-70), of 29.8.1992; (O-3-67), of 30.8.1992; (O-3-68), of 16.7.1992. (O-3-24), of 17.7. 1992; (O-3-25), of 18.7.1992; (O-3-26), of 19.7.1992; (O-3-27), of 20.7.1992; (O-3-28), of 21.7.1992; (O-3-29), of 22.7.1992; (O-3-35), of 23.7.1992; (O-3-36), of 25.7.1992; (O-3-37), of 30.7.1992; (O-3-38), of 31.7.1992; (O-3-39), of 01.8.1992; (O-3-40), of 02.8.1992; (O-3-41), of 03.8.1992; (O-3-42) and (O-3-43), of 04.8.1992; (O-3-44), of 05.8.1992; (O-3-45), of 06.8.1992; (O-3-46), of 07.8.1992; (O-3-47), of 08.8.1992; (O-3-48), of 09.8.1992; (O-3-45), of 10.8.1992; (O-3-50), of 11.8.1992; (O-3-51), of 12.8.1992; (O-3-52), of 13.8.1992; (O-3-53), of 14.8.1992; (O-3-54), of 15.8.1992; (O-3-55), of 16.8.1992; (O-3-56), of 17.8.1992; (O-3-57), of 18.8.1992; (O-3-58), of 19.8.1992; (O-3-59), of 20.8.1992; (O-3-60), of 21.8.1992; (O-3-61), of 24.8.1992; (O-3-62) of 25.8.1992; (O-3-63), of 26.8.1992; (O-3-64), of 27.8.1992; (O-3-65), of 28.8.1992; (O-3-66). 148 Prosecution of BiH submission No. T20 0 KT RZ 0005033 08 of 08.4.2013, p.25. 149 Paragraph 3 of the referenced Article of the Convention provides that: „Persons thus evacuated shall be transferred back to their homes as soon as hostilities in the area in question have ceased.“ See, page 25 of the Prosecution submission (closing argument).

S1 1 K 005207 12 Kžk 7 May 2013

accused Kličković’s related assertions, but in terms of terminology the Prosecution also used the term which relates to 'evacuation', just as the Accused personally did.

209. The analysis of the Prosecution arguments’ structure in forming its final legal position under the Count of the Indictment related to the forcible transfer of the civilian population shows that it is seriously deficient already at the level of the referent factual basis. In its teleological approach, in order to prove the theory of the existent “widespread” or “systematic” attack, the Prosecution first broadly sets up its time-frame, between 21 April and late August 1992, and thereupon narrows it in the closing argument by alleging that no serious military action existed in the referenced territory since late April 1992. All the foregoing is aimed at proving the Prosecution's theory that the requirements for admissibility of exemptions under Article 49(2) and (3) of the IV Geneva Convention on which the defense of both the accused subsisted were not satisfied.

210. Not only that the Prosecution’s view on these issues is illogical in referrals to such a methodology in the presentation of its theory and in the plan of its arguments presentation, but rather it contradicts, to a large extent, the ultimate effect which compromises both presented theories. Specifically, the starting factual premise for drawing two legal conclusions with different and specific requirements cannot be modified in the way as the Prosecution did.

211. International law does not recognize the requirement that the accused's acts must be based on any form of policy or plan. “The jurisprudence of the Tribunal has established that there is no requirement under customary international law that the attack be connected to a policy or plan.”150 The existence of a plan or policy in evidentiary/probative terms can be relevant to the requirement of the existence of a widespread or systematic attack and the requirement of the accused's participation in the attack, but it is not a legal element of the referenced criminal offense.151 To this effect, the Prosecution's allegations that, on 25 October 1991, the SDS Municipal Board in Bosanska Krupa made crucial steps in the establishment of its own Serb municipality; that the SDS Municipal Board with Gojko Kličković as its Vice-president, issued a Decision establishing the Provisional Assembly of the Serb People as the highest authority in the territory controlled by Serbs (Prosecution

150 Trial Judgment in Galić, para. 147. 151 Appeals Judgment in Kunarac, paras. 98-101; Trial Judgment in Simić, para. 44; Appeals Judgment in Blaškić, para. 120.

S1 1 K 005207 12 Kžk 7 May 2013

Exhibit DT-67), that is, prior to the war outbreak in Bosnia and Herzegovina, and thereby in Bosanska Krupa as well, remain just legal and political documents belonging to the sphere of politics, and they per se do not constitute any general/essential element of the criminal offense of Crimes against Humanity. Therefore, in the concrete case, there is no time nexus between the political decisions issuance and the legal documents pertaining to the SoBK establishment with the commencement of armed activities of the Serb forces in the territory of the Bosanska Krupa municipality, nor was the purpose of such attack to effectuate that goal, all in order to persecute the Muslim population, as the Prosecution alleged, needed at all for the SoBK establishment since it had already been established at the time of peace in the territory where the majority Serb population had already been present. These are the objective circumstances in the field; in and of themselves, they deny the existence of mens rea on the part of the accused for the existence of persecution of non-Serb population.

212. The foregoing also refers to the Prosecution's referral to the Decision proclaiming the territory where the Serbs had lived, and those which belonged to the Serb people “as the state territory of the Serb people in Bosanska Krupa” (DT-68); the referendum organized for the SoBK establishment in early November 1991 (where only the Serbs who had voted for the establishment of the SoBK) took part, or with joining the SoBK to the Autonomous Region of Krajina (ARK) by the Assembly of the Serb People in BiH (Exhibit T-193).

213. In addition, knowledge on the part of the accused that there is an attack on the civilian population, as well as his knowledge that his act is a part thereof152 is required in relation to the applicable mens rea.

214. In analyzing the Prosecutor's theory, the Appellate Panel has first addressed the part thereof where the Prosecutor argues that Gojko Kličković personally organized the infantry and artillery attack on the non-Serb population as well as the unlawful confinement of able-bodied Bosniaks and Croats at the detention facilities in the Bosanska Krupa Municipality. On the other hand, the Panel also took into account the Defense's theory, that the outbreak of armed conflict was a natural result of the cumulative events which had

152 Prosecutor v. Zoran Kupreškić, Marjan Kupreškić, Vlatko Kupreškić, Drago Josipović, Dragan Papić and Vladimir Šantić (aka Vlado), case number IT-95-16-T, Judgment, 14 January 2000 (hereinafter: Trial Judgment in Kupreškić), para. 556; Appeals Judgment in Blaškić, para. 126; Trial Judgment in Kunarac, para. 434; Appeals Judgment in Kunarac, para. 102.

S1 1 K 005207 12 Kžk 7 May 2013

been continually occurring before and which culminated in the armed conflict153 between the two opposing and participating parties, as well as a response to the fire opened by the Muslim party. It is obvious from the Prosecution’s closing argument (p. 11, third paragraph) that: “[T]he attack was launched by the local Serbs, assisted by members of the former JNA from Lušci Palanka”. Many Defense witnesses, including Đorđe Jež, testified that those were local Serbs, who had stayed at the site where the conflict broke out in order to defend their houses. Witness Jež testified about a spontaneous organization of inhabitants in village guards rather than in any military formation, not for the purpose of any attack, as the Prosecution alleged, but rather for the purpose of defending themselves. By referring to this evidence, even if it just appears as probable, the Panel cannot draw decisive conclusions about the systematic or organized, or at the very least planned attack.

215. In view of the presented evidence in relation to the questions: (i) which opposing party started the attack first, and (ii) did the accused Gojko Kličković, along with Mladen Drljača, take any activities which would objectively form part of the attack, the Panel found no positive answer by which any reasonable doubt would be excluded along this line. In other words, in the concrete case, the Panel acted in accordance with the principle of favor rei, namely that if there are convincing differences in the interpretation of the application of not only a legal position but of the standards for evidence evaluation, the position most in favor of the accused should be adopted.154

216. Faced with difficulties in proving its allegations along this line, the Prosecution itself argued in its closing argument that: “[I]t does not matter who attacked whom first in Bosanska Krupa on 21 April 1992 in the afternoon hours”155 but rather just the consequences of the attack, described in more detail in the Indictment disposition.

217. The Accused’s Defense justifiably objected to this Prosecution’s position without diminishing the significant gravity of the resulting consequences by pointing to the significance of understanding of the issue of which party to the conflict started the conflict and when, from different aspects of view. Thus, the Defense pointed to the significance of

153 These events are chronologically presented within the contextual basis of the armed conflict outbreak in Bosanska Krupa, see Chapter herein. 154 Thus, e.g. the US Military Tribunal seated in Nuremberg, in Flik et al., took a position that, inter alia, it will be led by the standard pursuant to which it shall „decide in favor of innocence - if two reasonable conclusions cannot be drawn from reliable evidence – on guilt and on innocence.“ The referenced Tribunal accepted this principle in Krauch and others (I/.G.Farben case)(§ 1108). See, Antonio Cassese, International Criminal Law, Belgrade Center for Human Rights, 2005 p. 181.

S1 1 K 005207 12 Kžk 7 May 2013

this issue bearing in mind certain general substantive and legal instruments in the criminal law, such as the issue of necessary defense, exceeding the necessary defense, intentional action, causal nexus, etc., so as to be able to evaluate to which extent each party to the conflict contributed to the consequences caused. Ultimately, the Defense withdrew its argument pursuant to which the issue of which party first commenced the attack is significant for the overall understanding of the causes and the consequences.

218. To this effect, the Defense submitted that the Indictment fully disregarded the documents adopted by the Muslim party, both the political ones concerning the plan of secession from the former SFRY and the practical/direct ones at the local level, namely the increased number of reserve police members in the Bosanska Krupa municipality, “the activities of the Patriotic League and Green Berets“,156 which was undisputed during the proceedings, the existence of captured and imprisoned Serbs, both civilians and soldiers, in Cazin and other places on the Muslim side, the existence of casualties/victims on the Serb side, and of Serb refugees too.157 Truly, in its closing argument, the Defense recognized that the subjects of these proceedings are neither direct and/or political activities at the Republic level, nor the issues concerning the actors in the attack on the constitutional-legal order of the SFRY and BiH on the eve of the war,158 but that the chronology of the above described events clearly showed the preparations for armed combat which cannot be attributed only (emphasis added) to the Serb party to the conflict in relation to the concrete situation in the Bosanska Krupa municipality, although the Indictment did exactly that.

219. As the Trial Panel did in relation to the foregoing circumstances, the Appellate Panel also accepted as proved the facts adjudicated in the ICTY final Judgments in Prosecutor v. Radoslav Brđanin159 and Prosecutor v. Milorad Stakić160, as stated in para. 19161 which, inter alia, read as follows: “[M]uslims were also preparing for the war and arming themselves. In June 1991, SDA leaders formed the Council for National Defense of the Muslim Nation” with Patriotic League as its paramilitary arm. However, the Bosnian

155 Id., p. 8. 156 Defense Exhibits O-1-303 through O-1-311 (tertiary evidence, newspaper articles, extracts from books). 157 See, Defense closing argument, Trbojević D. Milan, defense attorney for the accused Mladen Drljača, 15.4.2013, p. 8-9. 158 Defense closing argument, p. 7. 159 Case number IT-99-36-T of 1. September 2004. 160 Case number IT-97-24-T of 31. July 2003.

S1 1 K 005207 12 Kžk 7 May 2013

Muslims’ efforts to procure and distribute weapons were nowhere near as successful as those of the Bosnian Serbs, both in terms of the number and quality of the obtained weapons. (...)” (para. 89 in Brđanin).

220. Sufficient evidence was presented so that, already at this level of the Prosecution’s theory about the existent widespread and systematic attack launched by the Serb forces and the role of the accused persons presented in the Indictment, two different conclusions can be drawn in relation to the decisive fact concerning the conflict outbreak162. This is relevant for the verification of the accuracy of the Prosecutor’s theory that the Serb authorities had prepared and planned the attack; and for the application of the principle of in dubio pro reo163 in the concrete case.

221. In assessing the referenced Defense’s arguments, the Appellate Panel took into account Article 280 (Correspondence between the Verdict and Charges) of the CPC BiH which concerns the subjective connection and objective identity between the judgment and the indictment. This Panel, however, recalls Article 14(2) (Equality of Arms) of the CPC which provides that the Court, the Prosecutor and other bodies participating in the proceedings are “bound to objectively study and establish with equal attention facts that are exculpatory as well as inculpatory for the suspect or the accused.” Therefore, in considering the factual event presented in the Indictment disposition, the Appellate Panel was mindful of the judgment connection with the subject of charges, but also equally took into account the fact that the de-contextualization of the charged events, seemingly the Prosecution’s approach, would mean achieving exactly the effect to which the Defense pointed by arguing that: “The Indictment fully ignores the activities and the other parties to the conflict, from the preparations to the effects and result, and thus the actions of the

161 See, IX. Annex 1 – Procedural Decisions, A. Decision of the Court of BiH to Accept Adjudicated Facts, number X-KR-06/213 of 28.12. 2010 in Gojko Kličković et al. 162 It is considered that the presumption of innocence does not refer to guilt only but rather to all other elements mutually correlated in the notion of crime (the act of commission, unlawfulness or punishability). Pursuant to the ECHR judgments (e.g. Saunders v. Great Britain, 1996, Report 1996-IV, Barbera, Messague and Jabardo vs. Spain, 1988, Serie A, No. 146), the consequence of the presumption of innocence is, inter alia, that the accused need not prove his/her innocence and that the burden of proof is on the opposite party, i.s. the prosecutor (lat. Probandi necessitas incubit illi, qui agit), and – the court must render an acquitting judgment not only when it is satisfied that the accused is innocent, but also in the situation when it is not satisfied with either his guilt or innocence. 163 As the Appeals Chamber in Delalić et al. noted: „It is not sufficient that it is a reasonable conclusion available from that evidence. It must be the only reasonable conclusion available. If there is another conclusion which is also reasonably open from that evidence, and which is consistent with the innocence of the accused, he must be acquitted.“ Prosecutor v. Delalić et al., IT-96-21-A, Appeals Chamber Judgment, 20 February 2001, para. 458.

S1 1 K 005207 12 Kžk 7 May 2013

Serb party appear criminal as if nothing caused them, with no causes whatsoever, which obviously suits neither the realistic state of facts nor the large body of evidence in the case record.”164

4. Final conclusion of the Appellate Panel on the existence of widespread or systematic attack

222. In view of the foregoing, the Appellate Panel has held that, in relation to the circumstances of a widespread or systematic attack constituting the general elements of crimes against humanity, the principle of in dubio pro reo should apply considering that, besides the Prosecutor’s version of the events which provided a positive response in relation to this question and the events interpretation, equally enables the drawing of another reasonable conclusion, as offered by the Defense, pursuant to which the presented evidence does not indicate that the factors, individually or in correlation, satisfy the requirements for the existence of an attack with the described characteristics. What the Prosecution could at best prove is the existence of the armed attack launched by the Serb military and police. Since the concept of armed conflict differs from the concept of widespread and systematic attack, the existence of a widespread or systematic attack was not proved beyond a reasonable doubt as a general element of the criminal offense at issue. The Appellate Panel finds the additional ground for such a conclusion in the fact that the ICTY Appeals Chamber has categorized the attack on Bosanska Krupa as an “incident”.165

B. THE ACCUSED’S ACTS MUST FORM PART OF THE ATTACK

223. The requirement for the existence of crimes against humanity is of objective nature. A separate requirement, that the perpetrator must be aware that his actions form part of the attack (mens rea), is connected with it.

224. None of the Prosecution or the Defense witnesses (almost 170 witnesses in total), saw, heard or met the accused participating in the acts of plundering, setting fire and

164 Id., str. 9. 165 ICTY, case number IT-99-36-A, Prosecutor v. Radoslav Brđanin, Appeals Chamber, Judgment, 3 April 2007, para. 327, in the relevant part reads as follows: „[...] As the attack on the town of Bosanska Krupa occurred on 22 April 1992, the Trial Chamber erred in listing this incident among the acts of wanton destruction of cities, towns and villages, it considered for Brđanin's conviction (emphasis added).“

S1 1 K 005207 12 Kžk 7 May 2013

killing.166 Also, no piece of evidence, testimonial or documentary, indicated the accused Gojko Kličković as a participant in the limited conflict which occurred at around 18:00 hrs on 21 April 1992, in the part of the local community of Bosanska Krupa-Centar on the Una River right bank. On the contrary, it was determined based on the available evidence that the referenced accused had left the town of Bosanska Krupa in the morning hours of 21 April 1992 and headed towards the Podgrmeč villages. That the credibility of the accused Kličković’s testimony in relation to this fact is only probable, which in and of itself suffices for the application of standard of proof for the assertions in favor of the Accused in case of doubt, shows the fact that none of the examined witnesses indeed saw the accused moving around the town during the conflict, or being physically present at the places where the acts, which are the subject of individual charges, occurred. This is certainly a significant factual circumstance for the application of the principle of in dubio pro reo when it comes to the proving of his mens rea in relation to the lack of requirement that the accused’s acts must form part of the attack.

225. Thus, the Prosecution did not prove beyond a doubt that the accused wanted, or at the very least consented to the furtherance of the alleged criminal design aimed at persecution of the non-Serb population from the territory of the self-proclaimed SoBK on national and religious grounds. The Panel has no dilemmas with regard to the onset of severe consequences, factually presented in the individual charges, but could not find the accused’s guilt proved beyond a reasonable doubt in the way as the Prosecution charged them. Therefore, their subsequent activities, after the SoBK establishment, did not constitute the subject of the indictment for the Panel to become satisfied that both the accused acted in furtherance of the criminal design.

226. Accordingly, the Prosecution did not prove that the accused Kličković (which mutatis mutandis applies to the accused Drljača) had taken such acts which would constitute part of the attack from the aspect of both their actus reus and mens rea.

227. The accused’s membership in the SDS or their political activity, on which the Indictment persisted in its dispositive factual description, is not a constituent element of crimes against humanity. If the Prosecutor possibly intended to use the accused’s

166 Thus, e.g., witness Hamdija Balkić stated, in his testimony of 18.8.2008, that he had heard several times about the accused Kličković but that he had never seen him. The witness did not hear that Kličković organized any expulsion of Muslims from the Bosanska Krupa territory. Protected witness A5 testified similarly during cross-examination at the hearing held on 19.8.2008.

S1 1 K 005207 12 Kžk 7 May 2013

membership in that political organization to help him prove the criminal offense at issue, he should have adduced evidence which would point to that missing link.

C. THE ATTACK MUST BE DIRECTED AGAINST ANY CIVILIAN POPULATION

228. This Panel did not conclude that the requirement, that a civilian population be the primary objective of a widespread and systematic attack, in the concrete case the non- Serb civilian population in the town of Bosanska Krupa, was proved beyond a reasonable doubt. The Panel took into account the undisputed fact that the casualties resulted from the artillery attack launched by the Serb forces were civilians - twelve victims, and that civilians were also victims of other charged acts. However, the Panel also took into account the fact proved by many testimonies, namely that the civilian population of Bosanska Krupa had mostly abandoned the town just before the armed conflict outbreak. In the light of this fact, the requirement that the civilian population be the primary objective of the attack was not satisfied beyond a reasonable doubt. The Panel starts from the fact that the civilian population, as an objective/target of the attack, should be viewed from the aspect of its wholeness rather than just be exclusively subsumed to its victims. Ultimately, the Panel comprehensively addressed this issue in the part (of the Judgment) concerning the existence of the very attack, that is, the armed conflict outbreak in Bosanska Krupa.

D. DISCRIMINATORY INTENT AND PERSECUTION

229. Pursuant to its statutory definition, the criminal offense of Crimes against Humanity – Persecution includes:

1) the intentional and severe deprivation of fundamental rights; 2) contrary to international law; 3) by reason of the identity of a group or collectivity; 4) against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious or sexual gender or other grounds that are universally recognized as impermissible under international law; and 5) in connection with any offence listed in this paragraph of this Code, any offence listed in this Code or any offence falling under the competence of the Court of Bosnia and Herzegovina.

230. The indictment stated, in its introductory and general parts, that, in furtherance of

S1 1 K 005207 12 Kžk 7 May 2013

common purpose to persecute the non-Serb civilian population, the accused Kličković “planned and ordered persecution of the civilian non-Serb population” from the territory of the self-proclaimed SoBK, and that the accused Drljača, by his acts taken in furtherance of the same design, took part in the persecution. In examining these allegations, the Appellate Panel was mindful of the following allegation in the Prosecution’s closing argument: “[T]ruly, there is no written order to attack the town of Bosanska Krupa”167, while immediately thereafter the Prosecution draws the conclusion that the attack on the town was planned, on the basis of the fact of existent order of the SoBK War Presidency to cease war activity, number 29/92 of 25 April 1992, ordering, inter alia, the TO SoBK units to stay and entrench at the captured position until further orders (Exhibit T-105).

231. Anyway, the Prosecutor was under obligation to prove beyond a reasonable doubt that Gojko Kličković planned and ordered persecution of the non-Serb civilian population as indicated in the Indictment disposition. The Appellate Panel notes that a reasonable trier of fact could conclude that the Prosecutor did not do so. Not only that the Prosecutor acknowledges that there is no written order to attack Bosanska Krupa issued by the accused Kličković, but rather his attempt to keep his theory about an existing plan for that attack by referring to the War Presidency order to cease war activities is ungrounded, as already stated, because there is no required nexus between the cessation and commencement of war activities.

232. The Prosecution’s allegation, that the fourth general requirement for the existence of the referenced criminal offense, that is, the existence of the accused Kličković’s and Drljača’s knowledge about a widespread or systematic attack or the existence of their awareness of such an attack, and that their acts formed such an act, was drawn from the facts pertaining to the position the accused held in the SoBK civilian hierarchy, their membership in the SDS, and, in relation to the accused Drljača, also from his function of the President of the Council of the Provisional Military Court in this Municipality, violence against the non-Serb civilian population, and their presence in the places where the crimes occurred (although the Prosecution proved their presence with no piece of evidence whatsoever).

233. To this effect, an indicative example is the setting of Muslim houses on fire on 23 April 1992 in Bosanska Krupa, which acts were charged against the accused Kličković

167 See, Prosecution’s closing argument, number T20 0 KT RZ 0005033 08 of 8 April 2013, p. 21. 96

S1 1 K 005207 12 Kžk 7 May 2013

under Count 1 of the Indictment, and about which multiple Prosecution witnesses gave evidence: Hašim Đulić, Ibrahim Sivić, Šemsudin Velić, Jadranko Šaran, Osman Palić, Adem Balkić, Asim Balkić, Emir Hasić, Mirsad Šabić, and witness A-3. Witness Enver Ezić stated that the Muslim houses had first been identified and thereupon set on fire by inflammable devices thrown through the windows. Witnesses Adem Balkić and Zuhdija Mehić clearly identified a group of Serb soldiers as perpetrators of these offenses, led by Vuk Cimbaljević. However, the Prosecution presented no piece of evidence whatsoever to correlate in any way the accused Kličković with either the perpetrators - who were soldiers over whom this accused had no effective authority or control, or the very criminal offense which was obviously discriminatory (before being set on fire, the houses were identified as Muslim houses).

234. Having analyzed the Prosecution’s evidence in whole, the Appellate Panel noted that the accused in the present case had neither issued any combat orders, no were authorized to do so, and also that, undoubtedly, they did not personally take part in the events of 21 April 1992. Thus, for example, witness PWS-03 resolutely testified that she did not know Gojko Kličković, and that she did not remember seeing him or the accused Mladen Drljača when she was subjected to mistreatment.168 Also, in his statement given in the Prosecutor’s Office during the investigation, witness Hamdija Arnautović stated that he had never seen Gojko Kličković. In addition, it ensues from Miroslav Stanić’s testimony169 that the accused Kličković was abused by many persons and that he did not have all the events under his control; that he was unaware of many ongoing events regardless of the fact that he was the President of the Crisis Staff, because he was frequently absent from the Municipality, and more often present in Banja Luka or Pale rather than in Krupa. In the Panel’s view, this is a reliable witness, who had at the critical time accompanied the accused Kličković and thus could follow his movements. Besides, despite their friendly relationship, the witness disagreed with the accused in many matters. The Panel correlated this witness’s statement, that the accused Kličković was frequently absent from the SoBK, with the objective evidence – the 1993 Report (Exhibit T-183). The analysis of its contents revealed many activities of the Crisis Staff/War Presidency related to the organization of life and procurement of supplies for the SoBK local population, namely the

168 Reproduction of the recording of witness PWS-03's testimony at the hearing before the Appellate Panel of 15.10. 2012. 169 Defense Exhibit O-3-7, Witness Examination Record for Stanić, Prosecutor's Office, dated 17 and 24 /sic-month is missing/ 2008.

S1 1 K 005207 12 Kžk 7 May 2013

supply with fuels, food, maintenance of production, particularly agricultural one, etc.170 at the war time, which certainly required the accused Kličković’s frequent absence. Contrary to the foregoing, the Prosecution unjustifiably reduced this Report only to the Podgrmeč Brigade combat actions.

235. For the foregoing reasons, the Appellate Panel did not accept as proved, beyond a reasonable doubt, the Prosecution’s allegation intended at the proving of the mens rea requirement, which was derived from Gojko Kličković’s alleged continuous presence in Bosanska Krupa.

236. Gojko Kličković testified that, on the critical morning (21 April 1992), between 09:00 hrs and 10:00 hrs, he went to work to Bosanska Krupa, but he gave up this intention after being advised not to go there; thus he went to visit the Podgrmeč villages. Mladen Drljača testified that, on the referenced day, he was at work in the building of the Bosanska Krupa Municipality, and stayed there until 15:00 hrs, whereupon he barely succeeded to get out from the blocked part of town on the Una River right bank; thus it seems logical to ask why would these accused did that and expose themselves to a serious risk if they had planned any attack on Bosanska Krupa or if they had known about it. The Appellate Panel credited their testimony in relation to the referenced factual circumstances because no one brought them in question, and, essentially, their testimonies were consistent with those of the other witnesses who testified about their going to work in Bosanska Krupa on 21 April 1992.171

237. With regard to the convictions for the criminal offense of persecution, the ICTY case law has set up the requirement that: “[...] where the criminal objects consists of crime requiring specific intent, the Prosecution must show not only that the accused shared the common intent to commit the offense underlying [...] but also that he shared with the other joint criminal enterprise members the specific intent required of the crime or underlying offense.”172

170 A set of the Prosecution evidence points to such a finding of facts: Request for financial support to the newly established Municipality of Bosanska Krupa (Exhibits T-92 and T-92a); Order prohibiting the use of fire weapons of 23.12.1991; (Exhibit T-57), Order restricting the work of inns of 32/sic/.12.1991. (T-58), Order prohibiting wood-cutting in forests and unlawful use of forests of 23.12.1991; (T-59), various passing permits (Prosecution Exhibits T 119 – 127); Urgency for securing oil derivate of 28.5.1992, Exhibit T-200); Order to conduct control service with a supporting Report of 13.6.1992 (T-219), etc. 171 For example, testimony of Mićo Kačavenda, Rajko Kličković, Dragomir Luinović and others. 172 Milutinović, Trial Judgment, Vol. 1, para. 109 (emphasis added); see also, Kvočka, Appeals Judgment, para. 110.

S1 1 K 005207 12 Kžk 7 May 2013

238. The evidence adduced in the present case does not support the conclusion that the accused Kličković and Drljača shared with others not only a specific intent to commit offenses underlying the crimes against humanity but also the crime of persecution of the non-Serb civilian population. The Appellate Panel has observed that, pursuant to the case law, the state of mind can be proved by drawing conclusions, but also notes that the conclusion must be the only possible conclusion which can be drawn on the basis of evidence,173 which is not the situation in the present case considering the foregoing.

