Draft Confidential RUF Apppeal Judgment

SUD BOSNE I HERCEGOVINE СУД БОСНЕ И ХЕРЦЕГОВИНЕ

Case File No.: X-KRŽ-07/400

Date: Pronounced on 11 April 2011 Sent out on 8 November 2011

Before: Judge Dragomir Vukoje, Presiding Judge Azra Miletić Judge Phillip Weiner

PROSECUTOR’S OFFICE OF BOSNIA AND HERZEGOVINA vs. KRSTO SAVIĆ

SECOND INSTANCE VERDICT

Prosecutor of the Prosecutor’s Office of Bosnia and Herzegovina: Munib Halilović

Defense Counsel for the Accused: Slaviša Prodanović

Court of Bosnia and Herzegovina, Sarajevo, 88 Kraljice Jelene Street Telephone: 033 707 100, 707 596; Fax: 033 707 225

V E R D I C T ...... 4

I. COURSE OF THE PROCEEDINGS ...... 14

A. CHARGES ...... 17

B. EVIDENTIARY PROCEEDINGS BEFORE THE PANEL OF THE APPELLATE DIVISION ...... 18 1. Closing Arguments ...... 22

C. ADMISSIBILITY OF EVIDENCE...... 23

II. ELEMENTS OF THE CRIMINAL OFFENCE OF CRIMES AGAINST HUMANITY ...... 24

III. LEGAL STANDARDS APPLICABLE TO THE ESTABLISHED FACTS ...... 35

IV. DISCRIMINATORY INTENT AND PERSECUTION ...... 37

V. INDIVIDUAL CRIMINAL LIABILITY OF THE ACCUSED ...... 40

A. ANALYSIS ...... 42 1. Actus Reus ...... 42 2. Mens rea ...... 55

B. MUTUAL EXCLUSION OF JCE AND CO-PERPETRATION AS MODES OF LIABILITY ...... 57

VI. INDIVIDUAL CHARGES...... 59

A. GENERAL FINDINGS ON COUNTS 1, 2, AND 3 OF THE INDICTMENT ...... 59

B. COUNT 1- GACKO - BY IMPRISONMENT ...... 63

C. COUNT 2 – BILEĆA – BY IMPRISONMENT AND DEPORTATION ...... 67

D. COUNT 3 – KALINOVIK ...... 71 1. Paragraph 3a) (Count 3b of the Indictment) – by imprisonment ...... 72 2. Paragraph 3b) (Count 3c of the Indictment) – by imprisonment ...... 74 3. Paragraph 3c) (Count 3d of the Indictment) – by imprisonment ...... 75

E. COUNT 4. – NEVESINJE ...... 78 1. Paragraph a) – by murder and imprisonment ...... 78 2. Paragraph b) – by murder, imprisonment, other inhumane acts of a similar character and enforced disappearance of persons ...... 80 3. Paragraph c) – by imprisonment and other inhumane acts of a similar character ... 85 4. Paragraph d) – by imprisonment and enforced disappearance of persons ...... 88 5. Paragraph e) – by imprisonment ...... 91 6. Paragraph f) – by other inhumane acts of a similar character ...... 93 7. Paragraph g) – by imprisonment ...... 95 2

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8. Item (h) (sub-paragraph (i) of the Indictment) – other severe deprivation of physical liberty and torture ...... 98 9. Item i) (sub-Paragraph (j) of the Indictment) – imprisonment, enforced disappearance of persons and other similar inhumane acts ...... 100 10. Item j) (sub-paragraph (k) of the Indictment) – forcible transfer of population ..... 104

F. LEGAL FINDINGS ...... 106

VII. APPLICABLE LAW ...... 108

VIII. SENTENCING ...... 112

IX. DECISION ON THE COSTS OF THE CRIMINAL PROCEEDINGS AND CLAIMS UNDER PROPERTY LAW ...... 115

X. ACQUITTAL...... 115

B. COUNT II.1.B...... 117

C. COUNT II.2...... 119

D. LEGAL CONCLUSION ...... 121

XI. ANNEX I AND ANNEX II ...... 123

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IN THE NAME OF BOSNIA AND HERZEGOVINA!

The Court of Bosnia and Herzegovina, Section I for War Crimes, Panel of the Appellate Division comprising Judge Dragomir Vukoje, as the Presiding Judge, and Judges Azra Miletić and Phillip Weiner as members of the Panel, with the participation of Legal Advisor- Assistant Medina Džerahović, as the Minutes-Taker, in the criminal case against the Accused Krsto Savić, charged with the criminal offence of Crimes against Humanity in violation of Article 172(1)(h) in conjunction with subparagraphs (a), (b), (d), (e), (f), (g), (i) and (k) of the Criminal Code of Bosnia and Herzegovina (the CC of BiH) and Article 173(1)(c)(e)(f) of the CC of BiH, as read with Article 180(1) and Article 29 of the CC of BiH, deciding upon the Second Amended Indictment of the Prosecutor’s Office of BiH number: KT-RZ-97/06 of 28 February 2011, after the trial was held in the presence of the prosecutor of the Prosecutor’s Office of BiH Munib Halilović, the accused personally and his defense counsel Slaviša Prodanović, on 11 April 2011 delivered and publicly announced the following:

V E R D I C T

The accused:

KRSTO SAVIĆ, a.k.a. Kićo, son of Marko and Dušanka, née Ivaniš, born on 10 October 1959 in the village of Slato, Nevesinje Municipality, Personal Identification Number …, currently residing in ..., of … ethnicity, citizen of …, currently unemployed, literate, university degree in political science, married, with one child, completed his military service in the duration of four (4) months in Karlovac, average financial standing, previously convicted of …, no other criminal proceedings pending, presently in custody.

i s g u i l t y

Because:

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In the period from mid June 1992 to the end of 1992, during the war in BiH, within a widespread and systematic attack of the army, police and paramilitary units of the Serb Republic of Bosnia and Herzegovina, later Republic of Srpska, directed against the Bosniak and Croat civilian population of the Municipalities of Nevesinje, Kalinovik, Gacko and Bileća, having been aware of such an attack, while holding both the office of the Chief of the Trebinje Security Service Centre (“CSB”), and at the same time the office of the Minister of the Interior of the Serb Autonomous Region (“SAO”) of Herzegovina until 13 July 1992, when the Government of the Serb Autonomous Region of Herzegovina ceased its operation, and as a member of the Staff of the Ministry of the Interior (“MUP”) of the Serb Republic of Bosnia and Herzegovina in charge of command and control over the overall MUP force, as a participant in a joint criminal enterprise undertaken by Mićo Stanišić, Minister of the Interior of the Serb Republic of Bosnia and Herzegovina, Radovan Grubač, Commander of the Herzegovina Corps, Novica Gušić, Commander of the Nevesinje Brigade, Vojin Popović, chief of the Gacko Public Security Station (“SJB”), Gojko Stajić, chief of the Nevesinje SJB, Boško Govedarica, chief of the Kalinovik SJB and Goran Vujović, chief of the Bileća SJB and other prominent members of municipal leaderships of the these municipalities, he acted with a discriminatory intent and the common purpose to implement the common policy designed by the Strategic Goals of the Serb People adopted on 12 May 1992 at the Assembly of the Serb R BiH, and thus conduct persecution of Bosniak and Croat civilians on ethnic and religious grounds, given that the first strategic goal the “separation from the other two national communities – separation of states” also meant a permanent removal of a fairly large number of non- Serbs from the territory of the designed state of Bosnian Serbs; with a view to implementing this purpose he planned and ordered the persecution of Bosniak and Croat population in the municipalities of Gacko, Bileća, Nevesinje and Kalinovik, in as much as he, through chiefs of Public Security Stations subordinated to him, organized an unlawful detention of all able bodied Bosniak and Croat men from these municipalities at detention facilities, of which he was regularly informed at the meetings he had with the chiefs of the SJBs and through weekly and periodical reports, and forwarded all such information to Mićo Stanišić; and he personally led the attacks by members of the Nevesinje SJB against the civilian population in which Bosniak and Croat civilians in the Nevesinje Municipality were killed and unlawfully confined at detention facilities where they were tortured, or taken to unknown locations, from which point they have been unaccounted for; by 5

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his orders he separated the civilian population and decided on the places of their detention, coordinated activities of the police with military forces in the area of Nevesinje in which the entire Bosniak and Croat population of the Nevesinje Municipality was forcibly transferred outside the territory of the Serb Republic of BiH, those actions being as follows:

1) During the second half of June 1992, members of the Gacko SJB, which operated as part of the Trebinje CSB, through Chief Vojin Popović who was subordinated to him, in order to implement the aforementioned common plan, took part in the persecution of Bosniak civilians in the Gacko Municipality by arresting all able bodied men whom they detained and held in the camps they set up on the premises of the Gacko SJB, the school in Avtovac, Gacko Municipality, and the basement premises of Samački Hotel* in Gacko, where they confined more than 150 (hundred and fifty) men and held them in inhumane conditions until 29 June 1992 or approximately that date, when they were transported aboard tractor trailers and under the escort of the Gacko SJB policemen and detained in the camp located in the barracks in Bileća;

2) During the period from the second half of June to the end of 1992, members of the Bileća SJB, which operated as part of the Trebinje CSB, through Chief Goran Vujović who was subordinated to him, in order to implement the aforementioned common plan, took part in the persecution of the Bosniak civilians in the Bileća Municipality by arresting all able bodied men whom they held in the camps they set up on the premises of the Bileća SJB and the building called Đački dom**, where around 150 (hundred and fifty) Bosniaks were detained, whereupon around 5 October 1992 approximately one half of the detainees and their family members were deported to Montenegro under police escort;

3) During the period from the second half of June 1992 to the end of 1992, members of the Kalinovik SJB, which operated as part of the Trebinje CSB, through chief Boško Govedarica who was subordinated to him, in order to implement the aforementioned common plan, took part in the persecution of the Bosniak civilians in the Kalinovik

*Translator’s note: single-room-occupancy hotel. **Translator’s note: Pupils’ hostel.

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Municipality and parts of the civilian population in the Municipalities of Gacko, Trnovo, Foča and Nevesinje, in as much as they:

a) On 25 June 1992 and the following days, members of the Kalinovik SJB organized and conducted the arrest of all Bosniak men in Kalinovik and the neighboring villages of Mjehovina, Jelašca and Vihovići, detained the arrested civilians in the gym of the Miladin Radojević Elementary School, where the civilians were guarded by the Kalinovik SJB policemen and where they stayed until 7 July 1992 or around that date, when the policemen organized the transfer of the detained Bosniaks from the Miladin Radojević Elementary School to the Barutni magacin* camp, a military facility controlled by the army, secured by barbed wire and mines and guarded by sentries;

b) In early July 1992, members of the police force of the Kalinovik SJB took part in the capture of around 200 (two hundred) Bosniak civilians, mainly women and children, and a small number of men from the Municipalities of Gacko and Nevesinje, who were passing through the territory of the Kalinovik Municipality while fleeing the Serb forces attacks in their municipalities, detained the civilians in the school in Ulog where they were guarded by the policemen of the Kalinovik SJB together with the army, and on the following day organized their transport to and detention in the Miladin Radojević Elementary School, where they were placed on the ground floor of the building, in the gym, the staffroom and one classroom, while the building where they were placed was guarded by members of the Kalinovik SJB;

c) On 1 August 1992, members of the Kalinovik SJB took part in an attack on the Bosniak civilian population of the village of Jelašca, Kalinovik Municipality, in which at that time only women, children and a small number of the elderly were staying; the Kalinovik SJB policemen surrounded the village and captured all the women and children, while they detained the captured civilians in the Miladin Radojević Elementary School on the premises on the upper floor of the school; on the same night, the remaining civilians from Vihovići, Mjehovina and other neighboring

*Translator’s note: Gunpowder Storage Depot.

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villages, except for the elderly who could not walk across the hill, fled the attack and left the Kalinovik municipality;

4) a) On 16 June 1992, he was in charge of a group of members of the Nevesinje SJB with whom he came to the courtyard of Redžo Trebović’s house at around 13:00 p.m., where he called everyone to get out of the house, whereupon Redžo Trebović and his wife Bahrija, Bajro Mahinić and his wife, and Fadil Trebović and his wife came out; Krsto Savić then took Redžo toward the garage and fired from a weapon called “Heckler” at Redžo’s lower limbs; as a consequence of this Redžo fell, and then, for a rather long period of time he did not allow the others to approach and render assistance to Redžo; thereafter he allowed Redžo’s brother Fadil and Redžo’s wife Bahrija to drive Redžo to the Health Center in Nevesinje where they pronounced Redžo dead; Redžo Trebović’s body has never been found and he has been unaccounted for ever since; on the same day the policemen arrested Bajro and Fadil and detained them in the Nevesinje SJB;

b) On 16 June 1992 and in the following days, he was in charge of the attack by the Nevesinje SJB police force against the Bosniak civilian population in the Nevesinje Municipality, on which occasion a large number of civilians were unlawfully arrested; the civilians brought by the police, military and paramilitary formations were separated in front of the SJB building, men were detained on the SJB premises and women were separated and detained on the premises of the tools factory called Alatnica; the men detained in the SJB were subjected to physical abuse by being hit with different objects all over their bodies and during the abuse of Mujo Ćupina, Meho Ćatić and Adem Mrndžić their heads were bleeding profusely; Nafija Ramović tried to escape and was killed during the attempt in the vicinity of the Nevesinje SJB; the bodies of two civilians lay motionless in the courtyard of the SJB, while the body of Nafija Ramović, as well as the bodies of Mujo Ćupina, Meho Ćatić and Adem Mrndžić, have never been found and they are still unaccounted for, while in the following days the other detained men, at least 20 (twenty) of them, were transported under the escort of the Nevesinje SJB policemen to the Bileća camp and detained there;

c) In the late afternoon of 16 June 1992, members of the Nevesinje SJB 8

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captured the survived residents of the Čanje village, and upon his order separated and detained them in Nevesinje, the men being detained in the cinema-hall where they were subjected to physical abuse, whereupon they were transported to the Bileća camp, and the women and children being detained in the tools factory called Alatnica;

d) During the period from 19 June 1992 to 24 June 1992, civilians Ismet Duraković, Mirza Čustović and Rašid Toporan were unlawfully detained at the Nevesinje SJB; after Krsto Savić ordered that Rašid Toporan be returned to the basement and in such a manner prevented him from being transported to the Bileća camp for exchange, members of the Nevesinje SJB handed him over to unknown members of paramilitary formations, whereupon the body of Rašid Toporan has been unaccounted for and is still reported missing;

e) On or around 24 June 1992, all inhabitants of the hamlet of Šarica, Local Community of Zijemlje, around 30 (thirty) of them, including men, women and children, were captured by members of paramilitary formations and detained on the premises of the Nevesinje SJB; the SJB members held the captured civilians for two days on the inadequate basement premises, whereupon they transported and handed the civilians over to the Bileća camp;

f) On or around 19 June 1992, in the Nevesinje SJB building, he interrogated the detained civilian Emir Kljako using a bayonet; he threatened the detainee and poked him with the bayonet, causing mental suffering and fear with this civilian;

g) In late June 1992, policemen of the Nevesinje SJB detained civilians Osman Abaz, Jozo Jarak and civilian F on the basement premises of the Nevesinje SJB, and, after several days of detention, they handed them over to unidentified members of paramilitary formations, whereupon the civilians were taken to the Boračko Lake, Konjic Municipality;

h) In late June 1992, civilian Esad Čopelj was physically abused by members of the army and the police in front of the Nevesinje SJB, on which occasion they also cut off one of his ears, whereupon they handed him over to unidentified members of paramilitary formations who took him to the Boračko Lake and killed him; 9

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his body was found and identified in the Borisavac pit;

i) During June 1992, he took part in the setting up of a camp in the tools factory called Alatnica in Nevesinje where, following his order, the women, children and the sick were separated from the captured civilians and detained in Alatnica, controlled by an unidentified paramilitary formation; there the women, children and the sick were held in inhumane conditions and exposed to physical and mental abuse, wherefrom the detained women Zejna Šarančić and Sabira Šarančić disappeared without a trace and are still unaccounted for;

j) Several times on or around 23 and 24 June, members of the Nevesinje SJB called via megaphone all the remaining Bosniaks from Nevesinje to gather in front of the old Municipality building, so when they gathered, mostly women, children and the elderly, the policemen loaded them aboard buses and freight vehicles and, under the escort of the Nevesinje SJB policemen, transported them to the region of Busak in the direction of Mostar, to the area between the frontlines;

Therefore within a wide and systematic attack directed against the civilian population in the Municipalities of Gacko, Bileća, Kalinovik and Nevesinje, knowing of such an attack and as a participant of a joint criminal enterprise undertaken with the purpose to persecute the whole Bosniak and Croat population on ethnic and religious grounds, he conducted persecution by way of: the acts described in Section 1) imprisonment; Section 2) imprisonment and deportation; Section 3a) imprisonment; Section 3b) imprisonment; Section 3c) imprisonment; Section 4a) killing and imprisonment; Section 4b) killing and other inhumane acts of a similar character, intentionally causing great suffering or serious injury to body or to physical or mental health and enforced disappearance of persons; Section 4c) imprisonment and other inhumane acts of a similar character, intentionally causing great suffering or serious injury to body or to physical or mental health; Section 4d) imprisonment and enforced disappearance of persons; 10

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Section 4e) imprisonment; Section 4f) other inhumane acts of a similar character, intentionally causing great suffering or serious injury to body or to physical or mental health; Section 4g) imprisonment; Section 4h) other severe deprivation of physical liberty and torture; Section 4i) imprisonment, enforced disappearance of persons and other inhumane acts of a similar character, intentionally causing great suffering or serious injury to body or to physical or mental health; Section 4j) forcible transfer of population;

whereby he committed the criminal offence of Crimes against Humanity under Article 172(1)(h) of the Criminal Code of Bosnia and Herzegovina (the CC of BiH) in conjunction with Article 180(1) of the CC of BiH; and based on the mentioned legal provision and pursuant to Article 39, 42 and 48 of the CC of BiH and Article 285 of the Criminal Procedure Code of Bosnia and Herzegovina (the CPC of BiH) the Panel of the Appellate Division of the Court of BiH

SENTENCES

HIM TO 17 (SEVENTEEN)-YEAR IMPRISONMENT

Pursuant to Article 56 of the CC of BiH the time the accused spent in custody in the period from 6 September 2007 until 23 January 2009 and from 24 March 2009 until the accused is committed to serve the prison sentence shall be credited towards the imposed prison sentence.

Pursuant to Article 198(2) of the CPC of BiH, the family of the aggrieved party Redžo Trebović is hereby instructed to take civil action to pursue the claim under property law.

Pursuant to Article 188(4) of the CPC of BiH, the Accused is hereby relieved of the duty to pay costs of the criminal proceedings, which shall be paid from the budget appropriations of the Court. 11

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Pursuant to Article 284(c) of the CPC of BiH the Accused Krsto Savić

IS ACQUITTED OF CHARGES

That:

1) During the period from early May 1992 to the end of 1992, within a widespread and systematic attack directed against the civilian population of the municipalities of Gacko, Bileća, Kalinovik and Nevesinje, having been aware of such an attack and as a knowing participant of a joint criminal enterprise undertaken with the view to persecuting the entire Bosniak and Croat population on political, ethnic and cultural ground, members of the Kalinovik SJB, which operated as part of the Trebinje CSB, through chief of the Kalinovik SJB Boško Govedarica who was subordinated to him, took part in the persecution of Bosniak civilians in the Kalinovik municipality and parts of the civilian population in the municipalities of Gacko, Trnovo, Foča and Nevesinje in as much as:

a) In early May 1992, members of the Kalinovik Police Station, together with members of military formations, in the region of the Jažići settlement, Kalinovik Municipality, surrounded and captured around 280 (two hundred and eighty) civilians from the Jeleč Local Community, Foča Municipality, who, fleeing the Serb armed force attack, tried to cross over the territory of the Kalinovik Municipality, whereupon the men were forcibly separated from the women, children and the elderly and detained at the Miladin Radojević Elementary School, where they were guarded by the Kalinovik SJB policemen, while the women and children were transported to the territory controlled by the Army of B-H; the detained men, approximately 50 (fifty) of them, were taken to the Bileća camp, taken back to Kalinovik and subsequently handed over to the Foča Penal-Correctional Facility (KPD) where the majority of these civilians were killed or disappeared;

b) During July or August 1992, the leadership of the Kalinovik SJB, together with members of this Police Station, violating Articles 3 and 47 of the 12

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Geneva Convention for the Protection of Civilian Persons in Time of War of 12 August 1949, took part in the setting of fire to Bosniak villages in the Kalinovik Municipality, namely, the villages of Sočani, Daganj, Bojići, Hotovlje, Luko, Kutine and others, on which occasion the police members first set on fire the village of Sočani, while the military set on fire the other aforementioned villages;

c) During the period from May 1992 to the end of 1992, on the detention premises of the Kalinovik SJB, without any legal grounds they held the detained civilians Tahir Panjeta, Kasim Bojičić and others, including hodja* Jašar Vuk; they used some of the detained civilians as drivers to detect mines; the detainees would drive a freight vehicle in front of the military convoys most often using the road from Kalinovik to Miljevina under the escort of the Kalinovik SJB members; in the process, Huso Tukelija came across mines several times with a vehicle; the vehicles he drove were destroyed but he managed to survive;

d) Members of the Kalinovik SJB, together with members of the army and civilian authorities, during May 1992, took part in the setting up of a prison in the Miladin Radojević Elementary School in order to unlawfully detain Bosniak population there; the prison was guarded by the Kalinovik SJB; they held around 300 (three hundred) Bosniak civilians from the territory of the Kalinovik Municipality and parts of the civilian population of the Municipalities of Gacko, Nevesinje, Foča and Trnovo in detention in the Miladin Radojević Elementary School on inadequate premises without adequate accommodation, denied a possibility to meet their basic hygienic needs, without appropriate medical care, with meager daily meals, exposed to daily physical and mental abuse and humiliation by different soldiers whom the policemen allowed to enter freely, so in the course of the detention in this prison Zulfo Kadrić, Murat Redžović and Mujo Pervan were killed, while Azemina Pervan, Fatima Pervan, boy Almir Kadrić, Suad Hasanbegović, Edin Bičo, Sejdo Kešo and Hašim Hatić were taken away from the prison and are still unaccounted for, while the detained women were raped in this prison and taken to Miljevina, Foča, the Pavlovac farm and a weekend cottage in Mjehovina, where they were raped;

*Translator’s note: Muslim cleric.

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2) In late June and early July 1992, on the detention premises of the Nevesinje SJB, for several days they held captive three boys aged 8, 10 and 12 years respectively, all three having the last name Ćatić, three elderly women, and Nura Mičijević and Izeta Hajdarević from Rabina with four children aged between 6 months and 5 years; they handed over Nura Mičijević and Izeta Hajdarević to unidentified members of paramilitary formations who took them to the Boračko Lake, Konjic Municipality, wherefrom the women managed to escape owing to one soldier’s help, while they transported the remaining civilians, after several days of detention, to the separation line in Stolac where the civilians, by risking their lives, managed to cross the separation line and reach Stolac;

whereby he would have committed the criminal offence of Crimes against Humanity in violation of Article 172(1)(h) of the CC of BiH as read with Article 180(1) of the CC of BiH.

R E A S O N I N G

I. COURSE OF THE PROCEEDINGS

1. The Special Department for War Crimes of the Prosecutor’s Office of Bosnia and Herzegovina has issued the Indictment number: KT-RZ-97/06 dated 20 February 2008 against the accused Krsto Savić and Milko Mučibabić.

2. This Indictment charged Krsto Savić with the criminal offence of Crimes against Humanity referred to in Article 172(1)(h) in conjunction with Subparagraphs (a), (b), (d), (e), (f), (g), (h), (i) and k) and Article 173(1)(c)(e) and (f) as read with Article 180(1) of the CC of BiH, and Milko Mučibabić with the criminal offence of Crimes against Humanity referred to in Article 172(1)(h) in conjunction with Subparagraphs (a), (b), (d), (e), (f), (h), (i) and (k) and Article 173(1)(c)(e) and (f), as read with Article 180(1) of the CC of BiH and with the criminal offence of Illegal Manufacturing and Trade of Weapons or Explosive Substances referred to in Article 399(1) of the

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Criminal Code of the Republic of Srpska (the CC of RS).

3. The First Amended Indictment of the Prosecutor’s Office of BiH dated 26 February 2009 charged the accused Krsto Savić with the criminal offence of War Crimes against Humanity referred to in Article 172(1)(h) in conjunction with Subparagraphs (a), (b), (d) (e), (f), (g), (h) (i) and (k) and Article 173(1)(c)(e) and (f), as read with Article 180(1) and (2) and Article 29 of the CC of BiH.

4. The Verdict of the Court of Bosnia and Herzegovina (Court of BiH) number: X-KR- 07/400 dated 24 March 2009 found the accused Krsto Savić and Milko Mučibabić guilty because they, by way of acts specified in the operative part of the mentioned Verdict, perpetrated: the accused Savić the criminal offence of War Crimes against Humanity referred to in Article 172(1)(h) in conjunction with Subparagraphs (a), (d), (e), (f), (g), (h), (i) and (k) of the CC of BiH, as read with Article 180(1) of the same Code and the accused Mučibabić the criminal offence of Crimes against Humanity referred to in Article 172(1)(h) in conjunction with Subparagraphs (d), (e) and (k) of the CC of BiH as read with Article 31 of the same Code and the criminal offence of Illegal Manufacturing and Trade of Weapons or Explosive Substances referred to in Article 399(1) of the CC of RS. The First-Instance Court convicted them of the mentioned criminal offences and sentenced the accused Savić to long-term imprisonment of 20 (twenty) years and the accused Mučibabić to a compound prison term of 5 (five) years and 3 (three) months. Pursuant to Article 56 of the CC of BiH the time the accused Krsto Savić spent in custody from 6 September 2007 until 23 January 2009 and from 24 March 2009 until 31 March 2009 and the accused Milko Mučibabić from 6 September 2007 until 17 October 2008 was credited towards the imposed prison sentence.

5. Pursuant to Article 284(1)(c) of the CPC of BiH the same Verdict acquitted the accused Milko Mučibabić that, in the manner as described under Section II of the acquitting part of the enactment clause, he perpetrated the criminal offence of Crimes against Humanity referred to in Article 172(1)(h) in conjunction with Subparagraph (k) of the CC of BiH.

6. Pursuant to Article 74 of the CC of BiH it was decided that the following items be seized from the accused Milko Mučibabić: semi-automatic rifle - PAP, 15

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serial number 594416, an empty clip for automatic rifle, 206 pieces of ammunition for 7.62-mm rifle, 12 pieces of 7.9-mm ammunition, two defensive hand grenades, serial numbers 8608 and 8142, two empty clips for automatic rifle, rifle kit with 4 empty clips, two empty Scorpion clips and 84 pieces of ammunition for 7.62-mm pistol, six pieces of 7.65-mm ammunition, two pieces of 9-mm ammunition, three pieces of 9- mm pistol ammunition, eleven pieces of 7.65-mm pistol ammunition, two pieces of 6.35-mm pistol ammunition; while pursuant to Article 186(1) and (2) the accused Krsto Savić and Milko Mučibabić had the duty to reimburse the costs of the criminal proceedings. After gathering the necessary data the Court will issue a separate decision stating the amount of these costs.

7. The Verdict by the Panel of the Appellate Division of the Court of Bosnia and Herzegovina (hereinafter: the Panel or Appellate Panel) number KRŽ-07/400 of 12 April 2010 granted the Appeal filed by the defense counsel for the accused Krsto Savić and revoked the First-Instance (convicting) Verdict of this Court No. X-KR- 07/400 of 24 March 2009 with respect to this accused in its entirety, and the trial before the Appellate Panel of Section I for War Crimes of the Court of BiH was ordered in that part.

8. The same Verdict granted the Appeal filed by defense counsel for the accused Milko Mučibabić, and the First-Instance Verdict of this Court number: KR-07/400 of 24 March 2009 finding this accused, among other things, guilty of the criminal offence of Illegal Manufacturing and Trade of Weapons or Explosive Substance referred to in Article 399(1) of the CC of RS, was modified in the manner that the charges for that criminal offence were dismissed and the remaining convicting part of the First- Instance Verdict was revoked and the trial before the Panel of the Appellate Division of Section I for War Crimes of the Court of BiH ordered.

9. The Decision of the Court of BiH number X-KRŽ-07/400 of 14 December 2010 severed the criminal proceedings against the accused Krsto Savić and Milko Mučibabić, charged under the Indictment of the Prosecutor's Office of BiH number: KT-RZ-97/06 of 26 February 2009 and the Decision, under the same number of 26 January 2011, dismissed the proceedings against the accused Mučibabić because he passed away.

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A. CHARGES

10. On 28 February 2011 the Prosecutor's Office of BiH filed the Second Amended Indictment number: KT-RZ-97/06, this time charging the accused Krsto Savić with having perpetrated the criminal offence of Crimes against Humanity in violation of Article 172(1)(h) in conjunction with Subparagraphs (a), (b), (d), (e), (f), (g), (i) and (k) and Article 173(1)(c)(e) and (f) of the CC of BiH and all read with Article 180(1) and Article 29 of the CC of BiH.

11. The Appellate Panel accepted the mentioned Indictment in its entirety although the Defense, in its Closing Argument, objected to the merits of the Amended Indictment. In other words, the Defense claims that the Indictment can be amended only under conditions set forth in Article 275 of the CPC of BiH which reads: „If the prosecutor evaluates that the presented evidence indicates a change of the facts presented in the indictment, the prosecutor may amend the indictment at the main trial“, which, according to the Defense, was not the case here since the facts from retrial are also based on the completely identical evidence presented in the first-instance proceedings, that is, they remained unchanged.

12. The Appellate Panel holds that these Defense objections are ungrounded, having in mind that pursuant to the quoted legal provisions an amendment of the indictment does not require new evidence to be presented during the retrial, but its new subjective evaluation would suffice. The factual description of the offence has been changed in this Indictment in the manner that other participants in joint criminal enterprise have been specified, that is, the chiefs of public security stations of Gacko, Nevesinje, Kalinovik and Bileća who, by virtues of their office, were subordinated to the accused Savić. The acts and form of the accused’s participation in implementing the common purpose/plan as the JCE participant has also been specified, whereas the legal qualification of the criminal offence that the accused has initially been charged with remained unchanged. On the contrary, with regard to the form of responsibility of the accused the Amended Indictment charges him only with Article 180(1) of the CC of BiH and Article 29, while he was initially also charged with command responsibility pursuant to Article 180(2) of the same Code, which is definitely more favorable for the accused.

