Creator DEN ISM IIF 1 04390
Title Verdict against DJA.)Ic, Novislav.
Summary Verdict of guilty against DJA.JIc, Novislav, brought by the Bayer Higher Court.
Source Reference 3 St 20/96; 2 BJs 85/95-5; 2 StE 10/96 fEvent------·-·-·· I, Date From Date To I Locations FOC3; Brod; Djedjevo; Trnovaca; Trbuscc; ~------,----.----.
Crime Types killing;
Victim Details Witness Details Perpetrator Details • •~-- ..------.--.------. Submitter unknown Submission Date 04-Dec-98 Originator BRIESSMANN, FNU; KEHRSTEPHAN, FNU, HlI_GER, FNU; KALIEBE, FNU, DR. PONGRATZ, FNU; BayernHighcr Court Receiver STAKER, Christopher
~~~~-- 72 ~ertif_ie_d__ N_O_JS..LS_ig=-n_e_d_ NO I Chain of Custody NO
[Restricted To
Statement Location Statement Date ·-··_··_· __·_-_ .. · __.- .. __.. _------_.. -----... ---- .... ----..------.---- ..-- Interviewers Interviewing Organisation 1 i I ______------.. ---"---.. -~.--"----.-----.. ---- ~Associated ERNs 0066-7062-0066-7194
[ End of IIF 104390 (printed 19-Jan-99) 1
PURL: https://www.legal-tools.org/doc/484ae2/ Translation
3 St 20/96 24/5 2 BJ 85/95-5 2 StE 10/96
Bavarian State Court of Appeals
In the name of the people
JUDGEMENT
The third Appeals Chamber of the Bavarian State Court of Appeals,
in the criminal case against Novislav DJAJIC for complicity in genocide, La.,
in the public session of 23 :May 1997 held on the basis of the main proceedings of 25, 26,27 February; 4, 5, 6, 11, 12, 18, 19,20 March; 9, 10, 15,22,29,30 April; and 12, 13, 14, 16 and 23 May 1997, at which participated
1. as judges, the presiding judge of the Bavarian State Court of Appeals, Justice Briessmann, and the judges of the Bavarian State Court of Appeals, Justices Kehrstephan, Hilger, Kaliebe and Pongratz;
2. as officials of the Public Prosecutor's Office, Senior public prosecutor at the Federal High Court Mr. Hemberger, Public prosecutor Mrs. Dreher, Federal attorney Mr. Griesbaum;
3. as defence counsel, attorneys Messrs. Dingfelder and Von Mariassy;
4. as representative of the joint plaintiff, attorney Mr. Potschke;
S. for the registry of the court, senior legal ofticer Mr. Gebhart, legal ofticer Mrs. Schuhwerk, supervisor Mr. Trindl,
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has ruled as follows:
1. Novislav DJAJIC, born 1 January 1963 in Foca (former Yugoslavia), single, tile-layer, Yugoslavian national, last place of residence: Schliiterstr. 7, 80805 Munich, at present in pre-trial custody in relation to this case in the Stadelheim prison in Munich,
is guilty of complicity in 14 cases of murder and in one case of attempted murder, for which he is sentenced to a prison term of
five years.
n. The accused shall bear the costs of the proceedings and of the expenditure necessarily incurred by the joint plaintiff Esad Mujanovic.
Legal provisions applied: paragraphs 211, 22, 23, 27, 35(2), and 49 of the Criminal Code.
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Contents 00678236
Page
A) Findings of fact 5
I. Political developments in Yugoslavia 5
1. Until 1991 5 2. Until the breakaway ofthe republics 5 3. Developments in Serb-populated areas 5 4. Military conflicts in Bosnia-Herzegovina 6 5. Involvement of the JNA 6
rI. Ethnic cleansing 7
Ill. The local situation 8
I. In the town and municipality of Foca 8 2. In Brad, Djedjevo, Trnovaca, Trbusce 8
IV. Developments in the municipality of Foca in 1992 9
I. The significance of the town of Foca 9 2. The take-over of the town of Foca 10 3. The occupation of the municipality of Foca 10 4. The attack of Djedjevo on 20 and 21 April 1992 10 5. The occupation of Trnovaca 10
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6. The killings on the bridge at Brod 11 7. The deportation of the Muslim population from 11 Djedjevo, Trbusce and Tmovaca
V. Events of 22 June 1992 11
VI: Involvement of the accused 13
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B) Assessment of the evidence 14
1. The evidence available 14
1. Reports of the UN Commission of Experts 15 2. Cali c report 15 3. Fischer report 16 4. Pintaric report 16 5. Nedopil and Weber reports 16 6. Cekic report and testimony 17 7. Testimony of the accused l7 8. Witness testimony about events in Djedjevo, 18 Trnovaca and Trbusce 9. Testimony of witness Milan Djajic 18 10. Testimony of witness Rudzo MaJevic 19 11. Testimony of witnesses Prof. Memisevic, Tafro, Bradaric 19
n. Piece-by-piece assessment of the evidence 20
1. for A I 20 2. for A n 21 3. for A III 21 4. for A IV 1-3 21 5. for A IV 4 (Djedjevo) 21 6. for A IV 5 (Trnovaca) 22 7. for A IV 5 (Trbusce) 23
8.~AIV6 n 9. for A V 24 10. for A VI 25 11. relative to the subjective elements constituting 26
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genocide 12. about the background of the accused 27
C) The legal assessment of the facts of the case 27
1. 14 intentional killings, 1 unaccomplished attempt 28 2. Accused's aiding in the killing 28 3. The motives for the murder 29 4. Complicity in 14 killings and one attempt 30 S. No grounds for justification or excuse 30 6. No complicity in genocide 30 7. Penalty under the law of the country of commission 31
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D) Procedural requirements for the application of German law and jurisdiction
1. Introduction 31 2. Paragraph 6(no.9) Cr. Code 32 3. Paragraph 7(2)(no.2) Cr. Code 35 4. Nexus with Germany 36
/,- ~.. E) Assessment of punishment 37
I. Personal backgro\md 37
H. Criminal record 38
Ill. Sentencing limits 38
1. Mitigation under para. 27(2)(2nd sent.) Cr. Code 39 2. Mitigation under para. 35(2) Cr. Code 39
IV. Sentencing
I. Exculpatory factors 39 2. Inculpatory factors 40 3. Deduction of time in pre-trial detention 40 4. Yugoslavian law 40
F) Costs 41
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Reasons
A. Findings of fact
1.
Political developments in Yugoslavia
1. The Socialist Federal Republic of Yugoslavia established following the Second World War consisted of the republics of Slovenia, Croatia, Bosnia
~•.. Herzegovina, Serbia, Montenegro, Macedonia and of the autonomous provinces of Kosovo and Vojvodina. These republics each promptly asserted their inclination to go it alone on the basis of their historic and regional identity and of the If1arked national consciousness of their inhabitants.
After Tito's death in 1980, the yearnings for independence on the part of the ethnic groups and republics grew stronger as a result of the diverging political approaches and objectives pursued by the national elites, conflicting social and economic interests, a fundamental crisis in the economic and political system, and a constantly waxing nationalism. In late 1989-early 1990 this even led to the split-up of the Communist League, the party of Yugoslav unity. The republics gradually broke off their political and economic dealings with one another, and in some instances even engaged in economic warfare (Slovenia Serbia) where each levied duties on imports from the other.
2. Finally, independence was declared by Slovenia on 25 June 1991, by Croatia provisionally on 25 July 1991 and definitively on 8 October 1991, and by Bosnia-Herzegovina on 6 March 1992.
As Serbia and Montenegro wanted to maintain the state of Yugoslavia, each of the declarations of independence was followed almost at once by fighting
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between the annies of the republics and the Yugoslav National Army, also involving irregulars of the various ethnic groups.
The fighting was over quickly in Slovenia but came to a provisional end in Croatia only in January 1992, after the Croatian Serbs had occupied almost 30% of all Croatian tern tory.
3. As the disintegration of the state of Yugoslavia progressed, the demand for self-determination by the Serb people, which also included the two million Serbs living in Croatia or Bosnia-Herzegovina, became more acute. Of this figure, lA million Serbs lived in Bosnia-Herzegovina and accounted for roughly 31 % of that republic's population.
As early as in September 1991 the Serbs in Bosnia-Herzegovina declared four autonomous areas (eastern and Old Herzegovina, Bosnian Krajina, Romanja, north-eastern Bosnia). Subsequently the autonomous areas of northern Bosnia and Bihac were added.
These terntorial claims were hot based solely on national policy plans, but also to a large extent on strategic considerations and economic interests, which is why they aJso bore on areas which were not inhabited primarily by Serbs. A referendum carried out by the Bosnian Serb SDS party among the Bosnian Serbs yielded a 98% majority in favour of an independent Bosnian Serb
Republic. As a result, the "Assembly of the Serb people In Bosnia Herzegovina" declared on 21 November 1991 the districts of Krajina, Herzegovina (i.a. including Foca), Romanja, Semberija and northern Bosnia to be part of the terntory of this republic.
On 21 December 1991 the "Assembly of the Serb people in Bosnia Herlegovina" announced the establishment of a Serb state within the republic and appointed its own government. On 8 January 1992 it proclaimed the Serb Republic of Bosnia-Herlegovina. On 28 February 1992 it adopted its own
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constitution, and on 7 April 1992 the Serb in Republic was declared independent.
4. Concurrently with the international recognition of Bosnia-Herzegovina on 6 April 1992 and the contemporary proclamation of the Serb Republic of Bosnia-Herzegovina, heavy fighting broke out in various strategically important areas to secure the planned Serb corridors. Attacks occurred, inter alia, on 27 March 1992 against Bosanski Brod, on 2 April 1992 against Bijeljena, on 4 April 1992 against Kupres, on 8 April 1992 against Foca and against Zvornik, on 13 April 1992 against Yisegrad, and on 30 April 1992 against Brcko and Prijedor. All of these localities were taken over by Serbs. In the period from April to June 1992 the Serbs managed to realize a large number of their territorial objectives. As a result, for the Republic of Bosnia Herzegovina President Izetbegovic on 8 April 1992 declared an impending state of war and on 20 June 1992 a state of war.
5. The Serbs owed their rapid military successes to the initial co-operation and extensive support of the Yugoslav people's army, also known as the Yugoslav national army, or JNA.
In the former Yugoslavia, the "total national defence" relied in the main on the JNA and on territorial defence units which could be called up at short notice and which were under the control of the republics. Large amounts of weapons were stored in local depots in all the republics so that in case of need they might be distributed by the JNA to reservists and volunteer units.
Following the armed cont1icts in Slovenia and Croatia, many non-Serb generals and officers of the JNA joined the newly formed regional armies. The positions thus vacated were filled overwhelmingly by Serbs, so that the JNA leadership was ever-more Serbian dominated. The more the break-up of Yugoslavia advanced, the more clearly the military leadership saw the JNA's task as protecting the Serbs living in other parts of the country and providing
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them with support in achieving national Serb independence in the aim of achieving a Greater Serbia.
In Bosnia-Herzegovina, already in 1991 JNA troops were transferred from towns to rural areas and stationed in the vicinity of important transportation points. In addition, as the war in Croatia was coming to an end in late 1991- early 1992, JNA troops along with tanks and heavy weaponry were already being brought to Bosnia-Herzegovina. At the same time the JNA military leadership approved a defence plan which provided for the protection of Serbs living outside Serbia. Territorial defence units were to be equipped with small arms, artillery, armoured vehicles and missile launchers. The ministries of defence of the autonomous Serb regions in Croatia and in Bosnia-Herzegovina were subordinated to the ministry of defence of rump Yugoslavia, the present Federal Republic of Yugoslavia (hereafter: Yugoslavia), in Belgrade, and the defence planning of the JNA and of the regional armies was co-ordinated.
In April 1992 the JNA had approximately 80,000 soldiers stationed in Bosnia Herzegovina. In early May 1992 General Mladic was appointed commander of the JNA.
When under international pressure the Yugoslavian government announced on 19 May 1992 that it was withdrawing its troops from Bosnia-Herzegovina, the JNA handed over the bulk of its weapons and equipment, including tanks and aircraft, to the Bosnian Serb army, which was formed from the Serb units of the territorial defence and about 55,000 men of the JNA from Bosnia Herzegovina. General Mladic was appointed its chief of staff. The parts of the JNA which remained in Bosnia-Herzegovina were kept on the books as members of the JNA. Officers who were simultaneously members of both armies were paid by the Yugoslavian ministry of defence in Belgrade. The aircraft-servicing personnel remained with its unit in Banja Luka. So there were close organisational, logistical, financial and military links between the two armies.
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On all sides the fighting involved, besides the respective armies, so-called special armed forces and the local police forces, which were reinforced with anned civilians from the given area. The special anned forces were supplied, and often also trained, by the governments of the republics they served. They operated under the command of well-known political figures. They reported to high-ranking political officials of the respective government and therefore were not integrated into the military chain of command,
In the municipality of Foca, on the Bosnian Serb side and in conjunction with the Bosnian Serb army, the fighting involved paramilitary units under Pero Elez including the Vukovar unit, the Montenegrin guard, the White Eagles, units of commander "Turtle", and Arkan's and Seselj's men,
In the months pnor to the referendum on independence the JNA had commenced disarming the Bosnian-Hercegovinian (hereafter: Bosnian) territorial defence forces, asserting that all the republic's weapons had to be handed over to the federal army in the interests of securing peace, Initially this measure was even endorsed by the Bosnian government, as it was meant to include the disarming of the Bosnian Serbs too, As a result of the subsequent one-sided disarmament, at the outset of the fighting the Bosnian military forces were more poorly equipped than the other warring parties. The territorial defence of Bosnia-Herzegovina had disintegrated into national sub-groups, so that at the time of the general mobilisation by the Bosnian presidency on 4 April 1992 the creation of the army of Bosnia-Herzegovina was hindered by major organisational difficulties. Consequently, the troops of the Bosnian presidency, whose stated objective was to re-establish sovereignty over all Bosnian territory and to protect the territorial integrity of Bosnia's borders, were initially on the defensive almost everywhere.
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H.