239. The affirmative statement the Prosecution witness Hamdija Arnautović gave during the investigation regarding the accused Kličković’s role, namely that they had never seen Gojko Kličković, and even more so, his gratitude expressed to the accused: “Hats off to him for saving us; only he saved us”, will be of no assistance to this accused, in the Prosecution’s view, considering Hamdija’s testimony in whole in relation to the relocation of Muslims from the settlement of Zalug, and under whose order it was carried out.174 However, considering that the required element for persecution, as the gravest form of crimes against humanity, is the discriminatory intent on the part of the accused, that is, persecution of victims on political, racial or religious grounds, in addition to this Prosecutorial conclusion another conclusion can be likewise drawn from the same testimony, but in favor of the accused. Pursuant to the latter conclusion, quite the opposite, this accused had no discriminatory intent, even if the general discriminatory character of a wider attack existed, within which the alleged offense of persecution would be committed.175

240. Since the crime of persecution requires the proof for a specific intent to discriminate on political, racial (also ethnic) or religious grounds;176 and that the intent be directed against a group rather than an individual; the status in the case record provided insufficient grounds for a finding of facts pursuant to which mens rea would exist on the part of the accused Kličković and Mladen Drljača, that is “[the] specific intent to cause injury to a

173 Brđanin, Appeals Chamber, para. 429. 174 Prosecution closing argument, p. 24. 175 See, Trial Chamber Judgment in Krnojelac (March 2002), para. 436; Trial Chamber Judgment in Vasiljević (November 2002), para. 249. 176 Appeals Judgment in Kvočka et al., para. 460; Appeals Judgment in Blaškić, para. 165

S1 1 K 005207 12 Kžk 7 May 2013

human being because he belongs to a particular community or group”177 for the commission of persecution.

E. INDIVIDUAL CRIMINAL RESPONSIBILITY

1. Application of the joint criminal enterprise doctrine (JCE) in the present case

241. Within the individual criminal responsibility of the accused Gojko Kličković and Mladen Drljača, the Prosecution refers to the application of the JCE theory implicitly contained in Article 180(1) of the CC BiH, in the way that it specifies178 it in its closing argument in relation to both the accused by charging them with the commission of the basic form of JCE for the charges comprehensively described in Counts 2, 3, 6 and 7 of the Amended Indictment in relation to the accused Kličković, and those described in Counts 4, 5, 6 and 7 in relation to the accused Drljača, while charging the accused Kličković with the commission of offenses under Count 1 based on the third-extended form of JCE.

242. The Appellate Panel took into account the Defense’s contesting the application of the JCE doctrine in the national criminal law, but nevertheless referred to the ICTY jurisprudence, pursuant to which the JCE existed as a mode of individual criminal responsibility in customary international law at the time of the events in the former Yugoslavia.179

243. In compliance with the ICTY’s jurisprudence180, the Appellate Panel primarily notes that the accused must have the requisite intent, since JCE is not an extensible term which would enable the rendering of conviction based on the guilt by association. In addition, the Court can conclude that the accused indeed have the requisite intent only if it is the only reasonable conclusion which can be drawn from the evidence.

244. The Appellate Panel has also held that the other requisites for imposing a conviction on the JCE basis are equally strict, considering that a reasonable trier of fact must conclude that a plurality of persons shared the common criminal plan or purpose;

177 Appeals Judgment in Kordić and Čerkez, para. 111. 178 P. 39 of the Prosecution closing argument. 179 Prosecutor v. Milan Martić, Trial Chamber 1, Judgment (12.06.2007), para. 126; Appeals Judgment in Tadić, para. 226. See also Appeals Judgment in Brđanin, para. 363-365. 180 Brđanin, Appeals Chamber, Judgment, paras. 428-431.

100

S1 1 K 005207 12 Kžk 7 May 2013

that the accused contributed to the execution of the common plan or purpose; and that the common intended crime (that is, the foreseeable crime, for the rendering of convicting judgment based on the JCE third category) occurred indeed.181 Also, it should be demonstrated that there was a plurality of persons that acted together in the implementation of a common goal.182 In addition, the accused’s contribution to the joint criminal enterprise must be substantial.183 The contribution of the accused in the common plan must be characterized.184 The Prosecution must prove beyond a reasonable doubt that the assistance provided by an individual was specifically directed at the commission of certain crimes.185 The ICTY Appeals Chamber in Gotovina et al. decided that the evidence of Tuđman’s speeches and of the Croatian Army and Special Police crimes after the artillery assault on four towns is insufficient to support the finding that the JCE (to persecute the Serb population) existed.186 The finding of facts based on the adduced evidence in the present case does not point to anything similar as in the Gotovina case.

245. To examine the Prosecution allegations in the context of proving of the JCE general scope, on the basis of jurisprudence reflecting the standards adopted in customary international law, the accused can be justifiably found guilty not solely for his own contribution but also for the actions of other participants in the JCE who acted in furtherance of the crime at issue (the first category of JCE), that is, of the offenses which were a foreseeable consequence of the commission of crime if the state of his mind can be qualified as dolus specialis (the third category of JCE).187

246. Before its final conclusion, the Appellate Panel observes that the starting points of the Prosecution’s allegation are too general, even speculative, for proving the accused Kličković’s responsibility for both the basic and the extended modes of JCE. To this effect, in order to prove the existence of effective control the Crisis Staff of the SoBK, and subsequently the SoBK War Presidency, had over the police and the military, the Prosecution tendered into evidence a large number of orders, which will be addressed further below.

181 Appeals Judgment in Tadić, para. 227. 182 Appeals Judgment in Stakić, para. 69. 183 Appeals Judgment in Kvočka et al., para. 97-98. 184 Appeals Judgment in Brđanin, para. 430. 185 Appeals Judgment in Perišić, para. 25-74. 186 Appeals Chamber Judgment in Gotovina and Markač, para. 94.

101

S1 1 K 005207 12 Kžk 7 May 2013

247. During the proceedings, the accused Kličković did not contest that, during the period between 11 December 1991 and 23 December 1991, he was the President of the Municipal Assembly Executive Board and subsequently Chief of the SoBK Crisis Staff, while after the conflict outbreak on 21 April 1992 he became the President of the SoBK War Presidency. Along this line, the accused Kličković considers that these were official governmental bodies formed at the time of crisis and immediate war danger, and that the bodies which at peace times performed the duties of the War Presidency were the Committees for General Peoples Defense and Social Self-Protection, the composition of which was prescribed by the 1984 Law on General Peoples Defense.

248. Thus, for example, in relation to the “political situation”, witness Zdravko Marčeta188 stated that many objections were made to him and the civil authorities with regard to evacuation. Marčeta testified that those critics of the evacuation considered that all Muslims should have been killed rather than placed in comfortable places, or that the evacuation of able-bodied Muslims should not have been allowed. The testimony of the accused Kličković and other witnesses who gave evidence about these circumstances was consistent with that of witness Marčeta.

249. Witness PWS 89189 testified reasonably that the objective of the order to control roads, on which the Prosecution based its position that Kličković had de facto controlled the police (and the military), was to preserve peace and order, that the order had a positive effect because frequent movements of certain persons who intended to cause unrest in the situation of immediate war danger needed to be controlled. The justifiability of such a conclusion is supported with the indisputable fact of presence of paramilitary units such as Suha rebra, Beli orlovi and other units in this territory, which had both tyrannized the non- Serb population and caused trouble to the civilian authorities. The analysis of the foregoing, as well as the other evidence, pointed to the conclusions contrary to those drawn by the Prosecution in charging the accused Kličković.

250. Therefore, the fact is that armed members of the Serb people indeed committed certain criminal offenses in the described area; however this still does not prove, beyond a

187 See supra, para. 410-414. Even more so, para. 97:“[in] practice, the importance of the accused's participation is relevant in order to prove that the accused shared the intent of common purpose furtherance“. 188 Main trial transcript of 09.2.2010. 189 Main trial transcript of 08.7.2008.

102

S1 1 K 005207 12 Kžk 7 May 2013

reasonable doubt, that the perpetrators acted, as the Prosecution argued, under the order issued by the Accused Kličković and Drljača, in accordance with the military doctrine or common criminal design, along with other members of the civilian leadership in chaotic and dynamic conditions of the ongoing war situation.

251. Accordingly, the Appellate Panel does not exclude the possibility that the activities of the accused Kličković and Drljača were aimed at establishing and maintaining the control over the SoBK territory, but rather that the activities of Gojko Kličković, as the President of the Crisis Staff that was subsequently transformed into the War Presidency, and of Mladen Drljača, as a member of these bodies and the President of the Panel of the Provisional Military Court, if exclusively connected with the functions they discharged as the Prosecution intended, were not criminal in and of themselves. To accept the Prosecution’s position would mean to issue a conviction only on the basis of functional (objective) criterion, which is certainly not possible. The War Presidency’s order to cease war activities and the order issued to the TO SoBK units to stay entrenched in the captured positions (DT-105) to which the Prosecution referred, just point to the conclusion that the activities of the accused Kličković and accused Drljača were general in nature190 and that therefore they were not directed at committing individual crimes, as factually presented in the Indictment disposition, in furtherance of the alleged common design or purpose – persecution of the non-Serb civilian population by expelling them within a joint criminal enterprise as a mode of criminal responsibility.

252. Even if the accused, while discharging their respective functions, were indeed involved in financing, providing logistic support, arms, ammunition and other forms of providing support to the forces191 whose members – by taking military operations – also committed war crimes, such evidence in and of itself is insufficient for the conclusion that the accused intended to persecute non-Serbs as the only reasonable conclusion on the basis of the evidence adduced.

190 According to the comprehensive research conducted by the Investigation and Documentation Center in Sarajevo, 4/5 of the Serb victims in BiH were combatants; while on the Bosniak side, almost a half of them were combatants. These figures show that the VRS did take frequent military operations against the opposing party, which does not mean that they were criminal by nature. In this regard, see the article by Bogdan Ivanišević, attorney from Belgrade, http://www.nytimes.com/2013/06/03opinion/global/what- happened-to-the-hague-tribu... 6/17/2013. 191 The War Presidency procured military equipment from the X Corps of the JNA and the 530th Logistics Base of the JNA (Exhibits: T-110, T-111, T-113, T-145 and T-146). The War Presidency provided logistic support to the Podgrmeč Brigade (Prosecution Exhibits: T114, T-115 and T-116).

103

S1 1 K 005207 12 Kžk 7 May 2013

253. Also, the conclusion on the accused’s alleged participation in the JCE crucially depended on their mental relationship towards the crimes, or their mens rea. In order for an individual to be a participant in JCE, he must have intent to commit a crime, which constitutes the purpose of joint criminal enterprise (it is usually the case with the crime charged against the accused, such as in the present case). It is insufficient for the Court’s conclusion that the accused participated in the JCE that the accused thought that there is a realistic possibility (likelihood) that the crime would be committed (although no related evidence exists). The ICTY’s legal rule concerning a JCE, also followed by this Court, is that the Prosecutor must prove beyond a reasonable doubt that the accused shared the common intent with other participants in the JCE to commit crimes.

254. As stated above, a review of the substance of the unsigned War Presidency Report revealed many other activities of this body related to the civilian organization and functioning of the life and work of citizens in the SoBK in war conditions, which were much more addressed than the description of purely military and defense tasks. This, in fact, shows that the War Presidency, led by the accused Kličković, had no direct or particularly operative activity, or any effect on the activities of the military or military bodies; namely the foregoing factually corroborates the conclusion that the War Presidency performed the activities within its powers vested upon it by laws and by-laws, as well as by the SoBK Statute.

255. Subordinated units were under the command of the Supreme Command through the Main Staffs. Therefore, the civilian authorities of the ARK and the municipalities (emphasis added) had no competences over the armed forces, de iure or de facto (para. 216).192 (Thus, in footnote 574: See, Osman Selak, T. 13540-13543; Muharem Murselović, T-12292; BT-79, T-11575-11576 (closed session). The Municipal and regional political leaders could not give any orders to military units or direct the military units’ policy. The only civilian body which could create policy and give orders was the Supreme Commander of Republika Srpska: Osman Selak, T-13262-13263.). Witness Zdravko Marčeta confirmed that certain disputes existed in the SoBK between the Command and the War Presidency concerning the planning, organization and coordination at both the political and strategic levels.

192 See, Exhibit O-ICTY, case No. IT-99-36-T, Prosecutor v. Brđanin, Judgment (1 September 2004), para. 216.

104

S1 1 K 005207 12 Kžk 7 May 2013

256. The Prosecutor argued, in his closing argument, that the activities of the military authorities were directed at interfering with the civilian authorities’ competences, rather than vice versa, as obvious from the Prosecution documentary Exhibit DT-283 or Milan Vojinović’s logbook. In his official note dated 8 May 1992 made in relation to the discussion on the role of the civil and military police concerning the prisoners, he cited the statement of Colonel Vukašin Daničić that the military and civil police were separated; while Slobodan Majkić’s statement showed that the police had no connection with soldiers and military prisoners. Also, several official notes from this document concern conflicts that existed during Daničić’s term of office between civilians and the military regarding their respective powers, whereupon it was concluded that the SDS led the politics193 and implemented it through the War Presidency; that the Brigade received a letter requesting it to return the files and the seals, as well as the other letter requesting it not to interfere with the civilian authorities.194 In addition to this proof, the Panel took into account the contents of the War Presidency’s strong warning letter signed by President Gojko Kličković sent to the Command of the 11th Brigade (Prosecution Exhibit T-199) indicating that any militarization related to the management of economic and natural resources, that is, any interference of certain Command sectors with the civilian sector, would be prevented. This evidence contests the Prosecution’s allegation from the closing argument that the relations between the civilian and the military authorities were fair and coordinated.

257. Orders of the War Presidency were also admitted in evidence, among which the Order to destroy bridges, number: 22/92 of 24 April 1992 sent to the Command of the I Krajina Brigade, was the most disputable.

258. Witness Milan Štrbac, the then Brigade Commander, confirmed that he had not acted in compliance with the order: The witness thinks that the bridges were destroyed no sooner than Colonel Daničić’s arrival. Witness Štrbac considers that the referenced order was a sort of cover for the civilian authorities, because those were strategic questions falling under the exclusive military competences. Along this line, the Panel has noted that the next paragraph of the same Order stated that „the Command is authorized to postpone the execution of the Order, provided it estimates the relevance and the effects of the

193 It has been established in the International Tribunal’s jurisprudence that there is no requirement in customary international law „that an attack be connected with a policy or intent. “ ICTY. Trial Judgment in Galić, para. 147. 194 (See, item 10, on page 6 of the original log transcription).

105

S1 1 K 005207 12 Kžk 7 May 2013

destruction primarily from the military point of view.” Colonel Daničić, who also saw the referenced Order after his arrival, considered it as a proposal, based on the former war plans, and emphasized that the final decision on such issues is of the military nature and exclusively within the Brigade Commander’s domain.

259. As to the Prosecution’s allegation, that even before the official establishment of the SoBK Crisis Staff, the accused Gojko Kličković in his capacity of the Commander of the SoBK Crisis Staff had issued an order prohibiting the use of fire arms in the SoBK territory, the execution of which was entrusted to the SJB division Jasenica (Exhibit DT-57), and that in the same capacity he also issued: the Order for permanent duty of the Brigade, Battalion Commander, and TO commanders on the Crisis Staff premises of 5 April 1992 (Exhibit DT-97); Order on TO general recruitment (Exhibits DT-98 and DT-99); Order on partial evacuation of the Serb Municipality of Bosanska Krupa (Exhibit DT-3), it is sufficient to state that these Orders pertain to the period not covered by the last Amended Indictment, that is, the period between 21 April and late August 1992. Therefore, the requirement concerning the time of the crime commission as the general underlying element of the criminal offense under Article 22 of the CC BiH, was not satisfied.

260. The foregoing also applies to the other Orders, namely the Order limiting the working hours of coffee bars, number 4/91 of 23 December 1991 (Exhibit DT-57), and the Order prohibiting the felling and illegal use of forests, number: 5/91 of 23 December 1991 (Exhibit DT-58), etc., which is the evidence presented by the Prosecution to prove that the accused Kličković had effective authority and influence. In this Panel’s view, not only that these orders were dated beyond the charged period, but also constituted regular and prescribed activities falling under the competences of the War Presidency.

261. The Appellate Panel also took into account that the Crisis Staff, and subsequently the War Presidency, were collective bodies with the competencies comprehensively defined in the consolidated legal and other regulations of the former common state, the role of which was to coordinate, control and direct all actors in the Municipal bodies at the time of crisis, and to overcome such a situation in the shortest period possible and return all powers to the elected Municipal bodies. The Crisis Staff adopted its decisions, conclusions and evaluations at plenary sessions, and they were signed by its leader on behalf of the Crisis Staff. This body was not structured pursuant to the staff organization principles; this means that they neither had nor could have had any command

106

S1 1 K 005207 12 Kžk 7 May 2013

responsibility over any organ, institution, body or unit in the Municipality.195

262. Along this line, the Appellate Panel draws a general conclusion that the state of evidence in the present case does not point to the applicability of the conclusions drawn by the ICTY Appeals Chamber in Brđanin regarding the responsibilities and the leading role of the ARK Crisis Staff and its decisions attributed to Brđanin,196 in relation to the role of the SoBK Crisis Staff in the events in Bosanska Krupa in this case, particularly not with regard to the responsibilities of the Crisis Staff/War Presidency of the SoBK over the military and police, and accordingly neither to the role of the accused Kličković, as the President of the Crisis Staff/War Presidency, nor of the accused Drljača, as a member thereof. The Prosecution in the present case presented no piece of evidence proving that the accused were at the sessions of the War Presidency presented with any report or at least information on the crimes committed in the field, based on which they would have gained any related comprehensive knowledge/information.

263. That the foregoing is correct shows the admission of the Prosecution’s representative pursuant to which Gojko Kličković had neither physically killed any civilian nor committed any other criminal offenses described in the Indictment (which is indisputable because none of many witnesses and/or injured parties saw him on the critical sites). However, unable to attribute the criminal responsibility to the accused Kličković or the accused Mladen Drljača in connection with co-perpetration as a form of commission of crime, because the evidence adduced during the trial before the Appellate Panel simply does not point to anything like that,197 the Prosecution made efforts to do so by referring to the facts pertaining to the functions discharged by the accused, the presence of the units which took part in the attack, the activities taken with regard to the mobilization of the police and the TO, the political climate prior to the conflict and their

195 See, Expert analysis by Dr. Radovan Radinović „The Managerial Competence of Gojko Kličković“ – Conclusions, para. 300, p.103. (Exhibit O-1-374). The Appellate Panel observes that this view presented in the Expert Analysis Report is not included in the Prosecution of BiH's objection (the Proposal to contest the opinion of the Defense expert witness Radovan Radinović and to exempt his report – DO: 452, of 09. 11.2009), such as the case with the views specified in the third paragraph, on page 7, namely that they were ill-grounded and unsupported, and as such, subject to exemption. 196 Case number IT-99-36-A, Prosecutor v. Brđanin, Appeals Chamber, Judgment (3 April 2007), p. 14- 54. 197 In its closing argument of 15.4.2013, the Defense concluded the following: „As to the Indictment’s legal qualifications, we consider that it is sufficiently clear that there is no evidence proving that the accused Gojko Kličković and Mladen Drljača, together or individually, persecuted, killed, forcibly removed, unlawfully deprived of liberty, tortured or sexually abused any person whatsoever, namely that there is no evidence proving that they indeed committed the criminal offense of Crimes against Humanity under Article 172(1) of the CC BiH“, p. 41.

107

S1 1 K 005207 12 Kžk 7 May 2013

hitherto experience, by attributing intent to them pursuant to the basic mode of JCE, except in Count 1, under which the accused Kličković could anticipate and take into account that the attack would result in the killings and other criminal offenses described in the referenced Count, which will be addressed further below.

264. In response to the Prosecutor’s question relating to the above referenced Report on the Work of the Municipal Assembly and the War Presidency during the period between 1 January 1992 and 24 April 1993, Gojko Kličković testified that the Report concerns the activities of the collective body rather than his individual work, or the work of any other individual. As the first democratically elected President, Kličković was under obligation, pursuant to the Statute, to put this Report on the agenda at least once a year. This Report included the work of not only the Assembly and the President, but also the work of other institutions, bodies and public companies functioning in the municipal territory. According to Kličković, the Report satisfied the obligations ensuing from the law and the Statute, and it covered all the events that had occurred over the referenced period, including the conflict on the Una River banks, the evacuation and exchange of the population; that the terminology used in the Report was not the matter of propaganda but rather the then common political terminology used by the delegates, on which he had no influence and which did not express his personal views.198 According to the Appellate Panel, these arguments from the Accused’s testimony appear logical and acceptable. The referenced testimony was supported by the expert evaluations made in relation to the competences/responsibilities ensuing from the statutory and other normative acts,199 and their substance review. In view of the foregoing, the Panel cannot draw the conclusion, beyond a reasonable doubt, that the decisions of the referenced organs were also the decisions of the accused Kličković personally.200

265. With regard to the responsibility under the third-extended mode of JCE, the Prosecution argues that, even though the accused Gojko Kličković did not physically murder any civilian or committed any other criminal offense described under Count 1 of the Amended Indictment, he should have predicted those murders and other criminal offenses given all those circumstances, that he was prepared for the risk that the innocent non-Serb

198 Main trial transcript of 21.04.2009, during the first instance proceedings, pp. 5 and 6. 199 See, the evaluation of Dorothee Hanson’s expert opinion, pp. 40 and 41 of the Defense’s submission and para. 21 of the Trial Judgment. 200 See, the Statute of the SoBK; the expert opinion of expert witness Dr. Radinović.

108

S1 1 K 005207 12 Kžk 7 May 2013

population could be killed and houses and religious objects destroyed, and that he accepted that possibility.

266. In order to accept such Prosecution’s theory as true, the Prosecution first had to prove that the accused Gojko Kličković had de iure or at least de facto effective control and influence over the direct perpetrators of the crimes committed, which was not done in the concrete case. Specifically, the Prosecution did not prove beyond a reasonable doubt the allegations from the Indictment, that “given the objective of the attack, his position as the Commander of the Crisis Staff and subsequently of the War Presidency, the activities concerning the police and TO recruitment, the existing political climate, his hitherto experiences from the other municipalities and the presence of the units which took part in such an attack, the accused could have predicted [the] killings and other criminal offenses specified in Count 1 of the Indictment.” This is particularly so because the Prosecution offered no evidence whatsoever which would beyond any doubt points to any connection between the accused and the perpetrators of the described crimes in a strictly hierarchical chain of command and subordination of members of the military and police, on whom this accused had no influence. It was insufficient to draw any conclusion by way of analogy exclusively from the Order to cease war activities issued by the SoBK War Presidency that thereby also existed an order to commence war activities, on the basis of which the conclusion on the Accused’s intent to launch the attack and accordingly the foreseeability of the prohibited consequences occurrence would be drawn.

267. Accordingly, the Appellate Panel has held that the adduced evidence presents insufficient grounds for the application of the JCE doctrine in this case in order to use such evidence as a basis for rendering a conviction beyond a reasonable doubt for both the accused.

F. INDIVIDUAL CHARGES UNDERLYING THE CRIMES

268. The next requirement, which must be satisfied in order to find an individual guilty of the commission of the criminal offense under Article 172(1) of the CC BiH by persecution, is that the elements of individual charges listed in Sub-paragraphs a) through k) of the referenced Paragraph are satisfied by any criminal offense prescribed under this Code or any other criminal offense falling under the jurisdiction of the Court of BiH.

269. In examining the grounds of certain actions and the facts charged against the 109

S1 1 K 005207 12 Kžk 7 May 2013

accused Gojko Kličković and Mladen Drljača, the Panel has started from the definitions that:

- murder means depriving other individual of his/her life;

- deportation or forcible transfer of population means forced displacement of the persons concerned by expulsion or other coercive acts from the territory in which they are lawfully present, without grounds permitted under international law;

- unlawful imprisonment and detention mean severe deprivation of physical liberty in violation of fundamental rules of international law;

- persecution means the intentional and severe deprivation of fundamental rights, in violation of international law, by reason of the identity of a group or collectivity;

- other inhumane acts of a similar character, committed with the intent to cause great suffering or serious injury to body or to physical or mental health;

- bombardment, by whatever means, of undefended cities, villages, residences or buildings, confiscation, destruction or deliberate damaging of establishments intended for religious purposes, and plundering and looting public and private property in violation of the provisions of humanitarian law (the criminal charges contained in Article 173 of the CC BiH).

1. General considerations

270. The last Amended Indictment charged the accused Kličković and Drljača that, as the knowing participants in the JCE (basic form, except in Count 1 of the Indictment which charged the accused Kličković with participation based on the so called extended form of JCE), they persecuted the non-Serb population on ethnic and religious grounds, namely: the accused Kličković by murder, bombardment, by whatever means, of undefended cities, villages, residences or buildings, confiscation, destruction or deliberate damaging of establishments intended for religious purposes, and plundering and looting public and private property, forcible removal of the population, imprisonment and other severe deprivation of physical liberty in violation of the principal rules of international law, other inhumane acts of a similar character, and the accused Drljača by forcible removal of the population, imprisonment and other severe deprivation of physical liberty in violation of the principal rules of international law, other inhumane acts of a similar character, whereby they committed the criminal offense of Crimes against Humanity.

110

S1 1 K 005207 12 Kžk 7 May 2013

271. During the proceedings at issue, the accused’s Defense did not contest that the crimes were committed in Bosanska Krupa, but rather the participation and the guilt of the accused. The accused did not contest their respective capacity during the charged period. Thus, before the conflict outset, the accused Gojko Kličković was the President of the Executive Board of the Bosanska Krupa Municipal Assembly, and after the conflict outset and the subsequent establishment of the Crisis Staff, he became its Commander, and, ultimately, the President of the SoBK War Presidency. On the other hand, pursuant to the witnesses’ testimonies, the accused Mladen Drljača was a member of the SoBK Crisis Staff, subsequently the War Presidency, and at the same time discharged the function of the President of the Provisional Military Court Panel and a member of the Commission for the Exchange of War Prisoners.

272. Based on the totality of the offered evidence, the Appellate Panel had no dilemma that the events at issue indeed occurred in the way as factually described in the Indictment, or any dilemma regarding the consequences thus caused. However, the Panel could not establish with the required certainty the accused’s guilt in the way as presented by the Prosecution, or, more specifically, that the accused Kličković planned and ordered that persecution be carried out by the criminal acts at issue, and that the accused Drljača took part in the unlawful imprisonment and forcible removal of the non-Serb civilian population. This is all the more so because the participation of the accused must be correlated with their mode of responsibility, namely that they acted in the referenced criminal charges as knowing participants in the JCE, which was not proved in the concrete case (see the explanation regarding the individual criminal responsibility).

2. The accused Gojko Kličković (Count 1 of the Indictment)

(a) Persecution – by murder, bombardment by whatever means of undefended cities, villages, residences or buildings, plunder and destruction of establishments intended for religious needs and private property looting

273. With regard to the allegations under Count 1 of the Amended Indictment, the Appellate Panel concluded beyond a doubt that, during the period between 21 April and 25 April 1992, members of the Podgrmeč Brigade and the SJB SoBK launched from their positions an infantry and artillery attack against the non-Serb villages of Sokak, Mahala, Hodžinac, Pazardžiluk, Krćani, Zalug and Ostružnica, which resulted in the death of twelve Muslim civilians, as well as in the search, plunder, intentional destruction of houses and

111

S1 1 K 005207 12 Kžk 7 May 2013

their setting on fire in the settlements of Lipik, Vučjak and Pučenik, whose owners were Muslims, the destruction of two mosques and a Catholic Church.