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13. Consequently, the very definition of an amendment to an indictment implies a change of the factual description of the offence in the indictment, which should not result in a change of the legal qualification of the criminal offence that would render the procedural position of the accused more difficult. By filing the Second Amended Indictment the prosecutor did not do that, but based on the existing evidence drew different factual conclusions, whereby the identity between the previous Indictment and the way the offence was described in the Amended Indictment has been preserved.

B. EVIDENTIARY PROCEEDINGS BEFORE THE PANEL OF THE APPELLATE DIVISION

14. Pursuant to Article 317 of the CPC of BiH the hearing before the Appellate Panel of the Court of BiH has been held and during the evidentiary proceedings the Prosecution as well as the Defense proposed that portions of evidence given during the first-instance proceedings be presented, while, having obtained the consent of parties and defense counsels, and pursuant to Article 317(2) of the CPC of BiH, all other pieces of evidence were admitted without a need to present them again.

15. Having reviewed the mentioned motions and being mindful of Article 317(2) of the CPC of BiH the Appellate Panel fully granted the Motions of the Prosecution and Defense and established that it is necessary to present again, that is, replay the statements of the following Prosecution witnesses: Fadil Trebović, Bahrija Trebović, Fahira Ramović, Zumreta Humo, Mirsad (son of Fahir) Bajgorić, Esad Humić, Salko Trnovac, Mirsad – son of Sulejman – Bajgorić, Aiša Kazazić, Ahmet Mičijević, Jusuf Ćatić, witness A, witness B, Behidža Čustović, Šaćir Kljako, Irfan Ćatić, Nura Mičijević, Kemo Bulić, witness G, Emir Kljako, Maida Ćupina, Miralem Trebović, witness H, Mušan Šarančić, Milovan Milović, witness F, Šućro Šarančić, Senad Šarančić, Aleksa Kravić, witness I, Miodrag Kovač, Željko Pašajlić, Željko Kovačević, Dragan Savić, Vukan Bratić, Milan Đerić, Mediha Ćupina and Aleksandar Krulj and the following Defense witnesses: Jovo Lalović, Jovo Čokorilo, Milko Mučibabić and Zdravko Pikula.

16. On the other hand, the evidence that the following Prosecution witnesses: Ahmo Mušanović, Asaf Pošković, Asim Zametica, witness C, witness D, Danilo Đorem, Dika Suljić, Dragan Cerovina, Dragan Ivković, Dragan Radovanović, Dušan 18

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Soldo, Džemila Redžović, witness E1, Elvir Čusto, Ejub Krvavac, Emira Voloder, Enes Hasanbegović, Enver Avdić, Esad Šarančić, Fehmo Kadić, Fejzije Hadžić, Hasan Tanković, Ismir Rogoj, Madžid Smajkić, Mensud Bajramović, Milan Lalović, Miloš Crnjak, Miloš Veletić, Milivoj Faladžić, Mirveta Pervan, Momčil Zubac, Muradif Jašarević, Munevera Rahimić, Rade Damjanac, Suad Bajramović, Šućrija Tanović, Vuk Jašar, witness W, Zlatka Hadžić, expert witness Hamzo Žujo and Davorin Kozomara gave during the first-instance proceedings, and the testimony of witnesses Huso Tukelija, Hata Mehremić and Fehma Kadić, read out during the first-instance proceedings, as well as the evidence by defense expert witness Mile Matijević, have all been admitted by this Panel without a need to present them again. The Panel also accepted the entire documentation, listed in Annex I and Annex II, which are integral part of the Verdict (Chapter XI of the Verdict).

17. With regard to all admitted documentary evidence from the first-instance proceedings the Panel, having in mind the Trial Panel Decision number: X-KR-07/400 dated 14 January 2009, accepted as established the facts from the final ICTY Trial Judgment in the case Prosecutor vs. Radoslav Brđanin (IT-99-36-T)1 (fact 1-12), proposed by the Prosecution to the extent and following the order in which they are listed in the text below:

1. „During the second half of 1991, it already appeared increasingly unlikely that the SRBiH would remain in the SFRY. The Trial Chamber is satisfied beyond reasonable doubt that during this period the Bosnian Serb leadership, including the members of the Main Board of the SDS as well as Bosnian Serb representatives of the armed forces, formed a plan to link the Serb-populated areas in BiH together, to gain control over these areas and to create a separate Bosnian Serb state, from which most non-Serbs would be permanently removed („Startegic Plan“). The Bosnian Serb leadership knew that the Strategic Plan could only be immplemented by the use of force and fear.“ (paragraph 65)

2. „On 19 December 1991, the Main Board of the SDS issued a document titled “Instructions for the Organisation and Activity of Organs of the Serbian People in

1ICTY, Prosecutor vs. Radoslav Brđanin (IT-99-36-T), of 1 September 2004 (Trial Judgment).

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Bosnia and Herzegovina in Extraordinary Circumstances” (Variant B and A Instructions). These instructions provided for the conduct of specific activities in all municiplaities in which the Serbs lived, and essentially mapped out the takeover of power by Bosnian Sebs ...“ (paragraph 69)

3. „In early 1992, while international negotiations to resolve the question of the status of BiH were ongoing, the Bosnian Serb leadership enforced its plan to separate the territories claimed by them from the existing structures of the SRBiH and to create a separate Bosnian Serb State. On 9 January 1992, the SerBiH Assembly proclaimed the SerBIH, which on 12 August 1992 was renamed Republika Srpska (“RS”). It was composed of the so-called Serbian autonomous regions and districts, which included the ARK.” (paragraph 71)

4. „At the end of March 1992 the Bosnian Serb leadership, aiming to immplement the Strategic Plan, took necessary measures to separate the Bosnian Serb police forces from the non-Serb police forces and put the Bosnian Serb police under the Bosnian Serb civilian command.“ (paragraph 73.)

5. „On 27 March 1992, the SerBiH Assembly established the Serbian Ministry of Internal Affairs („MUP“). On 16 April 1992, the Ministry of National Defence of the SerBiH issued a decision on the establishment of the Teritorrial Defence („TO“) as an army of the SerBiH, putting command and control of the TO with municipal, district and regional staffs, as well as the staff of the SerBiH TO.“ (paragraph 73)

6. „During the 6th session of the SerbBiH Assembly that took place on 12 May 1992, at a time when the armed conflict already begun Radovan Karadžić articulated six strategic goals of the Serbian People in Bosnia and Herzegovina. The first and most fateful goal was the “separation from the other two national communities – separation of states”. The other goals concerned the establishment of a corridor between Semberija and Krajina; the establishment of a corridor in the Drina Valley; the establishment of a border on the Una and Neretva rivers; the division of the city of Sarajevo into Serb and Muslim sectors; and, finally, securing access to the sea for the SerBiH.“ (paragraph 75)

7. In essence, these stratigic goals constituted a plan to seise and control the

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teritorry, establish a Bosnian Serb state, defend defined borders and separate the ethnic groups within BiH.“ (paragraph 76)

8. „The Trial Chamber is satisfied beyond reasonable doubts that the first strategic goal entailed the permanent removal of a significant part of the non-Serb population from the teritorry of the planned Bosnian Serb state.“ (paragraph 77)

9. „The 16th session of the SerBiH Assembly represents the culmination of a political process. At this session, not only were the strategic goals of the Serbian people of Bosnia and Herzegovina articulated, but the SerBiH Assembly also took a fundamental step towards the immplementatioon of these goals: the establishment of the Army of the Serbian Republic of Bosnia and Herzegovina (“VRS”), which was put under supreme command of the Presidenvcy of the SerBiH. General Lieutenant Colonel Ratko Mladić accepted the position as Commander of the Main Staff of the VRS, in the obvious knowledge that the policy expressed during the 16th session of the SerBiH Assembly would necessarily involve the massive forcible permanent removal of the non-Serb population from the teritorry of the proclaimed SerBiH, and accepting that the VRS would be instrumental in immplementing this policy. In fact, he affirmed that he shared the views of the Bosnian Serb political leadership. General Lieutenant Colonel Ratko Mladić and his immediate subordinates transformed these political stratigic goals into the operational imperatives for the VRS.“ (paragraph 78)

10. „In the autum 1991, four other Serbian Autonomous Districts were created in SerBiH. These were the Serbian Autonomous District of Herzegovina, the Serbian Autonomous District of Romanija-Birač, the Serbian Autonomous District of Semberija and Serbian Autonomous District of Northern Bosnia.“ (paragraph 167)

11. „On 21 November 1991, the creation of the ARK and the other four Serbian Autonomous Districts was ratified by the SerBiH Assembly during its 2nd session. By virtue of this ratification, the ARK and the other four Serbian Autonomous Districts became constituent parts of the SerBiH.“ (paragraph 167)

12. „The Trial Panel is satisfied the establishment of ARK and the other Serbian Autonomous Districts and their coordination by authorities of the 21

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SerBiH was a crucial and vital step towards the immplementation of the Stratigic Plan.“ (paragraph 167)

18. The fact from the final ICTY Trial Judgment in the case Prosecutor vs. Milorad Krnojelac (T-97-25-T)2, proposed by the Defense, has been accepted as established in the manner and to the extent as stated in the text below:

„The two detainees were taken by troops to Kalinovik in an army truck and were then separated from the other twelve and taken to the police station. There they were kept in the prison and required to drive vehicle for the detection of landmines.“ (paragraph 410)

1. Closing Arguments Prosecution

19. In presenting his Closing Argument before the Court the prosecutor primarily gave an overview and analysis of important elements of the criminal offence of Crimes against Humanity and of the presented evidence, both documentary and witness statements, explaining the existence of essential elements of the subject-matter of the criminal offence that the accused is charged with as well as his culpability through the institution of Joint Criminal Enterprise. The prosecutor also elaborated on the statements of the examined witnesses with respect to each and every incrimination that the accused, who, as he said, was at the top of the pyramid of crimes3 in Eastern Herzegovina, is charged with under the Amended Indictment. The Prosecution also touched upon the Amended Indictment, stating that it has only made it more precise and at no rate exceeded the factual description accepted by the First-Instance Panel. The Prosecution believes that the presented evidence shows that the accused Krsto Savić perpetrated the criminal offence as charged, and it thus moves that he be found guilty and that an appropriate sentence be imposed on him, which, according to the Prosecution, is definitely long-term imprisonment.

2 ICTY, Prosecutor vs. Milorad Krnojelac (IT-97-25-A) dated 15 March 2002 (Trial Chamber Judgment). 3 The Appellate Panel holds obiter dictum that the prosecutor’s metaphor about the accused being „at the top of the pyramid“ has no basis in presented evidence, especially if one takes into account that the prosecutor, by no means, has tried to rank the JCE participants who, in addition to the accused, were also high-ranked officers of the VRS and members of municipal leaderships, or state their more detailed role in the described events.

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Defense

20. Defense of the accused Krsto Savić, both his defense counsel and the accused himself who supported the allegations presented by his defense counsel, in its Closing Argument does not dispute that crimes were committed in the municipalities of Nevesinje, Gacko, Bileća and Kalinovik, that people were beaten and ended up in mass graves and that no one in his right mind can be immune to those events. However, the Defense disputed that the accused, either by his acts or omissions, contributed to the described events in any way. The only exception is the incident concerning the death of Redžo Trebović, but not in the manner and under the circumstances as presented by the Prosecution. Moreover, in its Closing Argument the Defense pointed to the mandatory application of the more lenient law, which is the application of (adopted) CC of SFRY, stating why the JCE concept cannot be applied to the accused since the JCE and co-perpetration cannot exist at the same time because one excludes the other. The Defense argues that when it comes to the JCE the Indictment cannot arbitrarily describe the charged acts because such a statement is not sufficient to incur somebody’s responsibility. What the Defense finds relevant is the relationship between military and civilian authorities, where ample evidence showed that the police and civilian authorities were re-subordinated to the army. Finally, it objects to the third Amended Indictment, believing that the Indictment, having in mind the relevant legal regulations, could not be amended in the way the Prosecution did it in this case, that is, by changing the factual description of the Indictment on the basis of the existing evidence.

C. ADMISSIBILITY OF EVIDENCE

21. During the proceedings the Panel, at the proposal of the prosecutor and in addition to other pieces of documentary evidence, also admitted the exhibit – copy of the organizer found on the premises of the Trebinje CSB, certified and sent from the ICTY database. In the proceedings before this Court this exhibit was marked as Exhibit T-170 (“organizer”). On that occasion the prosecutor claimed that these were minutes from the meetings that the chief of the Trebinje CSB had with chiefs of the SJBs belonging to the area of the Trebinje CSB.

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22. The Defense of the accused objected to this exhibit, emphasizing that the mentioned organizer has no form of the minutes and thus cannot be considered as official minutes from the mentioned meetings.

23. The Panel carefully analyzed the contents of the organizer and although it stated that these were not the official minutes, it concluded that that fact in no way undermined its authenticity. In doing so, it was mindful of the standard that “when evaluating the gravity and probative value of documentary evidence, the important factor is whether the person is an author of the document or a person who is personally familiar with its contents appears as a witness“4. Witness Aleksandar Krulj testified about the authenticity of this document and he confirmed it was most probably authored by Milorad Ćuk, but he did exclude Marko Čabrilo either. Jovo Čokorilo also mentioned Milorad Ćuk as a possible author. Besides, the accuracy of the allegations from this organizer is substantiated by witness statements and documentary evidence and the Panel thus credited it with a relevant probative value5, finding that the record of meetings had a logical and chronological order, that is, no defects were identified in terms of form or contents. Besides, the Defense failed to proffer a single piece of evidence compromising the accuracy of data from the mentioned organizer.

II. ELEMENTS OF THE CRIMINAL OFFENCE OF CRIMES AGAINST HUMANITY

24. The Second Amended Indictment of the Prosecutor’s Office charges the accused with having perpetrated the criminal offence of Crimes against Humanity in violation of Article 172(1)(h) of the CC of BiH in conjunction with Articles (a), (b), (d), (e), (f), (g), (i) and (k) and Article 173(1)(c)(e)(f) of the CC of BiH as read with Article 180(1) and Article 29 of the CC of BiH.

4 International Criminal Defense Manual, experience of defense counsels practicing before the ICTY, published by UNICRI, page 77, para. 14. 5 “A complete proof of authenticity is not a requirement for admission. When the authenticity or reliability of documents is called into question, the Trial Chamber may accept the document and decide what importance it shall have during presentation.” (the same source as in the supra note, taken from the relevant ICTY decisions).

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25. In accordance with the legal definition the following general elements of the referenced criminal offence arise which need to be established:

1. existence of a widespread and systematic attack; 2. that the attack is directed against civilians; 3. knowledge of the perpetrator about the existence of such attack; 4. a „nexus” between the acts of the accused and this attack, that is, that the prohibited actions were committed as a part of this attack.

26. (1) The element of a widespread attack requires the existence of a “large scale of the acts perpetrated and the number of victims“6, while the phrase systematic requires the existence of “patterns of crimes”, that is, a non-accidental repetition of similar criminal conduct on a regular basis.7

27. Based on the presented evidence, especially the statements of witnesses who at the beginning of June 1992 lived in the area of Eastern Herzegovina, more precisely in the municipalities of Gacko, Bileća, Nevesinje, Kalinovik and the neighboring settlements, documentation as well as the accepted established facts from the Brđanin8 case, the Panel drew an unambiguous conclusion about the existence of the attack, as characterized above, undertaken by the army, police and paramilitary units of the self-proclaimed Serb Republic of Bosnia and Herzegovina against the Bosniak and Croat civilians of the municipalities of Nevesinje, Kalinovik, Gacko and Bileća.

28. The element of a widespread attack clearly arises from the fact that the critical events took place in the wider area of Eastern Herzegovina where numerous crimes were perpetrated, resulting in a huge number of direct and indirect victims, while the element of being systematic reflects in an almost identical manner of carrying out the attack in each of the four municipalities, that is, according to pre-established and routine pattern, starting from the municipality of Gacko and continuing in Bileća, Nevesinje and Kalinovik. Finally, neither the Defense has challenged the existence of

6 ICTY, Blaškić Trial Judgment, 3 March 2000, para. 206. 7 ICTY, Kunarac et al. Appeals Judgment, 12 June 2002, para. 94. 8 Accepted facts 1-12, para 17 of this Verdict.

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this general element of the criminal offence of Crimes against Humanity, which is why the Panel shall present sufficient reasons in support of its finding.

29. Witness Ejub Krvavac, Šućrija Tanović, Asaf Pošković, witnesses W, E-1 and others provided consistent testimonies about the attack against Bosniak civilians of the Gacko Municipality. According to their statements, tensions in this municipality have been felt already in late 1991, more precisely from the autumn that year, when the Serb Autonomous District of Herzegovina (“SAO Herzegovina”) was formed. In the following period of time, until June, Serb forces erected checkpoints to control an entry in and exit from this territory; armed formations from the direction of Montenegro were passing through Gacko toward Mostar, on which occasion they got stationed in the town and demonstrated force by shooting from small and heavy arms, spreading fear among the non-Serb local population, whereas the first killings of two Bosniak civilians in Čemerno were committed as early as February or March.9 Šućrija Tanović testified about that incident and stated that Pošković and Grebović were killed in Čemerno in February or March 1992.

30. The first arrests of non-Serb male civilians on a massive-scale started at the beginning of June 1992 and were carried out by members of the Gacko SJB and army (witness W testified about it and he and a group of civilians who were on the run were arrested by persons clad in military uniforms who placed them in the school in Ulog), and the captured civilians were then placed in the detention centers in Avtovac and Samački hotel in Gacko from where they were escorted to the Bileća camp.

31. Witness Šućrija Tanović colorfully describes the arrest by saying: „People were getting arrested on roads as well as at any other place ... and more than 100 people were arrested in a few days only“. Witness Asaf Pošković described the arrests consistently, since he was also unlawfully arrested by members of the regular police and, together with many other men gathered in front of the Police Station in Gacko,

9 See the District Court in Trebinje case number K-11/02, First-Instance Verdict (24 June 2003) sentencing the accused Mile Mastilović to 15-year imprisonment for the criminal offence referred to in Article 36(2)(6) of the CC of RS; the Verdict of the Supreme Court of RS of 24 February 2004 modified the First-Instance Verdict in the part of the decision as to the sanction and the accused was sentenced to 14-year imprisonment.

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transported in trucks to Avtovac, where they were guarded by members of the reserve component of police and then to the Samački hotel, where around 160 of them were tortured, interrogated and kept in inhumane conditions by members of the police and army.

32. Consequently, men of non-Serb ethnicity were detained in camps and other detention facilities, from which many were taken away and never came back; most of the remaining civilians were rounded up and expelled from this municipality.

33. Suad Bajramović, Mensud Bajramović and Enver Avdić provided consistent testimony about the attack against civilians in Bileća. Witness Mensud Bajramović stated that on 19 June 1992 the non-Serbs in Bileća were arrested, taken away, interrogated on the premises of the police station and detained. On the mentioned day he was personally arrested by police in his village of Orahovice at the time when the army and police attacked the Bosniak villages and, together with other arrested men, was imprisoned at the police station and after that in the Đački dom.

34. While staying in the police station, one of the detained men – Ismet Bajramović was ordered to make a list of all men from the two villages (Selište and Orahovica) who were not arrested on that day, where they were hiding and what they were doing. The mentioned events were also confirmed by witness Enver Avdić who got arrested on 10 June 1992 in the vicinity of his village of Selište, was taken to the Secretariat of Internal Affairs (“SUP”) and was later transferred to the Đački dom building; according to him: „Bosniaks from Bileća were detained at two locations, in the mentioned Đački dom and old SUP building, while people from Gacko were detained in the Bileća barracks and there were also people from Nevesinje, Dubrave and Foča there.“ Suad Bajramović, according to his own statement, was arrested in the cafe by members of the army, among whom was a second lieutenant in an olive drab uniform, and together with other arrested men was escorted in a column to the police building in Bileća and then in the evening of the same day they were transported in the trucks to the Bileća barracks. Moreover a huge number of witnesses residing in various parts of the municipality consistently confirmed the attack in that area.10

10 The ICTY Trial Chamber in case IT-00-39-T Prosecutor vs. Momčilo Krajišnik, Judgment (27 September 2006), para. 609 reached the same conclusion as this Panel about selective arrest of primarily Muslim

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35. The following witnesses, among others, testified about the attack on the Kalinovik municipality: Asim Zametica, Ahmo Mušanović, Fejzija Hadžić, Danilo Đorem, Dragan Cerovina and others. As one of manifestations of the attack was the arrest of male civilians from Kalinovik and the neighboring villages of Mjehovina, Jelašca and Vihovići, which happened on 25 June 1992. On that occasion around 60 Bosniak men were arrested, which were civilians and which previously received an invitation to report to compulsory work service. The mentioned civilians were first imprisoned at the Miladin Radojević primary school, which was guarded by the Kalinovik SJB police and some ten days later they were transferred to the Barutni magacin detention facility, which was guarded by military. Fejzija Hadžić, as the only one who survived out of group of civilians detained by Kalinovik SJB, testified about this, and this is also confirmed by document - Invitation to report to compulsory work service, issued by the Municipal Secretariat dated 25 June 1992 (T-154).

36. Dragan Cerovina, as a member of the police and participant in some actions – specifically the transport of detainees to the detention facilities in that period of time, provided a blow-by-blow description of how police officers of the Kalinovik SJB together with the army participated in setting on fire Muslim villages in this municipality (Kutine, Daganj, Hotovlje, Luko, Sočani and Bojići), more specifically the members of police set on fire the village of Sočani and the army set on fire the other mentioned villages, which witness Milan Lalović confirmed too, as well as documentation proffered by the Prosecution (T-18, T-19 and T-20). According to the statements of all witnesses who were direct victims, the arrests followed the same pattern as in other municipalities, the captured civilians were taken to the SUP for interrogation and after that to detention centers.

37. Almost all Prosecution witnesses testified about the events in Nevesinje, including witness H, I, Maida Ćupina and others, themselves victims of the widespread and systematic attack, and witness Milovan Milović who testified about the events in the context of the attack, aimed at persecuting the Bosniak and Croat population from this municipality. Non-Serb civilians from the Nevesinje Municipality and neighboring

civilians in the area of Bileća municipality in which, in addition to paramilitary groups, regular and reserve police officers of Serb ethnicity participated.

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settlements were detained indiscriminately, men were separated from women and children and held in the Nevesinje SJB building where they were physically and mentally abused and taken to the Bileća camp or handed over to paramilitary formations, while women, children and sick were taken to the Alatnica prison, controlled by an unknown paramilitary formation. While staying in the Nevesinje SJB they were subjected to various tortures and golgotha, unlawful arrests, which also continued by taking people to the Bileća camp (Šaćir Kljako, Emir Kljako, Hasan Tanković, Senad Šarančić, witness I, H, Kemo Bulić, witness G) or the Boračko Lake where many of them disappeared and are still unaccounted for. Women and children were forcibly transferred from Nevesinje to the line of separation.

38. With regard to the existence of the attack as an important element of this criminal offence, the Panel emphasizes that crimes against humanity can also be committed in time of peace and the attack does not have to include the use of armed force, but can consist of any form of abuse of civilians as well as of actions by which these acts are prepared.11 So, in the case at hand it was not necessary to launch huge military operations to carry out the widespread and systematic attack in accordance with the “Strategic Goals”. The territory was peacefully taken over since it was a predominantly Serb territory, especially the area of the Nevesinje Municipality. It was proclaimed the Serb territory, the power was established and other ethnicities were removed from power, which was followed by the above described crimes.

39. The Panel holds that the very attack, which was preceded by incidents in the area of all these municipalities and in accordance with the statements of numerous heard witnesses, started in the second half of June 1992, more precisely after the events in Podveležje or after 16 June. That is why it was necessary to change the relevant period in the Indictment.

40. In other words, it is evident that as early as May 1992 certain events started to take place, preceding the attack. However, they did not reach the threshold to fulfill the widespread and systematic criteria, especially if the attack is considered to cover the wider area of four municipalities, and proof of the accused’s knowledge of the events. The relevant period is connected to the acts of the Accused and his intent to commit

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them. Therefore the Appellate Panel concluded that exactly that period from 16 June 1992 is covered by the knowledge and intent of the accused to perpetrate the referenced crimes.

41. The accused, as it will be elaborated later, undertook specific actions in Nevesinje and witnessed them, while he was only informed about the events taking place in the three other municipalities in the period before the mentioned date. Witnesses Željko Pašajlić and Željko Kovačević, as well as most of the Prosecution witnesses who spoke about it, agreed that coexistence still functioned in some way in Nevesinje, until the events in Podveležje took place which, according to the testimony witness Lalović gave on 15 January 2009, was populated by Muslims. He, as well as many other Prosecution witnesses, provided detailed testimony as to what happened in the Nevesinje municipality after this date, which was a turning point between the relatively peaceful coexistence of people of different ethnic and religious background and the period when the crimes and chaos started.

42. Back then (from 12 May 1992) this witness, who was also a VRS officer, stated that some time between 15 and 16 June 1992 Serb Army was surprisingly attacked by the Patriotic League Forces, that is, members of the Army of the Republic of Bosnia and Herzegovina (ARBiH). During the attack 24 Serb soldiers and Colonel Pušara were killed while many soldiers were wounded and taken prisoners. Moreover, according to the testimony of the accused Savić his two cousins were also among the killed. According to the testimony of Pašajlić and Kovačević, that incident triggered everything that happened later, that is, the deportation of non-Serbs.

43. (2) All persons against whom the attack was directed as well as the aggrieved parties from the operative part of this Verdict were civilians. All witnesses were consistent when they confirmed that the attack was directed exclusively against civilians and the fact that some of the civilians, like individuals Fadil and Miralem Trebović, Mušan Šarančić from Nevesinje or Šućrija Tanović from Gacko had weapons does not deprive them of their civilian status since they took no part in any military activities during the arrest, that they reported weapons and that they were in the territory with

11 Krajišnik Trial Judgment, September 2006, para. 706.

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predominantly Serb population. Hence, the civilian Bosniak and Croat population was the primary target of the attack.

44. In order to analyze the status of victims against whom the attack was directed in a more clear manner the Panel was mindful of Common Article 3 of the Geneva Conventions, which, based on Annex 6 of the Dayton Peace Agreement, is applicable in the national legislation and which, according to the ICTY case-law, is also considered a part of customary law. In other words, the mentioned article defines conditions under which the persons are protected by the Conventions, specifying that the civilians shall be considered: “persons who are taking no part in the hostilities, including the members of armed forces who have laid down their weapons and those placed hors de combat”.

45. During the trial and based on the statements of heard witnesses, the Panel undoubtedly determined that all persons, at the time when they were arrested and detained at the mentioned locations, enjoyed protection set forth in Common Article 3 of the Convention. This conclusion is based on the fact that these persons were arrested in the manner that most of them were forcibly taken away from their homes, and at that time none of the arrested persons were uniformed nor did they take any active part in any hostilities. Given that the mentioned Common Article 3 of the Convention gives absolute protection to civilians since under no conditions can they be a target of any attack, the reference of Defense witnesses to the events in the area of Podveležje, which preceded the attack by the members of the Serb Army and police can in no way exculpate the accused for the crimes committed in the area of the Nevesinje municipality and other municipalities of Eastern Herzegovina that he was found guilty of.

46. The Panel draws the same conclusion regarding the Defense allegations pertaining to the complicated and difficult security situation caused by an influx of a huge number of Serb refugees from the Neretva valley to Nevesinje, their vengeful motives, the presence and active operation of paramilitary groups, especially directed against Bosniak civilians, which caused chaotic and miserable situation among the local Serb population too. These factual circumstances may possibly have significance in meting out the sentence, but they in no way diminish the culpability of the accused.

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47. Having in mind all mentioned above, the Panel holds that it has been indisputably determined that at the relevant time, that is, from 16 June 1992 until the end of 1992 in the area of municipalities of Gacko, Bileća, Nevesinje and Kalinovik there was a widespread and systematic attack of the Army of the Republic of Srpska (VRS), paramilitary and police units against the Bosniak and Croat civilians.

48. (3) When analyzing the mental state (mens rea) of the accused Savić at the time when the offences were perpetrated, that analysis should be limited to the determination of: (1) intent to perpetrate the referenced criminal offence in combination with (2) knowledge about the wider context within which the criminal offence is taking place.12 That the accused Savić was aware of the contextual basis incorporating the underlying acts he perpetrated and that he had knowledge of the nexus between his acts and that context, is primarily substantiated by the position he had at the relevant time as the Minister of Internal Affairs of SAO Herzegovina until 13 July 1992, chief of Trebinje CSB (as of beginning of May the same year) and a member of the Main Staff of the MUP for command and control over the MUP forces and specific activities that he took as part of the mentioned positions and which, undoubtedly, enabled him to have insight into all events in the area of Nevesinje Municipality and almost all events (capture and deportation of non-Serbs) in the area of Gacko, Bileća and Kalinovik.

49. Hence if one takes into account the high position the accused had at the relevant time in the SAO Herzegovina, his knowledge about the adopted strategic goals and their acceptance (which shall be elaborated on in the paragraph pertaining to Joint Criminal Enterprise – JCE) and what their implementation required in reality, which is substantiated by the Prosecution documentary exhibit - Minutes from the meeting held in Banjaluka on 11 February 1992 (T-105) and document of the Minister of RS MUP Mićo Stanišić dated 16 May 1992 about a need to document any potential crime against Serbs (T-184), which is being done (investigation log in Nevesinje, T- 12), and established facts 6 and 7 about the adopted strategic goals, then the clear conclusion is that he definitely knew about the attack.

12 See Decision by the Trial Chamber in Kupreškić et al. case, 14 January 2000, para. 556.

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50. His knowledge can be established at least from 16 June 1992. Based on the subjective and objective evidence this Penal determined this moment to be the beginning of the relevant period. After that date all crimes definitely occurred, in which the accused took part in the manner and in a capacity as described in the operative part of the Verdict. Krsto Savić is a person who, as a knowing participant in the JCE, takes direct acts of perpetration in Nevesinje in the manner that during the attack he ordered that non-Serb civilians be apprehended and separated, and that men be detained at the Bileća camp and women and children in Alatnica (statements of witness H, Milovan Milović, Senad Šarančić), he personally took part in interrogating men in the Nevesinje SJB and took other acts charged under Section 4 of the operative part of the Verdict. As it arises from the Prosecution documentary evidence he definitely received reports about similar pattern of treating civilians in other municipalities too, that is, their detention and problems with their placement, although he was not physically present there. This conclusion is drawn from a large amount of Prosecution documentary evidence, more specifically: summary of meetings T-104 and T-132, letter T-177, work report of CSBs T-95 and T-153 and organizer T-170. All this is a consequence of implementing the plan of forcible transfer of non-Serbs from the mentioned municipalities. Anyhow, based on the testimony of Aleksandar Krulj, who was a chief of CSB after the accused, and which this Court found acceptable, the principle of subordination existed in each and every public security station and a police officer could not do anything on his own. This, from that point of view, also indicates the responsibility of the accused.