Ethnic cleansing
In Bosnia-Herzegovina, following military take-overs both. the Croats and the Serbs proceeded with expelling people of other ethnic or religious groups in order to bring about an ethnic homogenisation of the population in the areas in question ("ethnic cleansing"). As the logistic and organisational facilities required to transfer groups of people without major bloodshed were not at hand, expulsions were carried out by means of violence and intimidation involving the killing of civilians, rapes, torture, the internment of civilians in camps, the destruction of civilian, public, religious and cultural facilities, looting, theft and the forced resettlement of civilians.
The expulsion of members of other ethnic groups by Serbs started as a rule with the gaining of military control over the given area by Bosnian Serb paramilitary forces, often with JNA support. This involved the shelling and often the destruction of the homes and cultural facilities of the non-Serb inhabitants. The Serb inhabitants were told to leave the targets of attack in due time. Once the military units had taken over, the non-Serb inhabitants were terrorized by killings, rapes, and looting. The occupied areas were run by local Serb authorities in conjunction with the paramilitary units, and many non-Serb inhabitants were-arrested, beaten and taken off to prison camps, where further ill-treatment, even including mass executions, ensued. Usually, non-Serb inhabitants lost their jobs and had their property seized. In many instances prior to being deported to other parts of the country they were forced to relinquish in writing their homes and other property.
Ill.
The local situation
1. The town of Foca lies about 80 kilometres south-east of Sarajevo at where the River Cehotina flows into the River Drina in a valley some 400 meters above
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sea leveL It is surrounded by numerous wooded elevations, some of which surpass 1,000 meters in elevation.
The historic town centre was marked by Islam. Although in 1992 the majority of the population was Serb, there were neighbourhoods like Aladza, Mahala, Pazariste, Prijeka Carsija, Ljubovic, Grnovski Sodak, Naksibendijska and Donje Polje, which were inhabited primarily by Muslims and which during the take-over were therefore the targets of day-long shelling and later were more or less totally demolished by the Serbs.
The municipality (opCina or opstina) of Foca covers an area of 1,267 km2. The northwards flowing Drina runs through it. It contains high, mostly tree-covered mountains (up to over 2,000 meters) and deep ravines.
To the east the municipality borders on Montenegro, a part of rump Yugoslavia; to the north, on the Pale district; to the west on the township of Kalinovik; and to the south on the township of Gacko. All of these are areas where Serbs account for more than 60% of the population.
According to the 1991 census, the municipality of Foca had a total population of 40,513 people, of which 51.6% were Muslim and 45.3% Serb. The municipality numbered more than 100 villages which were aggregated into 29 village communities.
2. The township of Brod na Drini lies about three kilometres south of Foca in a sharp bend of the River Drina on the latter's right bank. Within the township there is a bridge which goes to the Mackovac (Zmirovina) district of the township of Djedjevo.
Djedjevo had more than 80 houses and was scattered over a large area, as it extended from the river bank to the west up over a ridge, with a length of two to two-and-a-half kilometres. The vast majority of the inhabitants were Muslims.
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After the bridge a street runs southwards along the left Drina bank towards Tjentiste. It connects the villages of Djedjevo and Trnovaca over a distance of about 600 meters. There is a protruding cliff between them. On the way into Trnovaca are grouped together on both sides of the street the homes of the Muslim inhabitants. This neighbourhood was therefore easy to control militarily.
The house inhabited by the accused, which was built by his father, was immediately adjacent to this Muslim neighbourhood on the edge of the village in the direction of Djedjevo.
,/", • Above the village of Trnovaca, on the forest-covered ridge bordering off the valley of the Drina, lies the village of Trbusce.
IV.
Developments in the municipality of Foca in 1992
1. This regIOn on the Drina had always been of particular significance to the Serbs. For one, it bordered directly on the republics of Serbia and Montenegro and could therefore readily be integrated into an enlarged Serbian state. Further, traditional trade routes from Croatia to Serbia, Macedonia and Montenegro ran through it, crossing in Foca. Therefore after the Second World War the highways from Foca to Sarajevo and to Belgrade and to the Croatian coast had been built up. In addition, the Muslim-majority municipality of Foca borders to the east on the likewise Muslim-majority Sandzak region, which lies in the territory of the Federal Republic of Yugoslavia and is divided between Serbia and Montenegro and affords the Serbs access to the Mediterranean via Montenegro. This is why it was of considerable importance for the Serbs to prevent the establishment of a Muslim corridor from central Bosnia to Kosovo via Serbia and Montenegro.
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On account of this strategic significance, the JNA had started occupymg strategically relevant sites as early as in January 1992. Inter alia, it installed heavy artillery in the area around Foca on Mt. Dub and Mt. Kmur. By February 1992 it was handing out weapons and ammunition to the Serb popUlation. In the municipality of Foca, by the spring the JNA had already organized 3,000 soldiers into volunteer units.
2. . The town of Foca was shelled for the first time on 8 April 1992 right after the international recognition of Bosnia-Herzegovina, by artillery on Mt. Dub. The targets of this and subsequent attacks were the Muslim neighbourhoods, Muslim cultural facilities and the property of the company Focatralls, a base of the Muslim defence. The shelling triggered a mass exodus of Muslims towards Ustikolina and Gorazde. On 12 April 1992, after days of artillery shelling and sniper fire, Serb soldiers penetrated the Muslim district of Foca for the first time. They searched homes, separated the men from the women and children, and interned both groups in different collection camps, where they set about terrorizing, mistreating and killing detainees. All mosques were destroyed. On 15 April 1992 the Sukovac neighbourhood on the left bank of the Drina, the last centre of resistance in Foca, was taken over. Thousands of people ended up fleeing.
From April to August 1992, in Foca about 1,500 Muslims were reported dead or missing, about 1,000 Muslims were detained in camps, and the remainder of the approximately 20,000 Muslims had been almost entirely expelled.
3. As part of a comprehensive plan for the take-over of the entire municipality, the attacks were not restricted to Foca. The occupation went on for several months. Many Muslims were killed, as on 8 April 1992 in Hum, a hamlet in the southern area of the municipality on the border with Montenegro; as were also in April Muslims from the southern part of the municipality from the villages of Zubovici, Kosman, Cadice, Djedjevo, Potpece, Godijeno and Sas; to the north of Foca from the villages of Paunci, FilipoviCi, Cvilin, Usticolina,
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BoroviniCi and Zeljevo. There were killings in May 1992 in the west, in the villages of lelec and Drace, and in the north, in Vina, Trnovice, Bavcici, Kosova, Zebina Suma, Slatina, Karacici, BrajloviCi and again in Cvilin, Ustikolina and Foca, and in June 1992 in the north in Cvilin, KaraCiCi, Slatina, Jabuka, SadiCi, in the west, in Je1ec, Drace, Ibisno, Miljevina, in the south, in Kosman and Trosanj, in Foca, in the surroundings of Foca, in Djedjevo, Tabaci, Brusna, Brod, Trbusce and Trnovaca.
4. In the morning hours on 20 or 21 April 1992 the village of Djedjevo was surrounded by around 200 Serb fighters, and a group led by Popovic attacked /'"" the Mackovac district on the Drina while another led by J ankovic and Pero Elez attacked the part of the village higher up the slope. When the local " Muslim defendants did not comply immediately with the demand to lay down their weapons and ,hand over the village, Djedjevo was subjected to artillery Shelling' and infa1Jtry fire for about an hour. Thereupon the Muslims surrendered without any resistance. All the same, Pero Elez's group killed 13 men that day, who caught the more particular attention of the attackers owing to their occupation (e.g. police officer), their former position in the army, their political position in the village, or their wealth. These men were either shot dead on the spot next to their homes in front of their families or were picked out from the group of captive defendants and tortured and then liquidated. Other men were taken to prisons in Brad and Foca. About 30 men were released under house arrest after interrogation. A number of Muslim houses were looted, and some of them were set on fire.
On that day the accused was with Popovic's group which occupied the Mackovac district without fighting. In the afternoon the accused returned to Trnovaca with some of the Serb attackers. It was at the latest in the following days that he heard about the killing, looting and arson in Djedjevo.
In the following weeks and months the Muslim inhabitants were deported or fled as a result of the pressure, so that in August 1992, of more than 100 Bosniaks only five or six remained in Djedjevo.
djajic-n.doc/gm l7 PURL: https://www.legal-tools.org/doc/484ae2/ Translation 00678251 5. The Serb population predominated in Trnovaca. It set about arnung itself as early as 6 April 1992. Then the two eldest Muslim men were summoned by the local commander, Vukovic, and ordered to see to the handover of weapons by the Muslims. The Muslim neighbourhood was surrounded by the Serbs and the male inhabitants were not allowed to leave their homes. The commfulder told them that the bank of the Drina was mined. He warned the Muslims that if the men fled the women and children would be killed. Vukovic went on to announce that in the event of any resistance, for every Serb killed five Muslims would have to die.
Thereupon the Muslims delivered some rifles and handguns. One day in April 1992 (the precise' date can no longer be determined), the Muslims had to gather outside. Men and women were separated. Non-local Serbs searched the houses for weapons and valuables. The men were questioned, some ill-treated and beaten. Afterwards the inhabitants were allowed to return to their homes. Serb guards constantly controlled the Muslim neighbourhood. In the following weeks up to June 1992 the Muslim villagers remained under house arrest; the women also, out of solidarity with the men and out of fear, no longer left their homes. From time to time someone was allowed to leave the village under Serbian supervision to tend to shopping and errands on behalf of the others. Out of fear for their family members, no one attempted to flee.
The accused, as.a member at the time of the local Serb armed forces, wore a uniform and was armed. He was assigned to guard duty. Still, during this period too he kept in occasional touch with his Muslim neighbours, in particular with the family of the joint plaintiff. He gave them a liter of cooking oil once and sometimes cigarettes. He also provided witness Hasna Dzin with cigarettes until June 1992. He informed witness Muniba Lagarija that her brother Djemo Rikalo had been murdered in Brod in late April 1992.
6. On the bridge over the Drina, which links Brod and Djedjevo, on at least three days between 10 and 22 June 1992, people were killed and their bodies were thrown into the Drina.
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In each instance in the evemng after 2J 00 hrs prisoners were taken to the bridge in sizeable numbers. The artificial lighting was turned off. On two days the victims were killed using knives; on the third the victims were shot. After each killing, a tank truck with water came from the nearby Maglic company to wash away the traces of the execution. Afterwards the searchlights were turned back on.
7. Between 23 and 26 June 1992, the vast majority of the Muslims still living in Djedjevo, Trbusce and Trnovaca were taken away in a planned fashion in motor vehicles.
Between 23 and 2S June 1992 Serb soldiers appeared in Trbusce. They fetched the Muslim inhabi tants from their homes, and separated the 1S men from the women and children. The men were driven away at once in a refrigerator truck; the women and children were at first locked into one of the houses. There has been no sign of life from the men since. In the evening hours of that same day the women were permitted to pack up essentials. Then they and the remaining Muslim villagers were taken by refrigerator truck to the Motel Bukovica several kilometres away. There they met up with the women and children from Trnovaca who had already been interned. Several women were raped that night. After the women signed statements relinquishing the property they were leaving behind they were taken away to Montenegro.
Two women who in Trnovaca had refused to leave the village were killed on the very day on which the remaining inhabitants were deported.
And on 26 June 1992 the bulk of the Muslim population still remaining in the village of Djedjevo was deported to Montenegro. The villagers had previously been advised by their Serb neighbours that it would be better for them to leave, as otherwise they would be killed. Prior to their departure these Muslims too had to relinquish in writing the property they were leaving behind.
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It could not be ascertained that the accused was involved in these measures.
v.
Events on 22 June 1992
In the morning hours of the day of the crime a minibus carrying 20 Serb soldiers was destroyed by a mine near Tjentiste, and 10 of its occupants were killed. These included inhabitants of the village of Trnovaca, Slavko KovaceviC and Radovan DjajiC, the latter a distant relative of the accused.
;/' Radenko Milanovic from Trnovaca had both his legs torn off in the incident, • whereupon he shot himself. That same afternoon the local military leadership in Trnovaca, in accord with the Serb headquarters in Foca, decided to take 15 Muslim men out of the Muslim neighbourhood and kill them.
This decision is related to the incident near Tjentiste. The order, though, was not meant solely as a means of reprisal. The incident near Tjentiste gave the military commanders a welcome reason for perpetrating another mass killing to eliminate men who might put up resistance and for spreading fear and terror among the remaining inhabitants of the Drina valley with the aim of prompting ., them to give up their property and leave their homeland.
At about 2030 hrs the following men were fetched from houses in the Muslim neighbourhood:
Saban Cedic (born about 1938), his son, Mujo Cedic (born about 1959), and his nephew, Halim Cedic (born about 1952), Esad Beckovic (born about 1955), the brothers Serif BeCkovic (born about 1939) and Hamdija BeCkovic (born about 1935), Edhem Bec1<:ovic (born about 1925) and his son Dzevad Bec1<:ovic (born about 1959), Esad Dzin (born about 1940) and his son Nedzad D:i.in (born 1966), Nedzib Dzin (born about 1939) and his nephew Salko D:i.in
djajic-n.doc/gm PURL: https://www.legal-tools.org/doc/484ae2/20 Translation 00678254 (born about 1949), the joint plaintiff Esad Mujanovic' (born 1964), his brother Ennin Mujanovic (born 1970) and his stepfather Suljo Lagarija (born 1947).
The joint plaintiff, his brother and his stepfather were led away by the accused and Slavko Paprica, both of whom wore a uniform. The accused carried a semi-automatic rifle, Slavko Paprica an automatic rifle. Both also had handgrenades. They ordered the three Muslims to come along. As to why, at this point Slavko Paprica explained that as a result of the killing of the Serbs from the village there was a danger of acts of violence on the part of the Montenegrin militias. Hence the order to take the men to safety in the Foca prison (KP Dom). In answer to a question from witness Muniba Lagarija the accused confirmed this. But the witness gathered from a comment by the accused about the violent death of her brother that her husband and her two children were to be killed.