274. The attack itself was described in the part of the Judgment concerning the general elements of the criminal offense of Crimes against Humanity, about which the following witnesses, among others, gave evidence: Hašim Đulić, Jadranko Šaran, Adem Balkić, Dževad Grošić, PWS-03, Hamdija Balkić, Mirsad Palić, Mirsad Šabić, A-3, Abdulkadir Ćurt, Šemsudin Velić, Slobodan Majkić, A-2, Milovan Zeljković, Hamdija Kobiljagić, Sabahudin Mahić, Osman Palić, Zdravko Marčeta, Ramo Brkić, Dragan Lukač and others. The Prosecution also tendered material documentation concerning the civilian victims’ identification (Exhibits T-24 through T-35), which was also confirmed by the witnesses’ testimonies. Ibrahim Sivić gave evidence on Mithat Piralić’s murder; Abdulkadir Ćurt testified that one of his neighbors had found Smajo Ćehajić’s body, that on the third day after the attack his neighbor Suljo Redžić was found in the house with his throat slit and that Dževad Velagić had been killed in Zarif Mehić’s house, as also confirmed by witness Mehić. Witness Slobodan Majkić confirmed that many civilians were killed during the attack days. Witnesses Esad Mesić, Zuhdija Mehić and Milovan Zeljković testified about the finding and collection of victims’ dead bodies.

275. The Panel also credited the witnesses who had described the destruction and setting of Muslim-owned houses on fire in the referenced settlements, as well as of the religious objects, two mosques and a Catholic church. Among others, witnesses Hašim Đulić, Šemsudin Velić, Enver Ezić, Adem Balkić, Hamdija Balkić, Abdulkadir Ćurt, Zuhdija Mehić, and Ibrahim Sivić gave comprehensive evidence regarding the foregoing circumstances. These witnesses consistently stated that Muslim houses were selectively searched and set on fire, that Serb soldiers acted under Vuk Cimbaljević’s command and that they had a list of houses to be set on fire (Adem Balkić), as already addressed above. Witness Ibrahim Sivić testified that, on the seventh or eighth night after the attack launched on Bosanska Krupa, while he had been locked in a basement with other civilians, he heard a strong detonation, after which he looked and saw that the mosque was levelled down.

276. In view of the foregoing, the Appellate Panel concluded that the death of 12 Muslim civilians caused by the artillery fire coming from the Serb positions and the destruction of religious objects and apartments undoubtedly constitute a war crime. However, from the aspect of guilt, the requisite nexus between the resulting consequences and the 112

S1 1 K 005207 12 Kžk 7 May 2013

missing actus reus and mens rea on the part of the accused Kličković was not proved beyond a reasonable doubt.

277. The Appellate Panel was also mindful of the peremptory norm prohibiting the destruction and devastation of property, except in cases justified by military necessity. In order to find that the destruction was not justified by military necessity, the Prosecution must prove not only that destruction occurred, but also when and how the destruction was effectuated.201 In principle, the destruction carried out before the beginning of combat or after the fighting has ceased cannot be justified by claiming military necessity.202 This Panel concluded that setting housing residences on fire after the downtown capture by Serb soldiers (Cimbaljević and his group), certainly was not justified from the aspect of military necessity. However, the evidence adduced also does not point to any existing nexus between this and the other actions contained in Count 1 of the Amended Indictment and the accused Kličković.

278. Along this line, the Prosecutor charged the accused Gojko Kličković with the commission of the referenced criminal acts in the way that the direct perpetrators - members of the referenced units were under his influence and control, namely that he acted within the JCE (as a form of responsibility), that is, the JCE type II (the extended form of JCE) considering the Prosecutor’s position that the accused “was aware that those criminal offenses were foreseeable consequences of those actions”.

279. The Prosecution drew its conclusion on the existence of the accused Gojko Kličković’s effective control over the totality of the events in the SoBK at the critical time from the Orders issued by the SoBK War Presidency led by the referenced accused, particularly the Order to cease combat number 29/92 of 25 April 1992 (T-105), from which also ensued the order issued by Milan Štrbac, Commander of the I Krajina Brigade number 30/92 of 25 April 1992, that all units within this Brigade were to cease all war activities on the referenced day at all frontlines.

280. In relation to the foregoing, the Panel draws its conclusion on arbitrariness of the Prosecution’s conclusion, that if the SoBK War Presidency had authority to order the I Krajina Brigade to cease war activity, logically it also had the authority to order the onset of

201 Trial Judgment in Kupreškić et al., para. 522. 202 Trial Judgment in Orić, para. 588.

113

S1 1 K 005207 12 Kžk 7 May 2013

combat activity several days before, as it presented no concrete evidence on such action. Specifically, it was uncontested during the proceedings that the SoBK Crisis Staff (CS), subsequently the War Presidency (WP), issued the referenced Orders. The accused Kličković stated, in the capacity of a witness, that the referenced bodies’ transformation was governed by Article 273 of the SRBiH Constitution, which provided that, after the war outbreak, the Presidency, shall be activated as a political rather than military form of activity. Many Prosecution witnesses testified that the CS’s and the WP’s orders were indeed treated as a proposal, in terms that they initiated/reminded of the already prescribed legal obligation. Also, none of the examined witnesses considered these as binding on them, formally or legally.

281. To this effect, Colonel Daničić, examined as a Prosecution witness, resolutely stated that, after his arrival at the War Presidency, he could give no orders to the military and that regardless of whether his address was named a proposal or order, it was always treated as non-binding by nature. In any case, the final evaluation and decision making on military/combat action was exclusively the Brigade Commander’s competence. Therefore, this Panel could not conclude beyond a doubt that the military executed the War Presidency’s orders unreservedly, namely that the military structures were under the civilian authorities’ control. The foregoing was also confirmed by witness Milan Štrbac a.k.a. Bijeli, who had commanded over the TO SoBK Podgrmeč Brigade before Colonel Daničić’s arrival. After the conflict outbreak, witness Štrbac received orders from the War Presidency, but these orders were not military by nature, because he had received military orders from General Niković, Commander of the X Corpus. In this Panel’s view, this is normal considering the principles of unity in the chain of command, subordination and hierarchy on which principles the military has been established.

282. Therefore, there is no requisite nexus between the accused’s acts and the direct perpetrators of the crimes which were committed beyond a doubt. The Appellate Panel has concluded that the Prosecution did not prove, beyond a reasonable doubt, the accused Kličković’s concrete influence and control over the military and the police units involved in the commission of the described crimes, namely that they could have foreseen, at the conscious element level, that the prohibited consequences would occur.

114

S1 1 K 005207 12 Kžk 7 May 2013

3. The accused Gojko Kličković (Counts 2 and 3); the accused Mladen Drljača (Counts 4 and 5)

(a) Persecution – by forcible transfer of the population

283. The accused Gojko Kličković (under Counts 2 and 3 of the Amended Indictment) and Mladen Drljača (under Counts 4 and 5 of the Amended Indictment) were under all these Counts of the Indictment charged with persecution of the non-Serb civilian population from the Bosanska Krupa Municipality territory on ethnic and religious grounds by forcible transfer of the population. The accused Kličković was charged with committing the referenced criminal acts in the way that, under his orders, armed members of the II, IV and V Battalion of the Podgrmeč Brigade and of the Public Security Station of the Serb Municipality of Bosanska Krupa (Count 2), and armed members of the military police of the 11th Krupa Light Infantry Brigade and the police of the PSS of the Serb Municipality of Bosanska Krupa (Count 3) called out and transported the Bosniak population from the places of Ostružnica, Veliki and Mali Badić, Zalin, V. Jasenica, Arapuša, V. Dubovik and Potkalinje (Count 2), as well as the village of Zalug and the town of Bosanska Krupa on the Una River right bank (Count 3) to other territories with the aim of forcible transfer of the Bosniak civilian population.

284. The Indictment alleged that the accused Drljača made lists of prisoners to be exchanged, based on which two exchanges were carried out, namely the first one when 24 captured Muslim civilians (Count 4) were exchanged, and the latter one, attended by him personally, when 16 captured Muslim civilians were exchanged, whereby he participated in the forcible transfer of the non-Serb civilian population.

285. According to the Amended Indictment allegations, the objective of relocation was furtherance of the JCE objectives which anticipated the establishment of territories inhabited by Serbs exclusively.

286. The Defense for the accused Gojko Kličković and Mladen Drljača did not contest the factual framework of the described events. However, the Defense did contest the Prosecution’s conclusion that the Muslim civilian population was forcibly transferred, and instead submitted that it was just a temporary evacuation of this population, which is an allowed measure from the aspect of international humanitarian law, and therefore cannot be prosecuted as a criminal offense, and even less, that it was effectuated by 115

S1 1 K 005207 12 Kžk 7 May 2013

persecution. In relation to the imprisonment of non-Serbs, the Defense for both accused submitted that none of the examined witnesses stated that he had seen any of these two accused at the crime scene. In addition, the accused Kličković stated that the Prosecution’s allegations, that the referenced persons were imprisoned at the Petar Kočić elementary school in poor conditions, were untrue.

287. The accused Kličković stated, in his closing argument, that 15 Prosecution witnesses testified about the evacuation, and that 12 of them had stated that they wanted to go to a safer place. However, this accused immediately added that it is senseless to conclude that Muslim civilians wanted to leave voluntarily and unnecessarily, as no one would do anything like that. The witness rather explained that such decisions resulted from the prevailing rational motives, fear of further spreading of the war conflict, the existing unsafe areas (Arapuša, Jasenica, Zalin, Zalug, Perna, Podvran, Podgomila and Džemat), where their safe living was jeopardized and where reprisals could possibly occur.

International law and the applicable standards

288. International law prohibits forcible transfer of the population203 – wherein the only exemption is evacuation.204 Generally speaking, international law does not prohibit voluntary transfer of the population. In order to be lawful, the transfer of population, if is not done on a voluntary basis, which is the situation in the concrete case, must be carried out a) by reason of security of civilian population (evacuated persons); and b) for imperative military reasons. However, before addressing these lawful exemptions in the light of the status of evidence in the case and the accordingly established facts, the Appellate Panel first paid attention to one of the definitions of evacuation, pursuant to which evacuation is

203 UN General Assembly resolution 2675 XXV (1970) was unanimously adopted and served as a starting point for the drafting of the Protocols (1977) to the Geneva Conventions. It stipulates, in its para. 7, that: “Civilian populations, or individual members thereof, should not be the object of reprisals, forcible transfers or other assaults on their integrity“. The resolution deliberately covers armed conflicts of all kinds. Moreover, the resolution merely affirms customary international law already in existence; an affirmation which was accepted by the ICTY: „It seems consequently safe to conclude that forcible population transfers outside the context of evacuation are categorically prohibited, at last when the words ,...reasons related to the conflict' of article 17 are taken to mean: the aim of acquiring political or military advantage over the enemy by means of population transfer. Population transfer is not a means of warfare.“ See, Humanitarian Law Consultancy, Burundi ś regroupment policy a pilot-study on its legality, The Hague, Netherlands, June/July 1997, p. 16. 204 Jean-Marie Henckaerts, Deportation of civilians in time of war, Vanderbildt Journal of Transnational Law, sv. 26, 1993-1994.

116

S1 1 K 005207 12 Kžk 7 May 2013

“a temporary transfer of persons which is only allowed for the purpose of providing humanitarian assistance and humanitarian protection”205.

289. Part IV of Protocol II – in which we find Article 17 – is specifically devoted to the protection of civilians. The first article of Part IV is article 13. It states without any reservations that the civilian population “... shall enjoy general protection against the dangers arising from military operations.” It prescribes that “all persons who do not take a direct part (...) in hostilities (...) are entitled to respect to their person, honor, convictions and religious practices. They shall in all circumstances be treated humanely, with no adverse distinction” (emphasis added). From the above, it may be deduced that the concept of humanitarian protection has three elements, the first of which is ‘negative, an ‘obligation to abstain’; the second and the third are positive, obligations to act’.

290. Accordingly, a major instrument of humanitarian protection is evacuation, as mentioned in Articles 17, 22-31, 38(4) and 49(2) of the IV Geneva Convention, and Articles 4(3), 5(2)(c) and (d), 17(1) and 78(1) of Protocol II. Evacuation particularly becomes important in case of besieged or encircled areas,206 as is the situation in this case. In such a case, the population may have to be evacuated to hospitals and safety zones or neutralized zones207. It should be added to the foregoing that evacuation is a temporary measure, and remains so under Article 5(2)(c) of Protocol II when it concerns persons who have been deprived of their liberty – such as regroupees.208

291. The second exemption from the prohibition of forcible transfer of population, to which the accused’s Defense referred, is – military necessity. By the ICTY definition, military necessity is “(...) the urgent need, admitting no delay, for the taking by a military commander of measures which are indispensable for forcing as quickly as possible the complete surrender of the enemy by means of regulated violence, and which are not prohibited by the laws of war.“209 This Panel, however, observes that international courts accepted 'military necessity' only partially, one of the reasons being that the Charter of

205 M. Cherif Bassiouni, Crimes against Humanity in International Criminal Law, (Dordrecht, 1992), p. 301. 206 Humanitarian Law Consultancy, quote, p. 17. 207 As described in Article 14 and 15 of the IV Geneva Convention. It has been noted that the first sentence in Article 17(1) of Protocol II has been derived from Article 49(2) of the IV Geneva Convention (concerning evacuation), and that the second sentence has been derived from Article 49(3) of the IV Geneva Convention (concerning the treatment of evacuees). The word „shelter“ in Article 17(1) of Protocol II underlines that the measure of relocation of civilians is meant to be a measure of a humanitarian, not a military nature. 208 V. Jean Pictet, Commentary of IV Geneva Convention, (1958), ICRC, str. 138-140.

117

S1 1 K 005207 12 Kžk 7 May 2013

International Military Tribunal at Nuremberg included 'military necessity' in article 6(2b) concerning war crimes, but not in article 6(2c) concerning crimes against humanity210.

292. The Trial Chamber in Brđanin has noted that “The ethnic cleansing was not a by- product of the criminal activity; it was its very aim and thus an integral part of the Strategic Plan. (...) As it was intended to permanently remove these people from the territory of the Serb Republic of BiH, many of their homes were destroyed in order to prevent them from returning” (para. 118).

(b) Facts and evidence The accused Gojko Kličković – (Counts 2 and 3 of the Indictment) a. Evacuation of Arapuša

293. The evacuation of the Muslim population from Arapuša in the way described in Count 2 of the Amended Indictment became the topic after an incident in which members of the Bijeli Orlovi paramilitary unit invaded the village, and looted and abused its villagers, on which occasion Jasminka Čaušević was killed. The Prosecution witnesses, examined among others about the foregoing facts, included the following: Mirsad Palić, Redžep Medžedović, Kasim Kulauzović, Sabit Alijagić, Rasim Skenderović, A-1, Samir Alijagić, Ferid Šertović, Emina Kurtović, Senahid Osmanagić, Esad Hasanović, PWS-89 and PWS- 92.

294. Witness PWS 09/ A1 testified that after this incident, the village was visited by representatives of the RC Committee accompanied by Mirko Orelj. In addition to witness A1, the village of Arapuša was represented by Mirsad Velagić, witness A-6 and Eso Hasanović, on behalf of the local community. They requested a reactivation of the reserve police station in the village in order to provide security for its inhabitants. After the request was formulated, Mirko Orelj stated that he would support the proposal but that the electricity and phone lines installation was technically unfeasible. Many witnesses explained the foregoing by stating that the main source of electric power supply, which had been reduced, as well as water reservoirs, were located at the Una River left bank.

209 ICRC, Yves Sandoz, C. Swinarski and B. Zimmerman (eds), Commentary on the Additional Protocols, pp.1449, § 4771. 210 Under Article 6(2c), crimes against humanity are defined as „...murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecution on political, racial, or religious grounds, in execution of or in connection with any crime within the jurisdiction of the Tribunal...“(emphasis added).

118

S1 1 K 005207 12 Kžk 7 May 2013

295. On 28 April 1992, Đoko Jež personally came to witness A6 and told him to come with two other villagers to Božo Erceg’s house, which was 3km away from Arapuša, where the Order on the transfer/relocation to Budimlić Japra was read to the witness and the other persons present, to which they all reacted negatively, knowing that the referenced place cannot receive such a large number of Arapuša inhabitants. Therefore, witness A1 and other village representatives requested to have a meeting with the accused Kličković or Miroslav Vještica, and on 29 April 1992 went to Jasenica with this intention. At the meeting, this group of inhabitants from Arapuša primarily intended to ask for a lengthier deadline to organize the transfer, since a large number of refugees from Bosanska Krupa were also present in Arapuša; thus their proposal was to move to the place of Agići, where majority relatives of the Arapuša villagers lived. Also, they intended to refuse any transfer unless they were all transferred to Bihać, or any other free territory.

296. On the referenced occasion, Vještica wore a military uniform. He received the witness and the group accompanying him and immediately expressed his bitterness caused by Jasminka Čaušević’s murder, and thereupon heard the requests presented by the Arapuša inhabitants. The witnesses testified that they had spent at least an hour discussing the manner in which the Order had to be executed because Vještica kept stressing that the evacuation was inevitable, and that the then authorities were unable to provide security to the population, particularly because even more intensive war activities had been planned, and because Arapuša was certainly located in the immediate vicinity of the war zone. Vještica also stated he could not meet the villagers’ request to stay in Arapuša because soldiers were constantly passing through that area on their way to Bosanska Krupa and could cause new incidents. This was affirmed by witness Eso Hasanović, who stated that, during those days, Arapuša was on the transit route along which many cars and busses with soldiers returning from frontlines in Croatia had been passing. The property which would remain after their evacuation was also discussed on that occasion. Vještica proposed that a number of Serbs be selected to protect this property.

297. The delegation, including the witness, proposed that the population be transferred to Cazin or Bosanska Krupa, but, according to Vještica, this was impossible while the war activities were ongoing; Vještica added that the population would return if a truce was signed.

298. It was agreed at the meeting that, in the two following days, they would visit the 119

S1 1 K 005207 12 Kžk 7 May 2013

neighboring local communities in order to arrange the population relocation. To this effect, the War Presidency issued a passing permit number 150/92 of 29 April 1992, providing escort and security to the delegation of Arapuša inhabitants during their visit to the Donji Agići village. Having arrived there, the delegation composed of the witness and Arapuša inhabitants surprised the Local Community president and the local imam. Within a half of an hour, a total of 10 people from the local community gathered and the relocation and accommodation of refugees was agreed with them.

299. Pursuant to the War Presidency order, the people had to gather on the main street on 1 May 1992 at 10:00 hrs; a column was formed and the evacuation started. Prior to this, the use of all transportation means was approved, while trucks and other necessary items were secured to those who did not have their own transportation means. Witness A2 testified that the population had organized their removal all night long; however, a truck owned by the Krupa Trans Company arrived in the morning, and the witness and others were informed that they would not be transferred to Donji Agići but rather to Sanski Most. Witnesses Egeljić and Jež confirmed the foregoing. They stated that they had come by a small Tam truck escorted by 20-25 soldiers and explained that the approach to Rujiška had been under mines and that the Brigade could not secure the evacuation in the planned direction. Witness Erceg further explained that they received threats from the young men from Ruiška who had blocked the road, because there were sufficient number of Muslims in the village of Agići and that they would prevent any new ones from coming to the village. Protected witness A6 also gave the same evidence about the negotiations and the transfer of Muslims from the village of Arapuša.

300. Witness A1 testified that, on that very day, inhabitants of all other Podgrmeč villages of Podkalinje, Zalin and other villages had been transferred to the villages in the Sanski Most area: Kamengrad, Husinovci and other villages. A list of inhabitants deported from the village of Arapuša made by witness A-6 was tendered as the Prosecution documentary evidence.

301. Witness Đorđe Jež confirmed his participation in the negotiations and the evacuation of Arapuša inhabitants initiated by raids of paramilitary formations in this territory over which his Battalion had no de iure or de facto control. Božo Erceg, Commander of the Battalion in Gornji Petrovići, also testified that an armed group of para- soldiers had just passed through their check-point since no one dared oppose them,

120

S1 1 K 005207 12 Kžk 7 May 2013

considering that armed groups sent death threats even to members of the Serb TO.

302. During his examination in the witness capacity, the accused Kličković stated the reasons for the population evacuation which are primarily obvious from the defense plan of the X Corps and the military order to keep the defense line along the Una River, for which reason they wanted no one to stay behind the units. Therefore, according to the accused Kličković, this was an imperative military request presented at the War Presidency session. The second reason for the evacuation was the evaluation of civil sector and the request of the population itself to move to Cazinska Krajina. The foregoing was followed by the negotiations attended by the representative of the Arapuša inhabitants.

303. Witness Milan Štrbac remembers the evacuation of Muslims from the Podgrmeč enclaves because, just before May 1, when he was tasked with providing security to the column. The witness thinks that Miroslav Vještica, assistant for morale and religious matters, participated in the negotiations on behalf of the Brigade Command. From the military aspect, the issue of Muslim villages was apparent from the fact that they were located behind the defense lines, because the village of Arapuša was 12 km away from the frontline; the village of Zalin was 10 km away and the village of Potkalinje was 20 km away from it. According to this witness, this mere fact was not a problem by itself, but rather a subsequently announced offensive by the Army BiH from the Cazin and Kladuša. Also, one of the reasons was the inability to provide adequate security to the Arapuša inhabitants, for which two battalions were needed.

304. According to the accused, the evacuation was carried out in a fair manner; no soldiers and police officers entered the houses during the transport preparations; no insults or comments were made. Video-footage of the Muslim population evacuation, presented at the main trial, confirms the witnesses’ assertions that the population was not abused on that occasion; that no money or valuables, not even arms, were seized from them and also that able bodied men were not singled out.

121

S1 1 K 005207 12 Kžk 7 May 2013

b. Evacuation of the remaining Muslim population on 25 May 1992211

305. The evacuation of the referenced villages was followed up by the Order number 130/92 of 22 May 1992 to evacuate the remaining Muslim population from the territory of the Serb Municipality of Bosanska Krupa.

306. On the Prosecution’s proposal, the following witnesses were examined about this fact included in Count 3 of the Amended Indictment: Mirsad Šabić, Enver Ezić, Abdulkadir Ćurt, Esad Arnautović, Arif Arnautović, Smajo Sefić, Vejsil Palić, Ibrahim Sivić, Emir Ezić and Vukašin Daničić, as well as the Defense witnesses: Miroslav Vještica, Mladen Štrbac, Milan Škrbac, PWS-09, Đorđe Jež, Milan Vojinović, Zdravko Marčeta, Petar Keča, Branko Radženović, Duško Ljepoja, Rade Malešević and Brane Kljajić.

307. Many witnesses testified about the relocation of inhabitants of the village of Zalug. The Panel concluded that the villagers had surrendered their arms at the Serbs’ request, whereupon around 66 able bodied men were taken to Govedarnica, pursuant to the order of Mile Drljača a.k.a. Teho, and kept there for two days. Witness Vejsil Palić testified in detail that the inhabitants of Zalug were given an ultimatum to surrender weapons at Govedarnica under the threat of attack, whereupon the weapons were collected and handed over; however, two soldiers still visited and searched the houses, and several able bodied men were taken for interrogation. At the time, the population of Zalug was secured by the military and the police which, according to witness Milan Vojinović, subsequently monitored the execution of evacuation.

308. Witness Abdulkadir Ćurt explained that on 25 May 1992, at around 10:00 hrs, a police officer came to him and told him that a convoy would start off in front of the hospital and transfer the population to the free territory; thus the witness went home to gather his family, and they all together went in front of the hospital. The convoy moved across Grabež, where they were lined up for a short period of time, but a police officer escorting them objected to the search and seizure of items of persons being carried out at that site. Thereupon, two officers from Grabež came to the site, and further led their transfer towards Bihać. Witness Ibrahim Sivić testified that the column had stopped at Vranska to take a rest and secure further passage. This witness also confirmed that they had stopped

211 In relation to Section 3 of the Judgment, the Panel has observed that, in the Indictment, the Prosecution indicated that the evacuation day was on 24 May 1992, while in its closing argument, on p. 28, paragraph 3, it indicated 25.05.1992.

122

S1 1 K 005207 12 Kžk 7 May 2013

at Grabež, whereupon they were taken over by the JNA, with the task to escort them further towards Bihać.

309. According to the accused Kličković, the reason for which the evacuation order was issued was the fear the inhabitants expressed when he had met them and their feeling of uncertainty if they stayed there. In this context, several examined witnesses testified that, regardless of the fear for their own safety, they did not want to leave their homes, while certain witnesses considered that they were safer in the territory controlled by the Army BiH. Thus, witness Abdulkadir Ćurt stated that: “When we arrived in Bihać, we felt as we were reborn”. Witness Hamdija Arnautović also stated that the evacuation was necessary because of many paramilitary formations which had moved around the Municipality area causing unrest and disorder, and that it was carried out with the aim of saving human lives.

310. According to the accused Kličković, the two evacuations were carried out in a fair and successful manner considering that the evacuated population returned to their homes after the truce was signed. Along this line, the accused found the legal ground of the War Presidency’s activities in the provisions of Additional Protocol to the Geneva Conventions relative to the Protection of Victims of International Armed Conflicts of 12 August 1949, which stipulates in Article 17 that: “The displacement of the civilian population shall not be ordered for reasons related to the conflict unless the security of the civilians involved or imperative military reasons so demand”.

311. In analyzing the accused Kličković’s guilt, the Panel was mindful of the relevant provision of Article 49 of the Geneva Convention relative to the Protection of Civilians in Time of War of 12.08.1949, which stipulates that “… the Occupying Power may undertake total or partial evacuation of a given area if the security of the population or imperative military reasons so demand. Such evacuations may not involve the displacement of protected persons outside the bounds of the occupied territory except when for material reasons it is impossible to avoid such displacement. Persons thus evacuated shall be transferred back to their homes as soon as hostilities in the area in question have ceased.”

312. In this context, the Panel first concluded that the evacuation of the civilian population had indeed occurred. However, it was still necessary to determine whether the single possible conclusion that clearly ensues from the disputable orders and all other circumstances under which the evacuation was carried out, on which the Prosecution 123

S1 1 K 005207 12 Kžk 7 May 2013

based the accused’s guilt, is that it was prohibited, in violation of the rules of international humanitarian law whereby it would gain the character of forcible removal as a criminal charge under crimes against humanity; it would as such be encompassed by the accused’s intent to further the persecution of the non-Serb civilian population from the SoBK territory. Otherwise, it would be an evacuation as the only permissible exemption from the prohibition on forcible removal of the population.

313. In considering the foregoing, the Court took into account the fact that the Prosecution presented two Orders of the SoBK War Presidency signed by the accused Gojko Kličković as a proof of the forcible transfer of the Muslim civilian population, namely the Order to evacuate the Muslim population from the Podgrmeč enclave of 28 April 1992 (DT-195), and the Order to evacuate the remaining Muslim population from the territory of the Serb Municipality of Bosanska Krupa of 22 May 1992 (DT-197).

314. The content of the Order of 28 April 1992 shows that it was issued both due to an exceptionally complex war situation in the SoBK territory and for the purposes of personal safety of the Muslim population which was jeopardized by infiltrated extremist groups, wherefore the Municipal War Presidency could not guarantee full safety to the Muslim inhabitants of Ostružnica, Veliki and Mali Badić, Zelin, V. Jasenica, Arapuša, V. Dubovik and Potkalinje.

315. It also ensues from the War Presidency’s Order of 22 May 1992 that, due to the increasing complexity of the political situation and threats to Serb territorials in further escalating war conflicts, no personal and collective safety could be guaranteed to the remaining Muslim population.

316. In analyzing the referenced Prosecution evidence, the Appellate Panel was mindful of several facts. First, the evidence at issue formally uses the term “evacuation” of the Muslim (civilian) population, and, secondly, the explanation provided in the unsigned proposal of the Report on the Work of the Municipal Assembly (of the town of Krupa na Uni) and the War Presidency for the period between 1 January 1992 and 20 April 1993, (DT-190), stated that “[T]he main reason for the issuance of the Decision on temporary transfer is the physical safety of the Muslim people (...)“(emphasis added). Therefore, the Report was produced at the war time, after the occurrence of the events covered by the factual description of the Indictment, and is an objective proof which, despite being unsigned or unverified, loses nothing of its authenticity.