51. In order to avoid unnecessary repetition of these pieces of evidence, while elaborating on individual sections of the Verdict the Panel shall state them in detail and give their evaluation. Having in mind the senior positions that the accused Savić had at the time and the specific actions he took, the Panel holds undisputable that he knew of the attack, which existed at the time charged under the indictment and which was directed against non-Serb civilians, and he also knew that his acts were part of the attack.

52. (4) The Panel holds that not only that the accused knew of that attack but that his acts, which he took either alone or jointly with other persons, include a higher dimension of criminal conduct, having in mind the nature of these acts, their 33

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notoriousness, political circumstances in which they took place and which were primarily directed against Bosniak and Croat civilians. Everything that the accused perpetrated, which shall be elaborated in the part pertaining to individual charges, was a part of a wider context and plan.

53. He wanted or at least agreed with the implementation of the criminal plan directed at the persecution of Bosniak and Croat population on ethnic and religious grounds. All his actions and activities at the relevant time matched the routine criminal pattern and cannot, in any way, be taken out from the context of the attack. In relation to his activities pertaining to the creation of MUP consisting of Serb personnel (which is the period not covered by this Indictment), Savić personally spoke of the creation of state of Serb people. That, per se, is allowed as a political goal, but his further activities that he has been charged with showed that he used objects to implement that purpose, which were not only impermissible under international humanitarian law but also contrary to the Criminal Code. By analyzing the individual charges, the Panel also holds beyond a reasonable doubt that the accused perpetrated them with a full knowledge of the gravity of their consequences.

54. Proceeding from the presented factual basis, the existence of dolus specialis on the part of the accused, that is, discriminatory intent required for the act of persecution directed against non-Serb population was unquestionable for this Panel. The Panel shall provide a more detailed analysis about this in the part dealing with the subjective element (mens rea) of the underlying offence of persecution as a Crime against Humanity. In determining this subjective element on the part of the accused, the Panel took into account the fact that the accused helped some Bosniaks in some cases, which is corroborated by the testimony of Prosecution witnesses Esad Šarančić,13 Šaćir Kljako,14 Miralem Trebović15 and others. All these witnesses confirmed that the accused Savić said that the detained persons would be exchanged in Bileća, that they would be escorted and that no one should harm them during the deportation. Furthermore, the accused showed humanity also in the case of Muamer Šarančić when he personally ordered that the ill person Muamer Šarančić

13 Evidence given at the main trial of 16 July 2008. 14 Evidence given at the main trial of 18 June 2008. 15 Evidence given at the main trial of 16 July 2008.

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be transferred to Alatnica together with women and children, which witnesses Mušan Šarančić, Senad Šarančić and Milovan Milović confirmed.

55. All the above mentioned does not mean that the accused Savić did not have a discriminatory intent because he had a clear picture about all events and such isolated actions shall be evaluated when meting out the sentence. Besides, this exactly confirms the role and authority of the accused Savić as a person who had a power to decide about the further fate of detained civilians.

56. Hence, the accused was aware that the persecution was directed at non-Serb civilians because of their ethnic and religious background.16 Therefore, he had knowledge about the general pattern of treatment and nature of the attack against Muslim/Bosniak and Croat civilians as the primary target of the attack and finally that he wanted that the prohibited consequences take place, which resulted from the attack. This Panel reached such legal conclusions when analyzing the evidence and facts based on them, which shall be presented through individual charges.

57. Here it is necessary to emphasize that with respect to the introductory part and the subcounts of the convicting part of the Verdict in which the word “commanded” is mentioned, the Panel left out that word from the operative part and used the word „led” instead, believing that this word is more appropriate for the position the accused Savić had at the time, which he also highlighted when presenting his defense since he did not perform a duty of the army commander.

III. LEGAL STANDARDS APPLICABLE TO THE ESTABLISHED FACTS

58. In determining the qualification of individual acts and facts the accused Krsto Savić is charged with, the Panel proceeded from the following definitions:

16 Trial Chamber in the ICTY case Prosecutor vs. Momčilo Krajišnik, when presenting conclusions about the existence of the attack, stated that the attack included a wide range of discriminatory measures taken against Bosnian Muslims and Bosnian Croats, such as the imposition of curfews; the setting-up of barricades and checkpoints where members of these ethnic groups were regularly stopped and searched; regular searches of the houses of Muslims and Croats ; and dismissals of Muslims and Croats from employment in the armed forces, the police, municipal organs, and private and publicly owned companies.“ See Trial Judgment, para. 708.

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- murder means depriving another person of his life;

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

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

- torture means the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under control of the perpetrator, except that torture shall not include pain or suffering arising only from, or being inherent in or incidental to, lawful sanctions;

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

- enforced disappearance of persons means the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence, of a State or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with an aim of removing them from the protection of the law for a prolonged period of time;

- other inhumane acts of a similar nature mean acts intentionally causing great suffering, or serious injury to body or to physical or mental health.

59. In the event the Panel determines that the legal qualification referred to in the Indictment does not correspond to the established facts, it will include reasons for making different legal findings in the explanation for each individual section in the Verdict.

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IV. DISCRIMINATORY INTENT AND PERSECUTION

60. According to the statutory definition, the criminal offense of Crimes against Humanity by way of persecution includes: 1) intentional and severe deprivation of fundamental rights;

2) in violation of international law;

3) by reason of the identity of a group or collectivity;

4) against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, sexual gender or other grounds that are universally recognized as impermissible under international law; and

5) in connection with any offense listed in this paragraph of the Code, any offense listed in the Code or any offense falling under the jurisdiction of the Court of Bosnia and Herzegovina.

61. The Appellate Panel notes that a proper interpretation of the provision set forth in Article 172(1)(h) of the CC of BiH suggests that the crime of persecution may be perpetrated by all the acts that, as a whole, constitute intentional and severe deprivation of fundamental rights in violation of international law, by reason of the identity of a group or collectivity.

62. Only gross and flagrant denials of fundamental human rights may constitute Crimes against Humanity. An additional requirement for persecution as a Crime against Humanity is that it must be committed with discriminatory intent. Individual criminal acts may not necessarily rise to this standard if the individual criminal act is evaluated in isolation. Therefore, for the crime of persecution the criminal acts must be taken as a whole, and together must reach this standard. (Bundalo)17

63. The Panel stresses that a repeated commission of the crime of persecution by various acts of perpetration that otherwise constitute independent criminal offenses underlying Crimes against Humanity in particular, or any other offense defined by the

17 Verdict of the Appellate Panel in Bundalo et al., X-KRŽ-07/419, 28 January 2011.

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CC of BiH, can be regarded as a single criminal offense of Crimes against Humanity by way of persecution. In determining the accused's guilt, the Panel will accordingly consider if the accused acted with discriminatory intent in each of the charges as acts of perpetration of the crime of persecution.

64. First of all, the Panel generally finds that all established crimes committed with a discriminatory intent constitute severe deprivation of fundamental human rights in violation of international law, and that none of the crimes were committed against the Serbs but all the victims were Bosniacs and Croats. Each and every criminal act was committed with specific discriminatory intent, suggesting that the purpose of all the described acts was discrimination/different treatment of the victims on the grounds of their ethnic and religious affiliation. This conclusion relies on a comprehensive evaluation of the function performed by the accused (a high-ranking position in the authorities and the police) and, in connection therewith, his knowledge of a common plan and/or purpose to effect persecution by implementing a State policy planned in the Strategic Goals of the Serb People (established facts) as well as the accused's actual words and acts in the course of commission of the crimes.

65. The accused demonstrated that intention of his by, among other things, using abusive language, as can be seen from the respective statements by Witness Emir Kljako and Witness F. Specifically, in his office the accused said the following during the interview of Witness Kljako “...return the weapons, where are your weapons, balijas are shooting up there, we'll kill all of you...”, continuing the use of the term balije as a derogatory term for Muslims; upon completion of the interview, he addressed the police officers who were present there with the words “take this shit down there!”, referring to the persons from the group imprisoned at the Police Station.

66. Witness F testified that she was interviewed after she had been captured and that Krsto Savić entered the room during the interview. He introduced himself on that occasion, addressing the interviewer by saying something to the effect “... it is a sin to send this to an exchange, we will not send this to an exchange, this will be ours, we'll rename her, we'll give her the name Mileva and this will be ours.”, whereupon he left. While the Appellate Panel found this witness's testimony to be credible and reliable, it did not find beyond any reasonable doubt that the accused is 38

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directly responsible for the events following the imprisonment of Witness F (see paras. 254-257 of the reasoning section). The Panel nonetheless considered and used those averments contextually, to form a clear picture of the accused's discriminatory attitude towards persons of other ethnicity.

67. Finally, the Prosecution charged the accused with the persecution of Bosniacs and Croats on political, national, ethnic and religious grounds. The Appellate Panel did not accept all the grounds for persecution charged in the Indictment considering that that the wording was merely paraphrased from the Code and that particular grounds were not supported by facts, especially persecution on political grounds.

68. According to the presented evidence and the established facts, it is beyond dispute that the accused Savić participated in the attacks against the non-Serb civilian population in the referenced municipalities and that he participated in the persecution of that population by carrying out all the described acts determined by this Panel. In the Panel's view, the accused, by committing discriminatory acts or by omission, possessed discriminatory intent on national and religious grounds. Specifically, national and religious grounds are closely intertwined and denote national/ethnic affiliation; in the instant case, they relate to Bosniacs and Croats.

69. As a result of the persecution of Bosniacs and Croats in the areas of Gacko, Bileća, Nevesinje and Kalinovik municipalities on national and religious grounds, which was manifested in the imprisonment, deportation, murders, torture, enforced disappearance of persons and other inhumane acts, the current ethnic composition of the population in those municipalities has changed18 considering that a large number of primarily Bosniacs (given their percentage in the population structure before the war) as well as Croats have not returned to this area.

18 The Appelate Panel observes that the ethnic composition of the population in eastern Herzegovina has not changed „drastically“ as claimed by the Prosecutor at trial. According to the 1991 census in BiH, the Serb population was the majority population in the municipalities referred to in the Indictment. For example, the ethnic composition of Bileća municipality was 10,628 (80%) Serbs, 1,947 (15%), Muslims, 39 Croats, 222 Yugoslavs and 448 persons of other or unknown ethnicity; Gacko: 6,661 (62%) Serbs, 3,858 (36%) Muslims, 29 Croats, 84 Yugoslavs and 156 persons of other or unknown ethnicity; Kalinovik: 2,826 (61%) Serbs, 1,716 (37%) Muslims, 17 Croats, 46 Yugoslavs and 62 persons of other or unknown ethnicity; Nevesinje: 10,711 (74%) Serbs, 3,313 (23%) Muslims, 210 (1%) Croats, 123 Yugoslavs and 91 persons of other or unknown ethnicity. Regarding these factual circumstances, see ICTY IT-00-39-T, Prosecutor v. Momčilo Krajišnik, Trial Chamber I (27 September 2006), paras. 607, 654, 660 and 668.

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V. INDIVIDUAL CRIMINAL LIABILITY OF THE ACCUSED

70. The Panel finds that the Prosecution proved beyond any reasonable doubt that the accused Krsto Savić, by the acts described in detail in the Verdict’s operative part, committed the criminal offense of Crimes against Humanity by way of persecution in violation of Article 172(1)(h) of the CC of BiH, as read with Article 180(1) of the CC of BiH.19

71. The Panel also finds that the Accused committed the crime by participating in a joint criminal enterprise (“JCE”). The Panel notes: “Article 180(1) is derived from and is identical to Article 7(1) of the ICTY Statute. Article 180(1)20 became part of the CC of BiH after Article 7(1) of the ICTY had been enacted and interpreted by the ICTY to include, specifically, joint criminal enterprise as a mode of co-perpetration by which personal criminal liability would attach.”21 The Panel notes that by 1992: “when the Accused began commission of the crimes with which they are currently charged… JCE had crystallized into a theory of liability recognized by customary international law”.22

72. The Appeals Chamber in Prosecutor v. Duško Tadić defined three elements of JCE cases. All three categories of JCE share a common actus reus23:

19 Persecution was committed in connection with the acts of murder, deportation or forcible transfer of population, imprisonment or severe deprivation of physical liberty in violation of fundamental rules of international law, torture, enforced disappearance of persons and other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to physical or mental health. 20 Article 180(1) of the CC of BiH reads as follows: “A person who planned, ordered, perpetrated or otherwise aided and abetted in the planning, preparation or execution of a criminal offense referred to in Article 171 (Genocide)… of this Code, shall be guilty of the criminal offense. The official position of any individual, whether as Head of State or Government or a responsible Government official person, shall not relieve such person of culpability nor mitigate punishment”. 21 First Instance Verdict in Mitar Rašević and Savo Todović, X-KR/06/275, 28 February 2008, p. 103. 22 First Instance Verdict in Rašević, X-KR/06/275, 28 February 2008. See also Summary of ICTY Appeals Chamber Judgment in Prosecutor v. Momčilo Krajišnik, 17 March 2009, http://www.icty.org 23 First Instance Verdict in Milorad Trbić, X-KR-07/386, 16 October 2009, para. 215, quoting inter alia Appeal Jugdment in Prosecutor v. Radoslav Brđanin, IT-99-36-A, 3 April 2007, para. 414.

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1. a plurality of persons;

2. the existence of a common purpose which amounts to or involves the commission of a crime provided for in the Statute (CC of BiH);

3. participation of the accused in the common design involving the perpetration of one of the crimes provided for in the Statute (CC of BiH).24

73. The mens rea element distinguishes JCE I (also called basic form of JCE) from the other modes of liability for a joint criminal enterprise.25 With regard to the basic form of JCE, what is required is the intent to perpetrate a certain crime (this being the shared intent on the part of all co-perpetrators)26 as well as the intent to participate in a common design to commit the crime.27

74. The Panel notes that the Prosecutor failed to specify the JCE type in the Indictment. On the other hand, it should be noted that “the indictment need not specify the category of the JCE (basic, systemic or extended), but it must contain a clear and precise description of the elements of JCE which leave no doubt as to the category of the JCE”.28

75. Having reviewed the facts set out in the Indictment and the ensuing legitimate findings, the Panel holds that “direct participation of the accused in the JCE is consistent with the requisite mens rea element for JCE I”. The Panel will therefore consider the accused’ liability under JCE I (also called the basic form of JCE).29

24 Tadić Appeal Judgment, IT-94-1-A, 15 July 1999, para. 227. 25 Ibid, para. 228. 26 Milorad Trbić, para. 221, quoting Appeal Judgment in Prosecutor v. Mitar Vasiljević, IT-98-32-A, 25 February 2004, paras. 97 and 101. 27 Milorad Trbić, para. 221, quoting Prosecutor v. Miroslav Kvočka et al., Judgment, IT-98-30/1-A, 28 February 2005, para. 82 (requiring “the intent to effect the common purpose“). 28 Second Instance Verdict in Ratko Bundalo et al., X-KRŽ-07/419, 28 January 2011, para. 260. 29 The Appellate Panel in this case did not accept the theory concept of „extended JCE“; although not explicitly alleged by the Prosecutor, this type could be inferred from a too broadly set factual account in the first three Counts of the Indictment, which would lead to the introduction of the so-called status guilt that in fact has nothing to do with individual criminal liability. For more detail, see Dr. Sc. Željko Horvatić – the truth about the ICTY and on contemporary international criminal justice system. http://www.hkv.hr/izdvojeno/tribine/haaki-sud/959-dr-sc-eljko-horvati-istina-o-haakom-sudu-i-o-suvremenom- međunarodnom, downloaded on 14 September 2011 – 09:44:45.

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A. ANALYSIS 1. Actus Reus

(i) Plurality of persons

76. Evidence has shown that a plurality of persons, together with the accused Krsto Savić, participated in the furtherance of a common purpose and plan, including the Minister of Interior Mićo Stanišić, Commander of the Herzegovina Corps Radovan Grubač and Commander of the Nevesinje Brigade Novica Gušić, and police chiefs: Vojin Popović (Gacko), Gojko Stajić (Nevesinje), Boško Govedarica (Kalinovik) and Goran Vujović (Bileća), and other prominent members of municipal leaderships.30 Those persons acted in concert with an aim of persecuting the Bosniac and Croat civilian population by way of capturing and unlawful imprisonment in and forcible transfer from the Serb Autonomous Region of Herzegovina.

77. Evidence analysis has shown that the participants of the JCE, through the Ministry of Interior, acted jointly with an aim of coordinating police activities, ensuring cooperation with the military and enabling the commission of the cited crimes pursuant to a plan or common purpose. The Panel notes that the accused, Mićo Stanišić and all the police chiefs worked in the Ministry of Interior (“MUP”).

78. Regarding a plurality of persons as one of the requirements for the JCE the accused Savić was a member of, the Appellate Panel, taking into account numerous statements by Prosecution (and Defense) witnesses, accepts the Indictment allegations that the JCE also included members of paramilitary units that actively participated in the furtherance of the purpose of the JCE – ethnic cleansing of civilian population of non-Serb ethnicity by way of persecution from the cited municipalities of eastern Herzegovina.

79. However, upon consideration of the relations between the JCE members and the complex made up of its members, this Court has arrived at the conclusion that the

30 Indictment, p. 1.

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accused, that is, his subordinate police officers, did not cooperate directly or did not cooperate with his knowledge; what is more, discharging regular tasks was more difficult because of the paramilitary groups.31 In the Court's view, the military and volunteer groups cooperated on a different level because the military provided weapons to those groups.32

80. The cited factual findings are relevant to the extent that the Panel acquitted the accused Savić of the charges, not proved beyond a doubt, that he participated in the events in which the perpetrators of individual crimes underlying Crimes against Humanity were members of paramilitary groups; or the Panel omitted from the factual account of the convicting part of the Verdict's operative part portions alleging paramilitary formations as the perpetrators; according to the results of the presented evidence, the accused Savić had no connection with those formations in terms of physical perpetration, substantial contribution or awareness. What is more, it ensues from the presented documentary evidence and numerous witness statements that members of various paramilitary groups caused trouble to the police and openly opposed it in restoring law and order, of which the accused Savić reported to the relevant Minister.

81. Furtherance of the common plan described above generates the link between individual participants in the JCE in this case, as follows: on the one hand, the military cooperated with the police in operational terms, and with the paramilitary formations on the other, preserving the vertical singleness of those ties without establishing a contemporaneous horizontal link between the police and paramilitary (volunteer) groups during the time of their existence.

31 This inference is also suggested by the following documentary evidence: Prosecution Exhibit T-97 (Report on the activities of the so-called paramilitary formations, strictly confidential, 01-172/92 of 4 August 1992); Prosecution Exhibit T- 176 (Order to conduct an investigation into the activities of paramilitary groups in the areas of Gacko and Nevesinje municipalities (no. 01-223/92 of 3 July 1992); Prosecution Exhibit T-104 (Summary of a working meeting of senior and managerial staff of the MUP held in Trebinje on 20 August 1992). 32 See Prosecutor v. Momčilo Krajišnik, Judgment, 27 September 2006, para. 42.

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(b) Chiefs of police

82. A Serb Public Security Center33 was formed in Trebinje in March 1992, and the accused Krsto Savić was appointed Chief of the Center.34 Furthermore, in late March 1992, all active and reserve police officers and senior staff of Muslim and Croat ethnicity working in the territory of the Serb Autonomous Region of Herzegovina were disarmed and dismissed from their jobs.35

83. Police security sectors (the terms ‘sector’ and ‘station’ are used interchangeably) in Nevesinje, Gacko, Kalinovik, Trebinje and Bileća were under the jurisdiction of the Trebinje Security Services Center;36 each public security station was requested to report all incidents to the Trebinje CSB,37 including information received from the military.38 The Trebinje Public Security Center had jurisdiction over all public security stations in its area of responsibility, while Krsto Savić, as Chief of the Center, was superior to the chiefs of local public security stations.39 Witness Jovo Čokorilo testified that the Security Center was in charge of the public security sectors (also called public security stations) and coordination of their work.40

84. Witness Aleksandar Krulj testified that the accused chaired weekly (and occasionally monthly) meetings with the police chiefs in the SAO Herzegovina. The accused was responsible for designating the venue and hour of the meetings.41 Plans, tasks/duties, problems and other issues were discussed at those meetings.42 Each police chief kept a journal or took minutes, that is, notes of the meetings and notes of the tasks assigned.43 A review of one of the journals as well as several other minutes shows the level of coordination between the accused and the police chiefs (listed by

33 Aleksandar Krulj’s testimony of 19 February 2009. 34 Testimony by Emir Kljako (9 July 2008) and Jovo Čokorilo (22 January 2009). 35 Exhibit T-95. 36 Miodrag Kovač’s testimony of 28 August 2008. 37 Testimony by Momčilo Zubac (4 September 2008) and Aleksandar Krulj (19 February 2009). 38 Jovo Čokorilo’s testimony of 22 January 2009. 39 Ibid. 40 Ibid. 41 Aleksandar Krulj’s testimony of 19 February 2009. 42 See, Exhibit T-170.

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name in the Indictment) considering that the police chiefs implemented in their areas the plans adopted and tasks assigned at the meetings.

85. For instance, the accused, working at the time with the police in capturing, imprisoning and forcibly transferring the non-Serb population in Nevesinje,44 held a meeting with the police chiefs from eastern Herzegovina in July 1992 to discuss the arrests of all able-bodied men of non-Serb ethnicity in the SAO.45 On 19 August 1992, the accused compiled a report confirming that non-Serbs have been removed from Gacko, Nevesinje, Bileća, Ljubinje and Trebinje “on a massive scale”.46 In fact, many Prosecution exhibits and testimony by numerous witnesses confirm that the police participated in those operations.47

86. On the basis of the presented evidence, the Panel concludes that the police chiefs, listed by name in the Indictment, were among “a plurality of persons” that participated in a common plan or goal with the accused, thus ensuring its implementation.

87. Minister of Interior Mićo Stanišić participated with the accused in furthering a common plan or purpose of the JCE. The accused attended a meeting with Mićo Stanišić on 11 February 1992 at which the establishment of a Serb Ministry of Interior (MUP) at the State and regional levels was discussed.48

88. Mićo Stanišić sent a letter to the accused on 16 May 1992, ordering the public security centers to inform the Ministry about various criminal offenses and incidents. Specifically, Mićo Stanišić wished to be informed of the crimes committed against the

43 Aleksandar Krulj's testimony of 19 February 2009. 44 Testimony by Witness A (9 June 2008), Witness H (17 July 2008), Senad Šarančić (21 August 2008) and Miralem Trebović (16 July 2008). 45 Exhibit 170, p. 411. 46 Exhibit T-99. 47 Exhibits T-94 (Bileća) and T-173 (Gacko), as well as the testimony by Asaf Pošković (Gacko) of 25 September 2008, Ejub Krvavac (Gacko) of 25 September 2008, Milovan Milović (Nevesinje) of 18 August 2008 and Esad Šarančić (Nevesinje) of 16 July 2008, regarding the participation in the arrests, unlawful imprisonment and/or removal of the non-Serb population. 48 Exhibit T-105.

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Serbs and of sabotage operations endangering Serb property.49 A similar request seeking delivery of information about crimes committed against the non-Serb civilians was never sent out. This policy was evident in Nevesinje where the police failed to take any action to protect the Muslim and Croat population or conduct an investigation into war crimes committed against them.50

89. The accused had regular contacts with Minister Stanišić in the course of executing orders regarding arrests, imprisonment and removal of the non-Serb population. He informed the Minister through written correspondence and at meetings about events in the towns in the SAO Herzegovina, including transfers and imprisonment of the non-Serb population.51 Specifically, the accused informed Minister Stanišić of the arrests of ”able-bodied Muslims in Bileća” and of the number of police officers guarding the collective/detention centers.52 In fact, Minister Stanišić included on the agenda of one of his meetings with the chiefs of security sectors issues and problems relating to collective/detention centers and prisons.53

90. The Panel accordingly finds that the accused and Minister Stanišić participated in establishing and building a system of the Serb MUP. The Panel therefore concludes that Mićo Stanišić was among „a plurality of persons“ that participated in the JCE together with the accused.

(d) Commanders Gušić and Grubač

91. A review of the evidence shows that the police forces in the SAO Herzegovina cooperated closely with the military in furthering a common plan or purpose. Witness Jovo Lalović explained that each municipality had a brigade that was part of the

49 Exhibit T-184. 50 See, e.g. Exhibit T-12 (portions of the minutes indicating that no investigation into the crimes committed against Muslims was conducted) and Miodrag Kovać's testimony of 28 August 2008. 51 Exhibits T-116 and T-126. 52 Exhibit T-104. 53 Exhibit T-132.

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Corps.54 The coordination between the military and police headed by the accused ensues from the following activities:

 The military and the police arrested non-Serb civilians,55  The military brought in numerous arrested persons directly to the Nevesinje Public Security Center,56  Some of the persons arrested were first brought to the former JNA HQ in Nevesinje, only to be sent to the SJB in Nevesinje or Bileća,57  Military officers interrogated the civilians at the Nevesinje CJB, and the interrogations were occasionally carried out in the accused's presence,58  Command sent military vehicles to transport the prisoners to Bileća, with the Nevesinje police escorting those vehicles,59  In early 1992, the Corps Command established a detention facility for civilians, including women and children; it was located in the vicinity of the Command HQ in Bileća,60  On 29 July 1992, the Gacko SJB informed the Corps Command to exercise its discretionary right in deciding who would be released,61  Civilians from Nevesinje were imprisoned in the military barracks in Bileća,62  The accused reported that more than 1,000 police officers were assigned to the military,63  The accused reported on 13 January 1993 that active police officers were also deployed to the frontline,64  The accused held meetings with the military as necessary to resolve problems,65

54 Jovo Lalović's testimony of 15 January 2009 (the witness was assigned to Nevesinje and Nevesinje was part of the Herzegovina Corps stationed in Bileća). 55 Testimony by Esad Humić (26 May 2008), Željko Kovačević (3 September 2008) and Milan Derić (17 September 2008). 56 Testimony by Željko Kovačević (3 September 2008), Nuro Mičijević (5 June 2008) and Mirsad Bajgorić (4 June 2008). 57 Testimony by Witness B (9 June 2008), Esad Šarančić (16 July 2008), Mušan Šarančić (17 July 2008), Senad Šarančić (21 August 2008) and Milovan Milović (18 August 2008). 58 Testimony by Witnes A (9 June 2008) and Esad Humić (26 May 2008). 59 Željko Kovačević's testimony of 3 September 2008. 60 Exhibit T-172. 61 Exhibit T-173. 62 Testimony by Salko Trnovac (26 May 2008) and Fadil Trebović (8 May 2008). 63 Exhibit T-95. 64 Ibid.

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 Minister Stanišić ordered the public security centers to assist the military,66  As of September 1992, the accused ordered all public security sectors to cooperate with the military,67  From July 1992 onwards, the accused informed the Ministry of Interior approximately every three days about the military situation and the situation regarding the criminal offenses in the SAO Herzegovina.68  Municipal and military authorities decided to apprehend all able bodied Muslims and detain them at the Elementary School in Kalinovik. The Kalinovik civilian police implemented this decision.69

92. The military cooperated with the police forces in all aspects concerning the imprisonment of Muslim and Croat civilians (arrests, transportation, imprisonment, guarding, interrogations and exchanges). In fact, the common plan or goal of the JCE could not have been implemented without the support from the military. The participation of the military in the acts of persecution necessitated the participation and engagement of various unit commanders. For that reason, the Panel finds that the Commander of the Herzegovina Corps and the Commander of the Nevesinje Brigade were among “a plurality of persons” that participated in the JCE together with the accused.

93. For the reasons stated above, the Panel has determined that the Prosecution proved beyond any reasonable doubt that the accused, together with a plurality of persons, participated in the furtherance of a common purpose and plan set out in the Strategic Goals.70

65 Ibid. 66 Exhibit T-132. 67 Exhibit T-98. 68 See Exhibits T-116 through T-127. 69 See Exhibit T-153. 70 The Indictment also alleges “other members of municipal leaderships” who were among a plurality of persons. The Panel notes that the evidence suggests that municipal functionaries were involved in the JCE. For instance, the Nevesinje Crisis Staff issued a proclamation to the Muslims to leave the town, guaranteeing that they would be safely escorted out of the town. To that end, the time for the Muslims to board the buses parked in front of the municipality building was set, and the local police escorted them out of that area.

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i. Common purpose

94. The Trial Panel in Prosecutor v. Milorad Trbić, para. 741, set out the criteria to prove the existence of “common purpose”:

“… the basic form of JCE requires the existence of a common purpose, which amounts to or involves the commission of a crime provided for in the CC of BiH. There is no necessity for this plan, design or purpose to have been previously arranged or formulated. It may materialize extemporaneously and be inferred from the fact that a plurality of persons acts together in the implementation of a joint criminal enterprise. In Brđanin the ICTY Appeals Chamber explained that to establish this element the Court, among other things, must “specify the common criminal purpose in terms of both the criminal goal intended and its scope (for example, the temporal and geographic limits of this goal and the general identities of the intended victims).”71 Additionally, the Trial Chamber must “make a finding that this criminal purpose is not merely the same, but also common to all of the persons acting together within a joint criminal enterprise.”72

95. In determining whether a common plan existed, the Panel will first review the established facts accepted by the Trial Panel. It should be noted that in the second half of 1991 the Bosnian Serb leadership devised “a strategic plan” to gain control in the areas of BiH inhabited by the Serb population, permanently remove most of the non-Serbs and create a separate state for Bosnian Serbs.73 Furthermore, at the 16th session of the Assembly of Serb BiH held on 12 May 1992, Radovan Karadžić articulated six strategic goals of the Serb people in Bosnia and Herzegovina, including “separation as a state from the other two ethnic communities”.74

96. Furthermore, established facts indicate that:

71 Prosecutor v. Radoslav Brđanin, Judgment, IT-99 -36-A, 3 April 2009, para. 430. 72 Ibid, quoting Prosecutor v. Milomir Stakić, Judgment, IT-97-24-A, 22 March 2006, para. 69. 73 See Krsto Savić and Milko Mučibabić, X-KR-07/400, Decision on Motions to Accept Established Facts of 14 January 2009, p. 1 (established fact no. 1.) (“Decision on Established Facts”).