When the 15 men had been gathered at the village's main road they were surrounded by Serbs. The latter's leader, Nebojsa Jankovic', told them they would be taken to the school in Brod, where a police vehicle would pick them up to take them to the prison in Foca. However, in a loud voice he. ordered the guards to shoot if anyone tried to flee. When Edhem BecKovic asked to stay with his handicapped wife, Grujo Kovacevic threatened to bash in all his teeth if he didn't come along.
The bridge was about one kilometre away. The Muslims advanced in groups of two or three along the right-hand side of the road. They were guarded by at least 15 Serbs, who were scattered along the left roadside on a level with and in front of the group of Muslims. The guards carried their rifles in ready-to-fire position. No one spoke. Only the joint plaintiff was asked in a whisper by his brother whether they should flee. He thought it inadvisable.
Shortly after 21 hrs the whole group reached the bridge. A car stood at its other end; two people got out. A searchlight blinked. Thereupon came an order from a Serb who was walking behind the group of Muslims on the bridge for them to line up on the left-hand side in the middle of the bridge with their backs to
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the railing. The prisoners obeyed. The first in line was the jOint plaintiffs brother, next to whom stood Esad BecKovic, Halim Cedic, the joint plaintiff, and the other lImen. Meanwhile their guards formed a semi-circle some four to five meters away. Though at first he had stayed back, the accused was among them, having joined in the semi-circle near its mid-point on the side of the road opposi te the M uslims. The accused and the other guards held up their rifles in front of their chests with both hands.
The two men in uniform who had been in the car had also reached the group. Without speaking to the other guards, one of the two, Mladen Lazarevic, delivered a short burst of fire from his automatic weapon at Esad BeCkovic, who collapsed lifeless. Then the man who had shot yelled at the one next in line, Halim Cedic, "What are you waiting for? Why don't you throw him?" The joint plaintiff used that split second to leap over the railing and into the river. Although he jumped from a height of no less than 20 meters, all he suffered upon hitting the water's surface was bruises on his left side. The guards fired into the river and threw hand grenades. A bullet pierced the joint plaintiffs left thigh. Swimming, in part underwater, the joint plaintiff reached the right bank about 200 meters downstream, where he tried to bandage his wound with his undershirt. He stopped short though, as the sound of branches being broken led him to believe he was being followed. So he slid back into the nver, whereupon shots were again fired into the Drina, missing him, however.
On the bridge the remaining 13 Muslims were shot dead, with Mladen • Lazarevic using up two magazines. Military policemen standing next to the accused in the semi-circle also fired at the defenceless victims, whose bodies were thrown into the Drina.
The joint plaintiff managed to make it about 30 kilometres downstream to the municipality of Gorazde. There, in the following days, he joined a group tasked to identify and bury bodies washed up in the Drina. Among them the joint plaintiff could identify Serif BeCkovic, Dzevad BeCkovic, Edhem BeCkovic and NedZad Dzin. In addition, Ermin Mujanovic, Suljo Lagarija and Esad BecKovic were found and buried.
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As to the other seven Muslims, none of their families have had any news of them whatever. Nor have they so far been registered as living anywhere.
VI.
The involvement of the accused
The accused participated in the operation on 22 June 1992 from the rounding up of the 15 Muslim men in Tmovaca through to their killing on the bridge at Brod. He acted pursuant to an order from the commander in Tmovaca. The • extent to which he knew of its having been conceived together with senior m.ilitary services cannot be elucidated. He carried out the order to get three Muslims from their home and take them to the gathering point in Tmovaca. Whether at this stage he was aware of the intention of the commanders to kill the 15 Muslims is open. The accused knew that the prisoners were told and were to be told that they had to walk under guard to Brod where they would be boarding a transport vehicle. He aJso heard Nebojsa Jankovic's order to the Serb guards to shoot if anyone attempted to flee.
When the group arrived at the bridge over the Drina, he noticed a blinking light signaJ coming from the other bank. He then heard the order of a fellow Serb guard for the Muslims to line up in the middle of the bridge with their backs to the railing. He saw the soldiers and military policemen take up their positions facing them. At the latest by the time of this order it was apparent to the accused that the Muslims were about to be killed.
Up to this point in time the accused, who had hung back as the group of Muslims and guards moved on to the bridge, managed not to be involved in any particular incidents. He decided however straightaway to join the Serbs and take up a position in the semi-circle's middle facing the witness Esad Mujanovic. Like the other guards, he held up his ritle with both hands in front
djajic-n.doclgm PURL: https://www.legal-tools.org/doc/484ae2/23 Translation 00678257 of his chest. The accused realized that the lining up of the Serb guards served only to stop the Muslims from fleeing and to set about killing them.
The accused himself received no specific order to shoot at his Muslim neighbours. Nor could it be determined that the accused himself shot at the victims. The accused had no personal interest in killing the 15 Muslim neighbours. Through his presence on the bridge though he did want to manifest his solidarity with the Serb cause.
The accused was aware that these men could not have been involved in the incident near Tjentiste and were moreover in no way responsible for its occurrence. He himself had been guarding the neighbours along with others in Tmovaca. He was aware that these 15 men had surrendered without any resistance back in April 1992, handed over their weapons and not quit their homes since. He was aware that through his contribution he was endorsing the killing of people who were to die because they were members of the Muslim ethnic group. None of the 15 victims had through their conduct given cause for the imminent killing. Nor was their individual life-style, family situation or personal attitude towards the conflict between Serbs and Bosnians of any account in the decision taken to kill them. He was also aware that as a military measure the execution of civilians was unlawful. The accused assumed that the killing of the Muslims was to facilitate the military control of the area and the elimination of any resistance whatever.
• The Appeals Chamber could not determine with certainty however that the accused assumed before the shooting was perpetrated that the killing of the neighbours. was meant to eliminate the Muslim group in the occupied administrative district of Foca.
At the time of the offence, the accused was criminally responsible (doli capax).
djajic-n.docigm PURL: https://www.legal-tools.org/doc/484ae2/24 Translation 00678258 B. Assessment of the evidence
1.
The evidence available
1. The findings concerning political developments in Yugoslavia are based, inter alia, on the conclusions of the UN Commission of Experts established pursuant to resolution 780 (1992) of the Security Council of the United Nations of 6 October 1992 by its Secretary General on 26 October 1992. The Commission pursued its investigations from November 1992 until April 1994 and wound up its activity with a comprehensive final report and several annexes. The annexes contained specific reports on given topics.
The Appeals Chan:ber had the final report as well as Annexes III (Military structure, strategy and tactics of the parties to the conflict), III A (Special units), IV (Policy of ethnic cleansing), VIII (Detention camps), X (Mass . graves), as well as the Summary of annexes I to XII and the conclusions in the English original and in German translation. The Appeals Chamber understands sufficient English to find that the translation. submitted contained no significant errors in substance. They were introduced into the proceedings by being read out according to the procedure in paragraph 249(2), 2nd Sentence of the Code of Criminal Procedure .
• The Commission based its investigations on:
a) the collection and analysis of information which it requested or was sent to it;
b) the dispatching of investigative missions to the territory of the former Yugoslavia or other countries, to obtain additional information, hear witness testimony and insofar as possible to corroborate facts;
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c) the collection of information on behalf of the Commission by certain governments in various countries.
The Appeals Chamber compared the findings of facts In the reports with generally available information and other evidence made available in connection with the proceedings, inter alia with the country report of the US State Department for 1992, Bosnia-Herzegovina Section. No major differences were found. All of the reports comment on the fonn and extent of the
involvement of all the parties to the conflict. The Appeals Chamber IS therefore convinced that the factual infonnation contained is objective.
2. The Appeals Chamber obtained further infonnation regarding political and military developments in Yugoslavia and in the municipality of Foca from the report by expert Marie-Janine Calic,a researcher with the Economics and Politics Foundation in Ebenhausen. The Foundation is funded by the Gennan Federal Chancellor's Office, and amongst other activities, it drafts reports concerning international relations from the security-policy angle for the Gennan government and national parliament, and is therefore tasked with the ongoing monitoring and analysis of security-policy-relevant events (See Judgement of the Appeals Chamber of 23 January 1996 - 3 St 10/96, and 5 March 1996 - 3 St 11/95a). The expert is a historian specialized in south eastern Europe and more particularly in Serbia as well. She is the author of two books, entitled "War and peace in Bosnia-Herzegovina" (1995), and "Yugoslav policy at the turning point" (1993), as well as 50 articles in specialized journals and has first-hand knowledge of the country, people and conditions of the former Yugoslavia from her year of activity there with the UN and its Special Envoy Tadeus Mazowiecki. Her account of facts coincided with the findings in the UN reports, even though she relied on and cited many sources different from the ones underpinning them. Her conclusions seemed well-founded to the Appeals Chamber and they were consistent with the other findings of fact. The Appeals Chamber therefore relied on the expert witness' explanations in its decision.
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3. Expert witness Horst Fischer submitted a report concerning the international and factual grounds for ascertaining genocide in Bosnia-Herzegovina. He has been with the Ruhr University's Institute for peace-securing law and international humanitarian law since 1988, and has participated in two international conferences on the application of international humanitarian law to the conflict to Yugoslavia. His expertise is accordingly above question. His account of the facts conformed with the other evidence; the conclusions he drew therefrom were consistent and well-founded (details under D.2.b).
4. Expert witness Tomislav Pintaric researched at the request of Appeals Chamber which Yugoslavian laws applied at the time (22 June 1992) and place of the crime and reported that through a regulation with legal force of 11 April 1992 the new state of Bosnia-Herzegovina had adopted and amended the Yugoslavian Federal Criminal Code of 1976 (Yu Cr. Code) along with the . amendments made since then. This law went into force on the day the regulation was enacted. The amendments made did not affect the legislation relevant to this case. Further, since 1 July 1977 there applied in the former Yugoslavian Republic of Bosnia-Herzegovina the Criminal Code of the Socialist Republic of Bosnia-Herzegovina (B-H Cr. Code) of 23 May 1977 which had been adopted by the independent Republic of Bosnia-Herzegovina.
The Serb Republic In Bosnia-Herzegovina had in fact established its own legislation in 1992, but this legal creation was not recognized as constitutional by the international community any more than was the republic itself.
The expert witness informed the Appeals Chamber of the provisions in the Yugoslavian Criminal Code (in Gennan translation) most likely to be legally relevant, including Articles 141 (genocide), 142 (war crimes against civilians), 144 (war crimes against prisoners of war), 145 (constituting groups and abetment of genocide and of war crimes), 146 (unlawful killing and wounding of the enemy), 150 (mistreatment of the wounded, sick, and prisoners of war), 151 (destruction of cultural and historical monuments), 154 (racial
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discrimination and other forms of discrimination), 155 (establishment of conditions of slavery and conveyance of persons therein), as well as the grounds of justification and excuse pursuant to Articles 9 (self-defence), 10 (necessity), 11 (criminal guilt), 12 (mental capacity); and from the criminal code of the Bosnian Republic the translation of Articles 36 (homicide), 37 (intentional homicide), 38 (manslaughter), 42 (serious bodily harm), 43 (minor bodily harm) and 52 (unlawful deprivation of personal liberty). He explained that, under the Bosnian criminal code, acting pursuant to an order did not constitute a specific grounds of justification. In a particular individual case, acting pursuant to an order could be subsumed under a general ground of justification within the Yugoslavian criminal code.
There is no question as to the expert witness' knowledge. He is a qualified attorney exercising in Munich, and is furthermore a researcher with the Institute for eastyrn European law and deals more particularly with Yugoslavia. The institute publishes, inter alia, annual surveys of the latest developments in the legislation in the countries of eastern Europe, and the journals WGO, containing the most important legislation in eastern and south eastern European countries, and M/OR, a monthly newsletter concerning eastern European law .
5. . Expert witness ..Professor N. Nedopil, head of the institute for forensic psychiatry at the University of Munich, and psychologist J. Weber, who has been with the institute for many years, examined the accused on thtee days in July 1996 to assess his criminal responsibility. They are both known to the Appeals Chamber from numerous other cases as experienced and conscientious experts. Both presented the results of their examinations (details below under E J) clearly, comprehensively, consistently and convincingly. Their evaluation of the accused coincided with the impression which the Appeals Chamber had gathered of him in the course of the main proceedings. The court therefore relied on the findings of both experts in its assessment. As the accused in the course of his examination made circumstantial statements to Professor Nedopil in relation to the facts of the case, the latter reported thereon
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as a witness. Prior to questioning him he had expressly informed the accused that any statements he made during the examination of his mental capacity at the time of the crime were not subject to meclical confidentiality and that he, the expert, might be called to testify as a witness regarding such statements. As the accused had the right to remain silent he could refuse to make statements during the examination as well without it entailing any legal drawbacks for him. In fact, prior to that the accused had been informed at length by the examining magistrate of the Federal High Court on 17 January 1996 and by the interrogating police officer about his rights pursuant to paras. 136(1) and 163(a) ofthe Code of Criminal Procedure.
6. The expert testimony of Professor Smail Cekic was not considered as the court regarded as founded the accused's objection to this expert witness on the grounds of bias.
After informing him at length of his duties as a witness the Appeals Chamber questioned Professor Cekic about his factual knowledge. In response, he submitted written material, a video recording of part of a speech given by Radovan Karadzic in parliament in 1991, and lists of Muslims killed in the municipality of Foca, and as witness, explained their origin.
A letter of 17 March 1992 from the Serbs in Foca to the General Staff of the Yugoslav People's Army in Belgrade with a request for the establishment of a Serbian garrison in Foca, and a video recording which was viewed during the main proceedings, were translated professionally by the simultaneous interpreter present. The other written material submitted was translated later by the interpreter as an expert witness in the main proceedings. As the material submitted coincided readily with the findings based on other evidence and the witness did not draw any conclusions therefrom, the Appeals Chamber had no hesitation in considering the statements of fact made by Professor Cekic regarding it. This is especially true also for the lists of Muslims killed in the municipality of Foca. Witness Professor Memisevic confirmed in this regard that these lists had been assembled on the basis of written questions addressed
djajic-n.doc/gm 29 PURL: https://www.legal-tools.org/doc/484ae2/ 00678263 Trans/arion
to several thousand refugees. With respect to the lists and the affinnations of witness Cekic, the Appeals Chamber noted only the time and place of the killings.