124

S1 1 K 005207 12 Kžk 7 May 2013

317. The Prosecution Exhibit, tendered as the Defense Exhibit too (DT-235) (O-1-129) – Certificate number 60/92 of 30 April 1992, Local Community Agići, issued and signed by the President of the Local Community Assembly Donji Agići, Sifet Barjaktarević, and the Local Community Secretary, Hamza Alijagić, is also complaint with the presented evidence. This Exhibit confirms the fact of the reached agreement by the Local Community concerning the reception and admission of the population evacuated from Arapuša to the territory of Donji Agići Local Community. Therefore, this evidence of objective significance also speaks about the evacuation.

318. In examining the Prosecution’s allegations, pursuant to which in the case of effective evacuation the population must be returned (to their homes) after the hostilities have ceased, the Panel took into account the Trial Chamber’s finding in Brđanin concerning the destruction of homes212 as a proof for the intent to permanently remove the population from the territory controlled by the Serb forces that the referenced standard was not satisfied in the concrete case.

319. The Prosecution’s theory was at the very least brought into question by the following documentary evidence: Decision to return resettled persons to the territory of the Serb Republic of Bosnia and Herzegovina, Official Gazette number 8/92; the Agreement reached at the Army HQ of the SoBK of 29 April 1992 (Exhibit O-1-162) concerning the agreement on the resettlement of the Arapuša inhabitants and refugees from Bosanska Krupa to other safer places, the contents of which shows that they will be temporarily resettled during the state of war because the HQ Command could not ensure full safety for citizens and refugees, and that they would be able to return to their villages and homes once the war activities have ceased; that the HQ will guarantee the protection of their property until their return.

320. The last paragraph of the Instruction concerning the evacuation of the population and refugees from the Arapuša Local Community of 1 May 1992, tendered as the

212 It should be explained in this connection, when it comes to the Prosecution evidence concerning the different situation in relation to the accused Kličković's order, that in his closing argument (Section 9 - Crimes against Humanity-Persecution), the accused Kličković himself stated that the destruction of bridges was aimed at preventing the crossing over from one to the other bank of the Una river, and thereby prevent reprisals and personal score settling, killings of the non-combatant population, looting, fire setting and all other inhumane acts; for this reason a number of solid structures along the Una river banks had to be destroyed too in order to neutralize snipers activity form those sites, which were usually used during truce period. Thus, it happened that, at the time of first truce during the May 1 feast in 1992, Muslims killed teacher Đukić, who had carelessly walked along a street on the Una River right bank having trusted the signed truce.

125

S1 1 K 005207 12 Kžk 7 May 2013

Prosecution evidence, stated that as soon as peace time conditions have been created, the Command of the SoBK War-Time Staff will ensure that the population safely return to Arapuša, and refugees back to Bosanska Krupa, as well as that the occupying power shall carry out the evacuation under satisfactory conditions in terms of health, hygiene, safety and food supply, and also that members of the same family are not separated from each other. The foregoing was complied with in both instances.

321. The War Presidency, in co-operation with the military authorities, dealt with the issues concerning the post-evacuation abandoned property. Thus, the Brigade logistics body interned the arriving refugees at the abandoned Muslim houses, and allocated farmlands for temporary use. Brigade Commander Milan Štrbac stated that there was an Instruction regulating these issues in compliance with which it was acted, and that the allocation criterion was the number of household members because the aim was to introduce order and to safeguard the abandoned property; and individuals were cautioned of their duty to treat the allocated property as bona fide masters/hosts.

322. That the Municipality took care about the abandoned property is obvious from the Decision of the Bosanska Krupa Municipal Assembly, number 43/92 of 10 July 1992, tendered in the Prosecution documentary evidence, proclaiming as the state or municipal property the entire property (real estate and movable property) owned by the Muslim population, as well as by the Serb population which had left the territory of the Serb Municipality of Bosanska Krupa. The same Decision anticipated that the competent services within the Municipal Assembly administrative bodies will register, in the shortest period possible, all the property to which the Decision referred. The abandoned property was allocated for temporary use and duly registered, as obvious from the Review of the livestock and equipment taken over from the Muslims resettled from the Arapuša village; the list specified the names of Serb inhabitants who were allocated the livestock and the farming equipment. Witness Hamdija Arnautović testified that all Muslim houses in the village of Zalug were preserved.

323. In this context, expert witness Hanson highlighted that the common pattern used by the other municipalities was not applied in the SoBK, which anticipated that, prior to leaving the territory in question, the population had to make a statement relinquishing their

126

S1 1 K 005207 12 Kžk 7 May 2013

property for use by the Serb Republic; the transfer of the population from the SoBK territory was not conditioned by such requests.213

324. Also, Exhibit T-286 (Instruction for the evacuation of the population and refugees from the Arapuša local community of 1 May 1992, signed by Emir Sedić on behalf of the local community, Fuad Džigumović on behalf of the Board of Refugees from Bosanska Krupa, on the one side, and Božo Erceg and Đorđe Jež on behalf of the Battalion Command on the other side), inter alia, stated that: “In accordance with the agreement reached with the Command of the War-Time Main Staff of the Serb Municipality of Bosanska Krupa (Mr. Miroslav Vještica), the Command will, at the moment when peace time conditions have been created (emphasis added), inform (supposedly ensure, Court’s note) the population to safely return to Arapuša and their homes, and refugees from Bosanska Krupa to return to Bosanska Krupa.”

325. Considering such a state of facts, the Appellate Panel has concluded that the Prosecution did not prove beyond a doubt that the accused Kličković had acted beyond/outside the limits of a fair estimate made on the basis of the then prevailing conditions, namely that in the existent war circumstances he could realistically ensure a safe return for the transferred population.

326. In analyzing further whether the transfer of the civilian population was permissible or not, the Appellate Panel has concluded that the foregoing conclusion does not bring into question the fact that the transferred civilians considered that there was nothing voluntary in the abandoning of their homes; rather, they certainly held that the abandoning of their homes was forced upon them. In this context, the Panel evaluated the testimonies of the eye-witnesses and victims of the referenced transfer, namely witnesses Mirsad Palić, Esad Hasanović, Redžep Medžedović and others. These witnesses, who presented their subjective traumatic experiences, as they had to abandon their homes and leave behind everything they possessed. Witnesses Mirsad Šabić, Abdulkadir Ćurt, Ibrahim Sivić, Smajo Sefić, Enver Ezić and others consistently testified that they had been ordered to leave the village of Zalug and the town of Bosanska Krupa; that they had no choice; that they posed no military threat to anyone; that there was no discussion about their return to the places they had lived in before the war.

213 To this effect, compare with Trial Judgment in Brđanin, paras. 118 and 254.

127

S1 1 K 005207 12 Kžk 7 May 2013

327. In that context, the Panel also took into account the testimonies of the Defense witnesses which, to a certain extent, supplemented the referenced witnesses’ testimonies. The Defense witnesses stated that Muslims requested to leave since after the incident that had occurred at the “Suha rebra” site they feared Milan Štrbac too. According to the Panel’s view, this was logical in the circumstances of war. In relation to the circumstances which were according to the Prosecution the target of the Serb forces attack, namely the non-Serb civilian population, witness Milan Vojinović (O-1-217) testified that everybody had abandoned the town of Bosanska Krupa itself because the town was divided by the river, and thus no one stayed in the town except the military, the police and a few citizens. The Muslim population which had lived in the villages within the enclaves, that is, encircled by Serb villages, asked to leave the SoBK; some of them wanted to go to Bihać, some to Sanski Most, and some to Bosanski Novi. In relation to the War Presidency’s Order, number 0049-2539, signed by Gojko Kličković and sent to the SJB and VP, with a request that the remaining Muslim population be evacuated from the SoBK territory, witness Vojinović stated that the order concerned two settlements with the Muslim population, Zalug and Omladinska Street (in the town of Bosanska Krupa) (which is covered by Count 3 of the Amended Indictment, as noted by the Panel), because it was continually becoming more and more difficult to provide security for the people in those settlements while conflicts were developing, for which reason they themselves requested to be enabled/permitted to leave, so they left the town in May.

328. In the context of consideration of this Count of the Indictment, the threats to the Muslim population by members of the Suha rebra paramilitary unit were definitely effectuated, to a certain extent, by Jasminka Čaušević’s murder, plunder and abuse of the Arapuša village population, about which several mentioned witnesses consistently testified. Thus, witness Esad Hasanović, the then police officer, testified that members of the referenced group, whom he had not known, searched Rifet Hasanović and two-three other people from the village; that one soldier pressed a pistol barrel against his neck; that one soldier had gone to Senad Čaušević’s house from which he subsequently heard a burst of fire; that soldiers seized money not only from him but also from Senad Čaušević, Muharem Osmanagić, a Serb woman; that they alienated several vehicles, including the witness’s car, and that they seized arms from the witness having told him that he was a Muslim and that he could carry no arms. Considering the referenced testimonies, it is certain that such an event cannot be of an incidental or beside-the-point importance. Therefore, the conclusion that there was a realistic risk for the safety of the non-Serb 128

S1 1 K 005207 12 Kžk 7 May 2013

population posed by the paramilitary groups which had been out of control, such as the referenced one, was well-founded. This is all the more so considering the document of the Main Staff of the Army of the Serb Republic of Bosnia and Herzegovina, strictly confidential, of 28 July 1992, Information on paramilitary formations in the territory of the Serb Republic of BiH (O-1-398).

329. Ultimately, the realization of threats for motives of possible retaliation against the Muslim civilian population is best obvious from the criminal episode and its actor Joja Plavanjac which followed up the evacuation at issue, specifically, which occurred on 21 August 1992, when eleven captured Muslims were killed by fire arms214.

330. Prosecution witness, Hašim Đulić, Chief of the TO Bosanska Krupa Main Staff, testified that they were late in evacuating the Muslim population from Arapuša, which the civilian authorities were obligated to do upon the TO SoBK request in the aftermath of the conflict which had occurred on 21 April 1992, because, in such an affected encirclement, isolation, fear and uncertainty, no normal person could insist that this population remain there with no realistic guarantees for their safety, so their temporary evacuation to Bihać and the Una River left bank in the Municipality of Bosanska Krupa was the only solution, where, already on 28 April 1992, 98% Muslims from that Municipality were also present. Therefore, this witness’s testimony essentially corroborates the arguments of the accused Kličković’s Defense.

331. The following Exhibits should be also considered in a similar manner: Certificate of the SO Bosanski Novi, local community Donji Agići number: 60/92 of 30 April 1992 (T- 285), and the passing permit, indicating that the referenced persons can move towards the Municipality of Bosanski Novi on the order to ensure accommodation for the Muslim population evacuated from Arapuša, signed by Gojko Kličković, President of the War Presidency (T-284). The essential facts ensuing from the presented evidence concern the evacuation of the Muslim population from the Municipality of Bosanska Krupa, and highlight its temporary character, which cannot be categorized beyond a reasonable doubt as a permanent removal of this population, as the Prosecution insisted.

214 The testimony of witnesses: Đorđe Jež, Božo Erceg, Rifet Hasanović, Eso Hasanović, A-1, A-6, Senad Osmanagić, Emina Kurtović and Prosecution expert witness Richard Buttler.

129

S1 1 K 005207 12 Kžk 7 May 2013

332. Therefore, in examining the Prosecution’s theory on the unlawful transfer of the non-Serb civilian population from the referenced areas by alleging that there are no prescribed exemptions from such a transfer, the Appellate Panel could not accept this theory in whole beyond a reasonable doubt, particularly in relation to the first exemption set – evacuation for humanitarian reasons.

333. Specifically, the Panel had no dilemmas concerning the non-existent second, alternatively set requirement, that no imperative military reasons existed in the concrete case, as the Prosecution properly argued. Such a conclusion is based on all the evidence adduced in relation to the attack launched, and corroborated with the Defense’s arguments, pursuant to which the Prosecution failed to “observe that the SoBK was established in the territory where Serbs were the predominant population, and where a small number of Muslim citizens had been present, wherefore no realistic need to persecute them existed at all”. If this assertion is considered as logical and true (further implicating that, realistically, the Serb authorities had no need to launch a widespread and systematic attack against the non-Serb civilian population in the territory under their control), then the Defense’s argumentation, about the existent imperative military reasons due to which these isolated Muslim enclaves would pose a threat, from the military aspect, to the majority Serb population, is ill-founded. Therefore, no distinct legal conclusions, such as this one, can be drawn from the same factual basis for meeting the interests of the Defense.

334. However, considering the overall situation at the critical period, the Panel could not conclude with the required certainty whether the non-Serb population transfer was permissible for humanitarian reasons, which would be required for a conviction. This is because the accused Kličković’s Defense made probable the evacuation permissibility at least on this ground through the arguments and the evidence they presented. However, the Panel does not claim that the accused Kličković’s acting was absolutely permissible. However, the review of the totality of evidence, presented by both the Prosecution and the Defense, brought into question the Prosecution’s theory since the Panel could not establish beyond a doubt the intent required on the part of the Accused to commit the criminal offense at issue.

335. Therefore, the Appellate Panel concludes that the Prosecution did not prove beyond a doubt that the accused Kličković acted beyond the boundaries of fair evaluation on the basis of the then prevailing grounds, namely that his intent was directed at 130

S1 1 K 005207 12 Kžk 7 May 2013

persecution of the non-Serb civilian population by their forcible transfer from the territory where they had lawfully lived thereto, which justifies the application of the principle of in dubio pro reo.

(d) The accused Mladen Drljača (Counts 4 and 5 of the Indictment)

336. The accused Mladen Drljača was charged with being personally responsible for the forcible transfer of persons as a member of the Commission for Exchange of Prisoners of War.

337. Specifically, it is indisputable for the Panel that, on May 10 and May 22 1992, the captured Muslim civilians were exchanged for Serbs, namely in the first exchange the total of twenty four civilians were exchanged, and sixteen civilians in the latter exchange, who had been imprisoned at the Petar Kočić elementary school in Bosanska Krupa in inhumane conditions, where some of them were beaten and taken to perform forced labor. The foregoing was confirmed by the Prosecution witnesses Adem Balkić, Asim Balkić, Dževad Grošić, Hamdija Balkić, Osman Mušić, Salih Salkić and others. The referenced witnesses consistently confirmed that, on the day of exchange carried out on 10 May 1992, a uniformed man entered the Petar Kočić School and called out the names of prisoners to be exchanged; they were thereupon loaded onto buses and escorted by the police to Pritoka.

338. Among others, witnesses Enver Ezić, Nurija Rekić, A-4, Sead Palić testified about the second exchange. Witness Šerif Bajraktarević, whose statement was read out at the main trial, stated that the guards had taken the prisoners out from the elementary school, beat them and took them to clean the town, but that they did not beat him on those occasions.

339. The accused Kličković testified that he knew no details about the exchange of war prisoners, because the matter was negotiated at the meetings held in Bihać and Bosanski Petrovac on 22 or 23 April, that is, immediately after the conflict outbreak, whereupon he was notified that the Protocol concerning the cessation of hostilities and the exchange of civilians who had stayed in one or the other part of the Municipality, was signed. According to the accused, the referenced meetings were attended by Nenad Ibrahimpašić – President of the Bihać Municipality, Rajko Novaković – President of the Municipality of Bosanski Petrovac, Fikret Abdić – the then member of the SRBiH Presidency, Raković 131

S1 1 K 005207 12 Kžk 7 May 2013

– representative of the Command of the X Corps of the JNA and representatives of the Bosanska Krupa Municipality – first witness A2, and thereupon Kabiljagić or Šemsudin Velić. As members of the War Presidency, Miroslav Vještica and Mladen Drljača attended the meetings on behalf of the SoBK.

340. As the parties to the referenced Protocol, these persons were to ensure its implementation, and, as the President of the War Presidency, the accused had to be aware of the foregoing in order to provide logistic support in furtherance of the agreed objectives, that is, the implementation of the signed Protocol.

341. Also regulated on this occasion was the issue of Exchange Commission, which was done by the Muslim party. This (Commission) was a provisional/ad hoc body, which carried out the exchange twice. During the referenced period, the accused did not essentially deal with the issues of war prisoners. This is so because the War Presidency activities were reduced to the presence of certain members in the Commission. Thus, witness Mirko Orelj or the accused Drljača were its members, while the remaining members of the Exchange Commission were permanent members, such as the Brigade representative who was always present, because taking care of prisoners of war was their responsibility.

342. The foregoing was confirmed by the Prosecution witness Ešref Hadžić and Defense witness Ejub Topić, as members of the Commission on behalf of Muslims formed in April 1992. These witnesses explained that, after the conflict outbreak, Hajrudin Osmanagić, Commander of the TO Bihać Regional Staff, contacted them, whereupon witness Hadžić was appointed the Commission Secretary; he first made a phone contact with Duško Stoisavljević on the Serb side, whose role was the same, namely to gather information about prisoners, make lists of prisoners, forward them to the other side, and make contacts with Red Cross representatives. In the course of negotiations, uniformed persons deprived of liberty during the conflict had priority in the exchange procedure, and the principle of exchange was “All for all”. Lists of prisoners were finalized during the preliminary negotiations, and accordingly the witness usually exchanged the data with Stoisavljević by fax. In addition to the names of uniformed persons, a number of Serb civilians were also entered in the lists drafted by the witness, and Pritoka was the exchange site as a neutral zone of conflict.

343. During the functioning of the Exchange Commission, witness Osmanagić took part

132

S1 1 K 005207 12 Kžk 7 May 2013

in the exchanges carried out on 10 May 1992 and 22 May 1992, factually described in Counts 4 and 5 of the Amended Indictment. The witness remembered that, on behalf of the Serb side, the exchanges were attended by Dr. Ratko Beronja, Duško Stoisavljević, Mirko Orelj, but he saw the accused Mladen Drljača only during the second exchange. Red Cross Committee representatives also attended all the exchanges.

344. The witness recognized the list of persons to be exchanged, admitted as documentary Exhibit T-163, as the final list of the persons exchanged on 10 May 1992. A review of the Record drafted on 10 May 1992, the authenticity of which was confirmed by the witness, shows that the Commission members were Mirko Orelj, as the Commission President, and Duško Stoisavljević and dr. Beronja as its members, while witnesses Ejub Topić, Ešref Hadžić and Jusuf Ljakić participated on behalf of the Muslim party. On this occasion, the exchange ratio was 24:12 in favor of Muslims, in relation to which the witness explained that, pursuant to the “all for all” principle, the exchange of prisoners in terms of number of prisoners was not conditioned.

345. Preliminary negotiations were also carried out prior to the exchange carried out on May 22, on which occasion the witness mentioned the persons exchanged during the first exchange who had been subject to abuse, including the married couple of Šepić who had experienced severe torture, and whose exchange was insisted on; in response to this, members of the Commission on behalf of the Serb party stated that, generally, no one was mistreated and that they have no information on any such treatment of prisoners of war.

346. On the referenced occasion, the accused Mladen Drljača told the witness that he would, in connection to that issue, contact his superiors and accordingly notify the witness because he “was just implementing the already made decision”. During the negotiations, witness Hadžić gained an impression that Mirko Orelj was the Commission President, and that the accused Drljača was a fair, responsible person who acted in compliance with orders. During that period, the Commission members did not discuss the exchange conditions, nor did they have any possibility to decide on the persons to be exchanged; thus, all members of the Commission implemented what had been earlier agreed upon by the parties to the conflict. According to witness Stoisavljević, the Commission would receive the final list of persons to be exchanged just before its start off.

347. After these negotiations, just before the second exchange, witness Hadžić received a list of persons made on 19 May 1992, and a list of nine persons who would further stay

133

S1 1 K 005207 12 Kžk 7 May 2013

imprisoned, including Kemal and Šemsa Šepić. In the witness’s opinion, the list was signed by Mladen Drljača, and on the exchange day the list of persons to be exchanged also contained the name of Kemal Šepić, that is, a person who was to be further kept imprisoned, according to the previous information they had.

348. On the same day, a Record of the persons exchanged on 22 May 1992 was made, the authenticity of which was also confirmed by the witness. It follows from the foregoing that the exchange was attended by Ejub Topić, Ešref Hadžić and Sead Alukić, while the Serb party was represented by Duško Stoisavljević, Dr. Beronja and Mladen Drljača. At the end of his testimony, the witness stated that, in his opinion, the Commissions for exchange of prisoners were humane by their character.

349. In early May, witness Duško Stoisavljević was appointed officer for culture, morale and religious matters, and Miroslav Vještica informed him that he would be a member of the Commission for the Exchange of Prisoners. This witness confirmed that contacts had been made on the initiative of Ešref Hadžić, as the Commission representative on behalf of the Muslims. The witness further confirmed his attendance at the exchanges carried out on May 10 and May 22, and his signatures on the exchange records, but denied that he took any part in the negotiations that had preceded the exchanges. The Panel, however, did not accept the foregoing, because the witness testified that he knew that the release of Šemsa Šepić had been negotiated, which was exactly the topic at the preliminary meetings. After the negotiations, this witness contacted Miroslav Vještica to notify him of the foregoing; also, during the second exchange, the witness could see that Šemsa Šepić was on the bus along with the prisoners to be exchanged. The witness assumed that Vještica, as his immediate superior who had been informed about everything and who provided military escort on the way to the exchange site, decided on all these matters.

350. Along this line, witness Stoisavljević resolutely stated that he had never discussed these issues with the accused Gojko Kličković. The witness added that the Commission members had no competences regarding the prisoners and the exchange lists drafting. The foregoing was also confirmed by the Defense witness Miroslav Stanić, Assistant Chief for Intelligence and Security Issues in the Brigade. Witness Stanić stated that the military police kept records of captured persons, and that the Chief of Security drafted lists of persons to be exchanged. Thus, not even the Brigade Commander had all information regarding these issues, particularly not the accused Kličković or Drljača.

134

S1 1 K 005207 12 Kžk 7 May 2013

351. Based on the foregoing, the Panel cannot uphold beyond a reasonable doubt the Prosecution’s conclusion that, before the Exchange Commission establishment, the accused Mladen Drljača had selected persons to be exchanged, and that, considering his position of the President of the Provisional Military Court Panel, he could express his exchange-related authoritative opinion.

352. Grujo Borić, the II Corps Colonel, confirmed along this line that the War Presidency took no part in drafting any exchange lists. The Defense witness Ejub Topić confirmed that military structures were deciding on the persons to be exchanged. Thus, in practice, the lists exchanged between the parties were compared, taken to military staffs and only after their harmonization were the exchange dates agreed upon.

353. On the basis of all the foregoing, the Appellate Panel has no dilemma that the referenced exchanges were not voluntary, given all the circumstances pertaining to the case, and particularly given (the fact) that civilians were unlawfully imprisoned at detention facilities, and that due to the pressure and fear they were subsequently brought in such a state that they saw their only way out in being exchanged and in crossing over to the free territory. In this context, the Prosecution properly argued that the prisoners’ release from the captivity was not the matter of their personal choice, considering that their existing living conditions prevented them from making any realistic choice regarding giving any voluntary consent to exchange.

354. Therefore, this Panel has considered as proper the Prosecution’s argument, that the accused Drljača drafted exchange lists (T-275 – Finding of Zlatko Dugandžić, expert witness in graphology), and personally attended the second exchange. In the Appellate Panel’s view, however, this still does not mean that it is proved that such acts satisfied the essential element of the criminal offense charged against him. Specifically, it has not been proved that the accused Mladen Drljača took part in the referenced exchanges in the capacity and in the way as charged under the Indictment, and, thereby, that his guilt was not proved beyond a reasonable doubt. With such a state of facts, the Panel did not address in more detail the unlawfulness of the very exchange in the context of forcible transfer of the population.

135

S1 1 K 005207 12 Kžk 7 May 2013

4. The accused Gojko Kličković and Mladen Drljača (Counts 6 and 7 of the Indictment)

(a) Persecution – by imprisonment or severe deprivation of physical liberty in violation of fundamental rules of international law and other inhumane acts of a similar character, intentionally causing great suffering, or serious injury to body or to physical or mental health

355. Counts 6 and 7 of the Indictment charged the accused with persecution committed through imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law and other inhumane acts of a similar character, intentionally causing great suffering, or serious injury to body or to physical or mental health. During the proceedings, the Prosecution made efforts to prove that the accused Gojko Kličković, as the President of the War Presidency, and the accused Mladen Drljača, as the President of the Panel of the Provisional Military Court in Jasenica, were responsible for the unlawful confinement of civilians at the Petar Kočić elementary school in Bosanska Krupa in the way that police officers from the Public Security Station and the Podgrmeč Brigade SoBK, who had been under their influence and control, deprived Muslim and Croat civilians of liberty, imprisoned and kept them at detention facilities in inhumane conditions, while some of them were examined by judges of the Provisional Military Court who made final decisions on their further imprisonment.

356. However, the evidence adduced during the proceedings does not lead to such a conclusion beyond a reasonable doubt.

357. With regard to the accused’s influence and control over the direct perpetrators – police members of the Public Security Station and the Podgrmeč Brigade SoBK, who had undoubtedly committed the described criminal offenses, in addition to the above conclusion beyond a reasonable doubt that the accused had no competences over them, the Appellate Panel primarily took into account the following:

358. Pursuant to the evidence tendered in the case record, the referenced (Provisional Military) Court was established under the Decision of the SOBK War Presidency number 9/92 of 22 April 1992 to conduct lawful proceedings against war prisoners captured during 136

S1 1 K 005207 12 Kžk 7 May 2013

the conflict. The accused Mladen Drljača was appointed President of the Trial Panel, while the two other members were Mirko Orelj (as a lay judge) and Dmitar Ciganović (Captain of the TO SOBK). The referenced Order was signed by the President of the War Presidency, the accused Gojko Kličković.

359. Certain Prosecution witnesses concluded that the Provisional Military Court’s role in making decision on their imprisonment was relevant in the way that, after being examined, the examinees were selected and pursuant to the Court’s decision returned to the premises of the elementary school in Jasenica or taken to the Petar Kočić elementary school. Witness PWS 89, who had taken persons for interrogation, believes that a person who had “contributed” to the conflict was taken to the Military Court, and if it was shown that there was insufficient ground for suspicion, the witness was authorized to let that person join the other refugees within the perimeter. On the other hand, when it was found that a person took part in the conflict, such person was not returned to the perimeter.

360. The foregoing, however, is just a conclusion of the witness, who also stated that there were no written traces of the apprehended persons’ questioning, even though one Bosa Sladaković was present as the record-taker during the entire period at issue. Nevertheless, some of the examined Prosecution witnesses, such as Mirsad Palić, stated that they had signed statements after the questioning completion, and that the Panel President, the accused Mladen Drljača had previously introduced the Panel members, whereupon some of the attendees interrogated them, mostly in a fair manner. This was also confirmed by witness Emir Hasić, who identified the accused Mladen Drljača, in the courtroom, as the person who had examined him in a fair manner at the Provisional Military Court, but did not think that that had any consequences whatsoever for his further status of a prisoner.

361. During his testimony, the accused Kličković confirmed the establishment of the referenced Court, being of the opinion that the Court’s legality can neither be contested nor correlated with the crimes subsequently committed, because members of the Court did not know who would be brought for questioning, or what would be the destiny of the apprehended persons. That decision was on the Brigade security organs, which questioned and triaged prisoners of war. Witness Momir Grubiša, the then commander of the military police platoon, confirmed the way in which prisoners of war had been questioned, with regard to which he received orders from his direct superiors, Company Commander Vlado Vignjević and Chief of the Brigade security body, Mile Drljača 137

S1 1 K 005207 12 Kžk 7 May 2013

a.k.a. Teho, “who could even release men from the prison.”