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“… Lieutenant-General Ratko Mladić accepted the position as Commander of Main Staff of the VRS, in the obvious knowledge that the policy formulated during the 16th session of the Assembly of Serb BiH would necessarily involve the massive permanent removal of the non-Serb population from the territory of the proclaimed Serb BiH, and accepting that the VRS would be instrumental in implementing this policy. In fact, he affirmed that he shared the views of the Bosnian Serb political leadership. Lieutenant-General Ratko Mladić and his immediate subordinates transformed these political strategic goals into operational imperatives for the VRS.75

97. Evidence has shown, in relation to the period preceding the time covered by the Indictment (we mention it at this point for contextual reasons), that a Serb MUP was formed by January 1991, that all Muslim and Croat police officers in the SAO Herzegovina were disarmed and dismissed from their jobs by the end of March 1992, which resulted in creating police forces that were exclusively composed of Bosnian Serbs.76 This paved the way for the Serb MUP to break off the relations with the Mostar Public Security Center, set up a new Serb Public Security Center in Trebinje and form new Serb police forces in all the public security sectors in the SAO Herzegovina.77

98. Chiefs of public security sectors reported to the Trebinje Public Security Center (“CJB”) about the work problems relating to the arrests, imprisonment and transfers of non-Serb civilians.78 The Trebinje CJB held regular meetings with the local police chiefs to discuss tasks, assignments, common problems and other issues.79 Chiefs of public security sectors who attended those meetings took detailed minutes of those activities, documenting the distribution of tasks and issues discussed.80 In one of the minutes, the person taking the minutes was tasked by the Trebinje CSB with

74 Ibid, p. 2 (established fact no. 6). See also Exhibit T-186. 75 Ibid. 76 Exhibit T-95. 77 Ibid, see Exhibit T-114. 78 See Exhibits T-153 and T-170 and testimony by Momčilo Zubac (4 September 2008) and Aleksandar Krulj (19 February 2009) (the testimony pertains to the reporting conditions). 79 See Exhibit T-170. 80 Ibid.

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arresting all Muslim judges. In another minutes, the task or agenda was related to the arrest of all Muslim and Croat military conscripts in eastern Herzegovina.81

99. The accused, other members of the JCE or other departments, the police and military coordinated attacks against the non-Serbs in the municipalities of Kalinovik, Bileća, Gacko and Nevesinje (belonging to the SAO Herzegovina).82 Each of those attacks followed a similar pattern: Bosniac and Croat civilians in those areas were arrested, classified according to age and sex and transferred to various temporary and permanent detention facilities (schools, police premises, military premises and business facilities) in which they were unlawfully imprisoned and finally deported or forcibly transferred to the territory outside the SAO Herzegovina.83 According to the Appellate Panel, the fact that those attacks against the non-Serb population were carried out in the same fashion, during the same time period and in the same area (SAO Herzegovina) suggests that the participants in the attack acted pursuant to a common plan, which is the implementation of the first strategic goal, the purpose of which was to remove the non-Serb population from that territory.

100. The Appellate Panel accordingly concludes that the Prosecution proved beyond any reasonable doubt the existence of a plan or purpose to permanently remove a substantial portion of the non-Serb population from their territory. Furthermore, the accused and the persons referred to in the Indictment participated in a JCE to implement that plan by persecuting the civilian non-Serb population from the municipalities of Kalinovik, Gacko, Nevesinje and Bileća by the criminal acts described in detail in each section of the convicting part of the Verdict’s Operative Part.

81 Ibid, pgs. 411 and 420. 82 See, e.g. Exhibits T-94, T-98, T- 153, T-170 and T-172. 83 See Exhibits T-94, T-153 and T-172; and testimony by Witness A (9 June 2008), Witness G (4 July 2008), Witness H (17 July 2008), Senad Šarančić (21 August 2008), Witness I (27 August 2008), Asaf Pošković (25 September 2008), Mensud Bajramović (18 September 2008), Enver Avdić (24 September 2008) and Ahmo Mušanović (2 October 2008).

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ii. Participation

101. Trial Panel in Milorad Trbić described the participation required for JCE:

“The actus reus also requires participation of the accused in the common purpose involving the commission of a crime provided for in the CC of BiH. This participation need not involve the commission of a specific crime under one of the provisions (murder, extermination, torture, rape, etc.), but may take the form of assistance in, or contribution to, the execution of the common plan or purpose. The contribution need not be necessary or substantial, but should at least be a significant contribution to the crimes for which the accused is found responsible.

102. The Panel recalls that a person who participates in a JCE in any of the following ways may be found guilty of the crime committed, all other conditions being met:

(i) by participating directly in the commission of the agreed crime itself (as a principal offender); (ii) by being present at the time when the crime is committed, and (with knowledge that the crime is to be or is being committed) by intentionally assisting or encouraging another participant in the JCE to commit that crime; or (iii) by acting in furtherance of a particular system in which the crime is committed by reason of the accused’s position of authority or function, and with knowledge of the nature of that system and intent to further that system.

103. The list is not exhaustive. The ICTY Appeals Chamber in Vasiljević explained that it is generally sufficient for a participant in a JCE to perform acts that in some way are directed to the furtherance of the common design. If the agreed crime is committed by one or another of the participants in the JCE, all of the participants in the enterprise are guilty of the crime regardless of the part played by each of them in its commission. However, all persons (principal perpetrators) who carry out the actus reus of the crimes do not have to be members of a JCE. At the same time, it is not

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necessary that the accused be present when the crime is committed in order to be guilty of the crime as a member of JCE.

104. An accused or another member of a JCE may use the principal perpetrators to carry out the actus reus of a crime. However, “an essential requirement in order to impute to any accused member of the JCE liability for a crime committed by another person is that the crime in question forms part of the common criminal purpose“. This may be inferred, inter alia, from the fact that “the accused or any other member of the JCE closely cooperated with the principal perpetrator in order to further the common criminal purpose”.84

105. Evidence evaluated on the basis of this standard has shown that the accused participated in the JCE:

 The accused was involved in the arrests and imprisonment of non-Serb civilians in Nevesinje;85

 The accused participated in the interrogation of non-Serb civilians at the Nevesinje SJB;86

 The accused designated the building to which non-Serb civilians would be sent and imprisoned. That act included separation of men from women and children;87

 The accused was involved in terms of escort and provision of vehicles transporting the non-Serb population from Nevesinje;88

84 Milorad Trbić, paras. 760 – 763. 85 See testimony by Šaćir Kljako (18 June 2008), Emir Kljako (9 July 2008), Maida Ćupina (1 July 2008), Witness H (17 July 2008) and Milovan Milović (18 August 2008). 86 Testimony by Bahrija Trebović (21 May 2008), Esad Humić (26 May 2008), Witness A (9 June 2008) and Emir Kljako (9 July 2008). 87 Testimony by Witness G (4 July 2008), Witness H (17 July 2008), Milovan Milović (18 August 2008) and Senad Šarančić (21 August 2008). 88 See testimony by Mirsad Bajgorić (4 June 2008), Šaćir Kljako (18 June 2008) and Miralem Trebović (16 July 2008).

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 The accused personally attempted to arrange “an exchange“ that included a transfer of non-Serb women and children from Nevesinje;89

 The accused personally perpetrated the criminal acts of murder and other inhumane acts in Nevesinje;90

 The accused held regular meetings with the chiefs of public security sectors who arrested, unlawfully imprisoned and forcibly transferred or deported the non-Serb population;91

 Local police chiefs were tasked at a Public Security Center meeting with arresting Muslim judges;92

 The accused either talked to the chiefs of public security sectors or tasked them with arresting all able bodied men of Muslim or Croat ethnicity in eastern Herzegovina.93 The accused subsequently noted in the 19 August 1992 report that Muslims were massively removed from Gacko, Bileća, Nevesinje and Ljubinje;94

 The accused filed situation reports to the Ministry of Interior relative to the imprisonment and transfer of the non-Serb population from that area.95

 The accused attended meetings at which security-related issues regarding the imprisonment of the non-Serb population were discussed.96

89 Testimony by Witness H (17 July 2008) and Milko Mučibabić (4 February 2009). 90 Testimony by Fadil Trebović (8 May 2008), Bahrija Trebović (21 May 2008) and Emir Kljako (9 July 2008). 91 Aleksandar Krulj’s testimony of 19 February 2009. See also T-95 and T-170, testimony by Jovo Čokorilo (22 January 2009) and Momčilo Zubak (4 September 2008) (evidence suggesty that the accused controlled and coordinated the work of chiefs of public security sectors in the SAO Herzegovina that included the municipalities of Nevesinje, Bileća, Kalinovik and Gacko). 92 Exhibit T-170, p. 420. 93 Exhibit T-170, p. 411. 94 Exhibit T-99. See also Bahidža Čustović's testimony of 18 June 2008 (regarding the disapperance of the Muslim population from Nevesinje). 95 See exhibits T-95 and T-104 (note: the accused filed the report verbally). See also Exhibit T-99. 96 Exhibits T-104 and 132.

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106. The Appellate Panel has accordingly found beyond a doubt that the accused, as Chief of the Trebinje CSB, participated in various criminal acts constituting the persecution of Muslims and Croats from the municipalities of Kalinovik, Gacko, Nevesinje and Bileća, as stated in the operative part of the Verdict's convicting part, and that he achieved a sufficient level of participation to be held criminally liable as a member of the JCE.

2. Mens rea

107. Trial Panel in Milorad Trbić described the mens rea element required for the basic form of JCE:

“… the accused must both intend the commission of the crime (this being the shared intent on the part of all co-perpetrators) and intend to participate in a common plan aimed at its commission. If the common criminal purpose involves the commission of a crime that requires specific intent, for example, persecution, then the participant must share that specific intent.97 However, shared intent, even specific intent, may be inferred.98

108. Trial Chamber in Prosecutor v. Momčilo Krajišnik explained the manner in which the mens rea element may be inferred from the accused’s conduct:

“The Accused's knowledge of events, acceptance of new circumstances, and general intentionality during the indictment period, are one area where inferences must be made. The information the Accused received during this period is an important element for the determination of his responsibility, because knowledge combined with continuing participation can be conclusive as to a person's intent.”99

97 In the case in question, the accused's awareness of persecution will be discussed in the section of the Verdict on crimes against humanity. 98 Milorad Trbić, para. 769. 99 Prosecutor v. Momčilo Krajišnik, Judgment, IT-00-39-T, 27 September 2006, para. 890.

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109. Evidence suggests that the accused was aware of the circumstances in the SAO Herzegovina and that he actively participated in their execution. The Panel notes that the Assembly of the Serb Republic of BiH adopted strategic goals of the Serb People on 12 May 1992, the first goal being “separation from the other two ethnic communities”. Thereafter, the accused's acts were in accordance with this policy.

110. The presented evidence unequivocally shows that the accused was involved in, among other things, arrests, interrogations, imprisonment and transfer of the non- Serb civilians from Nevesinje in June 1992. 100 The accused initiated meetings with the police chiefs in the SAO Herzegovina in July 1992 at which tasks/orders were issued, or discussions were held concerning the arrests of Muslim judges and all able-bodied men of Muslim and Croat ethnicity in the area of eastern Herzegovina.101 In addition, the accused noted in August 1992: “mass removal of Muslims from Gacko, Nevesinje, Bileća and Ljubinje and partially from Trebinje.”102 Finally, at a meeting in August 1992 the accused and the Minister of Interior discussed the arrest of 140 Muslims from Bileća and problems relating to their imprisonment.103

111. Furthermore, the accused noted in a report filed in September 1992 that they were documenting data and information on war crimes committed against the local Serb population.104 The Panel observes that no report was compiled about the crimes committed against the non-Serb population or any action taken to conduct an investigation into serious crimes committed against the non-Serb population of Nevesinje during the time the accused was there on a regular basis.105

112. In sum, the Panel notes that the accused, through his direct participation in unlawful arrests, imprisonment and removal of the non-Serb civilians in Nevesinje and other established criminal acts, demonstrated his intent to implement the persecution policy from the first strategic goal (removal of the non-Serb population). In addition, he failed to prevent or stop similar acts of persecution in Bileća, Kalinovik and Gacko

100 See footnotes 60 through 72. 101 Exhibit T-170. 102 Exhibit T-99. 103 Exhibit T-104; see also Exhibit T-94. 104 Exhibit T-98. 105 Testimony by Miodrag Kovač (27 August 2008), Rade Damjanac (17 September 2008), Željko Pašajlić (3 September 2008) and Milko Mučibabić (4 February 2009).

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albeit being aware of such acts; instead, he issued orders, plans and directives encouraging those activities throughout the SAO Herzegovina.

113. This Panel is therefore satisfied beyond a doubt that the accused possessed the requisite intent to commit a crime and participate in a common plan with a view to its implementation.

114. In sum, for the reasons stated above, the Panel concludes that the evidence shows beyond any reasonable doubt that the accused, by his participation in the JCE, committed the criminal offense of Crimes against Humanity.

B. MUTUAL EXCLUSION OF JCE AND CO-PERPETRATION AS MODES OF LIABILITY

115. The Panel finds it necessary to emphasize that the Indictment sets in parallel the joint criminal enterprise and co-perpetration. Specifically, the accused is charged with committing the offense as a co-perpetrator within the meaning of Article 29 of the CC of BiH, that is, that he, together with other members of the JCE, “acted discriminatorily with the common purpose” to persecute the non-Serb civilian population, that he “planned and ordered” persecution, “personally commanded the attacks by officers of the SJB against the civilian population”; consequently, that he participated in the JCE as a co-perpetrator.

116. However, in the view of this Panel, JCE and co-perpetration, as defined in Article 29 of the CC of BiH, are mutually exclusive and their coexistence is not possible. Specifically, Article 29 of the CC of BiH provides that: “if several persons who, by participating in the perpetration of a criminal offense or by taking some other act by which a decisive contribution has been made to its perpetration, have jointly perpetrated a criminal offense, shall each be punished as prescribed for the criminal offense.” Joint perpetration as defined by the legislator requires determination that several persons participated in the perpetration of an offense or took another act by which a decisive contribution has been made to its perpetration. Therefore, according to the definition of Article 29 of the CC of BiH, co-perpetrators are perpetrators in their own offense, so finding the elements of co-perpetration in the accused's acts requires that an account of facts of each individual co-perpetrator ensues from the

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Indictment's factual account, and that the acts committed be of such a gravity that the crime could not have been committed without them.

117. Furthermore, in accordance with the provision set forth in Article 32 of the CC of BiH, the accomplice shall be considered guilty within the limits set by his own intent or negligence – he is held liable proportionate to the degree of his own guilt. The liability of an accomplice is autonomous and it is not dependent on the extent of liability (if any) of other participants in perpetrating the same offense. In order to determine the guilt of each and every participant, indictment's factual account must include an account of acts of each of the participants, the acts which they perpetrated to commit the offense or otherwise substantially contributed to the perpetration of the offense. However, in the Panel's view, the accused's participation in perpetrating individual acts charged under the Indictment is not described adequately, rendering it impossible to unequivocally determine his conduct as a co-perpetrator.

118. Nonetheless, at this level it is necessary to consider the relationship between JCE, as a mode of participation in perpetration of an offense inferred from the provision of Article 180(1) of the CC of BiH, and co-perpetration, as defined by Article 29 of the CC of BiH.

119. It ensues from the explanation of the mens rea as an element of the basic form of JCE that a JCE requires the existence of “shared intent” on the part of all of its members. ICTY Appeals Chamber concluded that a participant in a JCE must share “the purpose of the JCE… and not only have knowledge of it”.106 Moreover, it is necessary to determine that the accused, as a participant in a JCE, made his contribution to the implementation of a common plan and that the contribution is significant. However, significant contribution is not equal to decisive contribution required for co-perpetration within the meaning of the provision of Article 29 of the CC of BiH. As noted above, to find an accused guilty under the JCE doctrine, the accused need not be present during the perpetration of the offense and the offense he is responsible for under the JCE need not be “his offense”. In contrast, co- perpetrators are always participants in perpetrating their offense. Furthermore, to find a person guilty as a co-perpetrator, the person's acts must constitute a decisive

106 Prosecutor v. Milan Milutinović et al., IT-05-87-PT “Decision on Ojdanić's Motion Challenging Jurisdiction: Indirect Co-perpetration”, 22 March 2006, para. 20.

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contribution to the perpetration of the offense. Decisive contribution is an important element of co-perpetration, without which the offense could not have been committed. In contrast, JCE does not require decisive contribution. More specifically, a person could be qualified as a participant in a JCE although that person's role in and contribution to the commission of the offense are not of such gravity to suggest that the crime could not have been committed without them.

120. It is precisely on the foundations mentioned above that a distinctive element precluding the coexistence between JCE as a mode of individual criminal liability and co-perpetration (at least not in the manner depicted by the Prosecutor in the Indictment) is built.

VI. INDIVIDUAL CHARGES

A. GENERAL FINDINGS ON COUNTS 1, 2, AND 3 OF THE INDICTMENT

121. The Panel concludes beyond a doubt that the Accused Krsto Savić participated in the JCE with several other persons including Minister Mićo Stanišić, chiefs of public security stations (SJBs), who were the Accused's subordinates by virtue of his function as the Chief of the Security Services Center (CSB) Trebinje, and the Commanders of the Herzegovina Corps and the Nevesinje Brigade. This is corroborated by the presented evidence.

122. The chronology of the events proves the existence of a general goal. The military and police forces, led and controlled by the chiefs of the SJB Gacko, SJB Bileća, SJB Nevesinje and SJB Kalinovik, followed an established pattern of imprisonment, deportation and exchange of all non-Serb civilians in these municipalities, with the detention camp in Bileća as the central facility for detention of civilians. The Defense did not dispute the majority of the events and the crimes committed in the territory of the Municipalities of Gacko, Bileća and Kalinovik, but it did dispute the Accused's contribution in these events. In corroboration of this averment, the Defense submitted that none of the eyewitnesses saw the Accused in this area or in the detention facilities which were undoubtedly established in this area. According to the Defense, the police and the civilian authorities were resubordinated to the military forces-units

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of the Serb Army during the relevant period, pursuant to the exhibit T-175 or the Defense exhibit O-15, and that the police was in the service of the military forces and as such was not consulted on anything and could not make any decisions.

123. The Appellate Panel finds the Accused liable for the crimes committed in the territory of the three mentioned municipalities, beyond a reasonable doubt, based on the testimony of the witnesses, who were also direct victims, and the documentary evidence, even though the Accused did not directly participate in the unlawful imprisonment and deportation of civilians. There is no doubt that the members of the SJB Gacko, SJB Bileća and SJB Kalinovik were in charge of undertaking all the activities, together with the military and paramilitary forces. Following a similar pattern, civilians were arrested by members of the active and reserve component of the police forces and taken to the public security stations where they were interrogated, unlawfully detained and subjected to mental and physical torture, only to be transported to one of the detention facilities, or in the majority of cases to the detention camp in Bileća. Many witnesses testified that they were taken to those facilities by the police and that for a while the policemen provided security in those facilities.

124. The Accused's participation must be associated with the mode of his liability. More specifically, it must be shown that he was involved in the crimes charged against him as a knowing participant of the JCE. The collaboration between the police and the military forces is analyzed in the part of the Verdict pertaining to the JCE. The Appellate Panel has established that this collaboration did not consist of a mere subordination of the police forces to the military forces, excluding any possibility of independent action and decision-making, but that it consisted of joint activities undertaken in agreement and within the framework of the JCE and its implementation. All activities were organized and coordinated by the police and the military forces107. Civilians were transported from the police stations, under the control of the chiefs of the public security stations, to the detention camp in Bileća, which was controlled by the military forces, upon the order of Krsto Savić, who in his capacity as the Chief of the CSB Trebinje disseminated the orders from Mićo

107 For cooperation between military and police forces see Prosecutor v. Momčilo Krajišnik, IT-00-39-T, ICTY, Trial Panel I, Judgement, 27 September 2006, para. 246. For the arming of „volonteer forces“ by JNA see para. 42 of the same Judgment.

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Stanišić, who was above him in the chain of command, to his subordinate chiefs of the SJBs. Civilians were admitted to the detention camp in Bileća without any problems. The Appellate Panel finds the testimony of Željko Pašajlić in this regard to be very informative and reliable.

125. Krsto Savić was not only aware of this process, whose final goal was persecution of non-Serbs from the territory of East Herzegovina, but he was also the main link in its implementation by virtue of his function. This follows from Exhibit T-104 about the meeting in Trebinje. During this meeting, the Accused reported about the problems with the placement of the detainees in the Bileća SJB. The Panel agrees with the Prosecution that this was not the Accused's expression of protest against the detention of these people, but rather a result of the pressure exerted by the international community.108 The SJB Kalinovik Work Report dated 18 August 1992 (T- 153) is very significant because in it the Accused was informed, in no uncertain terms, about the conduct of the police officers, the arrest of civilians and the crimes committed against civilians. The same applies to the Summary of Discussion (T-132), informing all members of the MUP leadership about the imprisonment of civilians, the CSB Trebinje Work Report, in which the Accused informed the Minister Stanišić about the number of police officers securing the collective centers and the notebook containing minutes from the meetings.

126. The Panel cannot establish, beyond a reasonable doubt, that the Accused was aware of each individual murder, rape and torture that occurred in these three municipalities and that he contributed, in any way, to the perpetration of these acts. The Accused's intent is drawn from his awareness of the common criminal plan, his acceptance and implementation of that plan, whose primary goal was imprisonment and deportation of non-Serbs. The Accused was undoubtedly aware of the imprisonment. He disseminated the orders and received reports about the imprisonment, but his role in other individual events can only be presumed, especially because he was not physically present at those locations and the communication lines were either disrupted or functioned poorly. The Indictment sets

108 “During this period, the Serb authorities, among them the Bileća police chief and Milorad [it should read Božidar] Vučurević, president of SAO Herzegovina, visited the detainees. Following a visit by the UNCHR in December 1992, the witness and a number of other detainees were released and transported, together with the families, in buses out of the municipality to Montenegro.“ Prosecutor v. Momčilo Krajišnik, IT-00-39-T, Trial Panel I, Judgment, 27 September 2006, para. 610.

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forth the Accused Savić’s intent too broadly to classify his participation in the JCE as „extended JCE“ (JCE III).

127. The Accused was charged with every foreseeable consequence of imprisonment and deportation committed by the individuals (members of the military and paramilitary formations) who were not under his control. In the chaos which prevailed at the time, it is unlikely that Krsto Savić was regularly informed about each murder, rape and torture committed in the detention facilities and camps, especially in view of the disrupted communication lines at the beginning of the war109, as explained by witness Aleksandar Krulj, whose testimony in this Panel's opinion was objective and detailed. That is why the Panel has omitted from the factual description the actions pertaining to the charges where the knowledge and awareness, or the guilt, of the accused were not established beyond a reasonable doubt.

128. This however does not imply that Savić did not participate knowingly in the implementation of the strategic goal - „separation from the other two ethnic communities“, which was at the very core of the common criminal plan to permanently remove the majority of non-Serbs from the Bosnian Serbs' territory. In order for this to be achieved, the Accused actively participated in the development and implementation of the said plan. This is corroborated by the fact established based on the consistent statements of many Prosecution witnesses who testified that Muslims were invited to surrender their weapons not only in Nevesinje, but also in Bileća, where weapons were seized from them.

129. The established fact that the weapons were seized from Muslims, mostly hunting shotguns for which in most of the cases they owned regular permits, and not from Serbs in the municipalities of eastern Herzegovina, whose arming was tolerated and even knowingly conducted110, of which Savić as the Minister of the Interior of SAO Herzegovina and Chief of CSB Trebinje was aware, personally spearheading such

109 The Appellate Panel was particularly careful in consideration of this matter and decided in favor of the Accused. Despite the saying that „all comparisons limp“, the Appellate Panel in analysing this situation took into account the negative example of the trial of the Japanese General Yamashito before the American Special Military Commission during 1945 (the US Supreme Court upheld the death penalty, even though Judges Murphy and Rutlege had a dissenting opinion). Yamashita was found guilty for not preventing the crimes, even though he did not excercise effective control over his troops, because the victor did everything to disable his command, control and communications. See Dr. Miloš Babić, International Criminal Law, Banja Luka, pg. 103 (2011). 110 See for example Prosecutor v. Momčilo Krajišnik, IT-00-39-T, Judgment, 27 September 2006, para 38-42.

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operations (that is why he went to the houses of the Trebović family in Nevesinje), undeniably attests to the discriminatory nature of his actions as a part of the attack against non-Serbs.

130. This corroborates the finding that the attack was not directed against individuals as private persons, but as members of a specific ethnic and religious community, with an aim of suppressing any resistance to the operations carried out by the Serb military and police forces, which possessed all characteristics of a widespread and systematic attack directed exclusively against the non-Serb civilians.

131. The Panel, accordingly, omits the part of the relevant counts (1, 2 and 3- Introduction), in which the Accused Krsto Savić is said to have exercised effective control over the members of the SJBs Gacko, Bileća and Kalinovik, through his subordinate chiefs of these SJBs, because this wording implies the key elements of command responsibility, which does not correspond to the Accused’s role and function at the time. This modification of the factual description is consistent with the legal qualification of the Accused's participation under Article 180(1) of the CC of BiH.

B. COUNT 1- GACKO - BY IMPRISONMENT

132. With reference to the Gacko charges, the Panel concludes that the Accused participated in the persecution of Bosniak civilians during the relevant time, in the second half of June 1992. The acts were perpetrated by the members of the SJB Gacko, through Chief Vojin Popović, who was the Accused's subordinate in the chain of command. The Accused knew that all able-bodied men were deprived of liberty and detained in the detention camps and he wanted the forbidden consequence of the joint criminal plan, namely persecution by imprisonment, to occur. The Accused intended to participate in the common plan with an aim of committing the criminal offence.

133. Considering that the Defense did not dispute the mentioned events, the Panel will briefly reflect on the relevant evidence. Several witnesses testified about the events which occurred in Gacko in late May and early June 1992. The Panel finds the testimony of Asaf Pošković, Ejub Krvavac, Šućrija Tanović, Enesa Hasanbegović,

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witness W, witness E1, and exhibits T-201, T-202, T-45, T-101 and T-102 to be the most relevant in this regard. These pieces of evidence are credible, consistent in the key parts, and together provide a comprehensive account of the events in the Municipality of Gacko. The statements of these witnesses form a logical sequence, with slight derogations which are to be expected given the differences in human perception and the time span. The Panel has taken into account the witnesses' assertion that they were not at odds with the Accused, and that some of them did not even know the Accused.

134. According to their testimony, arrests and imprisonment of Muslims started in late April and early May 1992. Among them was witness Ejub Krvavac, who, according to his testimony, was arrested by the members of White Eagles. What is particularly important for this case is his statement that he was held for seven days in the Gacko Police Station, during which time he was beaten almost regularly and that Vitomir Popić, the Deputy Commander of the Gacko PS, took part in those beatings. The fact that Ejub Krvavac was among the distinguished Muslims and an SDA delegate in the Gacko Municipal Assembly at the time was also relevant for the Panel.

135. According to the testimony of witness Asaf Pošković, hundreds of Bosniak men were rounded up in front of the Gacko Police Station, where they were held until all Bosniaks from Gacko were arrested. Thereafter, they were loaded on trucks and taken to the school in Avtovac (Gacko Municipality). They stayed there for three days, during which time they were guarded by the reserve component policemen. They were deprived of basic living conditions, water and sleep. From there, they were transferred to the basement of the Samački Hotel.

136. The witness further testified that there were around 160 of them confined in a dark and stuffy room in the basement of the Samački Hotel. While describing the conditions at the Samački Hotel, the witness stated that military forces were quartered there, but that the reserve component of the police forces was in charge of the detainees and he knew the man who was in charge of them very well. This was confirmed by witness Šućrija Tanović, who was brought to and detained in the Samački Hotel in the night between 18 and 19 June 1992. The statements of these two witnesses are fully consistent in the relevant parts, as both gave a clear and convincing account of everything that happened to them and everything that 64

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they saw in the Samački Hotel, including the transfer to the detention camp in Bileća.

137. The Panel concludes beyond a doubt, based on these statements, that more than 150 men were unlawfully detained in an inadequate room in the basement of the Samački Hotel in Gacko, from where they were transported on or about 29 June 1992 aboard truck trailers, under escort provided by the members of the SJB Gacko, to the detention camp in Bileća and detained there.

138. The Panel finds the Accused liable for some of the events laid out in the factual description of the Indictment, more specifically, the unlawful arrests and imprisonment, as a consequence of the plan of persecution of the non-Serbs civilians. His knowledge of and participation in the persecution of the Muslim population from Gacko, as a knowing participant of the JCE, follows from the Prosecution documentary evidence, to wit: Daily Occurrences Report dated 20 July 1992 (T-183), which in the part relative to the CSB Trebinje reads that the mopping- up operation of the area of Borča, Gacko, was underway, and the notebook (T-170) containing minutes from the briefings of the SJB chiefs (Vojin Popović regularly attended these briefings), during which the attendees reported about the security situation and other issues relevant to each municipality, as well as the entry in the notebook (page 02971430) that a group of 40 men was neutralized in Gacko, and the Decision to send a telex to the Command of the Serb Army and the Ministry to neutralize the remnants in Kula (Gacko Municipality). This is also corroborated by the Prosecution Exhibit T-99 dated 19 August 1992, which is an overview of the political and security situation in the AOR of the CSB Trebinje. The exhibit reads, among other things, that the operation of disarmament of the radical Muslims in the settlements of Kula and Borča has met armed resistance, thus creating an internal front, that during the fight a number of Muslims was captured, that the number of those killed was never really established, and that around 300 armed Muslims fled to the woods of the mountains of Baba and Zelengora. All this leads to the conclusion that the Accused was aware and took part in the imprisonment of Muslim civilians in the territory of the Gacko Municipality.

139. The Defense disputed that the Accused participated in any way in the acts charged against him by the Prosecution, alleging that the police was resubordinated to the military forces, and that defining jurisdiction and mutual relationships 65

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represented a serious problem during the relevant time, as confirmed by Exhibits O- 15, O-16, O-3 and O-4.

140. The Panel concludes that the referenced exhibits were one-sidedly interpreted by the Defense in a manner which suited them and did not prove the Defense's allegations. An example of this partisan interpretation by the Defense is the dispatch note of the Minister Stanišić (exhibit O-3), requesting from the CSBs and the SJBs to submit information about the prisons, collective centers and detention camps in the territory of the Serb Republic. The document reads „regardless of your jurisdiction, you are requested to submit...“ This does not lead to the conclusion that the sought information (about the detention camps, the number of prisoners, etc) was not in the jurisdiction of the Ministries and CSBs, as unfoundedly argued by the Defense, but rather that the reports of the mentioned authorities were also to include the detention camps and the detention centers which might not be in their jurisdiction, in order to obtain full data. The mentioned dispatch note, in the Panel's opinion, is a result of the pressure of the international community, which is evident from the penultimate paragraph of that document. On the other hand, this request by the Minister Stanišić confirms that the CSBs and the SJBs were relevant authorities which disposed of the information and were able to obtain information on the detention facilities in their AOR. The Panel therefore concludes beyond a doubt that the Accused, in his capacity as the Chief of the CSB Trebinje, was liable, at the least, for the imprisonment of civilians in the territory of the Gacko Municipality.