7. In the main proceedings the accused made no statements relative to his personal circumstances or to the case. The statements made by the accused before the examining magistrate of the Federal High Court on 17 January 1996 were introduced into the main proceedings by being read out in accordance with paragraph 254 of the Code of Criminal Procedure.
//~'> To the extent that he referred hereto to the police, his statements are related by • witnesses Officers Hellbach and Zom. Both are credible to the Appeals Chamber. They displayed good memories for detail and reported convincingly about the questioning of the accused and what he had had to say. However the accused did not make any further statements about the incidents on the bridge when talking to the police officers. Witness Hellbach reported about the accused's statement, in particular relative to events in Djedjevo in April 1992, his relations with the Muslims, to the guarding of the Muslims in Trnovaca and to individuals in the Serbian militia; witness Zorn testified about the accused's denial of any involvement in the incidents in Trbusce.
The accused had also been questioned as a witness by the examining magistrate of the district court of Munich on behalf of Swiss investigators in the preliminary proceedings against Grujo Kovacevic. These statements were not introduced into the main proceedings or considered by the Appeals Chamber because the accused, when questioned as a witness, had not been informed of his rights in accordance with paragraph 136 of the Code of Criminal Procedure (KKlMayr, Code of Criminal Procedure, 3rd. Ed,. para. 254, m.n. 3).
8. Given that the Appeals Chamber could hear as witnesses to the events only members of the Muslim ethnic group, principally family members of the
djajic-n.doc/gm PURL: https://www.legal-tools.org/doc/484ae2/30 Translation 00678264 victims of the acts of violence by the Serb occupiers, when not the victims themselves, and given the suspicion wtrich has arisen in the Tadic case that at least one witness was induced by the Bosnian secret service to make false statements to the International Criminal Tribunal for the former Yugoslavia, the Appeals Chamber pllid particular attention to the question of the credibility of the witnesses heard in relation to the events in Djedjevo and Trbusce and to the crucial incident on 22 June 1992. None of these witnesses provided any grounds for believing that the charges agllinst the accused were untruthful. And the suspicion voiced by the accused that the witnesses had been willing to testify in this case merely to obtllin a residence permit or an authorization to remllin longer in the Federal Republic of Germany was not borne out. Ttris suspicion was in any event irrelevant in respect of witnesses Esad Mujanovic, Fatima Alajim, Muniba Lagarija, Smajo Lagarija and Fikret BecKovic, as they do not live in Germany. These witnesses, just like the others heard in relation to the events from, April to June 1992 displayed definite signs of fear. The witnesses were not willing to state where they were now living. It was clear that the witnesses were under considerable stress. The Appeals Chamber was unable to notice on the part of any witness to the events, and in particular of Esad Mujanovic or the other witnesses relative to 22 June 1992, any tendency to amplify the accusations. Several witnesses saw the accused less as a perpetrator than as a "fellow traveller" and themselves as victims of the overall situation. The witnesses were visibly trying to depict only what they had seen first-hand. They made it clear when what they knew was through hearsay.
Witness Asima Sosevic, who had appeared, was not examined as she had showed evident signs of emotional distress and said that since arriving in Germany she was undergoing psychiatric treatment as a result of the events in Djedjevo.
9. Witness Milan Djajic, the father of the accused, in fact corroborated the latter's statements about himself. He even contradicted what the accused had sllid to the police and stated that the accused had worn a uniform as a member of the territorial defence since April 1992 and been assigned to regular guard duty,
djajic-n.doc/gm PURL: https://www.legal-tools.org/doc/484ae2/31 Translation 00678265 always alternating seven days on duty with two days off. He said he had learned this from regular phone conversations with his son and subsequent conversations with Serbian neighbours in Trnovaca. He claimed however that after the incident on the bridge his son had been so upset that he immediately headed off to Serbia and spent the whole winter there. The Appeals Chamber holds this to be untrue. It does in fact assume that the accused was at his uncle's in Uiice on 25 June 1992. Given the distance of roughly 160 kilometres from Foca to Uiice, covering them was not a problem for a Serb even in June 1992, as the municipality of Foca is right on the border tD Montenegro. Thereafter the accused returned, however. In fact the accused confirmed, first before the examining magistrate of the Federal High Court on 17 January 1996, that he had been in the army until 18 November 1992. During his extensive questioning by the police, the accused stated in late January 1997 that he did not leave Bosnia-Herzegovina until 18 October 1992
and had gone to U~ice after having been forced to do guard duty in a unit in August and early September. While the accused during questioning by the police on 5 February 1996 did contest the veracity of the transcript of his questioning by the magistrate on 17 January 1996 as regards his having been a member of a military unit, he did not however go back on his statements concerning the time period during which he was in Bosnia-Herzegovina and reconfirmed the obligation to do guard duty in August and September 1992.
The accused's statement to the police that in Trnovaca he had heard of the fate of the mother of his friend Fikret BecKovic two days after the incident on the bridge stands in contradiction with the testimony of witness Milan Drajic. He had said that two days after the incident on the bridge, Serifa BecKovic, along with her disabled daughter-in-law, had refused to leave the village with the other Muslim women and children, who been taken away in the direction of Macedonia. That was why she was killed. This had upset him more than anything else. He had therefore rushed to the bank of the Drina, where he had found traces and blood-stained bank notes and a military booklet. The Appeals Chamber is therefore convinced that what Milan Djajic had to say about this matter is untrue.
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The sister of lhe accused, as immediate family, did not testify.
10. The Appeals Chamber did not take the testimony of witness Rudzo Malevic into account for its findings.
During his questioning in the main proceedings the witness could not or would not recall numerous details of his previous statement to the police of 17 April 1996, despite reference to them and to their confirmation before the examining magistrate. The witness moreover stated that the incriminating comments made to him by the accused on the occasions he had reported about, had been made under the influence of drink. In substance the witness's account of the • accused's involvement in events relevant to the case differed considerably from other information. Finally, it also had to be taken into account that initially the
witness had report~dly been willing to testify formally to the police only if he was assured that at least for the time being he could remain in the Federal Republic of Germany. The witness did not make his statement on 17 April 1996 until he learned that he would be released from detention on 22 April 1996 and would be not be held in deportation custody. So the Appeals Chamber could not detennine whether witness Malevic was telling the whole truth or not.
11. Witness Professor Mrs. Memisevic reported that as early as in May 1992 in Zenica, a town in central Bosnia, an initiative had been taken to collect • information about war crimes committed by any of the ethnic groups. To this end, a center for genocide and war crimes had been set up with representatives from all ethnic groups. The information was gathered with the assistance of 450 volunteers, mainly students from the local university, and some 450,000 refugees were questioned. Their answers were recorded in filled-out questionnaires. The witness tendered several of them in court as examples. The answers to the questions were subsequently summarized and evaluated from various angles. Thus, amongst other things, had been established lists of Muslims killed, indicating the time and place of death and where they were from, as had been lists indicating the time and victims of deportations and of
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women who had been raped, and information concerning individual perpetrators was kept on file. As to the latter, in this way a list of 1,350 individuals alleged to have been involved in war crimes as perpetrators had been drawn up. The list contained only individuals whose involvement had in each instance been substantiated by five independent witnesses. This had not been the accused's case.
The witness said that witness Preljub Tafro had been the one most involved in collecting information about events in the municipality of Foca.
The charges levelled by the accused as to the witness' motives could not apply to her case. There was no reason to believe that she had consciously made untrue or exaggerated statements.
Witness Preljub Tafro had lived in Foca and worked until April 1992 in the city prison (KP Dom). He reported on the basis of first-hand experience about the situation in Foca, the town's occupation, the interment of his own family and of the Muslim inhabitants of the town, of killings of fellow residents and the expUlsion of Muslims and about his four-year-Iong involvement in the collection and evaluation of information about war crimes in and around Foca. Inter alia, in respect of the lists in the court's possession of Muslims detained in prison in the town of Foca, he had established them and he explained them.
The lists were founded mainly on statements by family members of inmates or from exchanged prisoners. The lists included the names of Suljo Lagarija, Hamdija BeCkovic and Mujo Cedic. The information relating to Mujo Cedic stemmed from the latter's wife. The contents of the list in no way conflicted with the facts of the case as determined. When the victims were taken away they and their relatives had been told that the victims were going to be taken to prison in Foca. Mujo CediC's wife passed on this information to the witness Tafro after being taken away from Tmovaca.
The reports of witness Preljub Tafroconceming the situation in Foca prior to April 1992, the events at the beginning of the town's occupation and the
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fleeing and expulsion of the town's Muslim inhabitants were all corroborated by witness Mehmed Bradaric. The latter had been a schoolteacher in Foca and on 12 April 1992 had fled with his family to Ustikolina and until March 1993 had been in Goraide collecting information about incidents in the municipality of Foca.
These two witnesses are members of the Muslim ethnic group. Neither the substance of their statements nor the manner in which they were made gave reason to believe that they had sought to charge the accused untruthfully or had exaggerated or distorted the facts for emotional reasons. When assessing their statements the Appeals Chamber did take into consideration that in their work looking into crimes committed in Bosnia both witnesses focused one-sidedly and exclusively on crimes perpetrated by Serbs.
n.
Piece-by-piece assessment of the evidence
I. The Appeals Chamber based the findings concerning political developments in Yugoslavia (A I) primarily on the UN reports, the report by expert Professor Calic, and the country report by the United States State Department for 1992,
Bosnia-Herzegov~na section.
The information regarding military co-operation between the JNA and the Bosnian Serb army was substantiated inter alia by the letter of 17 March 1992 from the Serbs in Foca to the General Staff in Belgrade which contained a request for the establishment by the JNA of a garrison in Foca.
2. The findings concerning ethnic cleansing (A II) are also based in partiCUlar on the work by the UN Commission (specially annexes IV, VIII and X to its final report), the aforementioned US State Department country report, the statements by Professors Calic and Memisevic.
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3. The local circumstances in the municipality of Foca (A HI) could be gathered from the UN reports, Professor CaliC's report, and the information supplied by witnesses Bradaric and Tafro. The particular local circumstances in Djedjevo and Tmovaca were related by the witnesses from those villages. Were further relied on the aerial maps of Brod, Foca and Gorazde exhibited in court as well as snapshots relative to the situation at the bridge and the photographs provided by witness Milan Djajic in connection with the situation in the Muslim neighbourhood in Tmovaca.
4. Events in the town of Foca were depicted in particular by witnesses Tafro and Bradaric. The time and place of the killings of Muslims were indicated in the lists submitted by witness Professor Cekic. In fact, these did contain some differences as regards the date of the killing of the victims from Tmovaca at the bridge at Brod (25 June 1992). The same date is indicated also for the men who were taken prisoner in Trbusce who have not been seen since, who were registered as having been killed in Brad na Drini. But the differences are minor and are understandable given the large amount of information processed. A further factor is that the village of Trbusce is part of the municipality of Tmovaca-Brod. As the Appeals Chamber consulted the lists merely to obtain an overall view of the take-over of the municipality and the subsequent killing of Muslim victims, the differences noted in the dates were by no means deemed so significant as to call into question the reliability of the lists as a whole.
5. The events in Djedjevo (A IV 4) were related by witnesses Reuf Lagarija, Smajo Lagarija, Zijo Sosevic, Sead Tahirovic and Zuhra Bostandzic.
The two Lagarija witnesses saw first-hand the occupation of the Mackovac district down by the Drina by Popovic's group, the other witnesses the taking of the higher districts.
djajic-n.dodgm PURL: https://www.legal-tools.org/doc/484ae2/36 Translation 0067827{}
As date herefor the accused and witness Reuf Lagarija gave 21 April 1992, the other witnesses 20 April 1992. In the lists the time of death registered is 20 April 1992. Given the consistent accounts of the events fixing the precise moment was deemed unnecessary.
Witness Zuhra Bostandzic had to watch while her eldest son, who had hid in the cellar at the time of the attack, when he was found was beaten and shot dead on the spot. The witness surmised that the reason he was killed was because he had been an NCO at the military academy. The witness's husband had likewise been beaten inside the house and been taken prisoner shortly thereafter and ill-treated and then shot later that day in a field in the township. The witness left Djedjevo on 13 August 1992. Until then she had observed that in the surrounding area time and time again Muslim houses had been set alight.
Witness Zijo Sose,\ic had to gather along with 40 Muslim men in a field in the township. Nine of them were picked out by the Serbs and subsequently killed. The witness was taken to prison in Foca, where he remained until 13 July 1993. Until 6 October 1994 he had been in two other prisons doing forced labour. Then he was released in a prisoner exchange.
On the day of the take-over witness Sead Tahirovic managed to hide in the surrounding area. He was however arrested the following day and taken to 'prison in Brod. There he was mistreated for several hours, but released again a day later. However, that day he, along with other Muslims, had to collect and bury the bodies of those killed over the previous days. Until he fled on 24 May 1992 he was under house arrest.
At the time of the attack witness Reuf Lagarija had hid along with his father Smajo Lagarija and his family in the cellar. After being called upon to do so by a Muslim neighbour he left the house with his family and gave a Serb acquaintance his weapon and ammunition. While the family was allowed to go back to the house, the witness was taken to a collection point where a group of Serbs was hiding at the edge of the, woods. There the witness ran into the accused and spoke to him for a few minutes, After an hour the witness was
djajic-n.doc/gm 37 PURL: https://www.legal-tools.org/doc/484ae2/ Translation 00678271 allowed to return home. Along with his family and a large number of neighbours Reuf Lagarija was deported on 26 June 1992 and taken away to Macedonia. Until then he had been under house arrest. During that time the witness had observed that in the surrounding area the houses of Muslims were set on fire time and time again.
As witness Hellbach reported in respect of his questioning by the police, the accused himself admitted having been in Djedjevo on the day of its occupation out of curiosity and to have been near Reuf Lagarija's house. On that occasion he had also carried a weapon. He denied though belonging to Popovic's military group and any involvement in the take-over of the town or in the acts of violence committed in connection with it.