362. In addition to the accused, Mirko Orelj was also a member of the Panel, but he left it after realizing that his role was irrelevant and that the Court never rendered any decisions (judgments or procedural decisions), and never made any examination records for apprehended persons. The Prosecution, however, tendered as evidence the Record of questioning of war prisoner Smail Arnautović, of 4 May 1992, who was questioned on the grounds of arms possession and participation in the conflict, and the Record of 30 April 1992 on the questioning of Muratif Alić conducted with regard to the same issues.

363. There is no dilemma for this Appellate Panel that Muslims and Croats were deprived of liberty, imprisoned and kept in the referenced detention facilities, whereupon most of them were interrogated by the Provisional Military Court. Also, the Panel has considered as credible the testimony of witnesses Adem Balkić, Asim Balkić, Dževad Grošić, Zuhdija Mehić, Emir Hasić and Hamdija Balkić. The referenced witnesses testified that the (military) police had escorted them to the premises of the Provisional Military Court, and interrogated them about their political activity, the Muslims’ defense organization and possession of arms. Witnesses Sead Palić, Salih Salkić and A-4, who gave evidence with regard to the circumstances addressed in Count 7, confirmed that, along with other persons, they had been imprisoned by Serb police officers on the premises of the Petar Kočić elementary school, thereupon relocated to Jasenica and questioned before the Provisional Military Court, and then taken back to Bosanska Krupa. Witnesses Mirsad Šabić, Enver Ezić, Sead Palić, Salih Salkić, Nurija Rekić and A-4 consistently stated that Mladen Drljača and Rajko Kličković had questioned them at the Provisional Military Court.

364. However, the Panel could not conclude beyond a reasonable doubt, based on the adduced evidence, that the Provisional Military Court in Jasenica had a decisive role in the questioning of war prisoners, their selection and further unlawful imprisonment. The Panel members could not even prevent the mistreatment of prisoners while being taken for interrogation. Thus, witness Mirsad Palić testified that the accused Mladen Drljača once told a police officer who had apprehended him to ensure that no one hurt the witness because the traces of the previous beating were still obvious, but this was not complied with, so the witness was beaten again on his way back in the very same place. It clearly ensues from the foregoing that not only that the accused could not give any orders to the military police officers who had apprehended prisoners, but also that he 138

S1 1 K 005207 12 Kžk 7 May 2013

had enjoyed no authority among them. The Appellate Panel finds additional grounds for such a conclusion in the testimony of protected witness PWS-89 who was, according to the Prosecution, “the main player” in the selection of non-Serb prisoners in Jasenica and who sent to the referenced Court the prisoners suspected of having contributed to the war outbreak. All the foregoing was done in order for the Court to decide what should be done with them. What is missing in this witness’s testimony is that it was not proved that the Provisional Military Court made any binding decisions.

365. Considering the initial chaotic state prevailing in Jasenica during those days and the movement of a large number of civilians, members of military and paramilitary formations, the military and civilian police, as well as persons deprived of liberty during the conflict, the Panel has held that the Provisional Military Court was established with the aim of introducing order and legal certainty, but that this failed because the Provisional Military Court functioned for around ten days, rendered no judicial decision which would undoubtedly regulate the status of apprehended and examined persons, while the apprehended persons were not even orally informed about that Court’s decisions.

366. Therefore, the Appellate Panel has concluded that it was not proved beyond a reasonable doubt that the accused had influence and control over units’ members who had committed the crimes at issue, and that the Provisional Military Court with Mladen Drljača as the Panel President had any decisive role in the prisoners’ extended imprisonment, which would entail the guilt of the referenced accused.

IV. FINAL CONCLUSION OF THE APPELLATE PANEL

367. One of the consequences of the right to the presumption of innocence under Article 3(1) of the CPC BiH is that the Court shall render an acquittal not only when it is satisfied with the accused’s innocence, but also in a situation when it is satisfied with neither his guilt nor innocence. Any situation in which there is a slightest evidence-related doubt shall be decided in favor of the accused.

368. The principle of in dubio pro reo under paragraph 2 of the quoted Article comprises two rules:

(i) the facts to the prejudice of the accused must be proved with full certainty (in Anglo- American law, this is the standard of proof “proof beyond a reasonable doubt”, also

139

S1 1 K 005207 12 Kžk 7 May 2013

accepted by this Court); thus, if there is any doubt into those facts, they cannot be considered as proved, that is, they will be considered as unproved;

(ii) the facts in favor of the accused are considered as proved even if there is just a likelihood, namely if there is doubt into their existence, even when the existence of facts to the prejudice of the accused is more likely.215

369. In its decision taken in Čelebići, the Appeals Chamber has held that the court’s decision on guilt must be proved beyond a doubt. “[S]uch a conclusion must be established beyond reasonable doubt...It must be the only reasonable conclusion available. If there is another conclusion which is also reasonably open from that evidence, and which is (both) consistent with (the innocence of the accused and his guilt), he/she must be acquitted.”

370. In compliance with the quoted principle, and considering that the Prosecution did not prove beyond a reasonable doubt the guilt of the accused Gojko Kličković and Mladen Drljača, the Panel had to enter a judgment of acquittal by applying Article 284(c), as read with Article 3 of the CPC BiH, wherefore it was not necessary to address the other issues raised by the Defense, such as is, e.g., the application of the CC FBiH as the more lenient law to the accused.

V. DECISION ON THE COSTS OF CRIMINAL PROCEEDINGS

371. Pursuant to Article 189(1) of the CPC BiH, the costs of the criminal proceedings under Article 185(2)(a) through (f) of this Code, as well as the necessary expenditures and remuneration of defense attorneys, shall be paid from within the budget appropriations of the Court.

215 The Commentary on the Criminal Procedure Codes in Bosnia and Herzegovina, 2005 Council of Europe and European Commission Joint Project, stated the following: „It has been considered that one of the direct consequences of the presumption of innocence is an explicit statutory provision pursuant to which a doubt into existence of facts constituting the underlying elements of the criminal offense or on which the application of a criminal legislation provision depends is dealt with a decision in the way more favorable to the accused. The principle at issue is the principle of in dubio pro reo, or the principle in favor of the accused.“

140

S1 1 K 005207 12 Kžk 7 May 2013

VI. DECISION ON CLAIMS UNDER PROPERTY LAW

372. Pursuant to Article 198(3) of the CPC BiH, the injured parties were instructed to pursue their claims under property law in a civil action.

RECORD-TAKER: PANEL PRESIDENT Medina Džerahović JUDGE Dragomir Vukoje

NOTE ON LEGAL REMEDY: No appeal lies from this Judgment.

141

S1 1 K 005207 12 Kžk 7 May 2013

VII. ANNEX I AND ANNEX II

ANNEX I

PROSECUTION EVIDENCE PRESENTED DURING THE FIRST INSTANCE PROCEEDINGS

142

S1 1 K 005207 12 Kžk 7 May 2013

Name of the witness Date of testimony

1.Hašim Đulić 13 May 2008 2.Šemsudin Velić 14 May 2008 3.Jadranko Šaran 20 May 2008 4.Slobodan Majkić 21 May 2008 5.A-2 (PWS- 14) 27 May 2008 6.Milovan Zeljković 28 May 2008 7.Hamdija Kabiljagić 3 June 2008 8.Sabahudin Mahić 3 June 2008 9.Osman Palić 4 June 2008 10.Adem Balkić 17 June 2008 11.Asim Balkić 17 June 2008 Reading the statements of Šerif 18 June 2008 Bajraktarević, Ibrahim Krupić and Zarif Mehić

12.A-4 24 June 2008 13.Dževad Grošić 25 June 2008 14.Ismet Kasumović 1 July 2008 15.Zuhtija Mehić 1 July 2008 16.Emir Hasić 2 July 2008 17.PWS-89 8 July 2008 18.Mirko Orelj 8 July 2008 19.PWS-03 18 July 2008 20.Hamdija Balkić 18 July 2008 21.A-5 19 July 2008 22.Nikica Egeljić 19 July 2008 23.Miroslav Stanić 16 September 2008 24.Mirsad Palić 17 September 2008 25.Mirsad Šabić 23 September 2008 26.Enver Ezić 23 September 2008

143

S1 1 K 005207 12 Kžk 7 May 2013

27.Sead Palić 24 September 2008 28.Ešref Hadžić 8 October 2008 29.Dušan Stojisavljević 14 October 2008 30.A-3 (PWS- 35) 14 October 2008 31.Osman Mušić 21 October 2008 32.Redžep Međedović 28 October 2008 33.Bajro Šabić 28 October 2008 34.Kasim Kulauzović 28 October 2008 35.Salih Salkić 4 November 2008 36.Šefkija Kozlica 4 November 2008 37.Sabid Alijagić 5 November 2008 38.Slavko Ilić 11 November 2008 39.Mile Mudrinić 11 November 2008 40.Ilija Jakšić 12 November 2008

42.Zdravko Marčeta 2, 3 and 9 December 2008 45.Richard Butler- Expert witness 9 and 10 December 2008 46.Grujo Borić- video link 17 December 2008 47.Vukašin Daničić 14 January 2009 48.Expert witness Dorothea Hanson 27 and 28 January 2009 49.Rasim Skenderović 4 February 2009 50.A1 (PWS 09) 10 February 2009 51.A6 10 February 2009 52.Samir Alijagić 11 February 2009 53.Emina Kurtović 24 February 2009 54.Božo Erceg 24 February 2009 55.Senad Osmanagić 25 February 2009 56.Abdulkadir Ćurt 3 March 2009 57.Arif Arnautović 4 March 2009 58.Smajo Sefić 10 March 2009 59.Esad Hasanović 10 March 2009 60.Vejsil Palić 17 March 2009 61.Ibrahim Sivić 17 March 2009

PROSECUTION DOCUMENTARY EVIDENCE

144

S1 1 K 005207 12 Kžk 7 May 2013

Exhibit T-1-Order dated 3 October 1990 - document Collection and surrender of the remaining weapons in the JNA warehouse Exhibit T-2-Request for distribution of weapons and military equipment of the Bosanska Krupa Territorial Defence no. 20/92 dated 5 April 1992 Exhibit T-3- Order no. 27/92 dated 5 April 1992, signed by G. Kličković Exhibit T-4-Record of examination of witness Hašim Đulić, no. KT-RZ-1/05 dated 26 February 2008 Exhibit T-5-Record of examination of witness Šemsudin Velić dated 13 April 2008, no. KT-RZ- 1/05 (exhibit tendered into evidence at the hearing of 20 May 2008) Exhibit T-6-The population in inhibited settlements by ethnic structure from 1991 (exhibit tendered at the hearing of 20 May 2008) Exhibit T-7-Decision by the Transitional Assembly of the Serb People of Bosanska Krupa, No. 7/91 dated 25 October 2008 (exhibit tendered at the hearing of 20 May 2008) Exhibit T-8-Call to boycott the referendum – signed by M. Vještica (exhibit tendered at the hearing of 20 May 2008) Exhibit T-9-Excerpt from the Report on Social and Economic Justification for Forming the Serb Municipality ______, Bosanska Krupa, October 1991 (exhibit tendered at the hearing of 20 May 2008) Exhibit T-10-Statement of witness Jadranko Šaran given to the Hague investigators of 27 August 1999 and 7 December 1999 (exhibit tendered at the hearing of 20 May 2008) Exhibit T-11-Record of examination of witness Jadranko Šaran, no. KT-RZ-1/05 dated 13 April 2005 (exhibit tendered at the hearing of 20 May 2008) Exhibit T-12-Record of examination of witness Slobodan Majkić, no. KT-RZ-1/05 dated 21 April 2005 Exhibit T-13-Copy of the newspapers article Blue and Green Land- confidential exhibit Exhibit T-14-Statement of witness A-2 given to the ICTY investigators – dated of the interview 26 August 1999 and 3 November 1999-confidential exhibit Exhibit T-15- Record of examination of witness A-2 before the investigative judge of Bihać Cantonal Court, no. Ki: L/97- RZ dated 27 September 2000 – confidential exhibit Exhibit T-16-Record of examination of witness A-2, no. KT-RZ-1/05 dated 11 February 2005- confidential exhibit Exhibit T-17-Order no. 100/92 dated 28 April 1992, signed by Gojko Kličković Exhibit T-18-Record of Investigation made on 18 October 1992 at Osretak regarding the murder of Uroš Milešević Exhibit T-19-Receipt on temporary seizure of items from Ilija Milešević, VP 7542, Drvar, dated 18 October 1992 Exhibit T-20-Receipt on temporary seizure of items from Ranko (Lazo) Milešević, VP 7542, Drvar, dated 18 October 1992 145

S1 1 K 005207 12 Kžk 7 May 2013

Exhibit T-21-Decision ordering custody of up to three days, no. 190/92- ovr, dated 21 October 1992, signed by Commander Jovan Ostojić Exhibit T-22-Criminal report against Rajko Milešević no. 189/42-ovr, dated 21 October 1992, signed by Commander Jovan Ostojić Exhibit T-23-Accompanying letter to the criminal report, no. 191/92-ovr, dated 21 October 1992, signed by Jovan Ostojić Exhibit T-24- Record on identification of a body Id-2/92 of 29 April 1992 Exhibit T-25- Record on identification of a body Id-3/92 of 29 April 1992 Exhibit T-26- Record on identification of a body Id-4/92 of 29 April 1992 Exhibit T-27- Record on identification of a body Id-5/92 of 30 April 1992 Exhibit T-28- Record on identification of a body Id-6/92 of 30 April 1992 Exhibit T-29- Record on identification of a body Id-7/92 of 30 April 1992 Exhibit T-30- Record on identification of a body Id-8/92 of 30 April 1992 Exhibit T-31- Record on identification of a body Id-9/92 of 30 April 1992 Exhibit T-32- Record on identification of a body Id-10/92 of 30 April 1992 Exhibit T-33- Record on identification of a body Id-11/92 of 1 May 1992 Exhibit T-34- Record on identification of a body Id-12/92 of 2 May 1992 Exhibit T-35- Excerpt from the Log book of the mortuary, stamp of the Bihać Cantonal Hospital Dr. Irfan Ljubijankić, Patology Ward- signature and stamp of Head Doctor Semira Mešić-Pašalić Exhibit T-36- Criminal report against Predrag Praštalo, no. KU-13/92 of 1 August 1992 -exhibit T-36-a-Official Note of 31 July 1992, signed by Mile Mudrinić -exhibit T-36-b-Decision no. 253-1/92 of 31 July 1992 on cessation of military duty for Predrag Praštalo, signed by Jovan Ostojić - exhibit T-36-c-Report on holding up Predrag Praštalo, no. 4715- Bosanska Krupa - exhibit T-36-d-Receipt on entering the apartment and other premises of Predrag (Lazo) Praštalo, no. 73/92 -exhibit T-36-e- Decision on confiscation of items no. 210/92 of 31 July 1992 -exhibit T-36-f- Sketch of the scene, murder of Savka Plavanjac, date of taking photographs 31 July 1992, done by Đuro Majkić -exhibit T-36-g- Official Note of 1 August 1992, signed by Milovan Zeljković -exhibit T-36-h-Official Note of 31 July 1992 on conducted interview with Drago Jelača – signed by Mile Mudrinić -exhibit T-36-i- Official Note of 31 July 1992 on conducted interview with Sava Jelača maiden Kadrić, signed by Mile Mudrinić -exhibit T-36-j-Decision ordering custody of Predrag Praštalo no. 3/92 of 1 August 1992, signed by Mile Vojinović Exhibit -T-37-video record presented at the trial on 3 June 2008 Exhibit T-38a-Photograph of the school at Jasenica – the wall with the windows and the stall bar and the wall without doors and windows 146

S1 1 K 005207 12 Kžk 7 May 2013

Exhibit T-38b-photograph of the school at Jasenica- the wall without the windows and the wall with the entrance door Exhibit T-39-Letter addressed to M. Vještica or G.Kličković Exhibit T-40-Record on exchange of prisoners dated 10 May 1992 Exhibit T-41-Photograph of the building with the red roof and white-yellow facing Exhibit T-42-Record from the Register of Deaths for Šerif Barjaktarević, no. 08/13-5-79096/08 of 21 March 2008 Exhibit T-43-Record from the Register of Deaths for Zarif Mehić, no. 03/2-11-13-84/08 of 29 February 2008 Exhibit T-44-Record from the Register of Deaths for Ibrahim Krupić, no. sl/2008 of 11 February 2008 Exhibit T-45-Record from the Register of Deaths for Nurija Rekić, no. 2003-12-4839/2007 Exhibit T-46-Record of examination of witness Šerif (Meho) Barjaktarević before the investigative judge of the Bosanska Krupa Basic Court made on 29 July 1992 Exhibit T-47-Record of examination of witness Barjaktarević (Meho) Šerif before the investigative judge of the Bihać Higher Court made on 19 August 1993 Exhibit T-48-Record of examination of witness Ibrahim (Husein) Krupić before the investigative judge of the Bosanska Krupa Basic Court made on 6 August 1992 Exhibit T-49-Record of examination of witness Zarif (Hasan) Mehić before the investigative judge of the Bosanska Krupa Basic Court made on 14 July 1992 Exhibit T-50-Record of examination of witness Nurija (Zaim) Rekić before the investigative judge of the Bosanska Krupa Basic Court made on 7 July 1992 Exhibit T-51-Record of examination of witness Dževad Arnautović, no. KT-RZ-01/05 made on 7 February 2008 in Bosanska Krupa Exhibit T-52-Photograph of the museum exhibits Exhibit T-53-Photograph of a dilapidated building Exhibit T-54-Record of examination of witness Osman Palić before the investigative judge of the Bosanska Krupa Basic Court made on 4 August 1992 Exhibit T-55-Record of examination of witness Osman Palić no. KT-RZ-01/05 made on 15 February 2008 in Sarajevo Exhibit T-56-Photograph of the motel in Bosanska Krupa Exhibit T-57-Order on prohibition to use firearms, no. 3/91 of 23 December 1991 Exhibit T-58-Order on limited work of bars, no.4/91 of 23 December 1991, no. 4/91 of 23 December 1991 Exhibit T-59-Order on prohibition of felling and illegal use of forests no. 5/91 of 23 December 1991 Exhibit T-60-Order to activate police reserve forces no.9/91 dated 30 December 1991 Exhibit T-61-Photograph in front of the school in Jasenica Exhibit T-62-Decision to form a Provisional Military Court of the Serb Municipality of 147

S1 1 K 005207 12 Kžk 7 May 2013

Bosanska Krupa, no. 9/92 dated 22 April 1992 Exhibit T-63-Record of examination of military prisoners of war, statement of Smail Arnautović of 4 May 1992 Exhibit T-64- Photograph-witness A-5 identified as the seat of the military police Exhibit T-65- Announcement by SDS, Municipal Board B. Krupa dated 3 June 1991 Exhibit T-66-Report on the annual work of the B.Krupa SDS Municipal Board dated 26 July 1991, without signature Exhibit T-67-Decision on inauguration of the Transitional Assembly of the Serb people in B.Krupa municipality, no. 67/1, dated 25 October 1001, signed by Lazar Kovačević, President of the Municipal Board Assembly Exhibit T-68- Decision declaring territories populated by Serbs which belong to the Serb people for the state territories of the Serb people, no. 1/91 of 25 October 1991, signed by the President of the Transitional Assembly, Mile Vojinović, without a hand signature and stamp Exhibit T-69-Decision to conduct plebiscite no. 2/91 of 25 October 1991, signed by Milan Vojinović, without a hand signature and stamp Exhibit T-70-Decision by the Transitional Assembly of the Serb People of B. Krupa to conduct referendum for establishment of the Municipality of Serb People of B. Krupa dated 25 October 1991, with Milan Vojinović as the signatory, without a hand signature and stamp Exhibit T-71-Decision by the Transitional Assembly of the Serb People of B. Krupa to appoint the commission for conducting plebiscite and referendum, no. 4/91 of 25 October 1991, with Milan Vojinović as the signatory, without a hand signature or stamp Exhibit T-72-Decision by the Transitional Assembly of the Serb People of B. Krupa appointing the commission no. 5/91 of 25 October 1991, with Milan Vojinović as the signatory, without a hand signature and stamp Exhibit T-73-Decision by the Transitional Assembly of the Serb People of B. Krupa to conduct a public debate, no. 6/91 of 25 October 1991, with Milan Vojinović as the signatory, without a hand signature and stamp Exhibit T-74-Report on the results of the referendum of B. Krupa Municipality, signed by M.Drljača, dated 11 November 1991 Exhibit T-75-Report on the conducted plebiscite and referendum of the Serb People of the B. Krupa Municipality, dated 2 December 1991, certified copy, signed by M.Drljača Exhibit T-76-It is noted that the Decision on adoption of the Report to conduct the referendum of the Serb People to establish the Serb Municipality of B. Krupa, no. 16/91, dated 11 December 1991, is tendered into evidence Exhibit T-77-Decision on proclamation of the Serb Municipality of B. Krupa, no. 17/91 148

S1 1 K 005207 12 Kžk 7 May 2013

dated 11 December 1991 - original document, signed by the President of the B. Krupa Municipality Exhibit T-78-Decision on verification of declared Serb Municipality of B. Krupa, no.18/91, original document Exhibit T-79-Certified copy of the Statute of the Serb Municipality of Bosanska Krupa, no. 19/91, November 1991 Exhibit T-80-Decision appointing Mile Štrbac Vice-president of the executive Board of the Serb Municipality of B. Krupa, no. 29/91 dated 11 December 1991, the authenticity of the copy certified by Rajko Kličković, the signature of M. Vojinović missing Exhibit T-81-Decision appointing the representatives of the Serb Municipality of B. Krupa to the Autonomous Region of Krajina, the authenticity of the copy certified by Rajko Kličković, the signature of M. Vojinović missing Exhibit T-82-Excerpt from the Minutes of the 2nd Session of the Transitional Assembly of the Serb Municipality of B. Krupa, certified copy without the signature of the president and the minutes-taker Exhibit T-83-Excerpt from the Minutes of the 1st session of the Executive Board of the Serb Municipal Assembly of B. Krupa held on 15 December 1991, certified copy without the signature of the president and the minutes-taker Exhibit T-84-Excerpt from the Minutes of the 2nd session of the Executive Board of the Serb Municipal Assembly of B. Krupa held on 17 December 1991- two identical excerpts from the Minutes, on one the name of Mile Vojinović added in hand signature and on the other the name of Mirko Orelj. The excerpts are not signed by the President of the Executive Board or the minutes-taker. Exhibit T-85-Letter of the Assembly of the Serb Municipality of B. Krupa addressed to SDA, no. 21/91 dated 18 December 1991 Exhibit T-86-Letter of the Serb Municipality of B.Krupa addressed to the Assembly of the Serb People of BiH, no. 22/91 dated 18 December 1991 - original Exhibit T-87-Letter of the Serb Municipality of B.Krupa addressed to the Assembly of BiH, no. 23/91 dated 18 December 1991 Exhibit T-88-Letter of the Executive Board of the Serb Municipality of B. Krupa sent to the MoI BiH and Security Service Centre B. Luka, no. 1/91 dated 23 December 1991 Exhibit T-89-Initiative regarding the execution of tasks relating to military duty and forming of units, institutions and territorial defence HQ in the territory of the B. Krupa Municipality, no. br. 37/91 dated 24 December 1991, original, signed by M. Vojinović Exhibit T-90-Excerpt from the Minutes of the 3rd Session of the Executive Board of the Serb Municipal Assembly of B. Krupa held on 24 December 1991, without signature Exhibit T-91-Rush note on (non)execution of tasks relating to military duty and forming of

149

S1 1 K 005207 12 Kžk 7 May 2013

territorial defence in the territory of Serb Municipality of B. Krupa, no. 1/92 dated 3 January 1992 Exhibit T-92-Request for financial assistance to the newly formed Municipality of B. Krupa – in handwriting Exhibit T-92a- Request for financial assistance to the newly formed Municipality of B. Krupa, no. 3/92 dated 13 January 1992 – in printed text Exhibit T-93-Letter to all local communities in the territory of the B. Krupa Municipality, original, without registration number, dated 28 January 1992 Exhibit T-93a-Letter to all local communities in the territory of B. Krupa Municipality, certified copy, no. 9/92 dated 28 January 1992 Exhibit T-94-Rush note relating to the initiative of the Serb Municipality of B. Krupa, in handwriting, no. 14/92 of 11 February 1992 Exhibit T-94a-The same document in printed text Exhibit T-95-Letter to the Assembly of the Serb people of BiH, no. 19/92 dated 24 February 1992, certified copy, signed by Gojko Kličković Exhibit T-96-Request for the arming of the territorial defence, no. 21/92, B.Krupa dated 10 March 1992, signed by G.Kličković-certified copy Exhibit T-97-Order by the Crisis Staff no. 25/92 of 5 April 1992, signed by G.Kličković- certified copy Exhibit T-98-Order by the Crisis Staff no. 26/92 of 5 April 1992, signed by G.Kličković- certified copy Exhibit T-99-Order by the Crisis Staff, in handwriting, no. 28/92, without date, signed by G.Kličković- certified copy Exhibit T-99a-The same Order by the Crisis Staff, in printed form, no. 28/92, without date, signed by G.Kličković Exhibit T-100-Request by the Command of the 9th Corps, Strictly confidential no. 4-49 dated 3 April 1992 – certified copy Exhibit T-101-Decision by the War Presidency on organizing and work of the Serb Municipality of B. Krupa no. 1/92 dated 7 May 1992 - certified copy Exhibit T-102-Letter by the War Presidency in handwriting - Request for the change of deployment of Borislav Kačavenda, a reserve lieutenant, signed by Gojko Kličković – certified copy Exhibit T-102a-Letter by the War Presidency in printed text - Request for the change of deployment of Borislav Kačavenda, a reserve lieutenant, signed by Gojko Kličković – certified copy Exhibit T-103-Authorization 16/92 dated 24 April 1992, signed by G. Kličković-certified copy Exhibit T-104-Order by the War Presidency of the Serb Municipality of B.Krupa, signed by G.Kličković, no. 22/92 dated 24 April 1992 – certified copy 150

S1 1 K 005207 12 Kžk 7 May 2013

Exhibit T-105-Order on Cessation of Combat Operations, no. 29/92 dated 25 April 1992, signed by M. Drljača Exhibit T-106- Order on Cessation of Combat Operations, no. 30/92 dated 25 April 1992, original, with the stamp Exhibit T-107-Order by the War Presidency of the Serb Municipality of B.Krupa, no. 32/92 dated 26 April 1992, signed by G.Kličković, certified copy Exhibit T-108-Order by the War Presidency of the Serb Municipality of B.Krupa, no. 33/92, dated 26 April 1992, signed by G.Kličković, certified copy Exhibit T-109-Order no. 35/92 dated 26 April 1992, signed by G.Kličković, certified copy Exhibit T-110-Letter from the War Presidency of the Serb Municipality of B.Krupa to the Logistics Base of the 10th Corps, no. 134/92 dated 29 April 1992, signed by G.Kličković-certified copy Exhibit T-111-Requisition no. 140/92 dated 29 April 1992, signed by G.Kličković, certified copy Exhibit T-112-Letter from the War Presidency of the Serb Municipality of B.Krupa sent to the Command of the 10th Corps, no. 141/92 dated 29 April 1992-Regulating the status of the territorial defence units Exhibit T-113-Requisition no. 205/92 dated 1 May 1992, signed by G.Kličković, certified copy Exhibit T-114-Order by the Municipal Assembly of Bos. Krupa, no. 259/92, dated 8 May 1992 Exhibit T-115-Pass for the use of the TAM-2001 truck, no. 9/92 dated 9 May 1992, certified copy Exhibit T-116-Order by the War Presidency of the Serb Municipality of B.Krupa no. 266/92 dated 9 May 1992, certified copy, signed by G.Kličković Exhibit T-117-War Presidency document, List of persons being taken to B. Petrovac, no. 26/92 dated 25 April 1992 Exhibit T-118-War Presidency document, List of persons being taken to B. Petrovac, no. 36/92 dated 26 April 1992 Exhibit T-119-Pass no. 37/92 dated 26 April 1992 issued by the War Presidency, certified copy, signed by G.Kličković Exhibit T-120-Pass no. 43/92 dated 26 April 1992 issued by the War Presidency, certified copy, signed by G.Kličković Exhibit T-121-Handwritten Pass, no. ____, dated 26 April 1992, issued by the War Presidency, certified copy, signed by G.Kličković Exhibit T-122-Order no. 44/92 dated 26 April 1992 introducing curfew-certified copy Exhibit T-123-Pass no. 88/92 dated 28 April 1992, issued by the War Presidency, certified copy, signed by G.Kličković Exhibit T-124-Pass no. 88/92 dated 130/92 dated 29 April 1992, issued by the War Presidency, certified copy, signed by G.Kličković Exhibit T-125-Pass no. 88/92 dated 133/92 dated 29 April 1992, issued by the War 151