141. Accordingly, the Panel concludes that the Accused Krsto Savić committed the persecution of Bosniak civilians on ethnic and religions grounds by way of imprisonment, as alleged in this count of the Indictment.

142. However, the Panel cannot establish with certainty that the Accused was aware of the torture, murders, enforced disappearance, the conditions in the detention facilities, and that these acts were a foreseeable consequence of a plan. Therefore, the Panel omits these charges from the factual description. More specifically, the Panel cannot establish beyond a reasonable doubt that the Accused was responsible for

...“ confinement of men [by the members of the Gacko SJB] in inhumane 66

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conditions, without adequate accommodation and medical care, subjecting them to everyday physical abuse when taking them to night-time interrogations, allowing other soldiers to freely enter the premises with the detainees who were beaten with different hard objects on such occasions; in these detention facilities Osman Omanović, Miralem Voloder, Mirsad Džeko, Edhem Šahović, Aziz Fazlagić, Arif Jaganjac and Latif Halilović were killed, as well as Aziz Hasanbegović and Enver Redžović who are still unaccounted for…”

143. There is no doubt that these acts of torture, murder and enforced disappearance were committed as described in the Indictment and confirmed by the Prosecution witnesses, who were also victims of the alleged crimes, in their consistent testimonies. Witnesses Asaf Pošković and Šućrija Tanović gave a consistent, clear and convincing account of the acts described in the factual description.

144. The Defense did not contest these acts, only the Accused's participation in them. In that regard, the Defense well-foundedly invoked the testimony of Šućrija Tanović who stated that according to his information one Sušić fired a weapon and that the person by the last name Osmanović was killed by a ricochet. This witness also stated that Mikan Govedarica killed Aziz Hasanbegović when the detainees were being loaded on trucks bound for Bileća and that one Memić was killed on the occasion as well. The Defense has thus shown that the identities of some of the direct perpetrators of the alleged crimes are known.

145. Accordingly, the Appellate Panel cannot conclude with certainty, based on the adduced evidence, that the Accused was aware of the mentioned acts or consented to them, and did not do anything to prevent them, as explained in paragraphs 126 and 127 herein. Therefore, the Panel has to omit the part concerning these criminal acts from the factual description.

C. COUNT 2 – BILEĆA – BY IMPRISONMENT AND DEPORTATION

146. The Panel gives full credence to the testimony of witnesses Mensud Bajramović, Suad Bajramović, and Enver Avdić, who testified about the events in Bileća during 1992, finding them to be logical, consistent and mutually corroborated. All three witnesses were suspended from work at their respective companies because they did not answer the mobilization call-up. In their testimony, all three witnesses 67

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described how the majority of Muslims were arrested in Bileća on 10 June 1992 and 19 June 1992, and asserted that the arrests were carried out by the active and reserve component of the police forces and other individuals wearing uniforms whom they did not know, that they were secured by the regular and reserve police forces while detained, that they were arrested unlawfully and for no particular reason and interrogated, physically abused and confined in inadequate rooms without proper sanitation and water, until 5 October 1992, when they were deported only because they were Muslims. Witness Mensud Bajramović recognized the reserve policemen who arrested him, one Slavko Radovanović and Vukoja, son of Zvonko.

147. The witness further described how the Commander of the Bileća PS, Miroslav Duka, requested from one of the prisoners, Ismet Bajramović, to write down the names of all the men who were not captured and to disclose their whereabouts. Mensud Bajramović testified that he was taken outside the duty officer's room in the Bileća PS during the night, whereupon he was interrogated, beaten and confined in a solitary cell. He was beaten on two other occasions in the similar manner shortly thereafter. He was detained at the Bileća PS for seven days and then transferred to another location. According to his testimony, while he was detained there the guard duty was discharged by the members of the reserve component of the police forces, of whom he knew Branko Rogan and Mladen Mićunović.

148. The testimony of witness Enver Avdić is almost fully consistent with the testimony of witness Suad Bajramović. In his testimony Suad stated that he was detained in the Bileća PS sometimes in the morning hours and that all detainees were transferred to the military barracks Ivo Lola Ribar on the same day, at around 18:00 hrs. Witness Enver Avdić stated that when he was brought and detained in the Bileća PS around 7 o'clock the room was empty, and that he heard that a group of prisoners was transported to the military barracks Ivo Lola Ribar on the previous day.

149. Witness Mensud Bajramović testified about the deportation of the detained civilians from the mentioned detention facilities - Pupil's Dormitory and the Bileća SJB, to Montenegro. In his testimony he confirmed that a number of prisoners were deported to Montenegro together with their families after he left, while 37 prisoners remained in detention until mid-December 1992. The events concerning the deportation were described also by witness Suad Bajramović who added that Miroslav 68

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Duka, the then Commander of the Bileća PS, took part in the escort of the column to the state border with Montenegro.

150. The testimony of these two witnesses was confirmed by witness Enver Avdić, who also stated that a number of prisoners from the Pupil's Dormitory were deported to Montenegro with their families and could not stay in Bileća even if they wanted.

151. Taking into account the testimony of these three witnesses, to whom the Panel gives full credence, finding them to be logic, consistent and very convincing, especially in light of the fact that the relevant events occurred more than 18 years ago, the Panel concludes beyond any reasonable doubt that the members of the Bileća PS, from mid-June until the end of 1992, took part in the persecution of Bosniak civilians in the Bileća Municipality by the unlawful arrest of able-bodied men, imprisonment of around 150 of these men in the detention camps formed on the premises of the Bileća SJB and the Pupil's Dormitory, and the deportation of nearly half of the prisoners with their families to Montenegro, under police escort, on or about 5 October 1992.

152. All the detained civilians were arrested against their will and unlawfully, and none were informed about the reasons for their arrest, nor was the necessity of those arrests ever discussed in court or administrative proceedings.

153. It is also clear that almost half of the detained civilians were forcibly deported, or were forced, against their will, with their lives threatened, to leave their homes and the town of Bileća under police escort, and cross over to the territory of the Republic of Montenegro. The reason for their transfer was not their personal safety, because they were the very target of the attack, and they were deported by the forces who participated in a widespread and systematic attack against them. Finally, they were forcibly transferred from the territory on which they had lived for decades to the locations they did not choose.

154. The Accused's subjective attitude towards the crimes and his awareness of all objective elements of their perpetration is also clear. It cannot be interpreted as mere execution of orders or exercise of official duties. The Accused had reason to know, by virtue of his office, that the severe deprivation of physical liberty, 69

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imprisonment lacking legal grounds and transfer of only Bosniak civilians from Bileća was unlawful. He acted with intent. Finally, these acts are forbidden by all civilized nations and in all legal systems and represent grave breaches of international humanitarian law and the applicable regulations, and no perpetrator of such offences can be exculpated.

155. The Accused Savić took part in the established acts with a discriminatory intent and thus committed the criminal offence of persecution. Prosecution Exhibit (T-104) concerning the meeting in Trebinje, during which the Accused reported about the problems with the placement of detainees in the Bileća SJB, and the conclusions from the meetings chaired by Krsto Savić (notebook), and numerous dispatch notes, reports and other documentary evidence (see relevant part concerning JCE) prove that the Accused was truly aware of what was happening to the civilians in the territory of this municipality.

156. These actions undertaken by the Accused, coupled with his discriminatory intent, contain all key elements of persecution by imprisonment and deportation.

157. Similar to the previous count, the Panel omits from the factual description the torture of the detained civilians, even though it has undoubtedly occurred, because the Panel cannot establish with certainty that the Accused was aware of it and that he participated in it. Namely, the Prosecution did not prove beyond a doubt that the Accused was responsible for the detention of the civilians who were

„.held on inadequate premises, without food, which was brought to them by their family members, without proper conditions to meet basic hygienic needs, without appropriate medical care and sufficient water, where they were exposed to torture by the Bileća SJB policemen.”

(See also paragraphs 107-114 about the subjective elements on the part of the Accused as a participant in the JCE).

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D. COUNT 3 – KALINOVIK

158. With respect to the Kalinovik charges, the Panel concludes that the Accused took part in the persecution of Bosniak civilians, which was perpetrated by the members of the SJB Kalinovik, functioning as a part of the CSB Trebinje, through his subordinate Chief Boško Govedarica, and that he knew that all able-bodied men from Kalinovik and the neighboring villages were being arrested (sub-count b), and that the civilians, including women and children (sub-counts c and d) were arrested and detained in the detention camps and facilities, as a part of a joint criminal plan, and that he wanted the forbidden consequence of that plan, persecution by imprisonment, to occur.

159. The Defense did not dispute that the events under Count 3 of the Indictment, which deals with the events in Kalinovik, took place. The Defense only disputed that the Accused, either through his actions or omissions, contributed to these events.

160. The Panel finds the Accused guilty of the acts described under paragraphs 3a, 3b, 3c of the operative part of the Verdict (3b, 3c and 3d of the Indictment).

161. It follows from the documentary evidence, more specifically the SJB Kalinovik Work Report (T-153) addressed to Krsto Savić, that the arrested civilians were held in Kalinovik. It is also clear that Boško Govedarica attended the meetings with Krsto Savić during the relevant period, to wit: on 7 August 1992, only two days after the detained men in Kalinovik were killed, on 14 August 1992 and 28 August 1992, which shows that the Accused was informed about the events in this area, or at least about the imprisonment of civilians. With reference to the subjective element (mens rea), the Panel has already provided an explanation in the part pertaining to the general elements of the offence and the Accused's mode of liability as a participant in the JCE.

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1. Paragraph 3a) (Count 3b of the Indictment) – by imprisonment

162. The Accused was charged under this Count of the Indictment with the acts directly perpetrated by his subordinate members of the SJB Kalinovik who on 25 June 1992 and the following days organized and conducted the arrest of all Bosniak men in Kalinovik and the neighboring villages of Mjehovina, Jelašca and Vihovići, detained the arrested civilians in the gym of the Miladin Radojević Elementary School, where the civilians were guarded by the Kalinovik SJB policemen and where they stayed until 7 July 1992 or around that date, when the policemen organized the transfer of the detained Bosniaks from the Miladin Radojević Elementary School, in which the detained civilians could be freely visited by their families and delivered food and clothing by the families, to the Barutni magacin camp, a military facility controlled by the army, secured by barbed wire and mines and guarded by sentries, so, on 5 August 1992, all the detained men, at least 62 (sixty two) of them, were loaded onto trucks and transported under police escort and executed by firing squad at the place called Ratine and in the locality of the Miljevina tunnels.

163. Based on the testimony of the witnesses, primarily Fejzija Hadžić, Danilo Đorem, Milivoje Feladžić, Miloš Crnjak, Milan Lalović, Elvir Čusto, Džemila Redžović, Zlatka Hadžić, Rusmir Rogoj, Dika Suljić, and Miloš Veletić, the Panel concludes beyond a doubt that the Accused took part in the detention of the arrested civilians, but not in their execution, as explained below.

164. Witness Fejzija Hadžić gave a detailed account of the arrest which occurred on the referenced date. According to his testimony, Muslim men from Kalinovik, who were under the obligation of reporting to the Kalinovik PS, were summoned to report to the town hall on 25 June 1992, as confirmed by Exhibit T-154, to be assigned to duties in Šumarstvo. Instead of receiving their assignments, they found themselves surrounded by policemen, after which they were detained at the Miladin Radojević Elementary School. This testimony was confirmed by witness Milivoje Feladžić, who stated that he was one of the policemen who delivered the summonses and that the residents of Jeleč, who responded to the summonses, were detained at the Miladin Radojević Elementary School, which was secured by the police. Miloš Veletić, 72

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according to his own testimony, was a reserve policeman at the time and played the same role in these events.

165. The Defense referred to the testimony of Dragan Cerovina, who testified that the SJB was placed under the command of the military forces led by Ratko Bundalo and that from thereon they were under the military command for all assignments outside the police building. However, such averments were not sufficient for the Panel to exclude any responsibility of the police forces for the crimes alleged in the Indictment during that period. It is clear that members of the police forces arrested Bosniak men, detained and secured them in the detention facilities. All that was done with the knowledge and upon the orders of their immediate superiors, namely Chiefs Boško Govedarica and Krsto Savić, against the backdrop of a firm alliance between the military and police forces in the implementation of the criminal goal.

166. The Panel determines the direct participation of the police members subordinated to Krsto Savić and the scope of the Accused's guilt, acquitting him of the charges involving the events that followed after the arrested civilians were taken to the Barutni magacin detention camp, which was under the military control, and for the murders committed at the location of the Miljevina tunnels. Therefore, the following part of the factual description is omitted from this paragraph of the operative part of the Verdict:

„on 5 August 1992, all the detained men, at least 62 (sixty two) of them, were loaded onto trucks and transported under police escort and executed by firing squad at the place called Ratine and in the locality of the Miljevina tunnels.”

The aforementioned military commander Ratko Bundalo has already been convicted on the same charges in a final verdict.111

167. As it is undisputed that the alleged criminal offence was committed, and that the Accused was aware of it and wanted its consequences to occur, and considering his role in the persecution plan to which he agreed, as described in the general part above, it is clear that the described imprisonment of civilians was a part of the joint criminal plan in which the Accused played an important role.

111 Bundalo et al, X-KRŽ-07/419, Appellate Panel, Verdict, 28 January 2011.

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168. Bearing in mind that the target of the attack were Bosniak male civilians fit for work, who were never made part of any proceedings relevant to their detention and were never informed about the actual reasons for their arrest and were never shown any decisions based on which they were ordered into custody, the Panel concludes that the described acts were committed with a discriminatory intent and that the Accused thus committed persecution by way of imprisonment.

2. Paragraph 3b) (Count 3c of the Indictment) – by imprisonment

169. The Panel concludes, as with the previous count, that the alleged acts were undoubtedly committed, considering that the events were not disputed by the Defense, and shall provide reasons for its conclusions accordingly.

170. The events outlined in this sub-count of the Indictment and the Verdict, which occurred in early July 1992, were described by witnesses W, Danilo Đorem, Enes Hasanbegović, Milan Lalović and E1, while witness Fehma Kadić’s testimony was read out for the reasons already explained in the Verdict. These witnesses provided a thorough and consistent account of the arrest of at least 200 Bosniak civilians, mainly women and children, and a small number of men from the Municipalities of Gacko and Nevesinje, by the members of the Kalinovik SJB, their detention in the school in Ulog where they were guarded by the policemen of the Kalinovik SJB with the army, and from where they were transported to the Miladin Radojević Elementary School and placed on the ground floor of the building, in the gym, the staffroom and one classroom, while the building where they were placed was guarded by members of the SJB Kalinovik.

171. The Panel gives full credence to the testimony of these witnesses about the facts established in this paragraph of the operative part of the Verdict, save for the testimony of the members of the SJB Kalinovik in the part concerning their position in that station, because they could incriminate themselves it they testified about that.

172. Witnesses Fehma Kadić, W, Enes Hasanbegović and E1 gave an identical account 74

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of how in early July 1992 they found themselves in the village of Tuhobići where at least 200 of them, civilians, were captured by the army, loaded on trucks and detained in the school in Ulog.

173. Based on the testimony of witnesses Fehma Kadić and Dragan Cerovina, the Panel concludes that the police took part in the guarding of the civilians in the school in Ulog and that the detained civilians were transferred on the following day to the Miladin Radojević Elementary School in Kalinovik, where they were guarded by the reserve and regular police. These events were described by witnesses Danilo Đorem and Milan Lalović who confirmed that the civilians brought to and detained at the Miladin Radojević Elementary School, after male detainees who had been detained there were transferred to Barutni magacin, were mostly from Gacko, while witness Dragan Cerovina underlined that the detained civilians were secured by his police platoon in the school.

174. It is clear and undeniable that the Kalinovik SJB members were involved in the described events, following a consistent pattern, of which the Accused was certainly aware, at least through his subordinate Boško Govedarica, Chief of this SJB.

175. Mindful of the above, as well as the testimony of the witnesses to whom this Panel gives credence, the Panel concludes beyond any reasonable doubt that the Accused was aware of the persecution committed by the members of the Kalinovik SJB and wanted it to be perpetrated, which makes him a perpetrator of the persecution of at least 200 Bosniak civilians from the territory of the Municipalities of Gacko and Nevesinje by way of imprisonment.

3. Paragraph 3c) (Count 3d of the Indictment) – by imprisonment

176. As regards this count of the Indictment, the Panel finds beyond a doubt that on 1 August 1992, members of the Kalinovik SJB took part in an attack on the Bosniak civilian population of the village of Jelašca, Kalinovik Municipality, in which at that time only women, children and a small number of the elderly lived; the Kalinovik SJB policemen surrounded the village and captured all the women and children and 75

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detained the captured civilians in the Miladin Radojević Elementary School on the premises on the upper floor of the school; on the same night, the remaining civilians from Vihovići, Mjehovina and other neighboring villages, except for the elderly who could not walk across the hill, fled the attack and left the Kalinovik Municipality.

177. Testifying about the events in the village of Jelašca were Fejzija Hadžić, Mirveta Pervan, Danilo Đorem, Milivoje Feladžić, Zlatka Hadžić, and Dika Suljić, the photographs depicting the demolished Muslim houses in the village of Jelašca (T- 156), and the missing person certificate to the name of Dervana Pervan (T-200).

178. The Panel concludes that the events described in Count 3d) of the Indictment occurred beyond a doubt, based on the testimony of the mentioned witnesses. What is disputable, however, is the contribution and participation of the police members in the alleged acts, which is an important fact directly affecting the Accused's liability.

179. The Panel gives full credence to the testimony of witness Danilo Đorem, who gave a very convincing account of his participation as a police officer with a group of policemen in the arrest of Muslim civilians from the village of Jelašca. The witness was given an order that day by the Chief of the SJB Kalinovik, Boško Govedarica, to go and arrest „women and elderly in Jelašac“ together with several other members of the police forces. On that occasion he saw members of the military forces, whose activities were unknown to him. He only knew that they were deployed in the area. After they arrested the civilians – elderly men, women and children, around 15-20 of them, the policemen, including the witness, escorted them towards the detention camp referred to as Barutni magacin. On their way there, upon climbing a hill, as the witness described, they heard shooting from the direction of the Badnjareve houses and they saw two houses of the Pervan family on fire in the hamlet of Karaula. The arrested civilians were loaded on two trucks at Barutni magacin and taken to the Miladin Radojević Elementary School in Kalinovik and detained there. Dragan Cerovina also testified about the arrest of the civilians in the village of Jelašca based on his direct knowledge.112 It can be inferred from his testimony that he heard that

112 Dragan Cerovina (1 October 2008).

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some members of his platoon (police) received an order around 1 August to “go to Jelašca and arrest people”.

180. Finally, the Panel concludes based on the testimony of witness Zlatka Hadžić that the remaining civilians from the villages of Vihovići, Mjehovine and other villages, save for the elderly persons who could not walk across the hill, left the Municipality of Kalinovik, fleeing the attack.

181. Having analyzed the adduced evidence, the Panel concludes beyond a doubt that the police forces arrested and detained the civilians from the village of Jelašca, upon the order of the SJB Kalinovik Chief, Boško Govedarica. Bearing in mind that the civilians were arrested and detained by members of the SJB Kalinovik, through Chief Boško Govedarica, who was the Accused's subordinate, the Accused’s actions contain all the key elements of the criminal act of persecution by way of imprisonment.

182. The torching of houses and the artillery attack described under this count of the Indictment were additionally confirmed by witnesses Fejzija Hadžić, Milivoje Faladžić, Zlatka Hadžić, and Dika Suljić. Some of these witnesses stated that they saw the houses on fire in Jelašca on 1 August. According to Fejzija's testimony, the houses were set on fire by the grenades fired from an anti-aircraft gun mounted at the location of the Badnjareve houses. Witness Zlatka Hadžić also stated that she heard the shooting coming from the village of Jelašca and that she saw the houses on fire. This was also confirmed by the witness Dika Suljić. Witness Mirveta Pervan, who was only 5 at the time, described how her grandmother Derviša Pervan was killed in the attack on the village of Jelašca, while she was wounded and survived. However, none of the witnesses stated that the police forces were involved in the artillery attack and its consequences.

183. Accordingly, the Panel cannot conclude with certainty that the police forces were involved in the mentioned event, in the part relative to the military attack and the use of heavy artillery, or more specifically, in the wanton large-scale destruction of property unjustified by military needs, intimidation and terror, murder of Derviša Pervan, inflicting injuries upon her granddaughter Mirveta Pervan, as consequences of that artillery attack, and therefore omits from the factual description of 77

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the Indictment (Count 3d) the part as follows:

„and set the Bosniaks’ houses on fire, while members of the Serb army provided artillery support to the attack by opening fire from an anti-aircraft gun deployed in the region of Brdo near the Badnjareve houses, on which occasion they killed Derviša Pervan in the hamlet of Karaula and wounded girl Mirveta Pervan and set on fire all houses in the hamlet with incendiary bullets… Derviša Pervan’s body was hidden in an unknown locality so that she is still unaccounted for.”

184. Even though the Panel concludes that there is no doubt that the arrest and the detention of Bosniak civilians from the village of Jelašca took place based on the adduced evidence, it cannot make the same conclusion about the omitted part of the factual description of the Indictment. None of the witnesses who testified about this event confirmed the participation of the police forces in the torching of houses, or any connection between the police forces and the military forces, whose members undoubtedly launched the artillery attack, and the consequences of that attack.

E. COUNT 4. – NEVESINJE 1. Paragraph a) – by murder and imprisonment

185. Based on the presented evidence, the Appellate Panel concludes that the Accused Savić, leading a group of the SJB Nevesinje members, came to the front yard of the house of Redžo Trebović and called everyone to come out. Once Redžo Trebović and his wife Bahrija, Barjo Mahinić and Fadil Trebović with their wives came out, Krsto Savić led Redžo in the direction of the garage and fired from a Heckler at Redžo's lower limbs, causing Redžo to fall down, whereupon he did not let anyone approach Redžo and render assistance to him for a fairly long time, but ultimately allowed Redžo's brother Fadil and Redžo's wife Bahrija to drive Redžo to the Health Center in Nevesinje where Redžo was pronounced dead. His body has never been found and he is registered as a missing person. On the same day, the police members arrested Bajro and Fadil and detained them in the SJB Nevesinje.

186. This factual description of the event, in its important parts, was confirmed by the eyewitnesses Fadil Trebović and Bahrija Trebović in their consistent statements.

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187. Both witnesses gave a detailed account of the event that occurred on 16 June 1992 in front of the houses of the Trebović family. On the mentioned day, Krsto Savić arrived there by a police car with a group of other policemen from the Nevesinje Police Station. They called the members of the Trebović family to come out. The Accused was armed. Bahrija testified that Krsto called Redžo to come forward, while she was told to stay behind. They asked him about the weapons, whereupon the Accused led Redžo in the direction of the garage where he fired a burst of fire at his leg. This action was not disputed by the Accused, who stated that he fired instinctively, unaware that the fire selector switch was set to full-auto.113 Considering that the Accused Savić stated that he fired from a Heckler, the Appellate Panel amended the operative part of the Verdict and replaced the wording „from un unidentified weapon“ with „from a piece of weapon called Heckler“. Witness Fadil gave an identical account of the mentioned event and described the weapon used on the occasion as follows: „in a fleeting second he (Savić) grabbed the small, short rifle, an automatic one, and shot my brother who screamed „Krsto, you killed me!“.

188. Witness Bahrija stated that Savić did not allow her to approach Redžo, but she did so eventually when the Accused ordered her to go and bring a bed sheet. Witness Fadil brought a car and they put Redžo in it. None of the present persons wanted to help them. Thereafter, the Accused allowed Redžo's brother Fadil and Redžo's wife Bahrija to drive Redžo to the Health Center in Nevesinje, where Redžo was pronounced dead.

189. The Defense argued that the death of Redžo Trebović was a result of the Accused's negligence and not his intention to kill him. However, this explanation is not acceptable in the Panel's opinion, in light of the fact established based on the evidence, that the Accused singled out Redžo, who was unarmed, as his target when he fired from the automatic weapon. The fact that Redžo bled out and subsequently succumbed to his injuries does not have any bearing on the cause and effect link between the acts that comprise this incident, which was the sole responsibility of the Accused.

113 Closing Arguments of the Accused Krsto Savić dated 31 March 2011.

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190. The eyewitnesses of this event, Fadil Trebović and Bajro Trebović, also testified about the arrest. Fadil was escorted by Milko Mučibabić to the building of the Ministry of the Interior and while he was detained in a cell they also brought Bajro Mahinić there. These arrests were confirmed by Bahrija Trebović.

191. The Panel omits from the factual description of the operative part of the Verdict the wording of the Indictment: „...when leaving the Trebovićs’ front yard the police members set Redžo’s house on fire…”, or more specifically the act of wanton large- scale destruction of property unjustified by military needs. Witness Bahrija stated that when she returned the house had been burned down and her neighbors told her that Krsto did it and she added that they could not explain how that came to happen. Having analyzed this part of her testimony, the Panel finds that Bahrija did not witness the burning of Redžo’s house, and that she named the Accused as a person involved in that act based on what she heard from others, a hearsay, which was also imprecise, and as such unconvincing for this Panel.

192. Having taken under advisement the facts established above, the Panel concludes beyond any reasonable doubt that the actions of the Accused contain all required key elements of persecution by way of murder and imprisonment.

2. Paragraph b) – by murder, imprisonment, other inhumane acts of a similar character and enforced disappearance of persons

193. Under this count of the Indictment, the Prosecution charged the Accused that on 16 June 1992 and in the following days he was in charge of the attack by the Nevesinje SJB police forces against the Bosniak civilian population in the Nevesinje Municipality, on which occasion a large number of civilians were unlawfully arrested; the civilians brought by the police, military and paramilitary formations were separated in front of the SJB building, men were detained on the SJB premises and women were separated and detained on the premises of the tools factory called Alatnica; the men detained in the SJB were subjected to physical abuse by being hit with different objects all over their bodies; during the abuse Mujo Ćupina, Meho Ćatić and Adem Mrndžić were extensively bleeding in the region of their heads; Nafija 80

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Ramović tried to escape but was killed during the attempt in the vicinity of the Nevesinje SJB; the bodies of two civilians lay motionless in the courtyard of the SJB, while the body of Nafija Ramović, as well as the bodies of Mujo Ćupina, Meho Ćatić, and Adem Mrndžić, have never been found and they are still unaccounted for, while in the following days, the other detained men, at least 20 (twenty) of them, were transported under the escort of the Nevesinje SJB policemen to the Bileća camp and detained there.

194. This is confirmed by many witnesses, including Fadil Trebović, Bahrija Trebović, Fahira Ramović, Zumreta Humo, Mirsad Bajgorić, Esad Humić, Salko Trnovac, witness A, witness B, Šaćir Kljako, witness G, Emir Kljako, Maida Ćupina, Miralem Trebović, witness H, Željko Pašajlić, Željko Kovačević, Dušan Soldo, and Milan Đerić.

195. The Panel notes that the phrase „commanded“ in this sub-count of the Indictment and other charges in which it was mentioned has been omitted from the operative part of the Verdict, as explained in paragraph 57.

196. As regards the unlawful detention of civilians, witnesses Fahira Ramović and Zumreta Humo stated that on 16 June 1992 a group of policemen came to their house. Nafija Ramović opened the door and they walked him out of the house and detained him subsequently at the SJB Nevesinje without any explanation. Thereafter, they were ordered to come out of the house so that it could be searched. Witness Mirsad Bajgorić also described how he was arrested on 16 June 1992. He stated that a group of people came to his door, including Mileta Mučibabić. They told him that someone reported hearing shots fired from the direction of his house. After some time, one of them asked him to accompany them and they took him to the Nevesinje PS. He was interrogated and beaten there, after which he was released.

197. Witnesses Esad Humić and Salko Trnovac stated that they were arrested and detained in the SJB Nevesinje on the same day. Witness Esad Humić was picked up by a police car, he was handcuffed and taken to the SJB. He was released after he was interrogated (Krsto Savić was in the room) and told that he would be under constant surveillance. Witness Mirsad Bajgorić aka Điđan was taken to the SJB Nevesinje, according to his testimony, where he was beaten by the person 81

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nicknamed Jogi and detained in a solitary cell.

198. Witness H testified that on 16 June 1992, an attack was launched on Bakračuše and around 15 people, himself included, were arrested and taken in front of the SJB Nevesinje where Krsto Savić ordered that they be taken to Alatnica, on which occasion the men were taken off the trucks. All witnesses who were also victims of the alleged crimes confirmed that they were arrested on 16 June 1992 or in the following days by the police forces, military and paramilitary formations, and detained in the SJB Nevesinje.

199. Many witnesses, including witness H, Milovan Milović, witness I, Senad Šarančić, and Mirsad Bajgorić, gave consistent statements that the Accused Krsto Savić was present in the SJB Nevesinje during the relevant period, and that he personally issued orders for the separation of civilians and detention of women in Alatnica. The transportation of men to the detention camp in Bileća, mentioned by these witnesses, is accepted by the Panel as truthful. These actions of the Accused contain all the key elements of persecution by way of imprisonment.

200. Mujo Ćupina, Meho Ćatić and Adem Mrndžić were undoubtedly among the detained civilians in the SJB Nevesinje, as confirmed by Mirsad Bajgorić aka Điđan, Fadil Trebović and Bahrija Trebović, who were also detained there and could hear their screams and see that they were in a very bad condition. Bahrija Trebović was adamant in her testimony when she said that she recognized the voice of Mujo Ćupina as he screamed from the beating, and had no doubt that it was him, because they called him by his name and he was the only one „calling to prayer“. Fadil Trebović testified that he first heard Mujo in the hallway and later, after they walked them out, he saw Mujo Ćupina in a beaten-up state as two persons were walking him out of the room. He was bleeding from his head and the witness was under the impression that his ears had been cut off, and his hands were tied. Mileta Mučibabić came out and the Accused told him something. After that, they walked Meho Ćatić and Adem Mrndžić out of the room.

201. In its closing argument the Defense challenged the credibility of Fadil Trebović's testimony in the part in which he described how Meho Ćatić and Adem Mrndžić were walked out of the police building. In his testimony before the Trial Panel this 82

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witness stated that the police dragged them down the stairs and that they were hitting their heads against the stairs in the process, but in his statement dated 27 March 2007 he stated that Adem and Meho had walked out, surrounded by policemen, which implies that they did not hit their heads against the stairs. The Panel finds that this discrepancy in Fadil Trebović's account does not compromise his testimony about the unlawful detention of the civilians, which was not contested by the Defense. The disputable detail about the manner in which Meho Ćatić and Adem Mrndžić left the police building is not relevant and as such is not referred to in the operative part of the Verdict.