In contrast thereto the witness Reuf Lagarija confirmed expressly that the accused had been apned and amid the group of attackers and had mentioned in their conversation that he had just joined them. Witnesses Esad Mujanovic and Muniba Lagarija had observed that the accused had returned to Trnovaca with the group in the afternoon. After this the attackers had on this occasion laughed and fired shots into the air.
The Appeals Chamber is therefore convinced that the accused belonged to the group of attackers without however being involved that day in the arrest of Muslims or in acts of violence committed by the Serbs.
The accused had admitted during his questioning by the police that he had heard of acts of violence by the Serbs. And he had told witness Muniba Lagarija about them.
6. The situation obtaining in the township of Trnovaca up until 22 June 1992 CA IV 5) was related consistently by Esad Mujanovic and Muniba Lagarija, Devla Bec1covic, Nermina Bisevac, Hasna Dzin and Hasiba BeCkovic.
djajic-n.doc/gm PURL: https://www.legal-tools.org/doc/484ae2/38 00678272 Translation
The relevant facts had already been confinned by the accused during his questioning by the examining magistrate of the Federal High Court. He had claimed however not to have been on guard duty or worn a unifonn throughout the whole period. On that score he is refuted by witnesses Esad Mujanovic and Muniba Lagarija, who saw him in unifonn several times, including even on the occasion of private calls to the Lagarija family. During one such call the witness Lagarija had offered to wash the accused's unifonn for him, which he had turned down explaining that it was not allowed as one of her sons might flee while wearing it. And once while stopping by, the accused had also told them that he had to do guard duty at the township's water reservoir. The witnesses refuted categorically the accused's statement that in late May 1992 he had offered the family a hand grenade of his own for their protection.
And witness Enver Frasto too, who had lived in Foca and been to vocational
school together wit~ the accused, had seen the latter on two occasions between 10 and 15 April 1992 along with other Serbs in Trnovaca and in Brod na Drini, with the accused dressed in full camouflage garb and armed both times. That the accused had worn a unifonn from April to June 1992 was also noted by witnesses Devla BecKovic, Nermina Bisevac, Hasna Dzin and Hasiba BecKovic.
Witness Bisevac indicated that on several occasions the accused would have had an opportunity to rape her. He had not done so though and had advised her repeatedly to leave her home as there was a danger of being raped by the Montenegrins in the village.
The four female witnesses had been taken along together with other Muslim women from the village and their children on 24 June 1992 by Serbs and taken under dangerous circumstances via Montenegro to a camp in Macedonia. No involvement in this operation on the part of the accused could be ascertained.
7. The witness Tidza BecKovic reported that on an afternoon between 23 and 25 June 1992 Serb soldiers had come to Trbusce, gotten all of the Muslim
djajic-n.doc/gm PURL: https://www.legal-tools.org/doc/484ae2/39 00678273 Translation
villagers out of their homes, immediately took away the 15 villagers and kept the women and children locked up in a house. In the evening the women had been allowed to pack up a few essentials, whereupon they were driven off in a refrigerator truck to Bukovica whence, after signing a statement relinquishing their property, they were taken to Montenegro. The men have not been heard of since.
The witness did not see the accused on this occasion.
8. The killing of people on the bridge at Brad (A IV 6) even prior to 22 June 1992 had been observed by witness Fatima Alajim, who had lived along the bank of the Drina in the Brod township, as well as by witnesses Reuf and Smajo Lagarija, whose home was in the Mackovac district of the township of Djedjevo. The Appeals Chamber could ascertain on the basis of the photographs exhibited in court that the witnesses, who in June 1992 had not been allowed to leave their homes, were all able to follow events on the bridge from a distance of 100 to 150 meters. The distance from the bridge to their respective viewpoints was however such that with the patchy evening visibility and the lighting on the bridge switched off, they could not make out particulars. The witnesses had all reckoned the number of victims on the basis of the sound generated by the bodies hitting the surface of the water. The Appeals Chamber therefore forewent basing its findings on figures of this kind. There is no doubt however that each case observed involved a number of victims.
Both witnesses also noted each time the bridge-clean-up process with a tank truck of the Maglic company.
The incident on 22 June 1992 was particularly striking to both witnesses because it was the sole instance where hand grenades had been thrown into the river.
djajic-n.doc/gm PURL: https://www.legal-tools.org/doc/484ae2/40 Translation
9. The series of events on 22 June 1992 (A V) up to the assembly of the victims on the road to Brod were related consistently by the witnesses Esad MujanoviC, Muniba Lagarija, Devla BecKovic, Nermina Bisevac, Hasna Dzin and Hasiba BecKovic.
During questioning by the examining magistrate of the Federal High Court the accused had stated that he had gone aJong to Foca because he had wanted to see some people he knew and get a weapon from headquarters. He told the expert witness Professor Nedopil that as the men were walking to the bridge he had put flowers into the rifle he had along. The Appeals Chamber regards this account as a lie told by the accused to cover himself. For one, witnesses Esad Mujanovic and Muniba Lagarija stated credibly that the accused had turIjed up along with Slavko Paprica at the Lagarija family home, with both men wearing uniforms and armed with a semi-automatic and an automatic weapon and both having hand grena?es. Witness Esad Mujanovic had not seen any flowers in the accused's rifle barrel on the march to the bridge, nor would their presence have coincided wjth the gravity of the overall context - three Serbian villagers had been killed that day - or with the threat by the head of the guards to shoot if anyone tried to flee.
And the assertion by the defence as formulated in motion to take evidence no. 4 submitted in the main proceedings on 5 March 1997 that on the bridge the accused had stood at least 30 meters away fro'm the Serbs forming a semi circle is refuted by the testimony of witness Esad Mujanovic and in particular by the accused's own earlier statement. Witness Esad Mujanovic had declared that on the bridge the accused had been facing him at near the middle of the semi-circle of Serbs on the other side of the street with his rifle in firing position. The accused himself told the examining magistrate of the Federal High Court on 17 January 1996 that he had winked out of the corner of his eye to the Muslims from a distance of three to four meters to signify to them that now would be a good time to jump over the railing and escape. He had said that he had stood next to the military policemen who had shot at the Muslims.
djajic-n.doc/gm PURL: https://www.legal-tools.org/doc/484ae2/41 00678275 Translation
The accused's claim that to the end he had not foreseen nor could have foreseen that the Muslims were to be killed on the bridge is likewise refuted.
The accused himself stated for the transcript of the examining magistrate that a blinking-light signal had been given on the opposite bank in the vicinity of the bridge when the group had reached it. A soldier had thereupon ordered the Muslims to cross the bridge. Witness Esad Mujanovic had explained that the command from the group of guards was for the Muslims to line up on the left hand side in the middle of the bridge with their backs to the railing. and that it had been obeyed. The accompanying guards had formed a semi-circle around the group of Muslims. The accused too had stood in the middle of the semi circle facing him at five meters' distance. A soldier who had come over from the other side of the bridge had fired at Esad Bec1 The killing of the remaining Muslims had been admitted to by the accused himself. It is substantiated by the fact that the bodies of seven of them were washed up in the district of Goraz.de and buried there. There has been no sign of life of the other victims since. The Appeals Chamber came to the conclusion that the killing was planned in order to eradicat~early on any possible resistance. The account of how events unfolded on 22 June 1992 by the witnesses and the statements by the accused to the Federal High Court examining magistrate reveal that the victims. 15 men of the Muslim ethnic group from the village of Trnovaca, and the place of the killing, the bridge at Brad. which had already been used several times in June 1992 as a site of execution. had been pre-established. The fact that when the group reached the bridge a light signal came from the other end and prompted an order by a Serbian soldier who had arrived with the group of guards for the Muslims to line up with their backs to the railing in the middle of the bridge on the left-hand side. i.e. on the downstream side. pleads djajic-n.doc/gm PURL: https://www.legal-tools.org/doc/484ae2/42 00678276 Translation in favour of a planned operation. No further orders were required for the Muslims to be surrounded or for LazareviC to step in and open fire. That the killing of these Muslims was also part of a plan to drive Muslims out of the area south of Foca is attested to by the following events. In the days from 23 to 26 June 1992 the family members of the victims from Trnovaca and the men who had been taken away in Trbusce were deported to Montenegro. First these family members had had to relinquish their property in writing. At the same time in Djedjevo as well the bulk of the Muslims still remaining were forced to relinquish their property and leave their homeland. In this regard, it had been intimated by their Serbian neighbours to the men still remaining that otherwise they might be killed. 10. The Appeals Ch~ber could not establish with sufficient certainty that the accused was awareprior to reaching the bridge that the 15 Muslims were to be killed. Despite several indications of pnor knowledge the Appeals Chamber harboured lingering doubts that the accused did, even at the time when the Muslims were being taken away, believe that the prisoners were going to be incarcerated temporarily for their safety in the KP- Dom. Nor were these doubts dissipated by the statement by witness Muniba Lagarija that the accused had told her, when leading the men away, that her brother had been taken away in the same way and been killed. In assessing this statement by the witness it must be considered that the alleged comment by the accused would have been made in a highly charged emotional situation in which on account of the general context the witness had to fear for the lives of her family members. The Appeals Chamber could not rule out that the witness's subsequent knowledge distorted her recollection. Witness Esad Mujanovic's mother had afterwards told him about the accused's comment. According to her the accused had replied, "Your brother was taken away like this too." The witness did not mention any reference to the killing of the djajic-n.doc/gm PURL: https://www.legal-tools.org/doc/484ae2/43 Translation 00678277 brother. As far as that went, the family had learned that under the pretext of wanting to roast a lamb the Serbs had taken him along to the bank of the Drina, where he had then been killed, The accused had told the police, with respect to what he knew of the killing of the brother, that the latter had been at a picnic with Serbian friends, The party had been joined by several unknown Chetniks, one of whom, when they heard the friends address the uncle with the typical Muslim first name of Dzemo, shot him, In the light of this account a reference to the taking away of the uncle by the accused would not have made much sense, It could not be ruled out that this version of events might be true, It could not be established that the accused had heard comments by other guards when other victims were taken away to the effect that no clothes or papers were necessary, It was immaterial therefore whether such comments enabled any conclusions to be drawn as to the intention of killing, The order to fire given by Nebojsa lankovic and the fact of walking to Brod had led the witness Esad Mujanovic to believe that the prisoners were to be killed, Accordingly his brother Ermin had in fact considered fleeing, This notwithstanding the Appeals Chamber could not rule out that the accused had not yet perceived any intention of killing the prisoners when they were being marched towards the bridge, The certain realization dawned on the accused at the latest when, upon the group's reaching the bridge, he saw the blinking-light signal from the other bank and thereupon - with no further perceptible contact with the people at the other end of the bridge - heard the order from one of the guards for the Muslims to line up in the middle of the bridge with their backs to the railing, That order and the Serbs' conduct, of surrounding the Muslims in a semi-circle with their weapons abreast, were clear indications that the intention was to kill the Muslims, Furthermore, the accused recognized the individual who came over from the other side of the bridge, Mladen Lazarevic, of whom he knew !fom previous experience and knowledge that he was prone to violence and had therefore been dismissed by Gojko lankovic from the latter's group, djajic-n,doc/gm PURL: https://www.legal-tools.org/doc/484ae2/44 00678278 T ransiarion The accused nonetheless took up a position with his rifle in the middle of the semi-circle of guards which was meant to prevent the Muslims from escaping from certain death. The Appeals Chamber is convinced that the accused could have refrained from participating without any danger to life or limb. When questioned on 1 February 1996 the accused had stated that he had enjoyed a certain amount of protection from Gojko Jankovic, which the latter would probably have had the accused's family pay for later. To the expert witness Professor Nedopil the accused had said that he had gone over to the column of men on the bridge to see what was happening whereas Ostrovic had stayed back at one end of the bridge to wait for the transport vehicle. In this connection the accused had also said that he had seen a soldier come over from the other side of the bridge before he himself had reached the last men in the group. In so doing, by even in this situation taking up position in the middle of the semi-circle, facing the witness Esad Mujanovic, the accused knowingly subscribed to the perceived objective of the operation, to kill the defenceless Muslims. The subjective considerations before and during the killing of the Muslims are deduced by the Appeals Chamber insofar as, as found in the deterrninations, the accused knew about events in the Foca area, and in particular of the developments in Trnovaca and Djedjevo. The accused was cognizant of Vukovic's threat to execute five Muslims for every Serb killed. He also knew that on the day of the incident three members of Vukovic's group from Trnovaca had lost their lives. 