S1 1 K 005207 12 Kžk 7 May 2013

Presidency, certified copy, signed by G.Kličković Exhibit T-126-Special pass no. 133/92 dated 4 May 1992, issued by the War Presidency, certified copy, signed by G.Kličković Exhibit T-127-Special pass no. 134/92 dated 4 May 1992, issued by the War Presidency, certified copy, signed by G.Kličković Exhibit T-128-Instruction for the work of the town command for the area of Serb Municipality of B.Krupa, no. 290/92 dated 29 May 1992 Exhibit T-129-Instruction for the work of the SDS and its organs in circumstances of the immediate war threat, printed name of G.Kličković and hand signature and stamp, B.Krupa 1992, certified copy Exhibit T-130-Excerpt from the Minutes of the Serb Municipality of B. Krupa SDS Inaugural Conference dated 3 June 1992-certified copy Exhibit T-131-Minutes of the 4th Session of the Assembly of the Serb Municipality of B. Krupa held on 4 June 1992-certified copy Exhibit T-132-Request for issuing weapons to the citizens exiled from the left bank of the Una river with the enclosed statement no. S-1 dated 6 August 1992 sent to the Command of the 11th Infantry War Brigade, signed by Žarko Ćulibrk, original document Exhibit T-133-Sketch made by witness Miroslav Stanić during the January interview at the Prosecutor’s Office of BiH – confidential exhibit Exhibit T-134-Document sent to the 2nd Krajina Corps, 11th Light Brigade of B. Krupa, strictly confidential, no. 166-1/92 dated 15 July 1992, signed by the chief of security Exhibit T-135-Record of handover of the documents regarding the return of items issued to Miroslav Stanić and Petar Senić dated 15 January 1993 – confidential exhibit Exhibit T-136- Report on interrogation of captive Suad /Aema/ Sefić made by 1st Podgrmeč Brigade, Army Post Office Serb Municipality of B.Krupa, dated 30 May 1992 Exhibit T-137-Photograph of the house recognized by witness Mirsad Palić Exhibit T-138-Examination of persons deprived of liberty on 21 and 22 April 1992 during the war in B. Krupa Exhibit T-139-Shorthand notes from the Assembly of the SDS BiH held at the Holiday Inn Hotel in Sarajevo on 12 July 1991 Exhibit T-140-Official Gazette, Year I, number 1, dated 15 January 1992 Exhibit T-141-Instruction for the Organization and Activity of the Organs of the Serb people in BiH in extraordinary Circumstances dated 19 December 1992 Exhibit T-142-Press release by the Assembly of the Serb people in BiH, National Security Council, dated 4 April 1992, Sarajevo Exhibit T-143-Decision Declaring the Imminent Threat of War and Mobilization of Territorial Defence issued by the Presidency of the Serb Republic of BiH no. 152

S1 1 K 005207 12 Kžk 7 May 2013

03-11/92 dated 15 April 1992 Exhibit T-144-Decision by the Ministry of National Defence of the Serb Republic of BiH no. 1/92 dated 16 April 1992 Exhibit T-145-10th Corps Command, strictly confidential no. 19/31-442 dated 23 April 1992 Exhibit T-146-Telegram of the 10th Corps Command, strictly confidential no. 19/81-442 dated 23 April 1992 Exhibit T-147-Inspection of the issued weapons, 1st Krajina Corps Command, strictly confidential no. 18-168/1 dated 31 August 1992 Exhibit T-148-Letter from the War Presidency of the Serb Municipality of B. Krupa sent to the presidents of the municipalities of Bihać, Cazin, Velika Kladuša and Bužim no. 330/92 dated 4 June 1992 Exhibit T-149-Conclusions from the meeting of the SUB region dated 7 June 1992 Exhibit T-150-Intermunicipality agreement of Sana-Una area, Krčanica, 14 June 1992 at 12:00 hrs Exhibit T-151-Decision by the Assembly of the Serb Municipality of B. Krupa no. 32/92 dated 10 July 1992 Exhibit T-152-Decision by the Municipal Assembly of B.Krupa no. 43/92 dated 10 July 1992 Exhibit T-153-Excerpt from the Minutes of the 5th Regular Session of the Serb Municipality of B. Krupa dated 10 July 1992 Exhibit T-154-Decision on determining names of the high school in B.Krupa and primary school in Arapuša dated 21 August 1992 Exhibit T-155-Decision by which the members of the SDA, the members of its executive board, the members of the Muslim military units and Green Berets are declared enemies and are prohibited from returning to the area of the Serb Municipality of B. Krupa issued by the Serb Municipality of B. Krupa, no. 65/92 dated 21 August 1992 Exhibit T-156-Cover letter by the Commission for the exchange of prisoners, persons deprived of liberty and killed persons Exhibit T-156a-List of persons in detention Exhibit T-156b-List of persons wanted by the opponent party Commission for exchange of prisoners Exhibit T-156c-List of killed persons that were not taken over Exhibit T-157-A handwritten list of persons who are looked for Exhibit T-158-A handwritten list of persons to be exchanged, displaced persons, detained wounded persons and persons who are staying at home Exhibit T-159-A printed list of 170 persons for exchange Exhibit T-160-A printed list of persons who expressed their wish to return to Podgrmeč area, certified copy Exhibit T-161-List of prisoners for exchange, 28 persons, certified copy Exhibit T-162-List of persons, printed to number 28 and continued in handwriting 153

S1 1 K 005207 12 Kžk 7 May 2013

Exhibit T-163-List concluded with number 38 Exhibit T-164- List of persons, printed, with 8 persons added in handwriting Exhibit T-165-List of persons wanted for exchange, dated 18 May 2008 Exhibit T-166-Statement of Zdravko Krnetić, dated 21 May 1992 Exhibit T-167-List of prisoners offered for exchange no. Sl/92, dated 19 May 1992 Exhibit T-168-List of persons who will remain in custody until further notice, dated 19 May 1992 Exhibit T-169-List of persons who are detained until further notice for examination Exhibit T-170-List of persons included in the exchange, dated 22 May 1992 Exhibit T-171-Record of exchange of prisoners made on 22 May 1992 at Pritoka settlement Exhibit T-172-Letter from the 3rd Battalion Command, Šolaje mine, no. 50-3/92 dated 15 July 1992 – Regular Combat Report Exhibit T-173- Record of examination of witness Dušan Stojisavljević no. KT-RZ-1/05 dated 23 January 2008 Exhibit T-174-List of persons for exchange, War Presidency, no. 549/92 dated 3 July 1992 Exhibit T-175-Copy of the register of deaths for Milan Lović under number 495 Exhibit T-176-Report from the 2nd Battalion Command, 11th Krajina Brigade, Report for 24/25 June 1992 Exhibit T-177-Excerpt from the Minutes of the 6th Session of the Assembly of the Serb Municipality of Bosanska Krupa held on 21 August 1992 Exhibit T-178-Order by the War Presidency of the Serb Municipality of Bosanska Krupa no. 1533/92 dated 14 September 1992 Exhibit T-179-Decision by the Serb Municipality of B. Krupa to change the names of the streets on the right bank of the Una river, no. 80/92 dated 21 October 1992 Exhibit T-180-Excerpt from the Minutes of the 7th Session of the Assembly of the Serb Municipality of B. Krupa held on 21 October 1992 Exhibit T-181-Delivery of Decision and request no. 76/92 dated 23 October 1992 Exhibit T-182-Delivery of Proposal for medals and awards no. Pov.8-3/93 dated 7 January 1993 Exhibit T-183-Analysis of the activities and combat operations for 1992, addressed to the Brigade Commander, strictly confidential no. 164/3 dated 24 February 1993 Exhibit T-184-Analysis of the activities and combat operations for 1992 in handwriting – certified copy (original document submitted to the Court at the trial of 4 November 2008) Exhibit T-185-CD-record of the convoy Exhibit T-186-Newspaper article Medals on the Chests of Krajina People and subtitle From Grmeč to 11th Light Brigade Exhibit T-187-Invitation to the 8th Session of the Municipal Assembly of Krupa na Uni, no. 23/93 dated 14 April 1993 154

S1 1 K 005207 12 Kžk 7 May 2013

Exhibit T-188-Excerpt from the Minutes of the 8th Session of the Municipal Assembly of Krupa na Uni dated 28 April 1993 Exhibit T-189-Delivery of Report – Information on activity for the period from 21 April 1992 to 20 April 1993, no. 30/93 dated 29 April 1993 Exhibit T-190-Work Report of the Municipal Assembly and War Presidency for the period from 1 January 1992 to 20 April 1993 Exhibit T-191-Decision removing Gojko Kličković from the position of the President of the Municipal Assembly of Krupa na Uni, no. 95/93 dated 12 October 1993 Exhibit T-192-Decision removing Gojko Kličković from the position of the President of the SDS Municipal Board of Krupa na Uni, no. 112/94 dated 29 June 1994 Exhibit T-193-Shorthand notes from the 2nd session of the Assembly of the Serb people in BiH dated 21 November 1991 Exhibit T-194-Shorthand notes from the 11th session of the Assembly dated 18 March 1992 Exhibit T-195-Order on evacuation of Muslim population from Podgrmeč enclave, no. ___/92 dated 28 April 1992 Exhibit T-196-Minutes of the 16th session of the Serb people in BiH held on 12 May 1992 in B.Luka Exhibit T-197-Order on the evacuation of the remaining Muslim population from the area of the Serb Municipality of B.Krupa no. 130/92 dated 22 May 1992 Exhibit T-198-Proposal to the 1st Krajina Podgrmeč Brigade at Srpska Jasenica no. 184/92 dated 25 May 1992 Exhibit T-199-Warning regarding the behaviour and interference of certain command departments with the civilian sector, signed by G.Kličković Exhibit T-200-Rush note for provision of oil derivates, issued by the War Presidency of the Serb Municipality, no. 254/92 dated 28 May 1992 Exhibit T-201-Supplement order to the logistics, strictly confidential no. 313-1/12 dated 26 August 1992 Exhibit T-202-Magnetic tape recorder record of the 50th session of the National Assembly held on 15 and 16 April 1995 at Sanski Most Exhibit T-203-Record of examination of prisoners of war dated 30 April 1992 Exhibit T-204-Handwritten list of prisoners of war dated 4 May 1992 Exhibit T-205-Photograph marked with number 37- showing the area in front of the school P.Kočić (identified by witness Međedović) Exhibit T-206-Photograph marked with number 41- showing the interior of the school P. Kočić (identified by witness Međedović) Exhibit T-207-Official Gazette of the Serb people in BiH no. 4, dated 23 March 1992 - Relevant Article 27, page 77, part of the Law on the Interior Exhibit T-208-Instruction for work of the police detachment members, Executive 155

S1 1 K 005207 12 Kžk 7 May 2013

Board of the Serb Municipality of B. Krupa, ICTY certification, signed by G. Kličković Exhibit T-209-Order by the War Presidency of the Serb Municipality of B.Krupa no. 121/92 dated 3 May 1992 Exhibit T-210-Order for patrolling no. 544/92 dated 28 June 1992 with the accompanying report Exhibit T-211-Order by the PS B.Krupa on prohibition of entry and movement of motor vehicles, certified copy, signed by Gojko Kličković Exhibit T-212-Order by the War Presidency of Bosanska Krupa, no. 405/92 dated 2 June 1992 certified copy Exhibit T-213- Set of 89 orders by specification, with accompanying reports Exhibit T-214- Order for patrolling no. 42/92 dated 2 May 1992 Exhibit T-215- Order for patrolling no. 59/92 dated 4 May 1992 Exhibit T-216- Order for check-point service with accompanying report no. 63/92 dated 5 May 1992 Exhibit T-217- Order for check-point service with accompanying report no. 115/92 dated 11 May 1992 Exhibit T-218- Order for check-point service with accompanying report no. 404/92 dated 13 June 1992 Exhibit T-219-Order for check-point service no. 493/92 dated 23 June 1992 with accompanying report Exhibit T-220-Order by the War Presidency no. 660/92 dated 13 July 1992, signed by M.Drljača on behalf of G.Kličković Exhibit T-221-Sketch of the P.P.Njegoš school in B.Krupa Exhibit T-222-Record from the register of deaths for Muharem Dedić, no. 07-1-13-3-675/2008 dated 21 March 2008 Exhibit T-223-Record of examination of witness Muharem Dedić before the investigative judge of the Bihać Cantonal Court no. Ki 1/97-RZ dated 18 May 1995 Exhibit T-224-Order to provide security no. 101/92 dated 8/9 May 1992, with a report on the back Exhibit T-225-Order to provide security with a report on the back side no. 102/92 dated 9 May 1992 Exhibit T-226-Order for patrolling no. 99/92 dated 9 May 1992 with a report on the back Exhibit T-227-Order for patrolling no. 125/92 dated 12 May 1992 Exhibit T-228-Order for patrolling no. 216/92 dated 22/23 May 1992 Exhibit T-229-Official Note of 16 July 1992 regarding the visits to Bosanska Krupa to find extremists Exhibit T-230-Official Note of 16 July 1992 regarding the surrender of Ferid Velagić

156

S1 1 K 005207 12 Kžk 7 May 2013

Exhibit T-231-List of wanted conscripts strictly confidential no. 100-18/92 dated 26 May 1992 Exhibit T-232-Report of 26 June 1992 on meeting with part of the 3rd Company Exhibit T-233-List of the 3rd Territorial Defence Battalion Exhibit T-234-Order-confidential no. 349-1/92-Establishment wise appointment to 2nd Krajina Corps and 11 Krupa Light Brigade dated 18 August 1992 Exhibit T-235- Requisition Order for the stationary from the 4 July book store no. 520/92 dated 24 August 1992 Exhibit T-236-Order for patrolling no. 1113/92 for 10 October 1992 with a report on the back Exhibit T-237-Review of the Brigade commanding staff Exhibit T-238-Personnel file for Joja Plavanjac Exhibit T-239-Request for aid by Joja Plavanjac dated 10 February 1994 Exhibit T-240-Decision no. 35/94 dated 28 February 1994 Exhibit T-241-Information by the Banjaluka District Prosecutor’s Office dated 23 January 2007 Exhibit T-242-Record from the register of deaths for Muradif Alić, no. 386, Bihać, 10 January 2001 Exhibit T-243-Record from the register of deaths for Albin Bajrambašić, no. 03/10-13-2000 B.Krupa dated 23 November 2000 Exhibit T-244-Record from the register of deaths for Zijad Selimović, no. 317, Bihać, dated 10 January 2001 Exhibit T-245-Letter from the 11th Krupa Light Infantry Brigade no. 247/45 dated 15 December 1992 Exhibit T-246-Official Note by the Bihać Higher Court no. Ki 1/96- RZ dated 8 February 1996 (confidential exhibit) Exhibit T-246a-Record from the register of deaths for Mirsad Budimlić, no. 03-13-230/01, Stijeni, 23 January 2001 Exhibit T-247-Record from the register of deaths for Suad Sefić, no. 6763/2008 dated 11 September 2008, Bihać Exhibit T-248-List of the identified bodies issued by the 3rd Police Department Sanski Most, no. 05-1/08-1-233/08 dated 8 September 2008 Exhibit T-249-Decision by the S. Most Municipal Court no. R-697/97 dated 16 December 1997 Exhibit T-250-Record by the Bihać Cantonal Court no. KRI-21/01 dated 17 April 2001 Exhibit T-250a-Autopsy Record by the Bihać Cantonal Hospital Patology Ward for corpse no. 2, Golubnjača pit Exhibit T-250b-DNA report for corpse no. 2, namely Ferid Velagić, date 8 November 1993 Exhibit T-250c-Autopsy Record by the Bihać Cantonal Hospital Patology Ward for corpse no. 3, issued to the name of Kemal Šepić, Jama Golubnjača, date 14 May 157

S1 1 K 005207 12 Kžk 7 May 2013

2001 Exhibit T-250d-DNA report for the corpse of Kemal Šepić Exhibit T-250e-Autopsy Record by the Bihać Cantonal Hospital Patology Ward for corpse no. 7, Jama Golubnjača, date 14 May 2001 Exhibit T-250f-DNA report for corpse no. 7 (original is in English, document translated) dated 13 November 2006 Exhibit T-250g-Autopsy Record by the Bihać Cantonal Hospital Patology Ward for corpse no. 18, date 15 May 2001 Exhibit T-250h-DNA report for corpse no. 18 in the name of Nusret Malkoč Exhibit T-251-Decision no. 35/91 dated 11 December 1991 appointing Zdravko Marčeta commander of the territorial defence Exhibit T-252-Information by the War Presidency no. 157/92 dated 23 May 1992, regarding the correction of the document no. 94/92 dated 19 May 1992 Exhibit T-253-Regular Combat Report to the 1st Podgrmeč Brigade Command dated 17 May 1992 at Jasenica Exhibit T-254-Regular Combat Report to the 1st Podgrmeč Brigade Command dated 19 May 1992 at Jasenica Exhibit T-255-Regular Combat Report no. 1 for 30 June/1 July 1992 dated 1 July 1992, signed by Vukašin Daničić Exhibit T-256-Report by Colonel Daničić in handwriting no. 107-8 dated 13 July 1992 Exhibit T-256a-Report by Colonel Daničić in printed text no. 107-8 dated 13 July 1992 Exhibit T-257-Order for reinforcement of unit combat readiness, strictly confidential, no. 01/1- 92 dated 4 May 1992 Exhibit T-258-Order for treatment of prisoners of war, 2nd Krajina Corps Command, confidential, no. 307-2 dated 5 August 1992 Exhibit T-259-Order for treatment of prisoners of war, 11th Light Infantry Brigade Command, Bosanska Krupa, confidential, no. ______dated August 1992 Exhibit T-260-Order for treatment of prisoners of war, 11th Light Infantry Brigade Command, Bosanska Krupa, confidential, no. 306-2/92 dated 8 August 1992 Exhibit T-261-Letter from the 11th Light Infantry Brigade Command, Bosanska Krupa, no. 253- 1/92 dated 1 August 1992 Exhibit T-262-Report on command responsibility in the RS Brigade Exhibit T-263-Order by the 2nd Krajina Corps, strictly confidential, no. 32-1 dated 2 June 1992 Exhibit T-264-Order to the units of the 2nd Krajina Corps, strictly confidential, no. 2-72 dated June 1992 Exhibit T-265-Decision on establishment and jurisdictions of military courts and military prosecutor’s offices, Official Gazette of the Serb people in BiH, No. 8, dated 8 June 1992 Exhibit T-266-Order for establishment of camps for prisoners of war, strictly confidential, no.153-1 dated 25 June 1992 158

S1 1 K 005207 12 Kžk 7 May 2013

Exhibit T-267-Order – Organization of the functioning of the camps for prisoners of war, strictly confidential, no. 307-1, dated 5 August 1992 Exhibit T-268-Information-Receipt of International Red Cross teams and foreign reporters, strictly confidential, no. 307-3 dated 5 August 1992 Exhibit T-269-Order by the War Presidency of Bosanska Krupa Municipality, no. 217/92 dated 27 May 1992 Exhibit T-270-Response to the objection of the War Presidency no. 200/92 dated 25 May 1992 Exhibit T-271-Letter from the SDS Municipal Board no. 12/93 dated 27 April 1993 Exhibit T-272-Order by the War Presidency of Bosanska Krupa, no. 12/92 dated 24 April 1992 Exhibit T-272a-Order by the War Presidency of Bosanska Krupa, no. 42/92 dated 26 April 1992 Exhibit T-272b-Order by the War Presidency of Bosanska Krupa, no. 47/92 dated 26 April 1992 Exhibit T-272c-Order by the War Presidency of Bosanska Krupa, no. 48/92 dated 26 April 1992 Exhibit T-272d-Order by the War Presidency of Bosanska Krupa, no. 49/92 dated 26 April 1992 Exhibit T-272e-Order by the War Presidency of Bosanska Krupa, no. 50/92 dated 26 April 1992 Exhibit T-272f-Order by the War Presidency of Bosanska Krupa, no. 52/92 dated 26 April 1992 Exhibit T-273-Order by the War Presidency of Bosanska Krupa, dated 28 April 1992, with ICTY certification Exhibit T-274-Military unit file for Momo Grubiša Exhibit T-274a-Military unit file for Mile Ćazić Exhibit T-274b-Military unit file for Mile Ćazić Exhibit T-274c-Military unit file for Petar Senić Exhibit T-274d-Military unit file for Željko Smoljanac Exhibit T-274e-Military unit file for Narandžić Zdravko Exhibit T-275-Finding and opinion of expert witness – graphologist Zlatko Dugandžić, relating to the handwriting of M. Drljača dated 10 November 2008 Exhibit T-276-Document on appointment, strictly confidential, no. 11/15-154 dated 4 May 1992 Exhibit T-277- Regular Combat Report, strictly confidential, no. 107-9 dated 16 July 1992 Exhibit T-278- Regular Combat Report, strictly confidential, no. 107-10 dated 17 July 1992 Exhibit T-279-Report of expert witness Dorothea Hanson Exhibit T-280-Order by the 1st Krajina Brigade Command, no. 100-02 dated 7 May 1992 Exhibit T281-Report of the 11th Light Brigade Command, no. 154-1/92 dated 13 July 1992 Exhibit T282-Diary of Mitar Ciganović-2 parts from the diary: on top of page-15 February 159

S1 1 K 005207 12 Kžk 7 May 2013

1992, the exhibit relates to the part from 14 June 1992; on top of page 14 April 1992, exhibit relates to the part from 30 July 1992 Exhibit T283-Diary of Milan Vojinović-parts of the diary Exhibit T284-Pass of the War Presidency of Bos. Krupa, nor. 150/92 dated 29 April 1992 confidential exhibit Exhibit T285-Certificate of Bos. Novi Municipal Assembly, no. 60/92 dated 30 April 1992 confidential exhibit Exhibit T286-Instruction for the evacuation of the population from the Arapuša local community confidential exhibit Exhibit T287-List of the refugees from B.Krupa accommodated in Arapuša local community confidential exhibit Exhibit T288-List of the refugees from B.Krupa accommodated in Arapuša local community – confidential exhibit Exhibit T289-List of citizens from the Arapuša local community Exhibit T290-List of the people from Arapuša accommodated in S.Most Exhibit T291-List of refugees from B.Krupa as of 26 May 1992 Exhibit T292-Photograph of Jasminka Čaušević’s house and a photograph of the staircase of the same house from 2008 Exhibit T293-Record from the register of deaths for Ferid Šertović, no. sl72008 dated 11 February 2008 Exhibit T294-Record of examination of witness Šertović Ferid, no. KT-RZ-1/05 dated 14 April 2005 T295-Order by the War Presidency of Bos. Krupa, no. 23/92 dated 24 April 1992 T296-List of civilian weapons from Arapuša T297-Inspection of the cattle and equipment taken over in Arapuša T298-Report by Bihać Security Service Centre, no. 12-91/92 dated 21 April 1992 T299-Record from the register of deaths for Esad Arnautović, no. 2003-12-4836 dated 13 February 2008 T300-Statement of witness Esad Arnautović no. Ki 9/92 dated 4 September 1992 T301-Record from the register of deaths for Mehmed Kaljković, no. 2003-12-4838/2007 dated 13 February 2008 T302-Statement of witness Mehmed Kaljković no. Ki 9/92 dated 20 June 1994 T303-Approval by the War Presidency of the Bos. Krupa Municipality no. 55/92 dated 27 April 1992 T304-1x DVD-Record of the TV Banja Luka and the transcript of the record T305-Letter from the Krupa na Uni Municipality, no. 84/93 dated 27 August 1993 T306-Letter from the war presidency of the Bos. Krupa Municipality, no. 76/92 dated 27 April 1992 T307-Biography of Gojko Kličković T308-Information of the Intelligence-Security Agency of BiH, Sarajevo (OSA) no. 04/5-2096/09 dated 160

S1 1 K 005207 12 Kžk 7 May 2013

20 February 2009, Decision of 23 August 1991 no. 04-72/01 and 04-358 dated 8 April 1991 T308a-1xCD-telephone conversation between Radovan Karadžić and Dobrica Ćosić and transcript of the record of 8 June 1991 T308b-1xCD-telephone conversation between Radovan Karadžić and Momčilo Krajišnik and transcript of the record of 9 September 1991 T-309-Statement of witness Emir Ezić given to the Prosecutor’s Office of BiH, no. KT-RZ-1/05, dated 7 February 2008

161

S1 1 K 005207 12 Kžk 7 May 2013

ANNEX II

DEFENCE WITNESSES

Name of the witness Date of testimony

1. Gojko Kličković– first accused 7 April 2009 8 April 2009 14 April 2009 15 April 2009 21 April 2009 22 April 2009 13 May 2009 19 May 2009 20 May 2009 26 May 2009 27 May 2009

2.Miroslav Vještica 2 June 2009 10 June 2009 16 June 2009 3.Fikret Abdić ( video link ) 3 June 2009 4. Mile Mudrinić 16 June 2009 5.Sead Komić 17 June 2009 6.Lazar Stupar 23 June 2009 7.Šemso Velić 24 June 2009 8.Slobodan Majkić 30 June 2009 9. Dragan Lukač 30 June 2009 10. Božo Pilipović 1 July 2009 11. Ramo Brkić 7 July 2009 12. Muharem Begić 25 August 2009 13. Mirsad Suljić 25 August 2009 14. Fahrudin Dizdarević 9 September 2009 15. Radomir Njeguš 22 September 2009 Avdo Hebib (attended but was not examined 22 September 2009 as a witness, bacuse the defense withdrew its proposal to hear the witness)

162

S1 1 K 005207 12 Kžk 7 May 2013

16. Ejub Topić 14 October 2009 17. Jovo Pilipović 14 October 2009 18. Fuad Muzaferović 27 October 2009 19. Hajrudin Osmanagić 27 October 2009 20. Ale Šiljdedić 28 October 2009 21. Ismet Mujanović 28 October 2009 23. Slavko Drašković 3 November 2009 24. Duško Stojislavljević 3 November 2009 25. Nenad Bokan 4 November 2009 26. Dragan Japundža 4 November 2009 27. Mladen (Gojko) Štrbac 10 November 2009 28. Đorđe Jež 10 November 2009 29. PWS 92 11 November 2009 30. Expert witness Radoslav Radinović 17 and 18 November 2009

31. Dragomir Luinović 8 December 2009 32. Đuro Grbić 8 December 2009 33. Ibrahim Međedović 8 December 2009 34. Mile Štrbac (video link ) 15 December 2009 35. Miroslav Stanić 22 December 2009 36. Mićo Luinović 22 December 2009