202. Even though the Defense insisted on the part of Fadil Trebović's testimony in which he mentioned witness Dušan Soldo, who claimed that Mujo Ćupina was never brought to the police station, but was, according to his information, escorted by a paramilitary formation through Nevesinje, the Panel finds that none of the other witnesses, save for witness Soldo, mentioned this particular detail, while many witnesses, including Mirsad Bajgorić, Fadil Trebović and Bahrija Trebović, gave consistent evidence about this incident, as explained above. The same applies to the testimony of Željko Kovačević who stated that he saw Ćupina in front of the SJB Nevesinje. The Panel gives full credence to the witnesses who were detainees themselves, taking into account all aspects of their testimony in which they described, rather convincingly, how certain details became etched in their memory.

203. Mujo Ćupina, Meho Ćatić, and Adem Mrndžić were loaded on a Pitzgauer vehicle after they were tortured and have been missing ever since.

204. It undoubtedly follows from the testimony of the three witnesses mentioned above that Krsto Savić saw the condition in which Mujo Ćupina, Meho Ćatić, and Adem Mrndžić were back then, and instead of undertaking steps to provide them with medical assistance he told others to take them outside while they were still alive, which implies that he intended for the forbidden consequences to occur.

205. The Panel concludes, based on the presented evidence, that the described treatment of the three victims by the Accused contains the key elements of persecution by way of other inhumane acts of a similar character, intentionally causing great suffering or serious injury to body or to physical or mental health and by enforced 83

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disappearance of persons. More specifically, the gravity of this act is similar to that of other acts provided for in Article 172(1) of the CC of BiH. This intentional treatment of the detained civilians by the Accused and his subordinates inflicted upon them severe mental and physical suffering or injury and constituted a serious attack on their personal dignity. Namely, the abuse and severe beatings of the prisoners, taking into account their status and the Accused's domineering position and the power he had over them at that moment, constitutes not only severe physical suffering and injury, but also mental suffering. The Accused was in a position to prevent this treatment of the victims by his subordinates. This treatment was also a serious attack against the victims' personal dignity, especially in view of their helplessness.

206. Considering that the three victims were detained and taken away, never to be seen again (of which the Accused was found guilty), and that the Accused, at that time and in that place, personified the institution which implemented the state policy (state's approval or consent), refusing to take notice of these arrests or provide information about what happened to these people, the Panel concludes beyond a doubt that the Accused's intention was to deny legal protection for a long period of time to those who were taken away. The bodies of the mentioned persons were never found and they are still reported missing, which makes up the key elements of the criminal act of enforced disappearance of persons.

207. Having taken into account the statements of witnesses who testified about the events in the SJB Nevesinje during the relevant time, which are consistent and mutually corroborated in the important parts, including the testimony of the police officers Dušan Soldo, Željko Kovačević, and Željko Pašajlić, the Panel concludes that Nafija Ramović was killed when he tried to escape from the SJB Nevesinje where he was unlawfully detained. Some discrepancies in the testimony of these witnesses about the day when Nafija was killed were not important for the establishment of this fact.

208. The Panel makes the same finding with reference to the Defense's submission about the distance between the SJB building and the victim's body, and the argument that

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the person who killed him was not a police officer.114 The Panel concludes beyond any reasonable doubt that the civilian Nafija Ramović was killed immediately after he escaped from the SJB building, which is the direct responsibility of the Accused.

209. Therefore, based on the key facts thus established, the Panel concludes beyond any reasonable doubt that the actions of the Accused contain the key elements of persecution by way of murder, imprisonment and other inhumane acts of a similar character, intentionally causing great suffering or serious injury to body or to physical and mental health and enforced disappearance of persons.

3. Paragraph c) – by imprisonment and other inhumane acts of a similar character

210. With reference to the events that occurred in the village of Čanje, the Panel has no doubt that in the late afternoon of 16 June 1992, members of the SJB Nevesinje captured the survivors from the village of Čanje and upon the Accused’s order separated them and detained them in Nevesinje, men in the cinema-hall where they were subjected to physical abuse, whereupon they were transported to the Bileća camp, and women and children in the tools factory called Alatnica. Witnesses Esad Šarančić, Mušan Šarančić, Milovan Milović, Šućro Šarančić, Senad Šarančić, witness I, Željko Pašajlić, Dušan Soldo, and Milan Đerić testified about this incident.

211. It follows from the testimony of Esad Šarančić that on 16 June 1992 he left Čanje on board of a tractor, together with around 30 persons (women, children and elderly). They were stopped at a check-point by an armed patrol. The witness thought that the persons who stopped them were members of the Šešelj Forces because he did not know them, and they took them to the cinema-hall (JNA Social Center) in Nevesinje, where they separated women and children and took them to Alatnica. Witness Esad Šarančić was detained in the SJB Nevesinje. On the following day, they were lined up in a hallway, on which occasion Krsto Savić told them that they would be sent to Bileća.

114 Defense Closing Arguments, para. 88.

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212. The remaining residents of Čanje, including Mušan Šarančić, Šućro Šarančić, Senad Šarančić and witness I, did not leave Čanje with the mentioned group, but remained in the village hiding. These residents of Čanje, who managed to hide and escape the attackers, surrendered themselves on the following day. They were escorted by the police officers, in the company of their neighbors Milovan and Anđelko Milović, who were trying to protect them, to the JNA Social Center (the HQ of the military forces) where they singled out women and children, who were thereafter taken to Alatnica, and walked the rest of the captured residents of Čanje into the JNA Social Center.

213. Based on the testimony of all witnesses who were brought on the following day (17 June 1992) in front of the JNA Social Center, the Accused decided on who would go to Alatnica and who would go to Bileća during the separation. Thus he decided that Muamer Šarančić, who was ill, should be sent to Alatnica instead of Bileća, after Milan Milović pleaded on his behalf.

214. Physical abuse and beating of the arrested men in the cinema-hall (JNA Social Center) was described in detail by almost all residents of Čanje, including Mušan Šarančić, Senad Šarančić and witness I. They all confirmed that the civilians were covered in blood after they were beaten and that blood was everywhere. Witness Milan Đerić also stated that he was in the command (JNA Social Center) when the group from Čanje arrived and that they asked for his assistance.

215. Based on these established facts, the Panel finds the Prosecution's allegations concerning the imprisonment of displaced persons, civilians from Čanje, to be fully proven, considering that in their convincing testimony these witnesses confirmed that the separation was performed by the Accused, who thus decided the destiny of these persons, sending women and children to the tools factory called Alatnica and men to the cinema-hall, where they were physically abused and treated inhumanely, which constitutes the key elements of the criminal act defined as other inhumane acts, whereupon they were transported to the Bileća detention camp.

216. Accordingly, the Panel concludes that the actions of the Accused contain the key elements of persecution by way of imprisonment and other inhumane acts of a similar character committed with an aim of inflicting great suffering or serious injury to body or to physical and mental health. 86

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217. However, it cannot be concluded beyond a reasonable doubt, based on the testimony of the residents of the village of Čanje, that the Accused was connected in any way with the attack on this village. Namely, the witnesses did not mention seeing the Accused or any police members, in particular members of the SJB Nevesinje, during the attack on the village, as the Prosecution argued. They stated that the persons who attacked the village were wearing camouflage uniforms. Witness Senad Šarančić stated that when the shooting started he saw the soldiers approaching their houses.

218. When their testimony is analyzed in correlation with the testimony given by the police officers Pašajlić and Soldo, who were categorical that they arrived at the village of Čanje only after the attack, having been first informed about the shooting and the smoke raising above the village of Čanje, after which they were sent by their commanding officer to check what happened, the Appellate Panel cannot conclude beyond a reasonable doubt that members of the SJB Nevesinje took part in this attack on the residents of Čanje, which undisputedly occurred, as well as the killing of civilians.115

219. The Panel finds that a nexus between the Accused's mens rea and his actions on one side and the attack on the village of Čanje and the murder of nine civilians of Bosniak ethnicity on the other side, has not been proven, and thus omits from the operative part of the Verdict the factual description of the Indictment as follows:

„took part in the attack against the village of Čanje, Nevesinje Municipality, although there were no legitimate military targets or armed inhabitants there, and during the attack 9 (nine) Bosniak civilians were killed, namely, Ibro Kevelj, Munta Šarančić, Bega Kljako, Suad Šarančić, Bajro Šarančić, Fadil Šarančić, Nefa Šarančić, Mujo Mutilović and Avdija Mutilović, while all the survivors were captured… the 9 (nine) killed inhabitants of Čanje were buried in a mass grave by the SJB Nevesinje policeman Željko Pašajlić with the help of a construction machine.”

115 SJB Nevesinje police officer Željko Pašajlić testified about the burrial of nine killed civilians – residents of the village of Čanje. He burried them himself in a mass grave using a construction machine. Documentary evidence was adduced to that effect as well.

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4. Paragraph d) – by imprisonment and enforced disappearance of persons

220. The Prosecution charged the Accused that between 19 June 1992 to 24 June 1992, civilians Ismet Duraković, Mirzo Čustović and Rašid Toporan were brought from their homes to the Nevesinje SJB and unlawfully confined there; members of the Nevesinje SJB handed over Ismet Duraković and Rašid Toporan to unidentified members of paramilitary formations, knowing that they, thus, exposed them to mortal danger, violence and mental suffering, whereupon these soldiers took Ismet Duraković to the Boračko Lake where he died from beating and his body was found and identified in the Borisavac pit, Konjic Municipality; Rašid Toporan has not been found ever since and is still unaccounted for, after Krsto Savić had ordered that he be returned to the basement and in such manner prevented him from being transported to the Bileća camp, while Mirzo Ćustović’s every trace has been lost after the Nevesinje SJB and he is still unaccounted for.

221. Having evaluated the evidence supporting the charges under this count, the Panel forms a somewhat different conclusion about the events described there. More specifically, the Panel concludes that the civilians, including Ismet Duraković, Mirzo Čustović and Rašid Toporan were detained unlawfully between 19 June 1992 and 24 June 1992 in the SJB Nevesinje, and that Krsto Savić issued an order for Rašid Toporan to be returned to the basement and thus prevented his transportation to the Bileća camp for exchange, whereupon the SJB Nevesinje members handed him over to unidentified members of paramilitary formations. The body of Rašid Toporan has never been found and he is still registered as a missing person. This finding is confirmed by the testimony of witnesses Behidža Čustović, Kemo Bulić, witness D, Šaćir Kljako, Emir Kljako, and Željko Kovačević, as well as Exhibits T-41 (Ismet Duraković Autopsy Report) and T-88 (certificate confirming that Rašid Toporan is registered as a missing person).

222. Based on the testimony of Behidža Čustović, witness D, and Emir Kljako, the Appellate Panel concludes that Mirzo Čustović, Rašid Toporan, and Ismet Duraković were unlawfully arrested and detained in the SJB Nevesinje. Witness Behidža described in her testimony how three persons stormed in as they were getting ready to leave the apartment and asked for Mirzo Čustović. When he got up and introduced 88

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himself, one of those persons who spoke with an ekavian dialect put a gun on his back and walked him out of the building and took him to the building of the Ministry of the Interior. According to the witness, Čustović was taken from there to the JNA Social Center after which he went missing.

223. Witness D stated that Ismet Duraković was arrested by three unidentified soldiers wearing multi-colored uniforms, and was taken to and detained at the SJB Nevesinje. The Panel concludes based on the witness’ description that those three persons were members of paramilitary formations. His detention in the SJB was also confirmed by witness Kemo Bulić.

224. As regards the detention of Rašid Toporan, witness Emir Kljako confirmed that Rašid went to the SJB Nevesinje on his own free will to collect his paycheck. Instead, Toporan was confined in the SJB with the other two men, and they were not transported to Bileća from the SJB together with other detainees.

225. This is confirmed by witness Kemo Bulić who stated that he came across Rašid Toporan in the basement of the MUP building, where the latter had been detained for several days, while Ismet Duraković joined them later, in the course of that night, after the witness was brought there (witness knew them from before), and that these two men stayed on those premises on the relevant day while all other detainees were boarded on trucks and transported to Bileća.

226. Therefore, the Panel concludes beyond any reasonable doubt that all three civilians were unlawfully detained in the SJB Nevesinje, regardless of how they ended up there (arrested and brought by unidentified persons or came on their own free will) and the time they spent there, Duraković and Toporan between 19 and 24 June 1992, according to the majority of witnesses, and Čustović for a shorter period of time, based on the testimony of Željko Kovačević and Behidža Čustović, and that they where held there without any legal basis or explanation the members of the SJB Nevesinje, who were under the direct control of the Accused.

227. The Panel concludes beyond a doubt, based on these established facts, that the described conduct contains the key elements of imprisonment of the three mentioned men. 89

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228. As regards the sequence of events involving the victim Toporan, the Panel finds that he was held in the SJB, upon the Accused’s order, whereupon he was handed over to the paramilitary formations and taken to the Boračko Lake, after which he went missing. This finding is based on the testimony of Šaćir Kljako who was one of the detainees taken out of the detention cell, standing outside and waiting to be transported to Bileća. According to his testimony, he saw Toporan climbing the stairs from the basement to the ground floor in the Station when Krsto Savić came by and said „take down that piece of shit“. The witness understood that this referred to Toporan considering that all other detainees had already climbed the stairs leading to the ground floor and because Toporan was taken back to the basement after these words were uttered. This account of the incident is confirmed by witnesses Emir Kljako who stated that he knew Rašid Toporan well, that he came across him as they were getting ready to leave for Bileća and that when the commotion started Toporan was not tied like others, but was taken back to the basement.

229. Witness C also testified about the handover of the victim Toporan to unidentified paramilitary formations. This witness was at the Boračko Lake when the arrested civilians were brought there and she stated that she saw Rašid Toporan in this group, whom she knew personally from before.

230. The guilt of the Accused on this subcount is established based on the testimony of the mentioned witnesses who spoke about this incident. Victim Toporan was taken for interrogation by Savić even before the critical event and was beaten up (testimony of witness Kemo Bulić). The Accused was evidently present in the SJB Nevesinje over the course of those days. The victim was brought back to the basement upon the Accused's order, while all other detainees were taken out of the basement, which prevented his referral to Bileća for exchange, which in turn, in the further course of the events, resulted in his surrender to the paramilitary formations who took him to the Boračko Lake, after which he went missing. Accordingly, the Panel establishes beyond a reasonable doubt a firm cause-and-effect connection between these events, concluding that they happened exactly as described in the convicting part of the Verdict.

231. The described acts and the intent of the Accused to deprive the victim of 90

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legal protection for a long period of time make up the criminal offence of enforced disappearance of persons.

232. Therefore, the Panel concludes beyond any reasonable doubt that the Accused's actions contain the key elements of persecution by way of imprisonment and enforced disappearance of persons.

233. However, the Panel could not establish with certainty that the Accused participated in the subsequent events that decided the destiny of the victims Duraković and Čustović, as was the case with Rašid Toporan. Namely, the victim Duraković undoubtedly ended up at the Boračko Lake and was killed there (as confirmed by witnesses C and D). However, there is no evidence proving the Accused’s involvement in this incident. Further on, victim Čustović, according to the testimony of his wife Behidža Čustović, was taken from the SJB Nevesinje by the persons who arrested him and has not been heard of ever since. This sequence of events is confirmed by witness Kovačević who stated that Čustović was taken away from the SJB building by the paramilitary when there were no police officers around. The witness stated that he did not know what happened to Čustović afterwards.

234. Therefore, in absence of evidence or at least solid circumstantial evidence, it remains unclear on whose approval or order these two persons were taken out of the SJB Nevesinje building, whether the Accused played a role in those events and if there was any intent on his part. Hence, the Panel omits from the factual description the charges concerning the murder of Ismet Duraković and the enforced disappearance of Mirza Čustović.

5. Paragraph e) – by imprisonment

235. Witnesses Kemo Bulić and G described how on or about 24 June 1992, all inhabitants of the hamlet of Šarica, Local Community of Zijemlje, around 30 (thirty) of them, including men, women and children, were captured by members of paramilitary formations and detained on the premises of the Nevesinje SJB; the SJB members held the captured civilians for two days on the inadequate basement premises,

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whereupon they transported and handed the civilians over to the Bileća camp.

236. Both witnesses confirmed that their village was attacked on or about 24 June 1992 by persons dressed in military uniforms. Witness Kemo Bulić gave a detailed account of his arrest. This group of people fled before the attack to the nearby forest where they were soon captured by a group of soldiers. These soldiers took them back to the village and interrogated them. Thereafter, a truck arrived on which they were boarded and taken to Nevesinje. This was confirmed by witness G who stated that the Muslim residents of the village were rounded up and taken to two Serb houses in Šarica where the soldiers asked the tenants of those two houses to assist them in identifying the captured persons (the soldiers had a list with them) and provide other required information.

237. After some of the captured persons were ill-treated and beaten, the majority of them were transported to the SJB Nevesinje and detained there in the basement premises, where they were guarded by members of the SJB. Immediately after they entered the SJB building they were subjected to abuse in the presence of the police officer Milko Mučibabić, according to witness Bulić who stated that one of the soldiers „kicked us a lot, and beat us with a rifle stock and other objects. Mr. Mučibabić was present.“ Both witnesses stated that there were 30 civilians in this group and that there were no legitimate military targets in their village. Both witnesses further confirmed that men, women, children and elderly were detained in the SJB Nevesinje, but not together, and that they were interrogated in the course of the following days. According to witness Bulić, interrogations were conducted by one man dressed in a camouflage uniform whom other detainees identified as Krsto Savić.

238. Detained civilians were held on inadequate basement premises. According to witness Bulić, he was detained in a small room in the basement which might have been a toilet because „it reeked so badly that one could barely breathe“. After around two days, all resident of Zijemlje (Šarica) were loaded on trucks and taken to Bileća. The Panel finds their testimony to be credible and convincing, considering also that no one disputed it.

239. As regards the events in the village of Šarice and those that followed, described under Count 4e) of the Indictment, which is entirely accepted as proven in 92

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the Verdict, the Defense argued that the description of the events was imprecise, that it did not include any names of the 30 captured residents and that the arrests and the taking away of the civilians was in the army's exclusive jurisdiction. The Appellate Panel finds these submissions to be ungrounded. Even if the paramilitary formations participated in the arrests of the Bosniak civilians, it still does not preclude that the civilians were unlawfully detained by members of the SJB Nevesinje. Witness Kemo Bulić testified about the Accused's presence and participation in the interrogations in the SJB.

240. This follows from the pattern described in other counts of the Indictment. The civilians were brought to the SJB building after they were arrested by members of paramilitary formations, where they were detained and guarded by the police until they were sent to the Bileća detention camp.

241. Considering that the village of Šarica was attacked by military forces, despite there being no legitimate military targets, and that the soldiers brought all residents of Muslim ethnicity in front of the SJB Nevesinje, without any legal basis for such action, whereupon they were detained there and transported to Bileća two days later, the Panel concludes that the acts of the Accused undoubtedly contain the key elements of the criminal offence of persecution by way of imprisonment.

6. Paragraph f) – by other inhumane acts of a similar character

242. The conclusion about the interrogation of the detained civilian Emir Kljako on or about 19 June 1992 in the SJB Nevesinje by the Accused, who used a bayonet to threaten the detainee and poke him with it, thus inflicting mental suffering upon the detainee, making him fear for his own life, is based entirely on the testimony of witness Emir Kljako.

243. Emir Kljako testified that during his detention in the SJB Nevesinje he was taken to an office where he was interrogated by the Accused. He was brought before the Accused to be interviewed. The Accused, whom he knew very well, asked him about the weapon right away. When the victim, surprised by this question, inquired what 93

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weapon, the Accused started to beat him. The witness described the intensity of the beating as follows:

„I don't know whether it was beating or provocation...fear... I did not feel that provocation, maybe only that time when he used the bayonet, I mean the beating... what I'm trying to say is that it did not hurt at that moment, he could have chopped off my hand, maybe it was intensive, but I did not feel the pain on the occasion. I simply did not feel the pain. I probably made my piece with the fact that I would be killed.“

244. The Panel accepts the testimony of witness Emir Kljako about this incident in its entirety, whereas some uncertainties expressed by the witness with reference to the use of bayonet by the Accused can be attributed to the fear the witness felt at that moment, rather than his unconvincing account of the incident. The testimony of witness Kljako was disjointed as a result of his attempt to reconstruct the incident as it happened. Contrary to the Defense's allegations that there was no evidence about the mental suffering inflicted upon witness Emir Kljako, the Panel concludes that the Accused intended to inflict a serious injury to the witness' mental health and traumatize him during the interrogation by using the bayonet and issuing threats.

245. The Appellate Panel concludes that the Accused's acts comprise the elements of the criminal act defined as other inhumane acts of a similar character intentionally causing great suffering or serious injury to body or to physical and mental health, and classified as Crimes Against Humanity under Article 172 of the CC of BiH, and not the criminal act of Torture, as alleged by the Prosecution in the Indictment.

246. Inhumane acts, like any other acts constituting the criminal offence defined in Article 172 of the CC of BiH, must be committed within a widespread and systematic attack against civilians and the perpetrator must be aware that his actions form a part of that attack. In order for an offence to be qualified as Crimes Against Humanity, it has to be serious. The gravity of the offence must correspond to the gravity of the crimes defined as Crimes Against Humanity.

247. In the present case, the acts undertaken by the Accused during the interrogation of witness Kljako did not reach the threshold required for torture and did not constitute the infliction of „serious physical or mental pain or suffering“, as defined under the law. However, it does not mean that his acts did not reach the threshold of 94

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cruelty which by its gravity is similar to torture. The Panel has taken into account the implement used in the perpetration of the offence, namely the bayonet, and the fact that the Accused at the given moment held the victim's life in his hands and that he committed the described acts with direct intent and repeatedly while he interrogated the victim, made the victim fear for his own life, even though the Accused did not inflict injuries to the victim's body.

248. Moreover, in light of the victim's inferior position and the context of the events that took place during that time, when the lives of Bosniaks were considered worthless, because no one was held liable for the crimes committed against them en masse. Finally, the statement of witness Kljako that he did not feel any pain while he was poked with the bayonet proves the credibility of his testimony, which remained fragmented even after so many years have passed, and how afraid and humiliated he felt as a grown man reduced to a state of complete helplessness. This goes in favor of the conclusion that Emir Kljako's mental integrity was severely violated on the mentioned occasion.

249. Taking into account that the Accused intended to inflict a serious injury upon Emir Kljako's mental health and traumatize him by using the bayonet and subjecting him to serious threats during his interrogation, the Panel concludes that the Accused's conduct contains the key elements of the criminal offence defined as other inhumane acts of a similar character intentionally causing great suffering or serious injury to body or to physical and mental health.

7. Paragraph g) – by imprisonment

250. Witnesses Irfan Ćatić, Kemo Bulić and witness F confirmed in their testimony that in late June 1992, the SJB Nevesinje police officers detained the civilians Abaz Osman, Jozo Jarak, and witness F in the basement of the SJB Nevesinje and handed them over to unidentified members of paramilitary formations several days later, whereupon they were taken to the Boračko Lake in the Konjic Municipality.

251. All mentioned witnesses confirmed that Osman Abaz and Jozo Jarak were present

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on the SJB Nevesinje premises. According to witnesses Irfan Ćatić and F, one Marko, who was later taken to the Boračko Lake with witness F and Osman Abaz, was detained in the SJB. However, they did not mention Jozo Jarak being detained there. The Panel has established the identity of this person having taken into account all relevant circumstances, to wit the testimony of Kemo Bulić, who knew Jozo Jarak much better (he worked with him in the Medical Center in Mostar), and the fact that the body of this victim was found together with the body of Osman Abaz, as well as the details described by witnesses F and Irfan Ćatić, which are fully consistent with the testimony of witness Bulić, except for the name. The person whom F and Irfan called Marko was actually Jozo Jarak.

252. Witness Kemo Bulić described how Jozo Jarak and Rašid Toporan remained in the SJB Nevesinje after he left for Bileća. This was confirmed by witness F who stated that when she was detained in the SJB Nevesinje she came across Osman Abaz and Marko (i.e. Jozo). Witness F also confirmed that she saw Krsto Savić in the SJB Nevesinje, which is corroborated by Irfan Ćatić, who stated that he was present when the Accused asked everyone about who was in charge of the weapons in Nevesinje, and when they answered that they did not know, he slapped his brother Džemo on the face.

253. This conduct by the Accused, including his undeniable presence in the Police Station at the time, and his management and interrogations which many witnesses described in their testimony, comprise the elements of the criminal act of imprisonment.

254. The Panel concludes that the Prosecution did not prove beyond a reasonable doubt that the Accused knew what would happen to Osman Abaz, Jozo Jarak, and the civilian F after they were taken out of the SJB Nevesinje by members of paramilitary formations, as alleged in the Indictment. It remains unclear from where the Prosecution inferred that the Accused knew that the handover of the victims by members of the SJB Nevesinje to members of paramilitary formations would cause the forbidden consequence described in this count of the Indictment, and that he wanted that consequence to occur. The Court cannot establish with certainty that members of the police forces were present at the Boračko Lake when the alleged acts were committed or that they were connected with the acts committed by the military and paramilitary formations. This location was under the exclusive 96

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control of the mentioned forces (see paragraphs 79-81 of the Verdict about the parallel and independent activities of the military and paramilitary formations in relation to the police).

255. Although the Panel accepts as truthful the testimony of witness F that the Accused stated: „...it would be pity to send this for exchange, we will not send this for exchange, it will be ours, we will convert her to Christianity, we will change her name to Mileva and she will be ours...“, the Panel cannot conclude beyond a reasonable doubt that the Accused was connected with the further consequences pertaining to the sexual slavery imposed on this witness.

256. Even though the Accused stated that he would keep the witness and that she would be theirs, there is no evidence that he undertook any specific actions forming a nexus between this statement and the ensuing consequences. Accordingly, the Accused's participation in the further stages of the perpetration of this criminal offence and his awareness that the victim would be taken to the Boračko Lake by the paramilitary formations have not been proven. This especially in view of the victim's statement that following her detention on the MUP premises she was taken by members of the paramilitary formations together with Jozo Jarak and Osman Abaz to the Boračko Lake and that she did not observe any policemen while she was leaving the police building. Immediately upon her arrival at the Boračko Lake she was taken to the detention camp where the Red Berets HQ was located and where she was held for seven and a half months in sexual slavery, with her name changed.

257. In her account of the suffering she was subjected to, the witness explicitly identified the person who took her to be converted to Christianity while she was detained in the camp, one Radivoje Soldo, who told her that it was for her own good and that it would save her life. Her name was changed to Biljana Jovanović (and not Mileva as the Accused asserted). Therefore, after she was taken out of the Police Station, victim F was „in the hands“ and under the exclusive control of the mentioned paramilitary formations which cannot be brought into connection with any acts performed by Krsto Savić.

258. Accordingly, the Court omits from the factual description under paragraph g) of the operative part of the Verdict the part concerning the murder of Osman Abaz 97

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and Jozo Jarak and the sexual slavery of victim F as follows:

“aware that they would thus expose them to mortal danger, violence and mental suffering”…” where they were killed; the bodies of Osman Abaz and Jozo Jarak were exhumed and identified in the Borisavac pit, whereas the F was subjected to sexual slavery with her identity changed and she managed to survive the war.”

259. Therefore, the Panel concludes based on the facts thus established that the Accused’s actions contain the elements of persecution by way of imprisonment.

8. Item (h) (sub-paragraph (i) of the Indictment) – other severe deprivation of physical liberty and torture

260. On the basis of the evidence of witness C, the Panel concluded that in late June 1992, the civilian Esad Čopelj was physically abused by members of the army and the police in front of the Nevesinje SJB, on which occasion they cut off one of his ears, whereupon they handed him over to unidentified members of the paramilitary formations who took him to the Boračko Lake and killed him; his body was found and identified in the Borisavac pit.

261. The critical part of witness C’s evidence pertaining to the said count of the Indictment is the scene that she saw when a refrigerator truck (in which the witness was driven) pulled over in front of the Nevesinje SJB, which is when she saw members of the army and the police beating Esad Čopelj and, when Esad turned around, she noticed blood running in the region of his ears.

262. The Panel gave full credence to the evidence of witness C, finding the witness credible, as all parts of her evidence have been corroborated by the evidence of other witnesses. First of all, witness C gave a very clear description of the event when, on their way through Nevesinje, the truck driver made a short stop in front of the Nevesinje MUP in order to take over something; sitting next to her in the truck was Mile Pejić a.k.a. Zmija, but she could not state precisely whether he was in the truck during the time the truck was parked in front of the Nevesinje Station; she stated that the area in front of the Station was lit and she recognized 98

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Esad Čopelj, a young man from Presjek; she had known him from before and he was about 20 years old. She saw him being punched and kicked and hit by rifle butts; at one point he turned around and she noticed a big injury in the region of his head; he was all covered in blood.

263. When evaluating the evidence of this witness, the Appellate Panel was mindful of the short duration during which the witness was in a position to observe the said incident, but finds it does not undermine the credibility of her evidence. To wit, in her evidence, the witness stated sufficient details of relevant instances of the incident and gave her own account of the event, which has left a remarkable trace in her memory and, thus, the Panel found her account all too credible. Finally, the Panel’s belief was not shaken by the defense argument that the witness was in a driver’s cab on this specific occasion because this by no means suggests that the witness was not in a position to see the described incident.

264. Likewise, the credibility of witness C was not undermined during cross-examination, but even more enhanced after Defense Counsel Prodanović asked her how she was in the position to see the events going on in front of the Nevesinje SJB and she answered that she was sitting in the driver’s cab. This argument is absolutely convincing and logic, controlled by other circumstances, especially in terms of the fact that she stated that Zmija was sitting next to her, and it is completely clear that he, as one of the most prominent members of paramilitary formations, would certainly drive in the driver’s cab and not in the trailer. It is further convincing because of the position in which she was sitting (the driver’s cab) which suggests that from that spot she could see what was going on in front of the police station.

265. The averments of this witness were further corroborated by the evidence of witness Nura Mičijević, who stated that during her detention, amongst other civilians at Borci she met a person who introduced himself as Esad Čopelj and told her that in Nevesinje they had cut off his ear and forced him to swallow it.

266. The Appellate Panel found that the described acts amount to the subject matter of the criminal offense – other severe deprivation of physical liberty and torture – rather than the criminal offense of deprivation of other person’s life and other inhumane acts as charged in the Indictment. To wit, the Panel found that the aggrieved 99

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party was deprived of physical liberty arbitrarily and without any legitimate ground and through a grave violation of fundamental rules of international and national law.