11. On the basis of the facts, it could not be ascertained however, whether the accused had participated in the killing of his neighbours with the intent of destroying the Muslim group or had even realized that the killing was to be perpetrated in pursuit of the intent to destroy a group. djajic-n.doc/gm PURL: https://www.legal-tools.org/doc/484ae2/45 0067827B Translation Here it must be considered that the accused, according to his own credible statement which was corroborated by the testimony of witnesses Esad MujanoviC, Muniba Lagarija, Hasna Dzin, Nerrnina Bisevac and Hasiba BecKovic, had never in the past nor since April 1992 been hostile towards his neighbours, so there are no grounds to believe that the intent of destroying the group had developed or even taken root. Nor could it be ascertained whether and to what extent the accused perceived the systematic nature of the killing of Muslims in the municipality of Foca - with the exception of the incidents in Djedjevo on 21 April 1992 - and of the destruction of property or cultural facilities up to 22 June 1992 and whether he saw anything he knew of as part of an intent to destroy the Muslims. It had to be considered on this score that the incidents from April 1992 onwards until 22 June 1992 had occurred during the period of the Serb take-over of the Foca municipality which - according to the accused's uncoptested statement - was not yet over, which had led in the south of the municipality to the killing of Serb soldiers by the explosion of a . mine brought on by the Muslims. The incident reportedly involved an attack by Muslims on a Serb reconnaissance unit. Having given the accused the benefit of the doubt and assuming that it was only when arriving at the bridge, through the blinking-light signal and the command for the victims to line up, that he realized that the neighbours were about to die, there remained only an extremely short time-span until the execution of the crime, which would not by any means have-llllowed the accused in the know sufficient time to regard the objective of the killing as the intent to commit genocide. The clear indications of the intent to destroy the group, namely the clearing out of the remaining Muslim population of Djedjevo, Trbusce and Tmovaca did not occur until two to three days after the incident on the bridge. The accused had in fact admitted during his questioning by the police that even prior to his first encounter with Lazarevic (a few days after the events in Djedjevo) he had learned of the situation of Foca, that 1,300 Muslims were being detained in the KP Dom and 300 women in the Partizan sports center, and that thousands of Muslims had t1ed from the town, so that there were only several hundred Muslims remaining in it. In this regard the accused indicated djajic-n.doc/gm PURL: https://www.legal-tools.org/doc/484ae2/46 0067828D Translation that this information had conflicted with what he heard so far. He had heard nothing about massive destruction or about large numbers of victims. Rather, information from Gorazde and the area of the upper course of the River Drina had suggested that peace would return. The main proceedings yielded no grounds for believing that in the early stage of the conflict up to 22 June 1992 the accused was cognizant of information which might have conveyed to him that the Muslim group in the occupied areas was to be destroyed. The assumption that the accused saw the killing of his Muslim neighbours on the bridge as a military operation and not as an expression of the intent to destroy a group is supported by the fact that in his questioning by the police on 6 February 1996 he said that what had upset him more than anything else had been the killing of the two women who had refused being taken to Macedonia and been killed as a result. 12. The findings concerning the accused's life story (below E I) are based on his statements to the police and to the expert witness Professor Nedopil. They are confirmed in detail by his father, Milan Djajic. The information relative to the time spent in the Federal Republic of Germany has been supplemented with the foreign-residents' documents from the relevant department of the city of Augsburg and those of that city's employment agency which were read into the record. C. The legal assessment of the facts of the case 1. The accused's involvement in the crime on the bridge is to be regarded legally as complicity in 14 cases of murder and in one case of attempted murder (paras. 211(2), 27(1), 22 of the Criminal Code). djajic-n.doclgm PURL: https://www.legal-tools.org/doc/484ae2/47 00678281 Transiation 1. The killing of the 14 Muslims on the bridge had been planned. It was perpetrated intentionally by Lazarevic and at the least by the military policemen. In respect of Esad Mujanovic, who escaped, there is an unaccomplished attempt (para. 22 Cr. Code), as the perpetrators in fact did, by shooting at him in the river and throwing hand grenades, do everything within their power to achieve their objective to kill. They did not assume that they had achieved it though, since they hounded down the fleeing witness on the river bank and further tried to kill him with shots into the Drina. As they failed on account of the joint plaintiffs absconding, "deliberate abandonment of the attempt" (para. 24 Cr. COde) is ruled out. The serious bodily harm suffered by the joint plaintiff is subsumed in the attempted murder charge (Federal High Court, New Journal of Criminal Law 1995, 79, 80). 2. The accused was not involved in the crime as co-perpetrator but as accessory (para. 27(1) Cr. Code). Although the accused had realized that the Muslim neighbours were about to be killed on th~ bridge, he went over to their guards on it and took up a position with his rifle in firing position in the middle of the semi-circle which the Serbs had formed into around the group of Muslims. It was clear to him that the only purpose this could serve was to forestall any attempt to flee on the part of the unarmed victims. Through his own conduct the accused thus furthered the subsequent killing. In assessing the overall context the Appeals Chamber was unable to find that the accused had such a close involvement in the killing that his contribution to it should be regarded as part of the act of killing, or conversely that the killing should be regarded as the accomplishment of the accused's part in it (Decisions of the Federal High Court in criminal cases 37, 289, 291 with further djajic-n.doc/gm PURL: https://www.legal-tools.org/doc/484ae2/48 00678282 Translation references; Trondle, Criminal Code, 48th Ed., para. 25, margin note 6, with further references). The accused had no interest of his own in the killing of his neighbours. The witnesses from Tmovaca confinued that prior to the events in 1992 the accused had maintained good to friendly relations with them. Between April and June 1992 as well he had evinced no change in his basic attitude. The main proceedings did not show up any indication that the death of the Serb villagers in any general way or the death of his distant relative in particular had brought about any significant shift in his attitude towards his neighbours. The extent of his actual involvement in the overall killing process was minor. By joining the semi-circle of guards he objectively reduced the odds of the defenceless victims fleeing. But as far as the killing goes, which was started by Lazarevic and comf'leted by others who fired, he had no control over events. Nor have any certain indications emerged that the accused had at least had any inclination to participate in the killing. The actual sequence of events on the bridge as detenuined by the court pleads in favour rather of the accused in this situation voluntarily rejoining the rank of the guards and endorsing the killing of the Muslims which he perceived as planned in order-to show in response to Jankovic's call for a decision, that he was on the Serbian side. The perpetrators and participants fulfilled the constituent elements of murder for "other base motives". According to the criteria relevant to this crime established by case law, the killing of random victims as a means of reprisal and of terrorizing others does not involve any actual link with the perpetrators as individuals (Trondle, para. 211, m.n.14). The accused too had realized on the bridge that the imminent arbitrary killing of his neighbours was meant as reprisals but also to terrorize and deter the other Muslim inhabitants of the surrounding area. In endorsing this act he considered and approved these motives and thus acted out of "other base motives". djajic-n.doc/gm PURL: https://www.legal-tools.org/doc/484ae2/49 00678283 Translation 3. The individuals who ordered the killing and those who fired and the accused acted out of base motives in the sense of paragraph 211(2) of the Criminal Code. In assessing the overall context of the crime, of the perpetrators and of the accused and of their Jespective contributions to the deed, two criteria remain intrinsically linked: by perpetrating the killing all of those involved in the crime disregarded the personal intrinsic value of the victims, and they took revenge on wholly innocent individuals for the death of their compatriots. As far as the accused is concerned, he perceived the motive of reprisal on the part of the perpetrators and approved it. It is recognized by case law that, as a motive, revenge may constitute a base motive in the sense of para. 211 Cr. Code (Decisions of the Federal High Court in criminal cases, 28, 212; FHC New Legal Weekly Journal 1996,471; 1969, 2293; 1958, 189). Like the other motives deriving from strong feelings (frustration, jealousy, disappointment, anger or hate) however this motive may not simply be characterized as base out of hand. As everyone is subject to such emotional feelings to a greater or lesser degree depending on their cause, in the case of motives deriving from them, all of the circumstances need to be weighed (FHC NLWJ 1996,471,472). In assessing the basis of the motive of those who fired, consideration must go to the fact that the objective cause of the act of reprisal had been the death of three members of a military unit based in the village of Trnovaca. As neither Lazarevic nor the military policemen who fired lived in the village, in their case there was no particular emotional impact which might have developed from living in a neighbourly fashion alongside the dead. As victims for. revenge were selected civilians who could not have been remotely involved in the military operation of killing using a mine, since back in April 1992 the Muslim inhabitants of the village of Tmovaca had been under house arrest and a Serbian guard. The mine did not go off in the immediate vicinity of the village of Trnovaca, but rather some 30 kilometres away. From the beginning the Muslim villagers had not put up any resistance, had handed over their weapons, and had not left their homes, which were djajic-n.doc/gm PURL: https://www.legal-tools.org/doc/484ae2/50 00678284 Tram,iatioll guarded. There was therefore in the view of the Serb rrlilitary no objective reason to pick out the victims of a reprisal operation from among the inhabitants of the village of Trnovaca. The fact is that the men became its victims alone on account of their belonging to the Muslim ethnic group. The reprisal operation was not carried out on specific individuals. Rather 15 Muslim inhabitants of the village of Trnovaca who happened to be at hand when was the crime was to be perpetrated were to be killed by way of reprisals. Such reprisals on uninvolved civilians are devoid of any emotional ties between perpetrators and victims, such as usually exist where motives are rooted in emotional feelings. What this killing constituted was an execution of the victims manifesting total disregard for the personal intrinsic value of the victims (LKJJahn~e, Cr. Code, 10th Ed., para. 211, m.n. 31; with further references). Conduct of this kind is proscribed in all legal systems. The international community proscribes the killing of persons not directly involved in an armed conflict even if the latter is not international (see also Articles 3 and 33(3) of the Nth Geneva Convention of 12 August 1949). The killing of civilians as retaliation for the death of members of a military unit, even where caused by an operation by partisans, is condemned by the community of nations as a whole. Such reprisals are to be regarded as "other base motives" in the sense of paragraph 211 of the Criminal Code. The killing of these Muslims was also aimed at the intimidation of the other inhabitants of this ethnic group south of Foca. The objective was to secure the ready control of occupied territory and to see to it that, in the event Bosnian troops tried to retake it, they would not be able to count on any help from them. All of those involved in the act were aware of this. The victims of the killing were thus means to an end and chance objects for the spreading of fear and terror among the victims' family members and the other Muslims in the area. In this way they were denied their right to respect of their personal intrinsic value and self fulfilment. They were divested of any personal intrinsic value. Such a motive djajic-n.doc/gm PURL: https://www.legal-tools.org/doc/484ae2/51 00678285 Translation is anti-social and is as such by common moral standards of the vilest kind (LKJJahnke, para. 211, m.n. 28 and 29, with further references). 4. Even though in the course of the crime 14 people were murdered and there was a case of attempted murder on another, through his involvement in guarding the victims on the bridge the accused in fact aided and abetted in the form of a single act. His contribution to the crime is to be considered a single offence, even if the principals committed several legally distinct crimes (FHC New Journal of Criminal Law, 1993, 584; 1996, 296; LKlRoxin, Cr. Code, 11th Ed., para. 27, m.n. 54; Trondle para. 27, m.n. 10). Therefore no ruling is required as to how many separate crimes those who fired committed in violating the highly personal legal interests of the victims. 5. For the accused's' part III the cnme there were no grounds for either justification or excuse. There is no legal need to determine whether the accused received orders on 22 June 1992 or what they might have been. In any event he did not receive an express order to shoot the Muslims or to see the operation through on the bridge. This rules out the exemption from guilt pursuant to paragraph 5(1) of the Military Service Act. Nor did the situation involve any immediate danger for life or limb of the accused (para. 35(1) Cr. Code) which could have been averted solely ·by participating in the murder. The accused felt he was under the protection of the local commander Gojko lankovic. Initially he hung back at the end of the bridge. So there was no compulsion for him the join the semi-circle of guards with his rifle ready for use. 6. To ascertain a crime of complicity in genocide (paras. 220(a) and 27 Cr. Code) on the part of the accused the requisite subjective proof is lacking. So long as it cannot be ruled out that the accused took the shooting for an albeit unlawful and despicable means to deter the Muslims from further attacks on Serbian djaj ic-n.doc/gm PURL: https://www.legal-tools.org/doc/484ae2/52 Translation 00678286 military units, with the benefit of the doubt it must be assumed that he did not perceive the intention behind the operation to destroy the Muslim group. So whether the events as occurred in the municipality of Foca were directed with the intention of destroying the ethnic or religious group, and that therefore genocide was committed by the political and military leadership, may be left open. 7. The accused's act is also an offence under the law applying at the place of the crime at the time it was committed. The killing of persons is punishable pursuant to Article 35 B-H Cr. Code. Complicity is contemplated in Article 24 B-H Cr. Code, which was adopted on 11 April 1992 by the Republic of Bosnia-Herzegovina through a decree law which went into effect on the same day. It provides that someone who intentionally assists another in the commission of a crime may be liable to the same, albeit also to less severe, punishment than a perpetrator. The conditions for recognizing grounds for justification or excuse under Articles 9 to 12 Yu Cr. Code are not met. In particular, there is no case of necessity as according to Article 10(2) thereof necessity exists only where the act was performed because the perpetrator thereby eliminated an immediate unprovoked danger to himself which could not have been eliminated any other way, with the harm done being no greater than that threatened. D. Requirement of applicability of German law and of German jurisdiction The accused's crime falls foul of substantive German law under both Articles 6(9) and 7(2)(no.2) of the Criminal Code. djajic~n_doc/gm PURL: https://www.legal-tools.org/doc/484ae2/53 Translation OOt)78287 1. The provisions in paragraphs 4 to 7 of the Criminal Code as substantive legal nonns (Trondle, para. 2, m.n. 7) contemplate the cases where Gennan substantive law applies to offences committed in a foreign country. So domestic law applies (Trondle, ibid. para.2, m.n.7; Lackner, Cr-Code, 22nd Ed., Introduction, paras. 3-7, m.n.1; on the same notion of "applicable law": Oehler, International criminal law, 2nd Ed. 1983, p. 1 fO. Despite their substantive law contents, these provisions suggest that the Federal Republic of Gennany may try perpetrators under the procedural competence of Gennan courts. Nothing in international law precludes the extension of Gennan substantive criminal law to the crime committed by the accused as a foreigner against foreigners in a foreign country or German jurisdiction and accordingly of the Appeals Chamber which is competent pursuant to the provisions of the Constitution of Courts Act and of the Code of Criminal Procedure. This notwithstanding each and every case must be scrutinized from the angle of the principle of non-interference to establish whether there is an adequate nexus with Germany and that there is nothing in international law which impedes extending national criminal law to an offence committed by a foreigner in a foreign country. The general rules of international law have become part of Gennan national law through Article 25 of Gennany's Basic Law, and international law has primacy over the normal domestic laws. The sense of the direct applicability of the general rules of international law consists of overruling conflicting domestic law or to insure that domestic law is applied consistently with intemationallaws (Federal Constitutional Court Decisions 23, 288, 316). However, in principle the "general rules of international law" (see FCCDs, 32 ff.; 31, 177) do not include the law of international agreements save where the latter lays down generally recognized standards of international law, that is to say those rules which are recognized as binding by the vast majority of states and in particular by the world's leading powers. This is the case for the provisions of the IVth Geneva Convention of 12 August 1949 for the djajic-n.doc/gm PURL: https://www.legal-tools.org/doc/484ae2/54 00678288 Translation protection of civilians which are in part regarded as laying down customary international law and therefore as binding on non-contracting states as well. It is also above question though that the customary international law of non interference is one of the general rules of international law . For certain concerns of the international community In relation to the admissibility of a state to establish its substantive law and to exercise its jurisdiction, insofar as the sovereignty of another state might be affected, international law increasingly accepts the principle of universality and may therefore coincide with the mainly substantive-law provision in paragraph 6 of the Criminal Code. The extension of substantive German criminal law to offences committed by foreigners in a foreign country is based pursuant to paragraphs 6(no.9) and 7(2) of the Crimiral Code on the relevant grounds for reference to the universality principle and the vicarious administration of criminal justice. 