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Milutinović Nikola Šainović Dragoljub Ojdanić Nebojša Pavković Vladimir Lazarević Sreten Lukić

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Milutinović Nikola Šainović Dragoljub Ojdanić Nebojša Pavković Vladimir Lazarević Sreten Lukić UNITED NATIONS International Tribunal for the Case No. IT-05-87-T Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Date: 26 February 2009 Committed in the Territory of the former Yugoslavia since 1991 Original: English IN THE TRIAL CHAMBER Before: Judge Iain Bonomy, Presiding Judge Ali Nawaz Chowhan Judge Tsvetana Kamenova Judge Janet Nosworthy, Reserve Judge Acting Registrar: Mr. John Hocking Judgement of: 26 FEBRUARY 2009 PROSECUTOR v. MILAN MILUTINOVIĆ NIKOLA ŠAINOVIĆ DRAGOLJUB OJDANIĆ NEBOJŠA PAVKOVIĆ VLADIMIR LAZAREVIĆ SRETEN LUKIĆ PUBLIC JUDGEMENT Volume 1 of 4 The Office of the Prosecutor: Mr. Thomas Hannis Mr. Chester Stamp Counsel for the Accused: Mr. Eugene O’Sullivan and Mr. Slobodan Zečević for Mr. Milan Milutinović Mr. Toma Fila and Mr. Vladimir Petrović for Mr. Nikola Šainović Mr. Tomislav Višnjić and Mr. Norman Sepenuk for Mr. Dragoljub Ojdanić Mr. John Ackerman and Mr. Aleksandar Aleksić for Mr. Nebojša Pavković Mr. Mihajlo Bakrač and Mr. Đuro Čepić for Mr. Vladimir Lazarević Mr. Branko Lukić and Mr. Dragan Ivetić for Mr. Sreten Lukić I. INTRODUCTION................................................................................................................................ 7 A. THE INDICTMENT................................................................................................................................8 B. PROCEDURAL HISTORY ..................................................................................................................... 11 C. APPROACH TO EVIDENCE .................................................................................................................. 17 D. PARTICULAR TERMINOLOGY USED .................................................................................................... 28 II. APPLICABLE LAW ........................................................................................................................ 31 A. LEGAL STANDARDS FOR INDIVIDUAL CRIMINAL RESPONSIBILITY ...................................................... 31 1. Introduction ................................................................................................................................. 31 2. Planning....................................................................................................................................... 33 3. Instigating .................................................................................................................................... 34 4. Ordering....................................................................................................................................... 35 5. Aiding and abetting ..................................................................................................................... 36 6. Joint criminal enterprise .............................................................................................................. 38 a. Physical elements ................................................................................................................. 40 i. The joint criminal enterprise consisted of two or more persons .......................................... 40 ii. A common plan, design, or purpose existed that amounted to or involved the commission of a crime or underlying offence provided for in the Statute....................... 41 iii. The accused participated in the common plan, design, or purpose.................................... 42 b. Mental elements.................................................................................................................... 44 iv. Mental elements for the first category of joint criminal enterprise.................................... 45 v. Mental elements for the third category of joint criminal enterprise.................................... 46 7. Superior responsibility................................................................................................................. 47 a. There was a superior-subordinate relationship between the accused and the person or persons who committed the crime or underlying offence .................................................... 48 b. The accused must have known or had reason to know that the crime or underlying offence was about to be, was being, or had been committed ............................................... 49 c. The accused failed to take the necessary and reasonable measures to prevent and/or punish the crimes or underlying offences of the subordinate or subordinates ..................... 50 B. REQUIREMENTS AND ELEMENTS OF STATUTORY CRIMES ................................................................... 52 1. Article 3 of the Statute of the Tribunal........................................................................................ 52 a. General requirements for violations of the laws or customs of war..................................... 52 i. A state of internal or international armed conflict existed during the period relevant to the indictment......................................................................................................................... 52 ii. There was a nexus between the crimes alleged and the armed conflict.............................. 53 iii. The conduct must infringe a rule of international humanitarian law, whether customary or conventional in nature.................................................................................................. 54 iv. The violation of the rule must entail individual criminal responsibility and must be serious (“gravity requirement”)........................................................................................ 55 b. Murder as a violation of the laws or customs of war............................................................ 55 i. Elements of murder as an underlying offence...................................................................... 56 2. Article 5 of the Statute of the Tribunal........................................................................................ 57 a. Jurisdictional requirements of Article 5 ............................................................................... 57 b. General requirements for crimes against humanity.............................................................. 58 i. There must be an attack........................................................................................................ 58 ii. The attack must be directed against any civilian population .............................................. 59 iii. The attack must be widespread or systematic.................................................................... 61 iv. The acts of the physical perpetrator must form part of this attack..................................... 62 v. The perpetrator must know that there is an attack on the civilian population and know, or take the risk, that his acts comprise part of this attack ..................................................... 62 vi. Conclusion.......................................................................................................................... 66 c. Elements of forcible displacement as an underlying offence: forcible transfer and deportation............................................................................................................................ 67 i. Deportation as a crime against humanity ............................................................................. 68 Case No. IT-05-87-T 2 26 February 2009 ii. Other inhumane acts as crimes against humanity: forcible transfer................................... 69 d. Elements of murder as a crime against humanity................................................................. 70 e. Specific requirements for persecution as a crime against humanity..................................... 70 i. Physical element of persecution........................................................................................... 70 ii. Mental element of persecution: discriminatory intent........................................................ 72 f. Elements of charged forms of persecution on political, racial, or religious grounds ........... 72 i. Murder as a form of persecution .......................................................................................... 72 ii. Sexual assault as a form of persecution .............................................................................. 73 (A) Denial or infringement of a fundamental right............................................................. 74 (B) Equal gravity requirement ............................................................................................ 75 (C) Elements ....................................................................................................................... 76 (D) Rape as a type of sexual assault.................................................................................... 79 iii. Damage to or destruction of religious and cultural property as a form of persecution...... 79 III. HISTORICAL BACKGROUND ................................................................................................... 83 A. 1989 CONSTITUTIONAL AMENDMENTS .............................................................................................. 83 B. DEVELOPMENT OF THE CRISIS ........................................................................................................... 87 C. ATTEMPTS TO ADDRESS THE CRISIS..................................................................................................
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