267. Furthermore, the Panel finds that the acts of physical abuse of the aggrieved party Čopelj reached the threshold of grievous bodily pain and suffering as those acts included punching, slapping, and hitting with rifle butts, as well as cutting off Čopelj's ear due to which he was bleeding in the region of an ear. The said acts amount to the elements of torture rather than other inhumane acts. The said acts were carried out in front of the Police Station, Krsto Savić being the Chief of the Station. They were carried out against the person detained and controlled by the Accused’s subordinates; these acts were just a link in the chain of other events in the implementation of the criminal plan of persecution. Therefore, he was a willing participant in the JCE with intent, knowing of the prohibited consequences of the plan.

268. On the contrary, the Panel has not found any subjective or objective elements proven against the Accused in reference to the deprivation of life of the aggrieved party Čopelj, by which the accused would have committed the criminal offense of persecution; this deprivation of life was indisputably committed116 at the site which was under the control of paramilitaries, but the Panel has not found the Accused guilty of it.

269. Based on the foregoing decisive facts, the Panel concluded that the described acts amount to all relevant elements of persecution committed by other severe deprivation of physical liberty and torture.

9. Item i) (sub-Paragraph (j) of the Indictment) – imprisonment, enforced disappearance of persons and other similar inhumane acts

270. Based on the evidence of witnesses Esad Humić, Aiša Kazazić, Emira Voloder, witness H, Mušan Šarančić, Milovan Milović, Senad Šarančić, Aleksa Kravić, witness

116 The dead body of Esad Čopelj was found and identified in the Borisavac pit, near Borak, as confirmed by the Prosecution documentary evidence, Exhumation record, Exhumation photodocumentation, and Autopsy record (see Attachment: T- 38, 39 i 40).

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I, Dušan Soldo, Milko Mučibabić, the Panel found that during June 1992, Krsto Savić took part in the setting up of a camp in the tools factory called Alatnica in Nevesinje in a way that, under his order, women, children and the sick were separated from the captured civilians and detained in the Alatnica, which was under the control of an unidentified paramilitary formation, where they were held under inhumane conditions and exposed to physical and mental abuse, wherefrom the detained women Zejna Šarančić and Sabira Šarančić were taken away and they are still unaccounted for.

271. The Panel found that the evidence of all witnesses who testified to this count of the Indictment is mutually compatible and complementary. All of them, police officials included, confirmed that they had certain information about the stay of women and children at Alatnica.

272. The role of the Accused Krsto Savić is very important with regard to his evidently active involvement in the setting up of this camp, as clearly follows from the evidence of a rather large number of witnesses who described Krsto Savić as a person who decided as to who would be imprisoned in Alatnica, under the control of paramilitaries. This is best described by the evidence of witness Milovan Milović who stated that Krsto Savić decided about the separation by saying that women would be taken to Alatnica. These averments of witness Milovan Milović are totally consistent with the evidence of witness Senad Šarančić who also confirmed that Krsto Savić ordered that Muamer Šarančić, who was sick, be transferred to Alatnica together with women and children. In her evidence, witness H stated that she heard someone saying “come back” and Krsto Savić came out of the building and appeared in the stairs, he had a shoulder bag, military/police uniform, and asked where those people came from, and when he got the answer he said that they should be taken to Alatnica117.

273. Therefore, all the said witnesses confirmed the active and willing participation of the Accused Savić in incarcerating women, children and sick at Alatnica, clearly showing his contribution to the setting up of the detention center.

117 This averment leads to the conclusion that the Accused did not have any prior knowledge of the military and paramilitary attack on the village of Čanje, the facts of which are described under sub-paragraph c) of

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274. It follows from the evidence of witnesses Emira Voloder and Aiša Kazazić that the members of the unit quartered at Alatnica were unknown to them and that they were not originally from Nevesinje, while the witnesses Aleksa Kravić and Dušan Soldo clarified that they heard about what was going on there and that civilians were detained, and as for the unit that was quartered there, they both stated that this unit went by the name of Vukovarci.

275. Furthermore, with regard to the civilians detained in the said facility, the Panel undoubtedly found that they were held in inhumane conditions (evidence of witness H, Mušan Šarančić and exhibit T-6), subjugated to physical and mental abuse. Witness H gave a detailed account of abuse in Alatnica, stating that they were mistreated, kicked with boots, “as you are sitting, they would kick you, and sometimes they would kick you in the leg or some other part…” The witness confirmed that women were taken out by soldiers, and she knew that one of them cleaned their houses. With regard to the atmosphere of terror in Alatnica, the witness pointed out that all present soldiers were armed, that they kept grinding their weapons all the time saying that they would use the weapons to slaughter “like this – like that.” On one occasion they took away one female detainee who never came back. One of the soldiers who took that woman away said upon his return “the same will happen to you, just like it happened to that lady, we cut her up.” The witness confirmed that the Accused Savić used to visit Alatnica.

276. Mušan Šarančić also testified about the events in Alatnica, as his wife, mother and sister were detained there and he got that information from his sister who managed to come out alive. The witness conveyed what he learned from his sister that in the very beginning they were hiding under the blankets but soldiers found that out and started taking them out.

277. The Accused Savić undoubtedly participated in the described acts with intent, since he took active part in the implementation of the common plan – imprisonment of Bosniak civilians, in as much as he separated women, children and sick as he

the Indictment. If he had had that knowledge, he would not have asked as to where the refugees of the

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ordered that they be taken to Alatnica, fully aware of the fact that Alatnica was under the control of paramilitaries, that civilians would be held there in inhumane conditions at the mercy of despotic wild individuals who would sadistically abuse them; further, he personally visited Alatnica and so he knew of and accepted the forbidden consequence (in this specific case – infliction of serious physical or mental suffering or deterioration of detained civilians’ health), which amount to other inhumane acts or similar acts committed with the intent to inflict great suffering, or serious injury to body or to physical or mental health.

278. With regard to Zejna Šarančić and Sabira Šarančić, the majority of witnesses confirmed that unknown soldiers mistreated them at Alatnica, and they especially mistreated Sabira who was five-month pregnant; that they took them away one day and they have been unaccounted for ever since. Furthermore, with regard to the enforced disappearance of persons from Alatnica, it should be added that witnesses H, Mušan Šarančić, Senad Šarančić and witness I confirmed that Zejna and Sabira Šarančić were taken out of Alatnica, and have been unaccounted for ever since. Bearing in mind the described role of the Accused, same as in relation to the previous count, the said acts amount to the criminal offense of enforced disappearance of persons, rather than murder, considering that the said persons are still unaccounted for.

279. Thus, starting from the established key facts, the Panel is satisfied that they amount to the elements of persecution committed by imprisonment, enforced disappearance of persons and other similar inhumane acts with the intent to inflict great suffering, or serious injury to body or to physical or mental health.

280. Contrary to the aforementioned, the Panel was not in the position to establish the responsibility of the Accused under the charges related to Hata Mehremić. It is indisputable that Hata went over to the other side to negotiate the exchange, upon the order of the Accused Savić, as corroborated by her statement given to the State Investigation and Protection Agency officials and by evidence of the Accused Milko Mučibabić and witness H; however, the proffered body of evidence did not assure the

Čanje village came from.

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Panel to the required level of certainty that there was a subjective element, that is, the intent of the Accused to carry out inhumane acts; therefore, the Panel deleted the following portion of the said count: “...and Hata Mehremić was forced to cross the frontline to reach the territory under the control of the Army of BiH in order to arrange an exchange of the detained women for the dead Serb soldiers.”

10. Item j) (sub-paragraph (k) of the Indictment) – forcible transfer of population

281. Several times on or around 23 and 24 June, members of the Nevesinje SJB called via megaphone all the remaining Bosniaks from Nevesinje to gather in front of the old Municipality building, so when they gathered, mostly women, children and the elderly, the policemen loaded them on the buses and freight vehicles and, under the escort of the Nevesinje SJB policemen, transported them in the direction of Mostar to the region of Busak, to the area between the frontlines, which was confirmed by the evidence of Bahrija Trebović, Emira Voloder, witness D, Maida Ćupina, Aleksa Kravić, Željko Pašajlić, Hasan Tanković and Milko Mučibabić.

282. All witnesses, who gave evidence in reference to this count of the Indictment, confirmed that there was an organized convoy for the civilians who wanted to cross over to the other side. These facts were further confirmed by the Defendant Milko Mučibabić and Željko Pašajlić, who read out the proclamation, and Aleksa Kravić confirmed that he escorted the convoy. Bahrija Trebović clarified that the Muslim population gathered in front of the municipality building and waited for buses, escorted by police officer Željko Pašajlić.

283. That there were at least two organized convoys clearly follows from the evidence of witnesses Emira Voloder, Maida Ćupina and Bahrija Trebović. Emira described the convoy of two buses by which she was transferred to the area of Busak where she crossed over to the other side on foot, while Šerifa Eminović, who came with her, stayed at Busak between the separation lines because she was unable to move. This part of Emira Voloder’s evidence is fully consistent with the evidence of Maida Ćupina, who obviously travelled in a subsequent convoy, and stated that she saw Šerifa Eminović when she reached the area of Busak.

284. The defense invoked the evidence of witnesses D, H, and others who 104

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confirmed that, upon their departure by trucks in the direction of Bileća, they were stopped by soldiers, on which occasion police officers protected them, submitting that the police can by no means be held responsible for the death of civilians who got killed when crossing over the frontline and for the rape of two women committed by soldiers.

285. The Appellate Panel found that the SJB Nevesinje members are responsible for the forcible transfer of population because the population were under constant pressure, along with threats to their lives, and, therefore, under duress, were forced to leave their homes in Nevesinje. Although the entire operation was carried out under the pretence that the convoys were organized for non-Serbs who wanted to leave Nevesinje, the Panel is satisfied that there was not a single element to suggest that the population exercised a genuine choice to leave their homes. It is indisputable that all acts committed within the widespread and systematic attack (imprisonment, torture, killings) created such an atmosphere in which the population lived in fear of being the next target of the attack (which indeed happened with a large number of them) and thereafter, within the common criminal plan, they were transferred from the said territory solely because they were not members of the Serb population. The police from Nevesinje did not carry out their primary task to protect their citizens, but on the contrary participated in or contributed to misdeeds conducted against them; among those activities was certainly the organization of two convoys, jointly done with the local authorities, for the purpose of forcible transfer of the remaining Bosniak population with the aim of creating an ethnically clean territory.

286. The Panel is satisfied in part with the defense argument that the Accused’s participation was not proven. To wit, the Panel did not find beyond a reasonable doubt that the Accused was linked with the events related to the civilians who got killed or injured when crossing over the frontline and the rape of two women committed by Serb soldiers because of insufficient evidence to determine beyond a reasonable doubt that the Accused Savić was aware and supportive of the ensuing consequences; those consequences undoubtedly ensued.

287. Therefore, the Panel left out the part of the factual descriptions that was related to the events that followed after the police escorted the civilians to the area of Busak where, in the opinion of the Panel, the involvement of the police stops, since 105

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that area was the demarcation line controlled by the army; this also follows from the evidence of witnesses-aggrieved parties. The Panel gave full credence to the evidence of witness Maida Ćupina who stated that two women and she were singled out by a soldier, whom she later learned to be Milan Andrić, and whom she identified as a person who raped her. All the mentioned civilians undoubtedly survived the described atrocities and turmoil but the perpetrators thereof are members of the army and not members of the police, wherefore the Panel left out the following part: “...thus putting their lives at risk due to the fire coming from the frontlines; while crossing the frontlines in that way Duda Tanković, Bećir Šikalo, who stepped on a landmine, Husref Handžar, Dragica Rotim and Šerifa Eminović were all killed, while Mejra Pendar is still unaccounted for; a number of the civilians were wounded; and while crossing the frontlines three women were separated, on which occasion one of them at least was raped by Serb soldiers.“

288. Thus, bearing in mind these factual findings, the Panel undoubtedly concluded that the described acts on the part of the Accused Krsto Savić amount to all required elements of persecution committed by enforced transfer of population.

F. LEGAL FINDINGS

289. The Prosecution charged the Accused with the criminal offense of Crimes against Humanity in violation of Article 172(1)(h) in conjunction with (a), (b), (d), (e), (f), (g), (i) and (k) and Article 173(1)(c), (e) and (f) of the CC of BiH, all in conjunction with Article 180(1) and Article 29 of the CC of BiH.

290. Therefore, the acts of perpetration of the criminal offense of Crimes against Humanity in violation of Article 172(1)(h) were defined in accordance with the heretofore jurisprudence as committed “in conjunction with” the acts of perpetration described in sub-paragraphs (a) through (k) of Article 172(1) of the CC of BiH and the aforementioned sub-paragraphs of Article 173(1).

291. The Appellate Panel primarily concluded that in terms of Article 172(1)(h) of the CC of BiH, the criminal offense of Crimes against Humanity committed by persecution constitutes an independent offense which can be committed by either of the acts defined in sub-paragraphs (a) through (k) of the CC of BiH, or by any criminal 106

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offence defined under the CC of BiH and any criminal offense that falls under the jurisdiction of the Court of Bosnia and Herzegovina.

292. Therefore, when defining individual criminal acts, the Appellate Panel finds it not necessary to refer to the criminal offense or paragraph of the code which defines the act of persecution for each specific paragraph of the operative part of the Verdict. As previously mentioned, persecution constitutes an independent offense and an underlying act of Crimes against Humanity; therefore for the purpose of clarity and preciseness of the operative part, it is sufficient and proper at the same time for the Panel just to refer to Article 172(1)(h) of the CC of BiH and describe the manner in which that persecution was carried out; the same approach was taken by the Appellate Panel in the case against Bundalo et al.118

293. Having established that some factual allegations have been proven (convicting part of the Verdict), the Panel subsumed them under the underlying acts prescribed in Article 172(1)(a) through (k), more precisely, sub-paragraphs a), d), e), f), i) and k), describing them as the acts of perpetration of persecution without necessarily providing a legal definition; at the same time, the Panel left out certain acts of perpetration from this and Article 173(1)(c), (e) and (f) (due to lack of sufficient evidence), as described below.

294. The Appellate Panel concluded that the Accused Krsto Savić, acting within the widespread and systematic attack against the civilian population in the municipalities of Gacko, Bileća, Kalinovik and Nevesinje, knowing of the attack and as a participant in the joint criminal enterprise aimed at the persecution of the entire Bosniak and Croat population on ethnic and religious grounds, carried out persecution by the acts described under section (1) imprisonment; section (2) imprisonment and deportation; section (3a) imprisonment; section (3b) imprisonment; section (3c) imprisonment; section (4a) murder and imprisonment; section (4b) murder, imprisonment and other similar inhumane acts committed with the intent to inflict serious physical or mental suffering, or to cause health deterioration and enforced

118 Verdict of the Appellate Panel in the case against Bundalo et al. No. X-KRŽ-07/419 dated 28 January 2011.

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disappearance of persons; section 4c) imprisonment and other similar inhumane acts committed with the intent to inflict great suffering, or serious injury to body or to physical or mental health; section 4d) imprisonment and enforced disappearance of persons; section 4e) imprisonment; section 4f) other similar inhumane acts committed with the intent to inflict great suffering, or serious injury to body or to physical or mental health and enforced disappearance of persons; section 4g) imprisonment; section 4h) other severe deprivation of physical liberty and torture; section 4i) imprisonment, enforced disappearance of persons and other similar inhumane acts committed with the intent to inflict great suffering, or serious injury to body or to physical or mental health; section 4j) forcible transfer of population, and thus committed the criminal offense of Crimes against Humanity in violation of Article 172(1)(h) of the Criminal Code of Bosnia and Herzegovina (the CC of BiH), all in conjunction with Article 180(1) of the CC of BiH.

295. With regard to this legal definition, the Panel notes the wording of Article 280(2) of the CPC of BiH according to which “The Court is not bound to accept the proposals regarding the legal evaluation of the act.” Therefore, the Panel is by no means bound to the legal definition submitted by the Prosecution and acts independently in the determination of facts in accordance with the substantive criminal law. The Panel can take a different position regarding the legal definition of the offense provided by the Prosecution, and provide the adequate reasoning of that position.

VII. APPLICABLE LAW

296. As for the applicability of substantive law, the Defense objected to the application of the Criminal Code of BiH submitting that the Criminal Code of SFRY should be applied instead, as it was the code effective at the time of the acts defined under the Indictment, which is certainly more lenient to the Accused Savić considering that the capital sentence was later abolished and replaced by the maximum prison sentence for the term of 20 years. Furthermore, the Defense submitted that the application of Article 4a. of the CC of BiH disowns the provisions of Articles 3 and 4 of the CC of BiH and thus repudiates two fundamental principles of law, principle of legality and the principle of time constraints regarding the applicability of the criminal code.

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297. With regard to the substantive law which should be applied in relation to this criminal offense in the context of the time in which the criminal offense was committed, and bearing in mind all arguments raised by the Defense to that effect, the Panel decided as stated in the operative part on the grounds of the following provisions:

298. Article 3 of the CC of BiH prescribes the principle of legality according to which criminal offenses and criminal sanctions shall be prescribed only by law, and no punishment or other criminal sanction may be imposed on any person for an act which, prior to being perpetrated, has not been defined as a criminal offense by law or international law, and for which a punishment has not been prescribed by law. In addition, Article 4 of the CC of BiH prescribes that the law that was in effect at the time when the criminal offense was perpetrated shall apply to the perpetrator of the criminal offense, and if the law has been amended on one or more occasions after the criminal offence was perpetrated, the law that is more lenient to the perpetrator shall be applied.

299. Article 7(1) of the European Convention also prescribes the principle of legality. Pursuant to Article 2.2. of the Constitution of BiH, the European Convention for the Protection of Human Rights has priority over all other laws of BiH. Furthermore, this Article of the European Convention prescribes the general principle that no heavier penalty may be imposed than the one that was applicable at the time the criminal offense was committed, but it does not prescribe the application of the most lenient law. Article 4a. of the CC of BiH prescribes that Articles 3 and 4 of this Code shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of international law. Article 7(2) of the European Convention prescribes that Paragraph 1 of that Article “…shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according the general principles of law recognized by civilized nations.” (also see Article 15(1) and (2) of the International Covenant on Civil and Political Rights with similar wording. The State of Bosnia and Herzegovina ratified this Covenant as a successor of Yugoslavia).

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300. Crimes against humanity as a form of customary international law and individual responsibility for the commission of crimes against humanity in 1992 were confirmed by the UN Secretary General119, International Law Commission120, as well as ICTY and ICTR jurisprudence121. These institutions found that the punishability of crimes against humanity is an imperative norm of international law or ius cogens122, and therefore it is indisputable that in 1992 crimes against humanity constituted part of customary international law.

301. Article 4a. of the CC of BiH is precisely the ground on which the CC of BiH is applied to this specific criminal offense. This provision provides for an exception to the general principles set forth under Article 3 and 4 of the CC of BiH to the extent to which these Articles do not call into question the trial and punishment of a person for any commission or omission which amounts to the criminal offense of Crimes against Humanity, which had not been prescribed as such under the criminal code effective at the time of perpetration.

302. Crimes against Humanity are universally punishable under international law, and therefore any subsequent definition of this criminal offense and punishment thereof is not contradictory to Article 7(1) of the ECHR. The same position was also taken in the case 51 891/99, Naletilić v. Croatia, where the applicant raised the same objections before the ICTY as the defense in this case.

303. The Appellate Panel notes that the application of the 2003 Criminal Code of BiH in proceedings before the Court of BiH has been extensively reviewed and resolved by the Constitutional Court, the Decision in the Maktouf case.123

119 Report of the Secretary-General pursuant to paragraph 2 of Security Council Resolution 808 (1993), 3 May 1993, para 33-34 and 47-48; 120 International Law Commission, commentary on the Draft Codeo f Crimes against the Peace and Security of Mankind (1996), Article 18. 121 ICTR, Trial Chamber in Akayesu, 2 September 1998, para 563-577; 122 International Law Commission, Commentary on the Draft Articles on Responsibility of States for Internationally Wrongful Acts (2001), Article 26. 123 Constitutional Court, Decision on admissibility and merits AP1785/06, 30 March 2007, Official Gazzete of Bosnia and Herzegovina 57/07 (Maktouf, Decision) para 60-79; Verdicts of the Panels of the Appeallate Division, Court of BiH X-KRŽ-05/70 Radovan Stanković, X-KRŽ-05/51 Dragan Damjanović, X-KRŽ-05/154 Radisav Ljubinac, X-KRŽ-05/161 Gojko Janković, X-KR-05/165 Nenad Tanasković, X-KRŽ-06/275 Mitar Rašević et al.., X-KRŽ-07/382 Mirko Todorović i dr., X-KRŽ-06/202 Lelek Željko, X-KRŽ-06/200 Željko

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304. Additionally, the Constitutional Court of BiH discussed this issue in its Decision AP 1785/06 dated 30 March 2007 (Maktouf), and the Decision AP 408/07 dated 11 February 2010 (Dragoje Paunović).124 In the aforementioned cases, the Constitutional Court of BiH referred to the provisions of Article 4a. of the CC of BiH and Article 7(2) of the ECHR, and concluded that the application of the CC of BiH in the proceedings before the Court of BiH does not constitute violation of Article 7 of the ECHR. This conclusion is further corroborated by jurisprudence of the European Court of Human Rights where general principles for the interpretation of Article 7 of the ECHR have been defined.125

305. Likewise, the application of the CC of BiH is further justified by the fact that the sentences imposed are in any case more lenient than the capital punishment which was effective at the time of perpetration, thus the principle of time constraints regarding the criminal code applicability has been satisfied, more precisely, the more lenient law is applied. Furthermore, under the customary law, the defendant has the absolute right not to be the subject of a capital punishment execution, and the State is obligated to protect that right, which was done by the enactment of the new criminal code in 2003.

306. The aforementioned is further consistent with the position taken by Section I of the Appellate Division of the Court of BiH, Verdict v. Dragoje Paunović, KPŽ 05/16 dated 27 October 2006, and the Decision of the Constitutional Court of Bosnia and Herzegovina in the case v. Abduladhim Maktouf126.

307. To wit, the conclusion of the said verdict reads as follows: “In practice, legislation in all countries of former Yugoslavia did not provide a possibility of pronouncing either a sentence of life imprisonment or long-term imprisonment, as often done by the

Mejakić et al., X-KRŽ-07/478 Momir Savić, X-KRŽ-08/500 Miodrag Nikačević, X-KRŽ-07/442 Predrag Kujundžić, X-KRŽ-05/16 Dragoje Paunović, X-KRŽ-05/40 Nikola Kovačević, X-KRŽ-06/234 Zoran Janković, X-KRŽ-06/290 Jadranko Palija, X-KRŽ-07/405 Ranko Vuković et al., X-KRŽ-06/236 Božić et al. 124 See Maktouf Decision, Official Gazzete of Bosnia and Herzegovina 57/07; Decision on admissibility and meritum AP 408/07 dated 11 February 2010, (Paunović, Decision) para 50-52. 125 See: ECHR, Konov v. Latvia, Judgment dated 24 July 2008, application 36376/04 and August Kolk and Petr Kislyiy v. Estonia, Judgment dated 17 January 2006, application 23052/04 and 24018. 126 Decision passed on 30 March 2007.

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International Criminal Tribunal for the former Yugoslavia (the cases of Krstic, Galic, etc.). At the same time, the concept of the SFRY Criminal Code was such that it did not stipulate either long-term imprisonment or life sentence but death penalty in case of a serious crime or a 15 year maximum sentence in case of a less serious crime. Hence, it is clear that a sanction cannot be separated from the totality of goals sought to be achieved by the criminal policy at the time of application of the law.“

308. In this context, the Constitutional Court holds that it is simply not possible to “eliminate” the more severe sanction under both earlier and later laws, and apply only other, more lenient, sanctions, so that the most serious crimes would in practice be left inadequately sanctioned.

309. Therefore, the Appellate Panel finds that the application of the 2003 Criminal Code of BiH by no means violates the legitimacy and prohibited retroactivity principles.

VIII. SENTENCING

310. When determining the appropriate sentence, the Panel was governed by the general rules of meting out sentences set forth under Article 48 of the CC of BiH, as well as the purpose of sentencing as set forth under Article 39 of the CC of BiH, and found that the pronounced sentence of seventeen (17) years of imprisonment will meet the purpose of sentencing in its entirety. The Panel was mindful of the range of sentences that can be imposed for this criminal offense, and so the Panel had in mind that the criminal offense of which the Accused was found guilty carries the sentence of minimum 10 years of imprisonment or a long-term imprisonment, and took into account the general factors of sentencing, such as the purpose of sentencing, the degree of the Accused’s criminal liability, the circumstances surrounding the commission of the offense, the degree to which the protected value was endangered/violated, past life of the Accused, family circumstances, behavior after the commission of the offense and his motive for the commission.

311. As it ensues from all the foregoing, Krsto Savić was found guilty of persecution through the criminal acts underlying the Crimes against Humanity – murder, 112

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deportation and forcible transfer of population, imprisonment and other severe deprivation of physical liberty, torture, enforced disappearance and other inhumane acts of similar nature perpetrated with the intent to inflict great suffering, or serious injury to body or to physical or mental health, and therefore, considering the level of criminal energy put into those acts, a sentence heavier than the minimum prescribed sentence was imposed on him.

312. The circumstances considered in aggravation are the circumstances surrounding the criminal offense such as the fact that police officers were taking helpless civilians out of their homes without informing them of the reasons thereof or the place to which they would be taken, instead of protecting them as citizens, certainly instilling a great fear in them. Likewise, the Panel was mindful of the position that the aggrieved parties took during the proceedings (especially representatives of Redžo Trebović’s family), moving for a heavier sentence.

313. In addition to the gravity of the offense of which the Accused Krsto Savić was found guilty, it should be noted that the plan of persecution pertained to the territory of four municipalities (Gacko, Bileća, Kalinovik and Nevesinje), and that the plan was ultimately realized in essence. The consequences of those offenses are still present, with hardly any lesser intensity and with almost no prospects of seeing those consequences surmounted, which is critical. Furthermore, the Panel took into account the status and number of victims, and found that those were civilians – women, children and men who by no means whatsoever contributed to the commission of crimes. To wit, the aggrieved parties-survivors will certainly feel permanent and deep consequences of traumatic events, physical and mental pain and loss of their closest family members.

314. Furthermore, the MUP of the Serb Republic of Bosnia and Herzegovina had its continuity in this territory from the spring until the end of 1992, hence the Accused as the head of the MUP had a very important and, at some points, critical, role in the persecution of the non-Serb population in the territory of eastern Herzegovina.

315. The circumstance that the Appellate Panel considered in mitigation includes the fact that the Accused was not a direct perpetrator of the criminal offenses he was found guilty of, save for the ones committed in the territory of Nevesinje. Therefore, 113

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the degree of his liability is somewhat lowered but not excluded (as described in the part pertaining to the Accused Savić’s participation in the joint criminal enterprise). Besides, in determining the sentence, the Panel took into account the arguments of the defense that the wording of the indictment is such to include one event in several counts (the Panel’s remark: certainly the Prosecution has the right to do that) so that the number of counts leave an impression of the gravity of the Accused’s guilt.

316. The Panel was mindful of the general circumstances such as a chaotic situation, vengeful Serb refugees from the Neretva valley in relation to the local Bosniak civilian residents in Nevesinje, as well as the actions of paramilitary groups, which added to the difficult position of the local residents. However, the Panel was also mindful of the Police’s obligation to maintain law and order to the extent possible.

317. As for other facts that the Panel considered in mitigation, the Accused is father of one underage child, which implies certain responsibilities and obligations in the child’s sustenance and upbringing.

318. Furthermore, the Panel was mindful of the fact that, upon request of Milovan Milović, the Accused acted humanely in transferring ill Muamer Šarančić to Alatnica where he was placed with women and children. The fact that the Accused used his authority and prevented a paramilitary group at the Korićka pit (para 54) to execute Bosniak civilians during their transfer to the camp in Bileća was particularly taken in mitigation.

319. Bearing in mind all the foregoing, and considering the degree of the Accused’s participation and his contribution to the commission of the criminal offense of which he was found guilty, the Panel finds that the pronounced sentence has been meted out in line with Article 48(1) of the CC of BiH and it will meet the purpose of sentencing as set forth under Article 39 of the CC of BiH.

320. Pursuant to Article 56 of the CC of BiH, the time that the Accused spent in custody from 6 September 2007 to 23 January 2009, and from 24 March 2009 until the committal to serve sentence, shall be credited towards the pronounced sentence.

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IX. DECISION ON THE COSTS OF THE CRIMINAL PROCEEDINGS AND CLAIMS UNDER PROPERTY LAW

321. In determining the costs of the criminal proceedings, the Panel was mindful of all relevant circumstances, and pursuant to Article 188(4) of the CPC of BiH exempted the Accused of the obligation to pay the costs of the criminal proceedings because, given the financial standing of the Accused, any other decision would jeopardize the subsistence of his dependants. Therefore, the costs shall be borne by the Court budget appropriations.

322. Pursuant to Article 198(2) of the CPC of BiH, the family members of the aggrieved party Redžo Trebović were instructed to pursue claims under property law in a civil action given that the determination of facts regarding the amount of the property claim would require substantial time.

X. ACQUITTAL

323. The Appellate Panel acquitted the Accused of the acts described under Sections II.1. a, b, c, d and II.2. of the operative part of the Verdict ( 3 a, e, f, g and 4h of the Indictment) because the Prosecution failed to prove them beyond a reasonable doubt. The charges under Count 1 pertain to the events in Kalinovik, and the charges under Count 2 in Nevesinje.

(a) Sections II.1. a, c and d

324. In the part related to the widespread and systematic attack, the Panel found that the period linked with the intent of the Accused starts in the second half of June 1992 rather than early May 1992 as claimed by the Indictment. Bearing that in mind, the Panel acquitted the Accused of all acts committed before that time, that is, before 16 June 1992, because the Panel was unable to find with necessary certainty that the Accused had the intent to commit them or determine his awareness and willingness linked with the specified period of time.

325. The Appellate Panel finds that there is no dilemma that the events indeed 115

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happened in the area of Kalinovik, as specified in subparagraphs 1) (a), (c) and (d) of the operative part of the Verdict, that is, that about 280 civilians from the local commune Jeleč, municipality of Foča, were detained by the Serb Army and members of Kalinovik SJB; detained Bosniak civilians were used to detect landmines; and a prison was established in the Miladin Radojević primary school by the Serb Army and members of Kalinovik SJB, where around 300 Bosniak civilians were detained, as corroborated by numerous subjective and objective evidence. The said events were not challenged by the Defense for that matter.