2. The substantive validity of the finding of a cnme of murder against the accused flows from paragraph 6(no.9) of the Criminal Code. The crime of the accused, as a foreigner, is to be prosecuted on the basis of an international convention binding for Germany even if it was committed in a foreign country. a) The Federal Republic of Germany bound is by its accession (Federal Law Gazette 1994 H, p. 1133) to the IVth Geneva Convention for the protection of civilians of 12 August 1949 (FLG 1954 H, p. 781 ff., p. 917 ff.) which went into force on 3 March 1955, and by the subsequent signing on 23 December 1977 of Additional Protocols I and II of 8 June 1977 (FLG 1990 n, p. 1551 ft'. and p. 1637 ff.) for the punishment of grave breaches in the sense of Article 147 of the Geneva Convention, including "intentional killing", "inhumane treatment", "unlawful abduction", and "unlawful imprisonment". b) The obligation to protect the civilians referred to in Article 4 of the IVth Geneva Convention and the criminal responsibility for respecting the djajic-n.doclgm PURL: https://www.legal-tools.org/doc/484ae2/55 Translation 00678289 humanitarian provisions is also incumbent on the accused as a national of a state which is bound by the Geneva Conventions (Gasser, Introduction to International Humanitarian Law, p, 100). ,The Appeals Chamber takes it that the process of the break-up of the former Socialist Federal Republic of Yugoslavia where the Republic of Slovenia on 25 June 1991, the Republic of Croatia on 8 October 1991 and the Republic of Bosnia-Herzegovina on 6 March 1992 declared their independence and received prompt recognition by a great many states, including the Federal Republic-- of Germany, entailed the legal succession also of Bosnia- Herzegovina, from the day of its declaration of independence onwards, to the -commitments arising from the international conventions signed by the former Yugoslavia (as did Mr. Cherif Bassiouni in the final report of the Commission of Experts of the United Nations of 27 May 1994 - Annex Summaries and Conclusions Text. no. 44). The former Socialist Federal Republic of Yugoslavia ratified the four Geneva Conventions on 21 October 1950. The Additional Protocols of 8 June 1977 took effect for it on 11 December 1979 (Roggemann, The International Criminal Tribunal of the United Nations and the War in the BaJkans, 1994, p. 38). The process which unfolded in the meantime is not just a secession, but rather the dismemberment of a state into several splinter entities (see Oeter, Journal of Foreign Public and International Law, 1995, 1115 f., with reference to the opinion of the arbitration panel recourse was had to by the EC and the parties to the conflict in the report of 4 July 1992). Under the rules of the 1978 Vienna Convention on state successions (as published in JFPIL, 1979, 279 ff.), which although it has not yet gone into force, does contain Article 34 which is regarded as self-executing customary international law (OellerslFrahm, JFPIL, 1994, 416, 421; Oeter, ~ ibid. p. 16; DahmfDelbrlick/Wolfrum, International Law, 2nd. Ed. 1988, p. 164 fT.), successor states are bound to the Geneva Conventions and their Add' . Protocols. The ongoing validity of the four Geneva Conventions and of the Additional Protocols is further attested to by the fact that on the day they declared independence, all of the successor republics acknowledged the applicability of the legal succession in respect of these Conventions and Additional Protocols. Thus, Slovenia as of 25 June 1991, Macedonia as of 8 djajic-n.doc/gm PURL: https://www.legal-tools.org/doc/484ae2/56 00678290 Translation September 1991, Croatia as of 8 October 1991, and Bosnia-Herzegovina as of --==------... 6 March 1992, became legal successors (Declarations about the scope of the. four Geneva Red Cross Conventions and the Additional Protocols thereto of 2 October 1992 (FLG,. n, p. 1105), of 30 June 1993 (FLG, n, p. 1190), and of 22 March 1994 (FLG, n, p. 509, 510)). ~ Finally, the legal vIew that the commitments ansmg from the Geneva Convention continue to apply is further strengthened by the fact that the parties to the conflict in Bosnia-Herzegovina on 22 May 1992 agreed in a special accord - which was Signed by representatives of Bosnia-Herzegovina and Bosnian political groups, i.e., even by non-governmental bodies - on the !<~',:: .r application of large parts of the Geneva Conventions (see full analysis in Fischer in Bochum Writings on Securing the Peace and International Humanitarian Law, Vo!. 18, 1993, p. 27 ff.). This special accord does not mean that obligations for the successor states in respect of the Geneva Conventions did not arise until then; a contrario, the significance and practical value of this special accord, which is permitted under Article 3 of the IVth Geneva Convention, resides in that the international obligations were recognised independently in particular too by non-governmental political and military groups involved in the armed conflict (see in particular Fischer, ibid, p. 28 fL). c) On this basis, in the Appeals Chamber's view there was no point in time at which the obligations of the IVth Geneva Convention did not apply to the successor states. The Convention is binding on all nationals of the former Yugoslavia without regard to the circumstance that the parties to international relations at a first level are only the contracting subjects of international law. The attribution of responsibility to individuals or non-governmental groups stems from nationality but also from acting in the interest or with the assent of a contracting state (see Holderbach, WGO - MFOR, 1992, p. 268). d) In the view of the Appeals Chamber, the obligations and protection provided apply to the groups and individuals involved in the conflict in Bosnia Herzegovina as nationals of the contracting states under Article 2(1) of the djajic-n.doc/gm PURL: https://www.legal-tools.org/doc/484ae2/57 00678281 Translation IVth Geneva Convention because at the time of the events there was being waged in Bosnia-Herzegovina not merely an internal but an international conflict. aa) According to the facts showing how the conflict evolved since 1991 as related in the reports of the Commission of Experts established pursuant to resolution 780 of the Security Council it is irrefutable that the conflict which broke out in Yugoslavia in 1991 with the declaration of independence by Slovenia on 25 June 1991 and by Croatia on 25 July 1991 (definitively on 8 October 1991) was one between the republics which had left the Federation and rump Yugoslavia. 1J:e armed conflict which ensued following the declaration of independence on 6 March 1992 by Bosnia-Herzegovina was not -. conducted solely by the inhabitants of the republic. Even prior to the eruption Qf hostilities in April 1992 the JNA, which was controlled by the Serbs well beyond their share ef the population and by rump Yugoslavia or at least Serbia (report by expert Marie-Janine Calic of 20 February 1997, p. 18 ff.), had made key preparations for the military take-over of Bosnia-Herzegovina and seen to the anning and military organisation of the Serbian part of the population. The participation of the JNA in the occupation of large stretches of territory did in fact come to an apparent end as a result of political pressure with the JNA's formal withdrawal on 19 May 1992 (see Bassiouni Final Report of the Commission of Experts - Annex Summaries and Conclusions - Nos. 20 and 28). Yugoslavia:S intervention persisted after 19 May 1992. No significant change occurred as compared with the earlier situation, and the war aims, the creation of a Greater Serbia and the establishment of an untrammelled Serb corridor, remained unchanged . .The JNA units were not subordinated to the authority of the government of Bosnia-Herzegovina which had territorial competence; rather, the heavy weaponry, war equipment, and air forces based in the territory along with their servicing personnel, were handed over to the Bosnian Serbs. Parts of the units remaining there went on being paid by Belgrade and the air force went on intervening in the conflict. The extensive political leadership and the military involvement of the Serbian-controlled state entities remaining from the former Yugoslavia in any event did not characterize the conflict in Bosnia-Herzegovina as a civil or merely internal djaj ic-n.doc/gm PURL: https://www.legal-tools.org/doc/484ae2/58 Translation 00678292 conflict in the sense of Article 3 of the IVth Geneva Convention, but as an intentional conflict in the sense of Article 2 thereof (see Holderbach, ibid, p. 269). bb) As by April 1992 the decisive tenitorialcontrol had been brought about by Serb militias and the JNA, including over the Foca area, by dint of the force of arms against the republic which was hardly ready for it, the Appeals Chamber further holds that the criterion of "occupation" in the sense of Article 2(2) of the IVth Geneva Convention is fulfilled. In the Gagovic case (Case IT- 96-23-1), the International Criminal Tribunal for the former Yugoslavia, on 26 June 1996, also qualified the events in Bosrua-Herzegovina in the first half of 1992 as an "international conflict" and contemporaneously as "partial occupation" in the sense of Article 2 of the Convention through the confirmation of the indictment wherein the Tribunal's Prosecutor had adopted that legal stance. cc) In the Appeals Chamber's view the international conflict in the sense of Article 2(1) of the IVth Geneva Convention had not in any event come to an end by the time of the crime in 1992. In the common view an international conflict is deemed to be over only when the fighting has been stopped through a cease-fire or a peace treaty between the parties to it. As regards the instant case, it need not be resolved whether the Day ton Agreement of 21 November ." ., 1995 meets the standard of a cease-fire or even peace treaty with the effect of ending the conflict from that point in time onwards. And the qualification of the fighting In Bosnia-Herzegovina as an "international conflict" at the time of the crime was not affected by the official "withdrawal" from the tenitory of the Republic of Bosnia-Herzegovina of Yugoslavia-controlled JNA military units under international political pressure on 19 May 1992. Without regard to the fact that the formal withdrawal did not impede further Yugoslav involvement in the fighting, in pai"licular in the form of leaving military equipment and weapons, this reaction of Yugoslavia's in no case constitutes a cessation of conflict through a cease-fire or peace treaty. The international conflict in the sense of Article 2(1) of the IVth Geneva djajic-n.doc/gm PURL: https://www.legal-tools.org/doc/484ae2/59 00678293 Translation Convention does not come to an end because at some later point appearances would tend to suggest that the conflict in Bosnia-Herzegovina was more of an internal one. e) The Appeals Chamber construes Articles 146 and 147 of the IVth Geneva Convention to mean that each and every contracting party should seek the prosecution of perpetrators of grave breaches against civilians as set forth in the Convention (Gasser, ibid, p. 101, 105; Hollweg, Jurists Gazette, 1993,980, 988; Legal Training, 1994, 409, 415). While this interpretation is partially contradicted by the reference that the obligation to prosecute is incumbent on the state with territorial competence alone (see above Oeter, ibid, p. 34 f., who points out that for consistency there really was no need for any legal provision for the state having territorial competence to act). The Appeals Chamber however is unable ,to see any such restriction on the obligation to prosecute in the wording of the Convention. Article 146 obJiges in paragraph 2 every contracting party to "investigate persons who are accused of committing such grave breaches". It is to "bring them before its own courts irrespective of their nationality". f) The contemplation of concurrent jurisdiction in Article 9 of the Statute of the International Criminal for the former Yugoslavia provides indications that the United Nations too, which did not contest them when they were adopted by the Security Council which according to the Charter was acting on behalf of all members (Article 24(1) of the Charter of the United Nations), assumed there might be concurrent jurisdiction or considered its further development in international law approvingly. The wording of Article 9 does not by any means restrict the concurrent jurisdiction for the war crimes to be prosecuted pursuant to the Statutes to courts of the country where the offence was committed but refers generally to national courts. Without question the rule adopted in 1993 did not assume that djajic-n.doclgm PURL: https://www.legal-tools.org/doc/484ae2/60 Translation the courts of the country where the offence was committed - here for instance the Republic of Bosnia-Herzegovina - would take action of their own. The concurrent jurisdiction foreseen was clearly with (or at the least also referred to) national states not involved in the conflict. The subsequent case law of the International Tribunal in the Tadic case coincides with this approach as well. The fomal request of the International Tribunal was addressed pursuant to Article 9(2) of the Statute to the Bavarian State Court of Appeals without any hesitations and without calling into question its lack of competence for concurrent jurisdiction under Article 9(1). g) As Bosnian Muslims, the crime victims were not nationals of Yugoslavia. They were however in its actual area of authority. The operation on \he bridge served to secure and control the occupied Drina valley militarily. The victims of 22 June 1992 were protected persons in the sense of Article 4(1) of the IVth Geneva Convention. 