37. Mile Vojinović 26 January 2010 38. Milan Krnetić 27 January 2010 39. Slavko Ilić 27 January 2010 40. Mladen Štrbac 2 February 2010 41. Ljubomir Vuković 3 February 2010 42. Miroslav Kljajić 3 February 2010 43. Zdravko Marčeta 9 February 2010 44. Witness A7 10 February 2010 45. Dmitar Ciganović 16 February 2010 46. Refik Tatlić 23 February 2010 47. Mirko Orelj ( I and II accused) 8 March 2010 48. Witness A8 16 March 2010 49. Milan Ljubović 23 March 2010

163

S1 1 K 005207 12 Kžk 7 May 2013

50. Marijan Šimić 23 March 2010 51. Mićo Kačavenda 24 March 2010 52. Dragomir Damjanić 24 March 2010 53. Goran Jerković 6 April 2010 54. Radomir Mandić 6 April 2010 55. Momo Grubiša 6 April 2010 56. Ramiz Dreković 7 April 2010 57. Slavko Latinović 7 April 2010 58. Mile Bijeljac 14 April 2010 59. Drago Vržina 20 April 2010 60. Brane Babić 21 April 2010 61. Drago Keča 21 April 2010 62. Brane Rađenović 27 April 2010 63. Ratko Beronja 27 April 2010 64. Milan Obradović 28 April 2010 65. Rajko Senić 11 May 2010 66. Duško Ljepoja 11 May 2010 67. Rade Milešević 11 May 2010 68. Brane Kljajić 11 May 2010 69. Željko Zorić 18 May 2010 70. Miroslav Drljača 18 May 2010 71. Ešref Hadžić (I and II) 18 May 2010 72. J asmin Ramić 25 May 2010 73. Kasim Trnka (expert witness) 25 May 2010 74. Božo Erceg 25 May 2010 75. Zdravko Latinović 26 May 2010 76. Đorđe Latinović 26 May 2010 77. Boško Plavšić 26 May 2010 78. Zoran Sofilj 1 June 2010 79. Rajko Kličković 8 June 2010 80. A-9 9 June 2010 81. Radomir Lukić (expert witness) 15 June 2010 82. Dragan Kolundžija ( III ) 29 June 2010

164

S1 1 K 005207 12 Kžk 7 May 2013

83. Branislav Gajčić ( III) 29 June 2010 84. Duško Srdić ( III ) 30 June 2010 85. Milorad Rađenović ( III ) 30 June 2010 86. Lazo Radošević ( III ) 6 July 2010 87. Savan Knežević ( III ) 6 July 2010 88. Lazo Beslać (III ) 6 July 2010 89. Mile Vujkanović (III) 17 August 2010 90. Drago Kačevanda (III) 17 August 2010 91. Miroslav Egeljić (III) 17 August 2010 92. Predrag Bljelac (III) 18 August 2010 93. Ranko Radanović (III) 18 August 2010 94. Mladen Skenderija (III) video link 24 August 2010 95. Zdravko Naračić (III) video link 24 August 2010 96. Milovan Drljača (III) video link 24 August 2010 97. Boško Klašnja (III) 25 August 2010 98. Dane Marić (III) 25 August 2010

99. Slobodan Kosovac ( III ) expert witness 14 September 2010 15 September 2010

DEFENCE DOCUMENTARY EVIDENCE

EXHIBITS OF THE ACCUSED GOJKO KLIČKOVIĆ

O-I – 1 Report on gathering and maneuvering O-I – 2 Exhibit already tendered as Prosecution Exhibit T-2 O-I – 3 Exhibit already tendered as Prosecution Exhibit T-8. O-I – 4 Exhibit already tendered as Prosecution Exhibit T-7 O-I – 5 Exhibit already tendered as Prosecution Exhibit T-13 O-I – 6 Exhibit already tendered as Prosecution Exhibit T-1 O-I – 7 Exhibit already tendered as Prosecution Exhibit T-75 and is also tendered as Exhibit of Defence for the second accused as O-II-1 O-I – 8 Exhibit already tendered as Prosecution Exhibit T-140 O-I – 9 Exhibit already tendered as Prosecution Exhibit T-72 O-I – 10 Exhibit already tendered as Prosecution Exhibit T-71 O-I – 11 Exhibit already tendered as Prosecution Exhibit T-68 O-I – 12 Exhibit already tendered as Prosecution Exhibit T-76 O-I – 13 Exhibit already tendered as Prosecution Exhibit T-69 165

S1 1 K 005207 12 Kžk 7 May 2013

O-I – 14 Exhibit already tendered as Prosecution Exhibit T-70 O-I – 15 Exhibit already tendered as Prosecution Exhibit T-95. O-1 – 16 Exhibit already tendered as Prosecution Exhibit T-143. O-I – 17 was not tendered as Prosecution Exhibit Proclamation to the Serb People of Bosnia and Herzegovina – we had our plebiscite O-I – 18 Exhibit already tendered as Prosecution Exhibit T-148 O-I – 19 Exhibits not tendered as Prosecution exhibits, the cover letter marked as O-1-19 and the appeal as O-1-19 b. O-I – 20 – Set of exhibits - Decision on verification of the Serb Municipality of B. Krupa – O-I-20c - Report on the plebiscite results – O-I-20a - Document of the Serb Municipality of Bos. Krupa – O-I-20d - Decision on proclamation of the Serb Municipality of Bos. Krupa – O-I-20b - Report on results of the plebiscite of non-Serb population – O-I-20e - Record from conducting the plebiscite – O-I-20h - Record from conducting the plebiscite – O-I-20f - Minutes of the Municipal Commission of Bos. Krupa – O-I-20g

O-I – 21 Document “What means living in the modern Bosnia” O-I – 22 Excerpt from the book Untold Defence by Momir Bulatović, p. 85 O-I – 23 Excerpt from the book Untold Defence, pp. 98 i 99 O-I – 24 Excerpt from the book Untold Defence, pp. 86, 89,90 O-I – 25 Excerpt from the book Untold Defence pp. 78, 79 O-I – 26 Excerpt from the book Untold Defence, pp. 46,47,49 O-I – 27 Excerpt from the book Untold Defence, pp. 34, 35, 38,39 O-I – 28 Excerpt from the book Untold Defence, pp. 105,108, 116, 119, 120,121, 137 O-I – 29 Excerpt from the book Untold Defence, pp. 197,198, 199, 200, 201, 202, 203, 204, 205, 207 O-I – 30 Excerpt from the book Untold Defence, p. 73, O-I – 31 Excerpt from the book Untold Defence pp. 250,251,252, 253, 254 O-I – 32 Excerpt from the book Untold Defence pp. 25,26 O-I – 33 Excerpt from the book Untold Defence p. 14 O-1-34 Record of examination of witness Muharem Begić no. KT-RZ-1/05 dated 15 April 2005 O-1-35 Excerpt from the book by Dobrica Ćosić, newspaper clipping from the Večernje Novosti entitled All Serbs to be together O-1-36 Newspaper clipping from the Večernje Novosti dated 5 August 2008, entitled The concept of Great Serbia O-1-37 Newspaper clipping from the Novosti dated 10 August 2008 entitled What kind of BiH we want O-1-38 Newspaper clipping from the Večernje Novosti, Letter from Radovan Karadžić to 166

S1 1 K 005207 12 Kžk 7 May 2013

Slobodan Milošević entitled You turned your back to the Serbianhood O-1-39 Newspaper clipping from the Novosti dated 16 August 2008, entitled Mladić – I am not your wife O-1-40 Newspaper clipping from the Večernje Novosti, dated 15 October 2008 entitled Aptman: The document existed O-1-41 – Excerpt from the book by Hasan Efendić Who defended Bosnia, p. 118 O-1-42 – Excerpt from the book by Ševko Hodžić Bosnian Warriors, pp. 37 and 38 O-1-43 – Excerpt from the book by Sefer Halilović The Cunning Strategy, p. 23 O-1-44 – Excerpt from the book by Sefer Halilović The Cunning Strategy, p. 55 O-1-45 – Excerpt from the book by Nedžad Ajdandžić Defence of Sarajevo, pp. 62, 63, 64 O-1-46 – Excerpt from the book by Nedžad Ajdandžić Defence of Sarajevo, p. 112 O-1-47 - Excerpt from the book by Nedžad Ajdandžić Defence of Sarajevo, p. 113 O-1-48 - Excerpt from the book by Nedžad Ajdandžić Defence of Sarajevo, pp. 110, 111 O-1-49 -Newspaper clipping from the Oslobođenje dated 27 February 1992, p. 5, entitled The Brifisli preceded Lisbon O-1-50 -Newspaper clipping from the Oslobođenje dated 6 March 1992, p. 6, What did the functioners say O-1-51 -Newspaper clipping from the Oslobođenje dated 10 March 1992, p. 1, First round of Brussels talks finished O-1-52 –Newspaper clipping from the Oslobođenje dated 20 March 1992, p.1, Cutilhero’s plan made difficult O-1-53 –Newspaper clipping from the Oslobođenje dated 7 March 1993, Finding common ground O-1-54 - Newspaper clipping from the Oslobođenje dated 7 March 1993, Talks on finding common ground continue O-1-55- Newspaper clipping from the Oslobođenje dated 5 March 1992, On the threshold of a political solution O-1-56 - Newspaper clipping from the Oslobođenje dated 1 April 1992, Minor correction of Lisbon paper O-1-57 - Newspaper clipping from the Oslobođenje dated 1 April 1992, Brussels calls for peace O-1-58 -Newspaper clipping from the Oslobođenje dated 8 March 1992, Door closed to the curious O-1-59 - Newspaper clipping from the Oslobođenje dated 19 March 1992, Statement on the principle for Dayton Constitution O-1-60 - Newspaper clipping from the Oslobođenje dated 2 April 1992, Praise to BiH agreement O-1-61 – Newspaper clipping from the Oslobođenje dated 20 March 1992, Swiss model for BiH 167

S1 1 K 005207 12 Kžk 7 May 2013

O-1-62 -Newspaper clipping from the Oslobođenje dated 11 March 1992, State with units O-1-63 Newspaper clipping from the Oslobođenje dated 12 May 1992, Request to urgently continue the conference O-1-64 Newspaper clipping from the Oslobođenje dated 21 May 1992, Europe nearly shocked O-1-65 Newspaper clipping from the Oslobođenje dated 1 May 1992, Maps on the table O-1-66 Newspaper clipping from the Oslobođenje dated 20 May 1992, Negotiations even without cease fire O-1-67 - Newspaper clipping from the Oslobođenje dated 2 April 1992, Agreement on paper O-1-68 - Newspaper clipping from the Oslobođenje dated 25 March 1992, Armed conflict, mixed groups formed to pacify the situation O-1-69 - Newspaper clipping dated 22 March 1992 Provocation and incidents O-1-70 - Newspaper clipping Armed conflict, the operation can begin O-1-71 - Newspaper clipping dated 15 January 1999 Why Podrinje fell O-1-72 - Newspaper clipping dated 11 March 1992 Foreign mercenaries, Sarajevo does not need mercenaries O-1-73 - Newspaper clipping dated 11 March 1992 Honour and duty of the decision O-1-74 - Newspaper clipping dated 31 March 1992 Attitude towards the peace plan, Sarajevo agreement is on O-1-75 - Newspaper clipping dated 27 February 1992 Position of the Islamic Community for BiH, Muslims, vote Yes O-1-76 - Newspaper clipping dated 20 May 1992 Support to the BiH Confederation from Croatia, Split Agreement O-1-77 - Newspaper clipping dated 20 September 1992 Bosanska Dubica unlucky day O-1-78 - Order by the RH Ministry of Defence dated 15 November 1993 O-1-79 - Letter from the Friends of Bosnia sent from the RH Ministry of Defence – Volunteers accepted for training O-1-80 - Order by the Croatian Ministry of Defence dated 12 January 1992 O-1-81 - Excerpt from the book The Cunning Strategy authored by Halilović O-1-82 - Letter from Fikret Abdić dated 6 August 1992 O-1-83 - Letter to the 3rd Corps Command dated 18 September 1992 O-1-84 – Agreement on Friendship and Cooperation between RBiH and RH O-1-85 - Notice of the 5th Corps dated 2 June 1993 O-1-86 – Opinion on Engagement of the 5th Corps dated 18 September 1995 O-1-87 – Izetbegović's Double Game, newspaper clipping from the Glas Srpske dated 23 July 1998 O-1-88 – Newspaper clipping from the Večernje Novosti dated 23 October 1997, What does the coup train O-1-89 Newspaper feuilleton from the Večernje Novosti published on 15, 20, 21, 22 and 24 October, from the book Counter-attack - How Yugoslavia fell apart by Veljko Kadijević O-1-90 Newspaper feuilleton from the Večernje Novosti dated 6 August, from the 168

S1 1 K 005207 12 Kžk 7 May 2013

book Culprit on some other address O-1-91 Decision on Consolidation of All Armed Forces in the Territory of the Republic of Bosnia and Herzegovina O-1-92 Page 194 from the book O-1-93 Corps Command Order dated 15 May 1990 O-1-94 Review of reserve and active components of the PSS Bosanska Krupa until April 1992 O-1-95 Statute of the Serb Municipality of Bosanska Krupa, November 1991 O-1-96 Study by Dr Milivoje Ivanišević Important events in the Krupa na Uni Municipality O-1-97 Pages 77, 78, 80, 81 and 82, The Strategy O-1-98 Excerpt from the book The Extraordinary Circumstances by General Todorović O-1-99 Order for attack dated 17 August 1995 (5th Corps) O-1-100 Exhibit already tendered as Prosecution Exhibit T-36 O-1-101 Exhibit already tendered as Prosecution Exhibit T-105 and T-106 (orders on ceasefire) O-1-102 Document of 7 January 1992 O-1-103 Exhibit already tendered as Prosecution Exhibit T-280 O-1-104 Warning against behaviour and interference of certain military command departments with the civilian sector O-I-105 Special pass no. 133/92 dated 4 May 1992 O-I-105 Special pass no. 134/92 dated 4 May 1992 O-1-106 Tendered as Prosecution Exhibit T-103 O-1-107 Authorization no. 16/92 dated 4 April 1992 O-1-108 Order 266/92 dated 9 May 1992 O-I-109 Statement on items misappropriated by the Green Berets no. 156/92 dated 23 May 1992 O-I-110 Decision of appointment no. 126/92 dated 4 May 1992 O-I-111 Instruction for work of police members RR167 168, O-I-112 Review of statements taken from people living at Zalug O-I-112 Request for assignment of weapons to citizens no. S1 dated 6 August 1992 O-I-113 Order no. 1533/92 dated 14 September 1992 O-I-114 Agenda 009004501, O-I-115 List of injured and wounded persons in the area of Bosanska Krupa as of 25 April 1992 O-I-116 Letter to the Corps Command Banja Luka no. 10/92 dated 22 April 1992 O-I-117 Excerpt from the Minutes of the session of the Executive Board of the Assembly of the Serb Municipality of Bosanska Krupa held on 17 December 1991 O-I-117 Excerpt from the Minutes of the session of the Transitional Assembly of the Serb Municipality of Bosanska Krupa held on 11 December 1991 O-I-118 Decision no. 0009004457

169

S1 1 K 005207 12 Kžk 7 May 2013

O-I-119 Letter to all local communities in the Serb Municipality of Bosanska Krupa no. 9/92, dated 28 January 1992 O-I- 120 Rush note no. 1/92 dated 3 January 1992 O-I-120 Initiative no. 37/91 dated 24 December 1991 O-I-121 Request for aid in fuel no. 06/92 dated 28 April 1992 O-I-122 Requisition – tendered as Prosecution Exhibit T-111 O-I-123 Need for heavy machinery no. 134/92 dated 29 April 1992 O-I-124 Requisition no. 140/92 dated 29 April 1992 O-I-125 Request for arming the territorial defence no. 21/92 dated 10 March 1992 O-I-126 Regulating the status of the territorial defence units no. 141/92 dated 29 April 1992 O-I-127 Request of the 9th Corps Command, strictly confidential no. 4-49 dated 3 April 1992, no. 31/101-230 dated 7 April 1992 O-I-128 Rush note in the case of the Initiative of the Serb Municipality of Bosanska Krupa no. 14/92 dated 11 February 1992 O-I-129 Certificate no. 60/92 dated 30 April 1992 O-I-130 Order no. 35/92 dated 26 April 1992 O-I-131 Pass 133-92 dated 29 April 1992 O-I-132 Letter to the 2nd Military District Command no. 19/31-442 dated 23 April 1992 O-I-133 Pass no. 59/92 dated 27 April 1992 O-I-134 Request for change of the assignment – tendered as Prosecution Exhibit T-102 a) O-I-135 Request for change of the assignment of Borislav Kačavenda, Reserve Lieutenant O-I-135 Request for change of the assignment of Borislav Kačavenda, Reserve Lieutenant O-I-136 Initiative no. 1/01 dated 23 December 1991 O-I-137 Decision no. 35/91 dated 11 December 1991 O-I-138 Order on limited work of bars and restaurants no. 4/91 dated 23 December 1991 O-I-139 Order on prohibition of felling and illegal use of forests no. 5/91 dated 23 December 1991 O-I-140 Census of the population on ethnical structure in populated settlements O-I-141 Delivery of documents on the establishment of the Serb Municipality of Bosanska Krupa no. 21/91 dated 18 December 1991 O-I-142 Order no. 28/17-373 dated 7 October 1993 O-I-143 Newspaper clipping from the Oslobođenje dated 8 April 1992 O-I-144 Decision no. 34/91 dated 11 December 1991 O-I-145 Newspaper clipping O-I-146 Newspaper clipping from the Oslobođenje O-I-147 Newspaper clipping O-I-148 Newspaper clipping O-I-149 Field Visit Report O-I-150 Newspaper clipping O-I-151 Rules of Procedure of Crisis Staff P0002200, 170

S1 1 K 005207 12 Kžk 7 May 2013

O-I-152 Order 23/92 dated 24 April 1992 O-I-153 Instruction for organization and activity of Serb people in BiH in extraordinary circumstances dated 19 December 1992 O-I-154 Order no. 42/92 dated 26 April 1992 O-I-155 Assignment of senior officers by establishment posts, no. 253-1/92 dated 1 August 1992 O-I-156 Order no. 2-72 dated 5 June 1992 O-I-157 Criminal case no. 222/92 dated 26 October 1992 and no. 47/92 dated 8 December 1992 O-I-158 Feuilleton from the Večernje Novosti, 14 August 2008 O-I-159 Record of Exchange of Captured Persons made on 10 May 1992 O-I-160 Letter from Špiro Nikolić to M. Vještica O-I-161 Review of persons deprived of liberty on 21 and 22 /the month missing/ 1992 during the war in Bos. Krupa O-I-162 Agreement at the Army Command HQ of the Serb Municipality of Bosanska Krupa O-I-163 Newspaper clipping from the Večernje Novosti dated 7 September 2008 O-I-164 Newspaper clipping from the Novosti dated 11 August 2006 O-I-165 Excerpt from the book p. 103, O-I-166 Excerpt from the magnetic tape recorder record of the session of the Presidency of RBiH held on 20 June 1992 O-I-167 Guidelines for organization of the voluntary departure of the people who want to leave Banja Luka area O-I-168 Newspaper article from the Oslobođenje O-I-169 Newspaper article O-I-170 Newspaper article O-I-171 Letter to the Crisis Staffs no. 03-129/92 dated 30 April 1992 O-I-172 Order to carry out combat operations O-I-173 Newspaper article from the Oslobođenje entitled Massacre at Sijekovac O-I-174 Newspaper article Serbs moving out, Muslims moving out O-I-175 Newspaper article RTVSA occupied O-I-176 Newspaper article Order to cease fire O-I-177 Newspaper article Arrested with ballots O-I-178 Newspaper article Terror becomes unbearable O-I-179 Newspaper Cartoon O-I-180 Excerpt from the book authored by Sefer Halilović O-I-181 Order no. 35/92 dated 26 April 1992 O-I-182 Order on prohibition of entry and movement of motor vehicles and privately owned trucks O-I-183 Decision no. 1/92 dated 16 April 1992 171

S1 1 K 005207 12 Kžk 7 May 2013

O-I-184 Press release dated 4 April 1992 O-I-185 Letter no. 514-011-1/91 dated 26 July 1991 O-I-186 Decision no. 67/1 dated 25 October 1991 O-I-187 Order dated 26 April 1992 (A), Order dated 28 April 1992 (B), Order dated 14 May 1992 (C) O-I-188 Official Gazette dated 31 October 1977 O-I-189 Provisional Rules of Procedure dated 11 December 1991 O-I-190 Minutes of the session of the Transitional Assembly of Bosanska Krupa no. 12/91 O-I-191 Record of examination of Luinović Dragomir dated 20 November 2007 O-I -192 Record of examination of Jovo Obradović dated 23 November 2007 O-I-193- SDS documents (tendered as Prosecution exhibits T-63,T-65, T-66 and T-130 ) O-I-193 a Municipal Board Annual Work Report O-I-193 b Work Program for the period from 10 August 1991 to 10 August 1992 O-I-193 c SDS announcement dated 3 June 1991 O-I-193 d Instruction for the work of the SDS O-I-193 e Excerpt from the Minutes of the session of the SDS of the Serb Municipality of Bosanska Krupa O-I-194 Work Report of the Municipality and War Presidency for the period from 1 January 1992 to 20 April 1993 O-I-195 Official Gazette of the Serb people in BiH O-I-196 Newspaper clipping from the Novosti - Feuilleton Nikola Koljević O-I-197 Newspaper clipping from the Press O-I-198 Newspaper clipping from the Novosti – Feuilleton from 16 January 2009 O-I-199 Newspaper clipping, Feuilleton - Tuđman offers the sea O-I-200 Newspaper clipping, Feuilleton – The war could have been avoided O-I-201 Decision to form the territorial defence units O-I-202 Official Note Ibrahim Čisić O-I-203 Enclosure – addition from the NIN O-I-204 Verdict in the Vuković case O-I-205 The Law on Change of the Name of Bosanska Krupa to Krupa na Uni O-I-206 Excerpt from the war diary O-I-207 Decision on establishment of the Assembly of Serb people of BiH, Official Gazette dated 15 January 1992 ( T-140 ) O-I-208 Conclusions of the SDS Municipal Board dated 27 April 1993 O-I-209 Theft of weapons from Veliki Dubovik O-I-210 Statement of Jasmin Ramić dated 29 May 1993 O-I-211 Record from examination of Rifet Hasanović dated 10 June /the year missing/ O-I-212 Excerpt from the war diary of Nikola Koljević O-I-213 Excerpts from the war diary of Nikola Koljević (three parts) O-I-214 Excerpts from the war diary of Nikola Koljević (three parts) 172

S1 1 K 005207 12 Kžk 7 May 2013

O-I-215 Excerpt from the war diary of Mitar Ciganović, marked as TOP20/3 O-I-216 Diary of witness Milan Vojinović (not physically tendered since the original is with the Prosecutor’s Office) O-I-217 3 x Record of examination of witness Milan Vojinović – BiH Prosecutor’s Office dated 20 April 2005, 3 December 2007 and 17 April 2008 O-I-218 Record of examination of witness Milan Krnetić – BiH Prosecutor’s Office, dated 10 December 2007 O-1-219 Record of examination of witness Ljubomir Vuković no. KT-RZ-100/06, dated 4 December 2008 O-1-220 Record of examination of witness Zdravko Marčeta at the BiH Prosecutor’s Office no. KT-RZ-100/06 dated 7 December 2007 (exhibit will be tendered also for the defence of the third accused-exhibit number O-3-10) O-1-221 Record of examination of witness Dmitar Ciganović dated 8 April 2008 O-1-222 Letter, confidential, no. 23-1/92 dated 23 July 1992, signed by Dmitar Ciganović O-1-223 Letter no. 457/92 dated 23 June 1992, signed by Gojko Kličković O-1-224 Order dated 25 May 1992, signed by Dmitar Ciganović O-1-225 Letter, confidential, no. 514/92 dated 24 August 1992, signed by Dragan Ciganović O-1-226 Letter no. 04/3-952-3/93 dated 10 May 1993, signed by Mladen Štrbac O-1-227 Order to the logistics, strictly confidential, 100-55/92 dated 20 June 1992 O-1-228 Warning against behaviour, signed by Gojko Kličković O-1-229 Order no. 200-458/92 dated 7 August 1992, signed by Dmitar Ciganović O-1-230 Allegations regarding the errors in the application of the law with reference to Article 5 of the Statute O-I-231 Allegations regarding the errors in the application of the law with reference to Article 5 of the Statute O-1-232 Study The Command Responsibility by Dr Milna Škulić O-1-233 Book The Basic Principle Issues of the Command Responsibility O-1-234 Instruction for the evacuation of the population with refugees from the Arapuša local community O-1-235 Order for further action O-1-236 Order of the Commander of the 2nd Krajina Corps, General Grujo B. O-1-237 Document no. 172/1 dated 26 February 1993 O-1-238 Document of the Command no. 307/2 dated 5 August 1992 O-1-239 Document of the Security Service Centre no. 11-169 dated 30 July 1992 O-1-240 List of residents of Arapuša O-1-241 List of persons for exchange O-1-242 Handwritten document dated 26 April 1992-meeting O-1-243 Diary of Miroslav Vještica in handwriting O-I-244 Order to demolish the bridges (Prosecution already tendered T-104 ) O-I-245 Regular combat report dated 7 July 1992 173

S1 1 K 005207 12 Kžk 7 May 2013

O-I-246 Excerpt from the diary O-I-247 Plan for the evacuation of population dated 9 August 1995 O-I-248 Excerpt from the book by Veljko Kadijević (from the Novosti) Milošević’s dual game O-I-249 Regular Combat Report, dated 9 June 1992; Proposal of mobilization assembly points no. 100-94/92 dated 7 July 1992; Order dated 3 August 1992 O-I-250 Request for consolidation of the Brigade by formation, no. 100-12/92 dated 15 May 1992 and Order of the Main HQ of the Army of SRBiH dated 23 May 1992 O-I-251 Order by the Command of the 2nd Krajina Corps, strictly confidential, no. 307-1 dated 5 August 1992 and Order dated 26 May 1992, strictly confidential, no. 153-1 O-I-252 Defence Orders (2) of the Podgrmeč Territorial Defence Command, dated 4 May 1992 O-I-253 Proposal of the War Presidency of the Serb Municipality of Bosanska Krupa, no. 184/92 dated 25 May 1992 O-I-254 Letter no. 76/92 dated 27 April 1992 to the 4th Battalion Command O-I-255 (T-99) Order on the mobilization of the territorial defence from 1992 O-I-256 (T-195) Order on the evacuation of the Muslim population from the Podgrmeč enclave O-I-257 Decision of the Assembly of the Serb Municipality of Bosanska Krupa dated 21 August 1992 O-I-258 Decision on the control of the use of the property that belonged to the Muslim population O-I-259 Letter from Gojko Kličković to the Public Security Centre Banja Luka dated 18 January 1993 O-1-260 Conclusions from the meeting O-I-261 Unit personal file of Milan Štrbac O-I-262 Decision on the seat of the Municipality of Serb people O-1-263 Certificate on the election of the councilmen no. 13/91 dated 11 December 1992 O-1-264 Order of the War Presidency no. 263/92 dated 29 May 1992 O-1-265 Order of the War Presidency no. 262/92 dated 29 May 1992 O-1-266 Supply of material, Command of the 1st Podgrmeč Brigade, confidential, no. 100- 26/92 dated 7 June 1992 O-1-267 Conclusions from the meeting held with the town commanders on 16 November 1992 O-1-268 Report on the analysis of the documents found in the house of Mladen Stojanović O-1-269 Statement of Slobodan Vojinović O-1-270 Regular combat report of the 2nd Command of the Krajina Corps dated 13 July 1993 (T-256) O-1-271 Letters from the Command, Order to collect the spoils of war O-1-272 Order to reinforce the combat readiness of the units, strictly confidential, no. 01/1-92 dated 4 May 1992 O-1-273 Order to appoint the command of the Podgrmeč Brigade 174

S1 1 K 005207 12 Kžk 7 May 2013

O-1-274 Response of the BiH Prosecutor’s Office to the Request of the accused Kličković for submission of documents O-1-275 Information on reported criminal offences O-1-276 Basic information on the PSS of the Serb Municipality of Bosanska Krupa O-1-277 Decision to ban hunting, 5 August 1991, SDS Executive Board O-1-278 Decision no. 3/90 dated 8 September 1990 O-1-279 Decision no. 67/91 dated 17 September 1991 O-1-280 Organization on establishment dated 23 July 1991 O-1-281 Statutory decision dated 10 August 1991 O-1-282 Statute of the SDS of BiH dated 12 July 1991 O-1-283 Orders by the War Presidency: Order no. 318/92 dated 3 June 1992, Order no. 317/92 dated 3 June 1992, Order no. 1462/92 dated 6 September 1992 O-1-284 Instruction for the work of town commands in the area of the Serb Municipality of Bosanska Krupa no. 290/92 dated 29 May 1992 O-1-285 Decision on the organization and method of work 2/92 dated 7 May 1992 ( t-101 ) O-1-286 Decision of the Municipal Assembly no. 43/92 dated 10 July 1992 ( t-152 ) O-1-287 Decision of the Municipal Assembly no. 65/92 dated 21 August 1992 ( t-155 ) O-1-288 Order by the War Presidency of the Serb Municipality of Bosanska Krupa no. 32/08 dated 26 April 1992 (T-107) O-1-289 Order by the War Presidency of the Serb Municipality of Bosanska Krupa no. 660/92 dated 13 July 1992 O-I-290 Order (in handwriting) no. 27/92 dated 5 April 1992 O-1-291 Second page of the session ? O-1-292 Order no. 130/92 dated 22 May 1992 O-1-293 Letter to the Command of the 3rd Corps of the Armed Forces of R BiH dated 19 December 1992 O-1-294 Publication or excerpt from the Dani magazine, feuilleton Green Berets – How Were the Weapons Obtained, publication or excerpt from the Dani magazine, feuilleton Green Berets – How to Choose the Coat of Arms, (a total of three excerpts from the Dani) and three clippings from the Oslobodjenje O-1-295 Statement of witness Mićo Kaćavenda given at the BiH Prosecutor’s Office on 31 January 2008 O-1-296 Record of examination of witness Mile Bijeljac at the BiH Prosecutor’s Office dated 15 November 2007 O-1-297 Record of examination of witness Emir Ezić at the BiH Prosecutor’s Office dated 7 February 2008 (tendered as Prosecution exhibit T-309) O-1-298 Information dated 12 March 1992 O-1-299 Memo of the Bihać Security Centre O-1-300 Memo of the Bihać Security Centre dated 23 April 1992 O-1-301 Memo by the Ministry of Internal Affairs dated 10 September 1991 175

S1 1 K 005207 12 Kžk 7 May 2013

O-1-302 Document sent to the Ministry of 18 December 1991 O-1-303 Excerpt from the book To Forget a Crime is a Crime by Zilhad Ključanin, pp. 270-275 O-1-304 Record of examination of witness Brane Babić dated 15 November 2007 O-1-305 Decision to suspend the activity of political organizations O-1-306 Enclosures (feuilletons from the Oslobodjenje), fragments from the book of the Patriotic League, 4 enclosures O-1-307 Newspaper clippings from the Oslobođenje regarding the Green Berets (in two copies) O-1-308 Excerpts from the book Defence of Sarajevo by Nedžad Ajnadžić O-1-309 Excerpts from the book by Sefer Halilović The Cunning Strategy O-1-310 Excerpts from the book by Šefko Hodžić Who Defended Bosnia / Bosnian Warriors O-1-311 Excerpts from the book by Hasan Efendić Who Defended Bosnia O-1-312 Decision by Bihać Cantonal Court no. KPS-32/04 dated 6 December 2004 O-1-313 Copy of the military ID booklet in the name of Gojko Kličković O-1-314 Indictment sent to the Bihać Cantonal Court O-1-315 Letter correcting an error O-1-316 Unit personal file of Mile Drljača O-1-317 Note by Miroslav Vještica written at 12:00 hrs of 14 April 1992 O-1-318 Notes from the negotiations dated 25 and 26 April 1992, typed text O-1-319 Text – Miroslav Vještica comes forward in the Assembly, the topic is the referendum O-1-320 Law Amending the Law on All People’s Defence O-1-321 Expert analysis by Richard Butler O-1-322 The 1974 SRBiH Constitution and amendments O-1-323 Letter from the Una Sana Cantonal Prosecutor’s Office to the BiH Prosecutor’s Office O-1-324 The 1984 Law on All People’s Defence and Self-Protection O-1-325 Article from the Nezavisne Novine O-1-326 Decree on Criteria for Deployment of Working People and Citizens O-1-327 Excerpt from the book authored by Praljak O-1-328 Transport lists with specification of goods O-1-329 Letter from the Army of RBiH no. 01/7251/-3 dated 10 November 1994 O-1-330 Law on the Rights of Demobilized Defenders and Their Families O-1-331 Decree O-1-332 Official Gazette no. 13 dated 9 June 1992 O-1-333 Decree on Preparation and Carrying Out Mobilization in Social and Political Communities O-1-334 Instruction for Planning Security and Self-Protection Measures in Defence Plans O-1-335 Decision on Basics of the Unique Methodology, Official Gazette No. 11/86 dated 7 April 1986 O-1-336 Law on Military Service dated 2 December 1985

176

S1 1 K 005207 12 Kžk 7 May 2013

O-1-337 Articles from the SFRY Constitution, Official Gazette No. 9 dated 21 February 1974 O-1-338 SFRY Criminal Code O-1-339 Constitution of the Serb Republic of BiH, 16 March 1992 O-1-340 Islamic Declaration of Alija Izetbegović O-1-341 Report on Interrogation of Captive Suad Sefić O-1-342 Minutes of 4 June 1992 O-1-343 Decision to hold a public debate O-1-344 Minutes of the 1st session of the Executive Board of the Assembly of the Serb Municipality of Bosanska Krupa O-1-345 Decision on Election of the President of the Government, National Assembly and Representatives (3 decisions) O-1-346 Decree to carry out Republic referendum O-1-347 Rulebook of the BiH Prosecutor’s Office O-1-348 The Law on Internal Affairs, Official Gazette No. 18 O-1-349 Exodus of Serbs from Western Krajina Municipalities O-1-350 Instruction for the work of commands and HQs of JNA high military schools O-1-351 Instruction for the work of defence commands O-1-352 Minutes of the 6th Assembly of the Serb Municipality of Bosanska Krupa O-1-353 Record of examination of witness Hamdija Arnautović no. KT-RZ-01/05 dated 7 February 2008 and Finding and Opinion of Court Expert Dr Marija Kaučić-Komšić on the health condition of witness Hamdija Arnautović dated 28 April 2010

O-1-354 Minutes of the sessions of the SRBiH Presidency (39 Minutes):

1. Minutes of the 2nd session of the Presidency of the Socialist Republic of Bosnia and Herzegovina held on 8 January 1991 2. Minutes of the 3rd session of the Presidency of the Socialist Republic of Bosnia and Herzegovina held on 21 January 1991 3. Minutes of the 6th session of the Presidency of the Socialist Republic of Bosnia and Herzegovina held on 28 February 1991 4. Minutes of the 9th session of the Presidency of the Socialist Republic of Bosnia and Herzegovina held on 18 March 1991 5. Minutes of the 11th session of the Presidency of the Socialist Republic of Bosnia and Herzegovina held on 5 April 1991 6. Minutes of the 12th session of the Presidency of the Socialist Republic of Bosnia and Herzegovina held on 19 April 1991 7. Minutes of the 13th session of the Presidency of the Socialist Republic of Bosnia and Herzegovina held on 26 April 1991 8. Minutes of the 14th session of the Presidency of the Socialist Republic of Bosnia and Herzegovina held on 30 April 1991 177

S1 1 K 005207 12 Kžk 7 May 2013

9. Minutes of the 16th session of the Presidency of the Socialist Republic of Bosnia and Herzegovina held on 29 May 1991 10. Minutes of the 17th session of the Presidency of the Socialist Republic of Bosnia and Herzegovina held on 9 June 1991 11. Minutes of the 18th session of the Presidency of the Socialist Republic of Bosnia and Herzegovina held on 26 June 1991 12. Minutes of the 19th session of the Presidency of the Socialist Republic of Bosnia and Herzegovina held on 28 June 1991 13. Minutes of the 21st session of the Presidency of the Socialist Republic of Bosnia and Herzegovina held on 5 July 1991 14. Minutes of the 22nd session of the Presidency of the Socialist Republic of Bosnia and Herzegovina held on 8 July 1991 15. Minutes of the 24th session of the Presidency of the Socialist Republic of Bosnia and Herzegovina held on 14 July 1991 16. Minutes of the 25th session of the Presidency of the Socialist Republic of Bosnia and Herzegovina held on 19 July 1991 17. Minutes of the 33rd session of the Presidency of the Socialist Republic of Bosnia and Herzegovina held on 19 September 1991 18. Minutes of the 35th session of the Presidency of the Socialist Republic of Bosnia and Herzegovina held on 21 September 1991 19. Minutes of the 37th session of the Presidency of the Socialist Republic of Bosnia and Herzegovina held on 30 September 1991 20. Minutes of the 38th session of the Presidency of the Socialist Republic of Bosnia and Herzegovina held on 2 October 1991 21. Minutes of the 39. session of the Presidency of the Socialist Republic of Bosnia and Herzegovina held on 3 October 1991 22. Minutes of the 40th session of the Presidency of the Socialist Republic of Bosnia and Herzegovina held on 8 October 1991 23. Minutes of the 44th session of the Presidency of the Socialist Republic of Bosnia and Herzegovina held on 6 November 1991 24. Minutes of the 46th session of the Presidency of the Socialist Republic of Bosnia and Herzegovina held on 11 December 1991 25. Minutes of the 47th session of the Presidency of the Socialist Republic of Bosnia and Herzegovina held on 13 December 1991 26. Minutes of the 49th session of the Presidency of the Socialist Republic of Bosnia and Herzegovina held on 29 December 1991 27. Minutes of the 50th session of the Presidency of the Socialist Republic of Bosnia and Herzegovina held on 10 January 1992 28. Minutes of the 51st session of the Presidency of the Socialist Republic of Bosnia and Herzegovina held on 20 January 1992 178

S1 1 K 005207 12 Kžk 7 May 2013

29. Minutes of the 55th session of the Presidency of the Socialist Republic of Bosnia and Herzegovina held on 27 February 1992 30. Minutes of the 56th session of the Presidency of the Socialist Republic of Bosnia and Herzegovina held on 2 March 1992 31. Minutes of the 57th session of the Presidency of the Socialist Republic of Bosnia and Herzegovina held on 11 March 1992 32. Minutes of the 58th session of the Presidency of the Socialist Republic of Bosnia and Herzegovina held on 19 March 1992 33. Minutes of the 60th session of the Presidency of the Socialist Republic of Bosnia and Herzegovina held on 22 March 1992 34. Minutes of the 62nd session of the Presidency of the Socialist Republic of Bosnia and Herzegovina held on 25 March 1992 35. Minutes of the 63rd session of the Presidency of the Socialist Republic of Bosnia and Herzegovina held on 26, 27 and 28 March 1992 36. Minutes of the 64th session of the Presidency of the Socialist Republic of Bosnia and Herzegovina held on 3 April 1992 37. Minutes of the 65th session of the Presidency of the Socialist Republic of Bosnia and Herzegovina held on 4, 5, 6 and 8 April 1992 38. Minutes of the 67th session of the Presidency of the Socialist Republic of Bosnia and Herzegovina held on 10 and 11 April 1992 39. Minutes of the 69th session of the Presidency of the Socialist Republic of Bosnia and Herzegovina held on 13 and 14 April 1992 O-1-355 – Decree on Adoption of Law no. 2, dated 11 April 1992 O-1-356 – Decree on Adoption of Criminal Code no. 2, dated 11 April 1991 O-1-357 – Decree on Defence, Official Gazette of RBiH, no. 4, dated 20 May 1992 O-1-358 –Decree Amending the Decree on the Application of the Criminal Code Adopted as the Republic Code During the Time of Imminent Threat of War and During the State of War, Official Gazette of RBiH, dated 12 July 1992 O-1-359 – Decree on the Service in the Army, Official Gazette of RBiH dated 1 August1992 O-1-360 – Decree on Military Service, Official Gazette of RBiH dated 1 August 1992 O-1-361 – Decree on the Armed Forces of RBiH, Official Gazette no. 12 dated 13 August 1992 O-1-362 - Decree on the Armed Forces, Official Gazette of RBiH dated 20 May 1992 O-1-363 – Decree on Internal Affairs, Official Gazette no. 14 dated 18 August 1992 O-1-364 – Decree on Functioning of Local Communities at the Time of War, Official Gazette of RBiH dated 18 September 1992 O-1-365 – Decree on Armed Forces, Official Gazette of RBiH No. 19, dated 26 October 1992 O-1-366 - Convention for the Protection of Human Rights and Fundamental Freedoms, Rome 4 December 1950 O-1-367 – European Convention on Extradition, Articles 12, 13 and 16 O-1-368 – Letter from the Una Sana Cantonal Prosecutor’s Office Bihać no. KT- 179

S1 1 K 005207 12 Kžk 7 May 2013

147/92-RZ dated 22 June 2006 to the BiH Prosecutor’s Office, Letter from the BiH Prosecutor’s Office to the ICTY dated 30 June 2006, Letter from the BiH Prosecutor’s Office to the BiH Ministry of Justice dated 3 July 2006, Official Note of the BiH Prosecutor’s Office dated 12 July 2006, UN Letter no. KT-RZ 100/06 sent to Mr. Marinko Jurčević, Letter from the Ministry of Justice of the Republic of Serbia to the BiH Ministry of Justice dated 29 November 2006, Letter from the BiH Prosecutor’s Office no. 07-14-7058/06 dated 14 December 2006, Letter from the BiH Ministry of Justice sent to the BiH Prosecutor’s Office no. 07-14-7058/06 dated 26 December 2006, Letter from the BiH Prosecutor’s Office to the BiH Ministry of Justice no. KT-RZ 100/06 dated 28 December 2006, Letter from the BiH Prosecutor’s Office to the BiH Ministry of Justice no. KT-RZ-100/06 dated 25 January 2007, Letter from the Ministry of Justice of the Republic of Serbia to the BiH Ministry of Justice dated 26 February 2007, Letter from the BiH Ministry of Justice to the BiH Prosecutor’s Office dated 3 July 2007, Letter from the BiH Prosecutor’s Office to the BiH Ministry of Justice dated 12 March 2007, Decision of the Ministry of Internal Affairs of the Republic of Serbia and Decision of the Belgrade Supreme Court no. KŽ II 1839/06 O-1-369 Protocol No. 6 to the Convention for the Protection of Human Rights and Fundamental Freedoms concerning the abolition of the death penalty of 28 April 1983, Article 1 Abolition of the death penalty and Article 2 Death penalty at time of war O-1-370 Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms O-1-371 Law Amending the Criminal Procedure Code of Bosnia and Herzegovina, Official Gazette of BiH, No. 16 dated 24 February 2009 O-1-372 Document of the PSS Prijedor no. 11-12-3822 dated 9 September 1991 O-1-373 -Letter from the Sokolac Basic Court to the Special Department for War Crimes of the Prosecutor’s Office of Bosnia and Herzegovina O-1-374 - Finding and Opinion of Prof. Dr Radovan Radinović Managerial Authority of Gojko Kličković in 1992 O-1-375 - Law on the All People’s Defence from SFRY, Articles 453 through 459, published in the Official Gazette of SFRY dated 23 April 1982 O-1-376 -Protocol I Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of International Armed Conflicts O-1-377 - Geneva Convention on the Treatment of Prisoners of War of 12 August 1949 O-1-378 -Record of examination of suspect Miroslav Vještica no. KT-RZ-1/05, dated 4 May 2005, made by the Prosecutor’s Office of Bosnia and Herzegovina and transcript of the interview with Miroslav Vještica conducted on 27 February 2003 O-1-379 – Topographic map of the right bank of the Una River of the Bosanska Krupa Municipality O-1-380 – Master file in the name of Gojko Kličković 180

S1 1 K 005207 12 Kžk 7 May 2013

O-1-381 – Unit personal file in the name of Milan Štrbac O-1-382 – Unit personal file in the name of Milan Vojinović O-1-383 – Unit personal file in the name of Miroslav Vještica O-1-384 – Articles 136 and 138 from the Law on All People’s Defence O-1-385 – International Covenant on Economic, Social and Cultural Rights from 1966 O-1-386 - Excerpts and studies by John Schindler Unholy Terror – Role of Bosnia in Global Jihad O-1-387 - Order on representing 1st Podgrmeč Brigade Command dated 28 May 1992 O-1-388 - Third Amended Indictment against Radovan Karadžić of the ICTY Office of the Prosecutor O-1-389 - Map of the inhabited town of Krupa O-1-390 - Finding and Opinion of professor Kasim Trnka. Part entitled Constitutional Position and Functioning of the Municipalities at Time of Peace and War O-1-391 Record of examination of witness Božo Erceg at the BiH Prosecutor’s Office, no. KT- RZ-01/05 dated 27 July 2005 O-1-392 Certificate on Registration of SDS of BiH at the Sarajevo Higher Court no. R-I-18/90 dated 17 August 1990, Official Gazette of BiH no. 39 dated 12 December 1990 O-1-393 List of confiscated military weapons at Zalug, dated 23 April 1992 O-1-394 Excerpt from the chronicle of Duboka Krajina village, pp. 339 and 340. O-1-395 Copy of the protocol book of the outpatient department of the Bihać Cantonal Hospital in the name of Nenad Bokan O-1-396 Unit records of the 11th Krupa Infantry Brigade O-1-397 Excerpt from the book Krupa County from 1945 to 1955 O-1-398 Document of the Main HQ of the Army of the Serb Republic of Bosnia and Herzegovina, strictly confidential, dated 28 July 1992, information on paramilitary formations in the area of the Serb Republic of Bosnia and Herzegovina O-1-399 Document of the Commander of the Territorial Defence of the Bosanska Krupa Municipality, Zdravko Marčeta O-1-400 Order to implement the Decision of the Presidency of the Republic of Bosnia and Herzegovina no. 02-11-327/92 O-1-401 Publication by Branko Bokan Genocide against the Serbs of Bosanska Krajina O-1-402 Letter sent to the priest of the Serb Orthodox Church in Bosanska Krupa O-1-403 ICTY Judgment in the Brđanin case O-1-404 Video record from the SDS Inaugural Assembly O-1-405 Finding and Opinion of Expert Radomir Lukić from May 2010

EXHIBITS OF THE ACCUSED MLADEN DRLJAČA

OII-1 Exhibit already tendered as Prosecution Exhibit T-75

181

S1 1 K 005207 12 Kžk 7 May 2013

and as the exhibit of the defence for the first accused O-I-7 OII-3 Exhibit already tendered as the exhibit of the defence for the first accused O-I-192 OII-4 Exhibit already tendered as the exhibit of the defence for the first accused O-I-405

EXHIBITS OF THE ACCUSED JOVAN OSTOJIĆ

O-III - 1 Statement of examination of witness Božo Pilipović O-III - 2 Statement of examination of witness Duško Stojisavljević O-III - 3 Statement of examination of witness Đorđe Jež O-III - 4 Statement of examination of witness PWS-92 O-III- 5 Statement of examination of witness Dragomir Lujinović O-III - 6 Statement of examination of witness Miroslav Stanić dated 21 February 2009 O-III - 7 Statement of examination of witness Miroslav Stanić dated 17 and 24 January 2008 O-III - 8 Statement of examination of witness Milan Krnetić given to attorney Milan Romanić dated 22 January 2010 O-III-9 Statement of examination of witness Slavko Ilić given to attorney Milan Romanić dated 26 March 2009 O-III-10 Record of examination of witness Zdravko Marčeta at the BiH Prosecutor’s Office, no. KT-RZ-100/06 dated 7 December 2007 (the same exhibit is with the defence for the first accused - no. O-1-220) O-III-11 Statement of examination of witness Dragan Kulundžija dated 28 November 2008 O-III-12 Statement of examination of witness Branislav Gajčić dated 9 April 2010 O-III-13 Statement of examination of witness Duško Srdić dated 13 March 2010 O- III-14 Record of examination of witness Milorad Rađenović dated 13 November 2008 O-III-15 Statement of examination of witness Lazo Radošević dated 20 February 2009 O-III-16 Statement of examination of witness Savan Knežević dated 24 April 2009 O-III-17 Statement of examination of witness dated 27 February 2009 O-III-18 Record of examination of witness Mile Vujkanović, no. KT – RZ 100/06 dated 15 December 2008 O-III-19 Statement of examination of witness Drago Kačavenda dated 25 March 2009

O-III-20 Record of examination of witness Miroslav Egeljić, no. KT – RZ 100/06 dated 15 January 2001 O-III-21 Statement of examination of witness Miroslav Egeljić dated 28 February 2009 given to attorney Milan Romanić O-III-22 Record of examination of witness Predrag Bljeljac dated 28 April 2002 O-III-23 Record of examination of witness Ranko Radanović dated 26 March 2009 O-III-24 Regular Combat Report, strictly confidential, dated 16 July 1992 O-III-25 Regular Combat Report dated 17 July 1992 O-III-26 Regular Combat Report dated 18 July 1992 O-III-27 Regular Combat Report dated 19 July 1992 O-III-28 Regular Combat Report dated 20 July 1992 O-III-29 Regular Combat Report dated 21 July 1992 O-III-30 Statement of examination of witness Mladen Skenderija dated 15 December 2008 O-III-31 Statement of examination of witness Zdravko Narančić dated 7 March 2010 O-III-32 Statement of examination of witness Milovan Drljača dated 20 May 2010 O-III-33 Statement of examination of witness Dane Marić dated 3 May 2010 O-III-34 Statement of examination of witness Boško Klašnja dated 14 March 2009 182

S1 1 K 005207 12 Kžk 7 May 2013

O-III-35 Regular Combat Report, no. 147-22 dated 22 July 1992 O-III-36 Regular Combat Report, no. 147-23 dated 23 July 1992 O-III-37 Regular Combat Report, no. 147-25 dated 24 and 25 July 1992 O-III-38 Regular Combat Report, no. 147-26 dated 30 July 1992 O-III-39 Regular Combat Report no. 107-23 dated 31 July 1992 O-III-40 Regular Combat Report, no. 107/24 dated 1 August 1992 O-III-41 Regular Combat Report, no. 107-25 dated 2 August 1992 O-III-42 Regular Combat Report, no. 283-1/92 dated 3 August 1992 O-III-43 Regular Combat Report, no. 107-54/92 dated 3 August 1992 O-III-44 Regular Combat Report, no. 107-27/92 dated 4 August 1992 O-III-45 Regular Combat Report, no. 107-28 dated 5 August 1992 O-III-46 Regular Combat Report, no. 107-29 dated 6 August 1992 O-III-47 Regular Combat Report, no. 107-30 dated 7 August 1992 O-III-48 Regular Combat Report, no. 107-31 dated 8 August 1992 O-III-49 Regular Combat Report, no. 107-32 dated 9 August 1992 O-III-50 Regular Combat Report, no. 107-33 dated 10 August 1992 O-III-51 Regular Combat Report, no. 107-34 dated 11 August 1992 O-III-52 Regular Combat Report, no. 107-35 dated 12 August 1992 O-III-53 Regular Combat Report, no. 107-36 dated 13 August 1992 O-III-54 Regular Combat Report, no. 107-37 dated 14 August 1992 O-III-55 Regular Combat Report, no. 107-38 dated 15 August 1992 O-III-56 Regular Combat Report, no. 107-39 dated 16 August 1992 O-III-57 Regular Combat Report, no. 107-40 dated 17 August 1992 O-III-58 Regular Combat Report, no. 107-41 dated 18 August 1992 O-III-59 Regular Combat Report, no. 107-42 dated 19 August 1992 O-III-60 Regular Combat Report, no. 107-43 dated 20 August 1992 O-III-61 Regular Combat Report, no. 107-44 dated 21 August 1992 O-III-62 Regular Combat Report, no. 107-47/92 dated 24 August 1992 O-III-63 Regular Combat Report, no. 107-48/92 dated 25 August 1992 O-III-64 Regular Combat Report, no. 107-49/92 dated 26 August 1992 O-III-65 Regular Combat Report, no. 107-50/92 dated 27 August 1992 O-III-66 Regular Combat Report, no. 107-51/92 dated 28 August 1992 O-III-67 Regular Combat Report, no. 107-52/92 dated 29 August 1992 O-III-68 Regular Combat Report, no. 107-53/92 dated 30 August 1992 O-III-69 Regular Combat Report to the VRS Main HQ, no. 2-203 dated 25 August 1992 O-III-70 Regular Combat Report, no. 166-1/92 dated 15 July 1992 O-III-71 Regular Combat Report, no. 2-200 dated 15 July 1992 O-III-72 Regular Combat Report, no. 154-1/92 dated 13 July 1992 O-III-73 Regular Combat Report, no. 2-195 dated 13 July 1992 O-III-74 List of military personnel of the Krupa Light Infantry Brigade O-III-75 List with the names of Joja Plavanjac and Milorad Rađenović O-III-76 Proposal for the appointment of senior officers, no. 323-1/92 dated 15 August 1992 O-III-77 Order by the 11th Krupa Light Infantry Brigade Command, no. 349-1/92 dated 18 August 1992 O-III-78 Order by the 11th Krupa Light Infantry Brigade Command, no. 760-1/92 dated 20 December 1992 O-III-79 Order by the 11th Krupa Light Infantry Brigade Command, no. 281-1/92 dated 3 August 1992 O-III-80 Letter from the 2nd Krajina Corps Command, no. 307-3 dated 5 August 1992 O-III-81 Letter from the 2nd Krajina Corps Command, no. 2-72 dated 5 June 1992 O-III-82 Order by the 11th Krupa Light Infantry Brigade Command, no. 306-2/92 dated 8 August 1992 183

S1 1 K 005207 12 Kžk 7 May 2013

O-III-83 Copy of the military ID booklet in the name of Lazo Radošević issued on 27 February 1976 O-III-84 Letter from the2nd Krajina Corps Command, no. 590-1 dated 16 December 1992 O-III-85 Judgment of the Banjaluka Military Court no. I K 94/95 dated 4 August 1995 with accompanying documents (parts of certified file of the Supreme Military Court) O-III- 86 Excerpts from the Rules of Service of the Armed Forces of the Federal Secretariat of National Defence, parts governing the handover of duty, military detention and military prison O-III- 87 Document of the 2nd Krajina Corps Command to the Main HQ of the Army of the Serb Republic of BiH dated 1 June 1992 – establishment of the military court O-III – 88 Document of the 2nd Krajina Corps Command to the Main HQ of the Army of the Serb Republic of BiH no. 11-43 dated 10 August 1992 – Judicial Work Report

O-III-89 Order by Commander Jovan Ostojić no. 556-1/92 dated 21 October 1992 O-III- 90 Document of the 2nd Krajina Corps, strictly confidential, no. 128-1 dated 23 November 1992 Order to use the unit for combat O-III-91 Military expertise by military expert Slobodan Kosovac (tendered in electronic form as well)

Court Evidence

S-1 Finding and Opinion of expert Senad Pešta on the health condition of witnesses Vejsil Palić, Ibrahim Sivić and Emir Ezić.

184

S1 1 K 005207 12 Kžk 7 May 2013