3. The validity of German substantive criminal law and accordingly also of German jurisdiction flows in the same way from paragraph 7(2)(no.2) of the Criminal Code according to the principle of the vicarious administration of criminal justice_In response to a query from the German Federal Ministry of Justice on 17 February 1997, Bosnia-Herzegovina stated that it was not interested in the extradition of the accused. The Prosecutor of the ICTY on 20 November 1996 in turn declined deferral of the case to the Tribunal. The conditions for applying paragraph 7(2)(no.2) are met as the penalty for the offence committed by the accused at the time in Bosnia-Herzegovina was the death penalty or a prison sentence. Moreover, extradition at the request of the state where the offence was committed would have been admissible as there are no impediments relative to the crime in paragraphs 3 to 9 of the International Mutual Assistance Act for Criminal Cases. djajic-n.doclgm PURL: https://www.legal-tools.org/doc/484ae2/61 Translation 00678295 4. The Appeals Chamber is entitled to prosecute and convict the accused on the basis of existing Gennan substantive criminal law for complicity in murder because, over and above the legal requirements pursuant to paragraphs 6(no.9) and 7(2)(no.2) of the Criminal Code there are additional connections with Gennany which in this case rule out any objections based on international law . a) Prosecution for murders in Bosnia-Herzegovina before national courts is linked to the wide range of political, military and humanitarian measures by means of which the international community, including the Federal Republic of Gennany, has tried, on the one hand, to counteract the various tendencies towards expansion and domination in the fonner Yugoslavia, and in particular in Bosnia-Herzegovina, and, on the other, to protect the Bosnian civilian population, more: specifically the Muslims, from human-rights-violating persecution, decirnation and deportation. In these circumstances there can hardly be talk of international interference in the affairs of the state of Bosnia Herzegovina. It would be incomprehensible if the perpetrator of a crime proscribed by the international community entered Gennan territory and notwithstanding the provisions applying here under paragraphs 6(no.9) and 7(2) of the Criminal Code was not prosecuted or else was deported to the country where the offence was committed when the latter apparently was not willing to bring proceedings. ~•.. The accused had taken up residence in the Federal Republic of Gennany. b) Even if the chance stay of a foreigner in Gennany might not suffice as a sufficient nexus with Gennany for competence to prosecute, here in this particular case is further of import that the Federal Republic of Germany in co operation under the auspices of the UN with other states participated in the humanitarian mission in Bosnia-Herzegovina precisely in the aim of allaying and reducing the harm from war crimes against the civilian population. This direct interaction of criminal acts on one side and the provision of protection to djajic-n.doc/gm PURL: https://www.legal-tools.org/doc/484ae2/62 00678296 T Tans/alioll the victims on the other constitutes a nexus with Germany for prosecution by German courts. In this Germany is not pursuing immediate German interests; rather it is acting in the interests of the entire international community as expressed through UN resolutions relative to the conflict in Yugoslavia. c) Furthermore, when reviewing any objections based on international law it must be considered that the prosecution of a foreigner for crimes committed in a foreign country is also in the legitimate interest of the country of residence of the perpetrator not to become a haven for criminals who have committed crimes which the international community has sought to proscribe on the basis of customary law and the law of international agreements (see Scholten, New Journal of Criminal Law, 1994, 266, 269). In the citizens' view, not prosecuting for the sake of upholding the principle of non-interference would undermine the general enforcement of legal provisions which are both recognized by international law and binding in our state. In addition, in the circumstances obtaining in the instant case, that is the declining to prosecute on the part of the International Tribunal and of the country of territorial competence, the Federal Republic of Germany had an interest not to be deemed by the international community a place of refuge for perpetrators charged with very grave crimes. In the light of these arguments there is no denying that there is a sufficient nexus with Germany for legal proceedings before the courts.of the Federal Republic of Germany. E. Assessment of punishment 1. Personal background The accused was born on 1 January 1963 as the first child of husband and wife Milan and Milica Djajic. He has a younger brother and sister. The family used to live in Trnovaca. The father supported the family as an unskilled worker. djajic-n.doc/gm PURL: https://www.legal-tools.org/doc/484ae2/63 00678297 T ranslatiorz Since 1971 he has been working in the Federal Republic of Germany. The mother followed in 1972. In 1973 the couple brought their three children to Germany too. The accused, who since 1969 had been attending school in Brod and doing well, did not feel at home in Germany. He therefore returned alone to Trnovaca where he lived alternately with relatives, godparents and friends, and finished his school after eight years with very good marks. During the holidays he visited his parents in Germany, but never really took a liking to it. So after finishing his basic schooling he went to a mechanical-engineering school in Gorazde where he lived in a dormitory. As he could not come to terms with the strict rules there he left after two years. He then went on to try for six months to learn to be a driver, but he was not given credit for this period of training as he was often absent, and gave it up. He finished builders' school in 1980, graduating as a tile layer. In 1981-82 he did military service for a year, spending six months in Pula (Croatia) training as a navy diver, and six months with a ~nit in Herzegovina. The accused liked being in the army. In the following years he lived with his grandparents in a house built by his father. In this period he made a living mainly through seasonal work on the Yugoslav coast, where he made up to 2,000 DM a month. During one of his trips to Germany the accused fell in love with a classmate of his sister's, a Croat. Her parents were dead set against the relationship. In 1991 the accused worked for three months as a tile layer with a German company in Biburg. When his application for a visa was turned down, he returned to Trnovaca. In the ensuing time he helped in the construction of another house of his father's, for which his parents gave him 200 DM a month, half of which he handed over to his grandparents, however. In March 1992 the German company again sent him an employment contract as tile layer, but he was refused a German visa all the same. After the events in the case the accused fled on 18 October 1992 from his native country, going first to Yugoslavia. As his passport had expired, initially he could not go to his family's. Extending his passport involved some problems. He could enter Germany only in March 1993 after his sister managed to have his passport extended at a consulate in Germany and had djajic-n.doc/gm PURL: https://www.legal-tools.org/doc/484ae2/64 Translation 00678298 guaranteed to support him financially in Gennany. He lived at his sister's in Augsburg. After another stint as tile layer he helped out his sister who had taken over a restaurant-cum-pizzeria in Garmisch-Partenkirchen. The establishment had to close though in the autumn of 1994. As in the meantime he had had his passport extended by the present state of Yugoslavia he was told by the authorities in charge of foreigners' affairs to leave Gennany by 30 September 1995. The deadline was moved back to 31 December 1995 when the accused indicated he would voluntarily leave the country by that date. In November 1995 his sister had again taken over a cafe, in Munich. There too the accused helped out. When his companion, Mrs. Edina Peters, indicated the accused could stay with her in her apartment in Munich he again tried to obtain a provisional residence pennit on 16 January 1996 from the foreigners' office in Munich. Pursuant to an existing arrest warrant he was arrested that day. He has been in custody since. The accused is in good health. He had not suffered from any major diseases. There were no indications that the provisions of paragraphs 21 or 22 of the Criminal Code might apply. The accused is of above average intelligence. The psychological examination demonstrated a capacity of empathy, heartfelt endeavours, a graduated world of feelings and a mature, introverted consciousness which stand in contrast to his higher aggression potential, a neurotic unsteadiness, low self-esteem and insecurity. These features still lie within the nonnal psychological range, however. The psychiatric examination did not show up any indications of psychosis of the schizophrenic or manic-depressive sort. The presence of addictive diseases or a dependency on psychotropic substances could be ruled out. The features of his personality determined and the significant impact on his development of the separation from his parents, of the changing role models in childhood and youth, and of the position as outsider the accused had adopted in his family and in his environment, are not so marked that any serious emotional disturbance in the sense of paragraph 20 Cr. Code might be deemed present. In djajic-n.doclgm PURL: https://www.legal-tools.org/doc/484ae2/65 Translation 006782!)9 connection with the acts he is accused of, there are no forensic-relevant personality problems. Nor were there indications of stress which usually plays a part in crimes committed under the effect of emotion. The criteria of a major disturbance of consciousness were not noted. IT. Criminal record The accused was sentenced on 2 January 1995 by the district court of Augsburg for receiving stolen goods to a daily fine of 50 DM for 30 days. The accused served the corresponding alternative prison sentence in the period of 2 to 31 July 1996. In view of the prison sentence to be handed down in those proceedings the Appeals Chamber forewent recourse to compensation for hardship (paragraph 55 Cr. Code) as the fonuation of a total prison sentence would not have been operated (paragraph 53(2)(2nd sent.) Cr. Code) so that the execution of the alternative prison sentence did not entail any undue hardship (OLG Koln VRS 1979,428; Trondle, paragraph 55 m.n. 7b). IIl. Detenuination of sentencing limits In detenuining the limits to be set for the crime of the accused the Appeals Chamber in the end came to a prison tenu ranging from six months to 11 years three months. In so doing, the Appeals Chamber mitigated twice the life-long prison sentence which always applies to murder pursuant to paragraph 211 (l) of the Criminal Code. djajic-n.doc/gm PURL: https://www.legal-tools.org/doc/484ae2/66 00678:;Of\ Translation 1. First, the accused benefited from the mitigation laid down for accessones (para. 27(2)(2nd sent.) in conjunction with para. 49(1) Cr. Code) which yielded a prison term ranging from three to 15 years (para. 49(l)(no.l) in conjunction with para. 38(2) Cr. Code). 2. This range could be mitigated for the accused a second time in like application of para. 35(2) of the Criminal Code. In the situation on the bridge the accused did not mistakenly believe that he was in any immediate danger for life, limb or liberty which could have been averted solely by participating in the killing of the Muslims (para. 35(2)(lst sent.) Cr. Code). He could have waited along with Ostrovic at the end of the bridge for the promised transport vehicle. Thus, there was a possibility there for him to remain aloof of the predictable events about to unfold. Nor had he receiv~d an order to participate in the events taking place on the bridge. Therefore in this case paragraph 5(2) of the War Service Act does not apply. On the basis of the overall findings in the main proceedings the Appeals Chamber could not rule out however that on the bridge the accused on account of prior events erroneously believed he was under pressure tantamount to an order. What pleads in favour of this in particular is that during the discussion with the three Jankovic's where the further events for that day were set out, the accused received the order to participate in the rounding up of the victims. And on this occasion he was also told that he now had to choose sides. The order was taken to heart by the accused who accordingly got the Mujanovic brothers and their stepfather Suljo Lagarija from home and took them to the assembly point. At first, at the end of the bridge, he had stayed back. It cannot be ruled out though that in this tense situation the accused assumed that he had to prove, by stepping up to the Serbian guards on the bridge and joining in their semi-circle, that he was on the Serbs' side. djajic-n.doc/gm 67 PURL: https://www.legal-tools.org/doc/484ae2/ OU6783Dl Translation The Appeals Chamber therefore takes it to the accused's benefit that he mistakenly perceived an order-like coercion, which he could however have avoided. The like application of paragraph 35(2)(2nd sent.) in conjunction with paragraph 49(l)(nos.2&3) of the Criminal Code produced sentencing limits ranging from six months to 11 years three months. IV. Assessment of punishment 1. In the concluding assessment of the cnme and of the personality of the perpetrator in its entirety (Decisions of the Federal High Court in Criminal Cases, 28, 318, 319; New Journal of Criminal Law, 1991,529; StV 1994, 17; New Journal of Criminal Law-RR, 1996, 133), which must also include background infonnation relevant in respect of injustice and guilt, there were a number of points favourable to the accused to be taken into account. Owing to the absence of his parents the accused was left to his own devices early on and with no steady role model. He tried to compensate for the insecurity thus generated by keeping up good relations with everyone he had dealings with in.order to avoid conflictual situations. This was also transferred to his relations with his Serbian and Muslim neighbours. As regards the latter, up until the day of the crime he had not developed any particular hostile attitude or any general racist inclinations. Rather political developments and the ensuing conflict between the Serb and Muslim ethnic groups in his environment put him in a position that was uncomfortable for him which up to the day of the crime he tried to steer clear of. On the day of the crime itself the demand by Jankovic that he should finally choose sides put him up against a conflictual decision alien to his nature. djajic-n.doc/gm PURL: https://www.legal-tools.org/doc/484ae2/68 00678302 Translation His contribution in support of the killing of his neighbours was relatively ITIJnor. The accused admitted to the external facts of the case and made clear that he was very sorry about the incident. At the time of the crime the accused had no criminal record. It was further to his benefit that the crime had been committed nearly five years ago and that on its account he had already been in pre-trial custody for more than 16 months. Lastly, it was deemed to be mitigating that the accused, as an insignificant participant to a single killing operation, was subjected to court proceedings which received a lot of attention whereas the principal perpetrators, the ringleaders and those with command responsibility have so far not been brought to justice. 2. Despite this fair number of grounds for mitigation, the sentence could not be reduced to the lower limit. In particular on account of the large number of victims, fourteen. (' In the case of attempted murder the joint plaintiff had a bullet go through his • thigh. In addition, the cnme was directed against his long-time neighbours and caused pain and suffering to their families. No compensation for hardship was considered (see above Ell). A prison sentence of FIVE YEARS djajic-n.doc/gm PURL: https://www.legal-tools.org/doc/484ae2/69 oU 1:)'18 3u:5 Translation therefore seemed appropriate and adequate. 3. From the prison sentence thus delivered shall be deducted the time spent in pre-trial custody as per the law (para. 51(1)(lst sent.) Cr. Code). 4. The accused has not been disadvantaged by the fact that he was not before a court competent for where the crime was committed on the basis of the criminal law applying in Bosnia-Herzegovina. Article 36(2) of the B-H Cr. Code contemplates prison sentences of not less than 10 years or the death sentence in the event of ruthless revenge or of other base motives (no.4) or the intentional killing of two or more people (no.6). Pursuant to Article 24(1) Yu Cr. Code an accessory is liable to the same punishment as a perpetrator, but may be punished less severely. The provisions relating to guilt (Article 11) and mental capacity (Article 12 Yu Cr. Code) correspond to the German proVisions. F. The ruling as to costs is in conformity with paras. 464(1), 465(1)(1st sent.), 472(1)(lst sent.) of the Code of Criminal Procedure. Briessmann Kehrstephan Hilger Kaliebe Pongratz djaj ic-n.doc/gm PURL: https://www.legal-tools.org/doc/484ae2/70 Translation 00678304 Translator's Note: Some acronyms have been kept in the text, in particularly in notes with references. The German originals and their English equivalents are indicated below. BGH FHC Bundesgerichtshof Federal High Court BGHR BGH-Rechtsprechung Strafsachen Federal High Court case law - Criminal cases BGHSt Entscheidungen des Bundes Decisions of the Federal High gerichtshofs in Strafsachen Court in Criminal Cases BGBI FLG Bundesgesetzblatt Federal Law Gazette B-H Cr. Code Criminal Code of Bosnia-Herzegovina BVerfGE FCCD Entscheidungen des Decisions by the Bundesverfassungsgerichts Federal Constitutional Court GG BL Grundgesetz Basic Law JuS Juristische Schulung Legal Training JZ Juristen Zeitung Jurists Gazette LG Landgericht State Court NJW NLWJ Neue Juristische Wochenschrift New Legal Weekly Journal NStZ NJCL Neue Zeitschrift fur Strafrecht New Journal of Criminal Law OLGKOln Oberlandesgericht Koln Cologne State Court of Appeals StGB Cr. Code Strafgesetzbuch German Criminal Code djajic-n.doc/gm PURL: https://www.legal-tools.org/doc/484ae2/71 • 00678305 Translation StPO S trafprozessordn un g German Code of Criminal Procedure WStG Wehrstrafgesetz Military Service Act Yu Cr. Code Yugoslav Criminal Code ZaiiRV JFPIL Zeitshrift fur ausliindisches offentliches Journal of Foreign Public and und Volkerrecht International Law ZStW Zeitschrift fur die gesamte Journal of Criminal Strafrechtswissenschaft Jurisprudence djajic-n.doc/gm PURL: https://www.legal-tools.org/doc/484ae2/72