326. However, the Prosecution has not proffered a single piece of evidence to show either physical participation of the Accused Krsto Savić in the described events or his knowledge related to those events at the time when they undoubtedly happened. To wit, Prosecution Exhibit T-153, which pertains to the Kalinovik SJB Work Report dated 18 August 1992, was signed by the Kalinovik SJB Chief, Boško Govedarica, and it speaks about the activities of municipal and military authorities in the area of the SJB in the period from 1 April to 15 August 1992. However, this exhibit does not show that the Accused was informed of them tempore criminis. This Panel not only found the absence of mens rea on the part of the Accused in relation to these charges but also was in no position to conclude beyond a reasonable doubt that the Accused undertook any act or at least was physically present tempore criminis, which would have undoubtedly constituted his actus reus. When examined in the capacity as a witness, the Accused stated the he briefly visited the Kalinovik SJB on one occasion only, which was confirmed by witness Cerovina. Anyhow, the relevant Paragraph of the final and binding Verdict handed down by this Court in the case v. Bundalo127, which in its essence pertains to the same events, shows not only the existence of autonomous operations of civilian and military authorities, including the Kalinovik police, but also the fact that Krsto Savić was not treated at all as a knowing participant in the JCE for that municipality.

127 Bundalo et al.., Verdict, Court of BiH, X-KR-07/419, 21 Dec 2009, “Inspecting the conclusions of the War Command, the Kalinovik Municipal Assembly, it ensues that the arrest operation was carried out based on the Conclusion of the War Command, the Kalinovik Municipal Assembly, dated 17 May 1992, where it can be seen that it was concluded that in the period from 20 May until 25 May 1992 all the Bosniak men fit for military service with the place of residence in Kalinovik had to report to the Secretariat of National Defense and if they failed to do so that they would be proclaimed the enemies of the SDS, banned to return to the territory of the municipality and that all their property would be confiscated. Among others, the SJB Kalinovik was tasked with the execution of this decision.”

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327. In corroboration of this conclusion, the Appellate Panel finds the facts established based on the notes (bullet points for the meeting) from the Diary (exhibit T-170, consignations Nº02971405 and 02971406) which not only shows absence of any remark related to the Kalinovik SJB for the said period of time but also shows an attempt to strengthen the organizational structure of SJB and the Chiefs within the Trebinje CSB, which again suggests the lack of strict discipline by that time, and insufficient connectedness of the Center. When this is viewed from the aspect of material and technical problems, geographic distance and scattered places covered by the Trebinje CSB (among other witnesses, Jovo Čokorilo testified to this effect) and bearing in mind the evidence of credible witness Aleksandar Krulj who stated that cooperation with the Kalinovik SJB was aggravated, then it becomes clear why this Panel could not conclude beyond a reasonable doubt that the Accused had knowledge about the illicit acts described under the said Counts.

328. Finally, with regard to the charges the Accused was acquitted of, the Appellate Panel finds that there could be no widespread and systematic attack in the said period of time, before 16 June 1992, although there could be a mention of that attack gradually taking shape. Many Prosecution witnesses stated that until that date the situation in Nevesinje (and Gacko and Bileća) was tense but still peaceful, without any conflict, which means that there was still no sign of a recognizable pattern of crime which would lead to the conclusion about the knowledge on the part of the Accused, and would amount to the general element of Crimes against Humanity and suggest the existence of mens rea for those charges respectively. However, the fact is that the Accused was not informed of the said acts, at least not in the manner as he was informed later on (see: reasoning of the convicting part under Paragraph 3 – Kalinovik).

B. COUNT II.1.B.

329. With regard to the charges related to setting on fire the villages of Sočani, Daganj, Bojići, Hotovlje, Luko, Kutine and others, in the territory of the Municipality of Kalinovik, as extensively described under Paragraph II.1.b. of the operative part of the Verdict, the Panel found it proven that the event undoubtedly happened but the guilt for the event cannot be ascribed to the Accused Savić. 117

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330. This factual conclusion entails primarily from the evidence of witness Dragan Cerovina and also Milan Lalović and Prosecution documentary evidence. Witness Dragan Cerovina, whom the Panel gave full credence, described that the police officers of the Kalinovik SJB together with the army members participated in setting on fire the villages of Kutine, Daganj, Hotovlje, Luko, Sočani and Bojići, in as much as members of the police set the village of Sočani on fire, while the members of the army set the other villages on fire.

331. Witness Cerovina gave an extensive account of how, on one occasion, members of the Kalinovik SJB, led by the heads of that Station including the SJB Kalinovik Station Chief, Boško Govedarica, set the village of Sočani on fire, by splitting into five groups and then setting the houses on fire.

332. The account of witness Cerovina is confirmed by the photo documentation of the burnt-down village of Sočani (Exhibit T-18), as well as the other mentioned villages (T-19 and T-20).

333. Witness Dragan Cerovina, as one of the participants in the criminal acts, stated the following: that they received an order from the military command, more precisely, from Commander - Captain Starčević, that he came along with the Police Station Chief Boško Govedarica, and Mitar Govedarica, Neđo Zeljaja and Radomir Pušović, who was an Assistant Chief for defense preparation. On that occasion, Chief Boško Govedarica stated that they had received a written order from the Command, that is, Commander Ratko Bundalo, while Gojko Starčević wanted to take the order out of the shoulder bag to read it out. However, Boško said that there was no need to read it as they all had already read it in the Station. Furthermore, Boško also explained that they came there to be leaders of the groups so that police officers avoid being held accountable. The witness added that the written order of the command read that all those villages be burnt so that Muslims do not come back there at nights (those were Muslim villages).

334. Based on the extensive evidence of witness Cerovina, the Panel reached the conclusion that the Accused Krsto Savić can by no means be linked with the respective charge considering the established facts that the order to burn 118

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the villages was issued by the military commander Ratko Bundalo, while the operational execution thereof was conducted by Boško Govedarica, Chief of the Kalinovik SJB who was, for the occasion, resubordinated to the military command, that is, to Ratko Bundalo.128

335. In the light of the established facts, the said situation can be compared with the situation in which a large number of persons, usually in a large territory, commit crimes independently from each other and without having an understanding or entering into any agreement between them to commit the crime.129 The Chamber in the Brđanin case refused to find the Accused guilty of his participation in a JCE with direct perpetrators and found that the Accused and the Relevant Physical Perpetrators could espouse the Strategic Plan and form a criminal intent to commit crimes with the aim of implementing the Strategic Plan independently from each other and without having an understanding or entering into any agreement between them to commit a crime.130

C. COUNT II.2.

336. With regard to the charges related to the imprisonment of women and children in the Nevesinje SJB as described under Paragraph II.2. of the operative part of the Verdict, the Panel finds that this event undoubtedly happened. However, bearing in mind the general course of the events, the Panel is of the view that a full analysis needs to be made in the context of the Accused’s role in order to determine the existence/inexistence of his act or omission which would connect him to the said event, that is, his actus reus enriched with his awareness and willingness related to both the undertaken act and the consequences thereof.

337. Witness F, Irfan Ćatić, Nura Mičijević, Dušan Soldo and Željko Kovačević testified to this event. It follows from the evidence of witness F and Irfan Ćatić that, after they had been captured, they were taken together to the Nevesinje SJB. Two elderly

128 Criminal liability of the Accused, Ratko Bundalo, for the charges related to the said incident, has been found under the final and binding Verdict of this Court X-KRŽ-07/419, 28 January 2011, details in para 158. 129 See: ICTY Trial Chamber Judgement in the case v. Brđanin (September 2004), para. 351. 130 Ibid. para. 351.

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ladies, two young women - Nura Mičijević and Izeta Hajdarević, and four underage children were brought there too. Witnesses Nura Mičijević and Izeta Hajdarević, as well as the then police officers of Nevesinje SJB Dušan Soldo and Željko Kovačević, confirmed the imprisonment at the SJB Nevesinje. With regard to the further course of the events, witness Nura Mičijević confirmed that soldiers took her and Izeta Hajdarević to Borke, but one soldier, who was kind to them, saved them and took them to the Nevesinje SJB, and thereafter they were taken to the separation line.

338. The Panel considered the evidence of witness Irfan Ćatić in its entirety. With regard to the aforementioned events he stated that the morning after he was taken captive, a truck arrived and he recognized his neighbors from Lakat, Aco Vuković, Žara and Mićo Dabić who entered the room and said that children would be separated from the adults and witness F, and that eight of them would be taken to a safe place. It follows from the evidence of Irfan Ćatić that police officer Đuro Ivković was surprised when they were brought to the Nevesinje SJB. These circumstances should be linked with the treatment of children during their stay in the SJB considering that Ivković’s daughter brought food for children and milk for babies and she said that her father sent her to inform them that the next morning they would be released; thereafter they were transferred to the area of Čapljina.

339. Furthermore, it follows from the evidence of Nura Mičijević that, after they had been brought to Nevesinje, soldiers threw them out somewhere in downtown, and after a while they were taken to the Nevesinje SJB; they stayed there for a brief period of time, about one or two hours, according to the witness. Thereafter, Izeta Hajdarević and she were transported to Borke. The following day, children and elderly ladies were transferred to the opposite side, and thereafter the two of them were brought back to the SJB Nevesinje. More specifically, it follows from the evidence of witness Izeta that one soldier drove them to Nevesinje and said that they should wait for the driver who transported children and elderly ladies to the free territory (separation line in the area of Stolac) and that he would catch up with them.

340. The aforementioned evidence structured the event in such a manner that the analysis of the event suggests that members of the army played the main role in capturing those persons, their transportation to Nevesinje and (following a short stay there) transportation to the separation line near Stolac. With regard to their 120

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stay in the Nevesinje SJB, it can be attributed to the situation and general circumstances, for those persons could not be left in the street, rather than to the beyond-a-reasonable-doubt mens rea of the Accused.

341. The chronology of the events leads to the conclusion that the persons who were indeed quartered in the Nevesinje SJB on that specific occasion (particularly children) were brought there in transit waiting for their transfer to the free territory. In addition, none of the proffered evidence suggests a conclusion that the Accused Savić undertook any action in these events, or that he knew about them; accordingly, the proffered evidence does not suggest any action taken by police officers subordinate to the Accused which would amount to a criminal offense. Based on the evidence of witness Irfan Ćatić, a contrary conclusion may be drawn about the conduct of police officer Đuro Ivković.

342. Therefore, although the Accused knew of the existence of a widespread and systematic attack against the non-Serb civilian population in the specified territory, that is, although his mens rea is existent and pertains to the general elements of Crimes against Humanity, its existence was not established beyond a reasonable doubt in relation to each specific criminal act subsumed under Crimes against Humanity considering the said charges under the Indictment, and so the Accused Savić was acquitted in that regard.

D. LEGAL CONCLUSION

343. Given the aforementioned, the Panel concluded that the Prosecution evidence proffered in relation to the said charge, of which the Accused was acquitted, did not reach a necessary level of convincingness that the Accused committed those acts. Therefore, in this specific case, the Panel found it reasonable to apply the in dubio pro reo principle, that is, the Panel is satisfied that the inculpating facts must be established with absolute certainty, that is “beyond a reasonable doubt” and in case there is any doubt about those facts (as is the case here) those facts cannot be considered as established. On the other hand, the other premise of the said rule reads that the exculpating facts should be considered as established even if they are only probable. 121

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344. Abiding by the said principle, pursuant to Article 284(c) the Panel acquitted the Accused of the said criminal acts by which he would have committed Crimes against Humanity in violation of Article 172(1)(h) of the CC of BiH, all in conjunction with Article 180(1) of the CC of BiH.

RECORD-KEEPER PRESIDING ON THE PANEL

Medina Džerahović J U D G E

Dragomir Vukoje, LLM

(hand and stamp)

LEGAL REMEDY: No appeal lies from this Verdict.

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XI. ANNEX I AND ANNEX II

ANNEX I

PROSECUTION EXHIBITS

T1 Record of Ahmet Mičijević, the Prosecutor’s Office of BiH, number KT- RZ-97/06 of 24 May 2007; T2 ICRC to the name of protected witness A; T3 ICRC card 014069 to the name of Kemo Bulić and ICRC certificate dated 12 February 2007 to the name of Kemo Bulić; T4 SIPA Photo-documentation of the Police Station Nevesinje building, number 17-14/1-7-03/08 dated 29 January 2008; T5 Record on Examination of the Witness H, the Prosecutor’s Office of BiH, number KT-RZ-97/06 of 17 December 2007 T6 Photo-documentation of the clip tools factory Alatnica number 17-14/1- 7-05/08 of 11 January 2008 T7 Record of Aleksa Kravić, the Prosecutor’s Office of BiH, number KT- RZ-97/06 of 5 February 2008; T8 Record of Željko Pašajlić, the Prosecutor’s Office of BiH, number KT- RZ-97/06 of 22 October 2007; Record of Željko Pašajlić, the Prosecutor’s Office of BiH, number KT- RZ-97/06 of 1 February 2008; T9 Record of Željko Kovačević, the Prosecutor’s Office of BiH, number KT- RZ-97/06 of 9 October 2007; T10 Record of Dušan Soldo, the Prosecutor’s Office of BiH, number KT-RZ- 97/06 of 9 October 2007; Record of Dušan Soldo, the Prosecutor’s Office of BiH, number KT-RZ- 97/06 of 5 February 2008; T11 Record of Dragan Radovanović, the Prosecutor’s Office of BiH, number KT-RZ-97/06 of 4 February 2008; T12 Record of CSI for 1992/1993/1994/1995/1996/1997/1998/1999/2000/2001/2002 T13 List of employees in Nevesinje SJB who received salaries in April 1992; T14 List of employees in Nevesinje SJB who received salaries in June 1992; T15 Photo-documentation number 17-14/1-7-11/08 of 31 January 2008 – burial lots in Šarića Harem /Šarića cemetery/ Mostar; T16 Photo-documentation number 17-14/1-7-12/08 of 31 January 2008 – burial lot in the Catholic cemetery Mirkovići – Mostar; T17 Record of Asaf Pošković, the Prosecutor’s Office of BiH, number KT- RZ-97/06 of 21 September 2007; T18 Photo-documentation of the scene Sočani – Kalinovik made by the BiH State Investigation and Protection Agency number 17-14/1-7-24/07 of 19 November 2007;

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T19 Photo-documentation of the scenes Boljičići and Daganj – Kalinovik made by the BiH State Investigation and Protection Agency number 17- 14/1-7-25/07 of 19 November 2007; T20 Photo-documentation of the scene Kutine and Hotovlje-Kalinovik made by the BiH State Investigation and Protection Agency, number 17-14/1- 7-26/07 of 19 November 2007; T21 Photo-documentation of the scene - weekend house, property of M. Sabljica, Mjehovina - Kalinovik, made by the BiH State Investigation and Protection Agency, number 17-14/1-7-31/07 of 19 November 2007; T22 Record of the Prosecutor’s Office of BiH No. KT-RZ-80/05 dated 28 September 2007 on examination of witness Dragan Cerovina; T23 Witness W statement No. 17-14/03-1-138/07 dated 03 September 2007 T24 Record of Milivoje Faladžić, the Prosecutor’s Office of BiH, number KT- RZ-80/05 of 16 October 2007; T25 Record of Fehma Kadić, the Prosecutor’s Office of BiH, number KT- RZ-80/05 of 8 November 2007; T26 Record of Milan Lalović, the Prosecutor’s Office of BiH, number KT-RZ- 80/05 of 18 October 2007; T27 Order of the Court of BiH X-KRN-07/400 dated 06 September 2007 T28 Record on Search of Dwellings, and movables of 7 September 2007; (owned by Milko Mučibabić); T29 Receipt on Temporary Seizure of Objects of 7 September 2007; T30 Receipt on handover of objects Nevesinje PS of 7 September 2007; T31 Photodocumentation of search of dwellings and accompanying documents of 11 October 2007; T32 Statement of witness E1 given to the Prosecutor’s Office of BiH of 26 October 2007; T33 Record of Džemila Redžović, the Prosecutor’s Office of BiH, number KT-RZ-80/05, KT-RZ-90/07 of 16 April 2007; T34 Exhumation record, Higher Court in Mostar No. Kri: 4/98 of 04 May 1999, Nevesinje Municipality, village of Odžak-Čanje; T35 Exhumation record, Higher Court in Mostar No. Kri: Kri: 9/99 of 13 May 1999 on exhumation at Čanje cemetery, Nevesinje Municipality; T36 Autopsy record of the Faculty of Medicine - Forensic Medicine Institute Sarajevo of 19 November 1999; T37 Photodocumentation of the locality of Čanje No: 397/01 T38 Exhumation report, Cantonal Court in Mostar No: Kri:9/01 of 27 August 2001 at the locality of Borci-Konjic; T39 Photodocumentation of exhumation of 16 unknown bodies exhumed from Borisavac pit; T40 Autopsy record – Borisavac pit-Nevesinje body No. 3; T41 Autopsy record – Borisavac pit-Nevesinje body No. 14; T42 Autopsy record – Borisavac pit-Nevesinje body No 10; T43 Autopsy record – Borisavac pit-Nevesinje body No. 15; T44 Photodocumentation of the locality Gacko–Stanički most No: 315/99; T45 Photodocumentation No. 307/99 – locality Gacko–Partizansko groblje; T46 Autopsy record of the Faculty of Medicine - Forensic Medicine Institute Sarajevo of 19 November 1999; T47 Motion of the Cantonal Prosecutor’s Office, Sarajevo, to issue the order for exhumation;

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T48 Order for exhumation, Cantonal Court of Sarajevo T49 Autopsy record – locality of Vjetren brdo, Municipality of Kalinovik of 15 July 2004; T50 Autopsy record–Kalinovik body No. 1.; T51 Official note of the Ministry of Internal Affairs – Crimes Police Sector– General Crime Department Sarajevo No: 02/2.2-671/04 of 02 August 2004 T52 Record on identification of a body No: 02/2-2-234-1/04 of 02 August 2004 T53 Finding- expert analysis of firearms traces –MUP– Crime Police Sector – Crime Technicians Department No: 02/2-6-04-09-1988 of 03 March 2005; T54 Report of the crime-technical examination of the scene number 3100/04 of 15 July 2004; T55 Photo-documentation of exhumation and autopsy - locality of Vjetren brdo, municipality of Kalinovik; T56 Record of Identification by the Cantonal Prosecutor’s Office, Sarajevo, No KTA-151/07-RZ of 14 December 2007; T57 Autopsy record Kalinovik body No. 2.; T58 DNA report; T59 Official report on actions taken upon the Order to search dwellings, other premises and movables: 17-04/2-04-02-381-25/07 of 10 September 2007; T60 Record on search of dwellings, other premises and movables No: 17- 04/2-04-2-14/07 of 7 September 2007; T61 Record on search of dwellings, other premises and movables No: 17- 04/2-04-2-15/07 of 7 September 2007; T62 Receipt on Temporary Seizure of Objects No: 17-04/2-04-2-24/07 of 7 September 2007; T63 Receipt on Temporary Seizure of Objects No: 17-04/2-04-2-22/07 of 7 September 2007; T64 Photodocumentation No: 17-14/1-7-17/07 of 4 October 2007– search of Nevesinje PS premises; T65 Record of opening and examination of temporarily seized objects and documentation: KT-RZ-97/06 of 26 September 2007; T66 Notice of the RS Ministry of Interior – Crime police submitting the requested documentation No. 02-490/07 of 23 October 2007 T67 Decision of MUP No: 10-577 of 1 April 1992 regarding a temporary deployment of Krsto Savić; T68 MUP Decision on appointment of Krsto Savić Chief of Trebinje CSB; T69 Decision No: 10-1907/92 of 22 June 1992 assigning Krsto Savić to the position of the Chief of Trebinje CSB; T70 Decision No. 6676 of 27 April 1994 assigning Krsto Savić to the position of the Chief of Trebinje CSB; T71 Decision No: 09/3-120-4494/94 of 1 December 1994 assigning Krsto Savić to the position of the MUP Chief Inspector in the Minister’s office; T72 Decision No: 08/1-134-618 on early promotion of Krsto Savić to the next higher rank - the rank of Major;

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T73 Decision No: 09/3-120-935 of 3 March 1997 assigning Krsto Savić to the position of Chief of Operation Center Trebinje, Intelligence and Counter-Intelligence Sector; T74 Personal Questionnaire pertaining to Krsto Savić; T75 Decision of 9 April 1997 on early promotion of Krsto Savić to the next higher rank – rank of Lieutant Colonel; T76 Decision No: 06/3-126-1343 of 10 March 1999 on the termination of work contract for Krsto Savić; T77 Decision No: 10-952 of 1 April 1992 temporarily assigning Milko Mučibabić to the position of a police officer in Nevesinje CJB; T78 Personal Questionnaire pertaining to Milko Mučibabić; Decision assigning Milko Mučibabić to the position of a shift leader at Nevesinje PS; T79 Decision assigning Milko Mučibabić to the position of a shift leader at Nevesinje PS;; T80 Decision No: 08/1-134-358 of 20 October 1995 establishing the rank of Milko Mučibabić; T81 Personal Questionnaire pertaining to Milko Mučibabić for the purpose of establishing the rank of authorized official; T82 Copy of the work booklet of Milko Mučibabić; T83 Decision No: 03/1-2-120-2659 of 17 April 1999 assigning Milko Mučibabić to the position of shift leader at Nevesinje PS, Nevesinje CJB T84 Decision No: 03/1-2-126-522/00 of 20 June 2000 on the termination of work contract for Milko Mučibabić; T85 Death certificate for Huso Tukelija; T86 Record by the Prosecutor’s Office of BiH No: KT-RZ-80/05 of 29 October 2007 of the examination of witness Huso Tukelija; T87 Receipt of the Federation Commission for Missing Persons number 01- 41-457-E/2007 of 15 November 2007 with respect to Mirza Čustović; T88 Receipt of the Federation Commission for Missing Persons number 01- 41-458-E/2007 of 15 November 2007 with respect to Rašid Toporan; T89 Receipt of the Federation Commission for Missing Persons number 01- 41-35-E/2008 of 12 February 2008 with respect to Zejna Šarančić; T90 Receipt of the Federation Commission for Missing Persons number 01- 41-36-E/2008 of 12 February 2008 with respect to Sabira Šarančić; T91 Receipt of the Federation Commission for Missing Persons number 01- 41-30-E/2008 of 12 February 2008 with respect to Mejra Pendan T92 Receipt of the Federation Commission for Missing Persons number 01- 41-33-E/2008 of 12 February 2008 with respect to Šerifa Eminović; T93 Combat Report of the Command of the Herzegovina Corps, strictly confidential number 147-273 of 3 July 1992; T94 Report by the Ministry of Justice of Serb Republic of BiH to the Government of Serb Republic of BiH; T95 Work Report of the PSC Trebinje for the period between 4 April and 31 December 1992 number 09-1/93 of 13 January 1993; T96 Order by Minister Mićo Stanišić No: strictly confidential 10-23/92 of 17 August 1992 sent to the attention of CSB Chief; T97 Information of Trebinje CSB No: strictly confidential 01-172/92 of 4 August 1992 on actions of the so-called paramilitaries;

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T98 Information on the activities and current issues at Trebinje CSB; T99 Estimate of political and security situation at the territory of Trebinje CJB; T100 List of persons who were detained in Bileća and gecko camps; T101 Receipt of the Federation Commission for Missing Persons number 01- 41-29-E/2008 of 11 February 2008 with respect to Aziz Hasanbegović; T102 Receipt of the Federation Commission for Missing Persons number 01-41-31-E/2008 of 11 February 2008 with respect to Enver Redžović; T103 Receipt of the Federation Commission for Missing Persons number 01-41-32-E/2008 of 11 February 2008 with respect to Nelman Memić; T104 Summary of working meeting of supervisory and management staff of the Ministry of Interior held on 20 August 1992 in Trebinje; T105 Minutes of the meeting held in Banjaluka on 11 February 1992; T106 Payroll sheet of employees of the Public Security Station Nevesinje for October 1992; T107 Dispatch note of the Public Security Centre Trebinje number 103/92 of 7 August 1992; T108 Personnel questionnaire pertaining to Krsto Savić; T109 Payroll sheet of employees of the Public Security Station Nevesinje for September 1992; T110 SDA Nevesinje – Letter for Mr. Alija Izetbegović; T111 payroll sheet of employees of the Public Security Station Nevesinje for April 1992; T112 Notice that the autonomous province Herzegovina elected the government; T113 Payroll sheet of employees of the Nevesinje CSB for May 1992; T114 Sarajevo Ministry of Interior – Decision suspending Krsto Savić from the Ministry of Interior T115 Dispatch note of the Trebinje CSB strictly confidential of 12 October 1992 sent to MUP RS, Bijeljina; T116 Dispatch of the Trebinje CSB number 141/93 of 27 March 1993 sent to the Chief of Rudo SJB; T117 Dispatch of the Trebinje CSB number 82/92 of 24 July 1992 sent to the Serb MUP in Sarajevo; T118 Dispatch of the Trebinje CSB number 84/92 of 26 July 1992 sent to the Ministry of Serb republic of BiH, Sarajevo; T119 Dispatch of the Trebinje CSB number strictly confidential 88/92 of 29 July 1992 sent to the Command of Herzegovina Corps – Operations Center; T120 Dispatch of the Trebinje CSB number 91/92 of 31 July 1992 sent to the MUP of Serb Republic of BiH, Sarajevo; T121 Dispatch of the Trebinje CSB number 99/92 of 4 August 1992 sent to the MUP of Serb Republic of BiH, Sarajevo; T122 Dispatch of the Trebinje CSB number 103/92 of 7 August 1992 sent to the MUP of Serb Republic of BiH, Sarajevo; T123 Dispatch of the Trebinje CSB of 10 September 1992 sent to the MUP of Serb Republic of BiH, Sarajevo; T124 Dispatch of the Trebinje CSB number 160/92 of 11 September 1992 sent to MUP of Serb Republic of BiH, Sarajevo;

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T125 Dispatch of the Trebinje CSB of 29 September 1992 sent to MUP of Serb Republic of BiH, Sarajevo; T126 Dispatch of the Trebinje CSB number 23/92 of 2 October 1992 sent to MUP of Serb Republic of BiH, Sarajevo; T127 Dispatch of the Trebinje CSB number 33/92 of 10 October 1992 sent to MUP of Serb Republic, Bijeljina; T128 Supplement to data upon the Decree on Decorations of 26 April 1995; T130 Nedjeljni glas Banja Luka No: 6555 of 15 March 1992; T131 RDP Centre Banjaluka, dispatch note number 10-2709 of 21 November 1994 sent to RDB Department – Drvar, M.Grad-Prijedor; T132 Summary of the discussions – Stojan Župljanin, Chief of Banja Luka CSB; T133 Motion for early promotion to a higher rank of Krsto Savić by the Commander of BP for ATD; T134 SIPA Notice No: 17-04/2-04-2-381-44/07 of 4 February 2008 on the delivery of sketch and photodocumentation; T135 Photodocumentation of Kotlovnice–Kilavci–Nevesinje of 29 January 2008; T136 Photodocumentation of Nevesinje Dom culture of 29 January 2008; T137 Case-file cover Order No. 09-222/92 of 1 September 1992; T138 Case-file cover with roster of Nevesinje SJB of 31 October 1992; T139 Document (ballistic examination of pistol) number 02-289/92 of 22 September 1992; T140 Criminal Report with Nevesinje SJB number KU:26/92 of 28 August 1992; T141 Case File Cover Zoran Perović, KU Number 12/92, number 02-230-22, with the criminal report of 17 July 1992; T142 Case-file cover against an unknown perpetrator No: 06/92 No. 16- 14/02-230-7/92, with the criminal report of 5 March 1992; T143 Green notebook of A4 format; T144 Certificate of the Ministry of Defense- Section Nevesinje No: 8-835-V- 80-1037/96 to the name of Milko Mučibabić and military booklet to the name of Milko Mučibabić; T145 Decoration for Krsto Savić of 21 November 1993; T146 Order of acting Chief of Nevesinje SJB No: official dated 18 April 1992; T147 Report by Novo Đogović and Željko Pašajlić No: 717/92 of 5 May 1992; T148 Travel permit for Huso Tukelija, Public Security Station Kalinovik, number: sl/92 of 25 July 1992 T149 Travel permit for Huso Tukelija, Public Security Station Kalinovik, number: sl/92 of 10 July 1992; T150 Travel permit for 8 detainees, Public Security Station Kalinovik, number: official/92 of 30 June 1992; T151 Travel permit for 6 detainees, Public Security Station Kalinovik, number: sl/92 of 6 July 1992; T152 Travel permit for 7 detainees, Public Security Station Kalinovik number sl/92 of 18 July 1992; T153 Work report, Kalinovik SJB No: 17-16/01-211-579/92 of 18 August 1992; T154 Call-up note of the Municipal Secretariat for National Defense of the municipality of Kalinovik of 25 June 1992; 128

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T155 Photo-documentation of the Pavlovac Farm, Kalinovik, dated 19 Nov. 2007; Photo-documentation of the scene - Pavlovac farm - Kalinovik of 19 November 2007; T156 Photo-documentation of the scene Jelašca – Kalinovik of 19 November 2007; T157 Photo-documentation of the scene - Primary School Ljutica Bogdan Kalinovik of 19 November 2007; T158 Receipt of the Federation Commission for Missing Persons on disappearance of Fatima Pervan, number 01-41-450-E/2007 of 15 November 2007; T159 Receipt of the Federation Commission for Missing Persons on disappearance of Azemina Pervan, number 01-41-449-E/2007 of 15 November 2007; T160 Receipt of the Federation Commission for Missing Persons on disappearance of Almir Kadrić, number 01-41-451-E/2007 of 15 November 2007 T161 Receipt of the Federation Commission for Missing Persons on disappearance of Edin Bičo, number 01-41-453-E/2007 of 15 November 2007; T162 Receipt of the Federation Commission for Missing Persons on disappearance of Hašim Hatić, number 01-41-454-E/2007 of 15 November 2007; T163 Receipt of the Federation Commission for Missing Persons on disappearance of Suad Hasanbegović, number 01-41-456-E/2007 of 15 November 2007; T164 Receipt of the Federation Commission for Missing Persons on disappearance of Sejdo Kešo, number 01-41-455-E/2007 of 15 November 2007; T165 Request to assign Hasan Hadžić to work during the working day in public enterprise Šumarstvo /Forestry/ Zelengora Kalinovik, number 17- 16/01-211-549/92 of 8 July 1992 T166 Official Note of 1 October 1992 compiled by Miroslav Mišur and Branko Stanković, police members, Kalinovik SJB; T167 Record of exhumation and autopsy, Cantonal Court in Sarajevo No: Kri-82/98 of 24 June 1999; T168 Findings of the certified expert Dr. Davorin Kozomara on the health status of witness Hata Mehremić; T169 Payroll of Trebinje CSB for July 1992; T170 Copy of the organizer found during the search of Trebinje CSB, with the ICTY verification; T171 Dispatch note of the Trebinje CSB No: 147/92 of 28 July 1992 sent to the MUP SR BiH-Minister; T172 Regular combat report of the Herzegovina Corps Command strictly confidential 147-217 of 11 June 1992; T173 Letter of the Gacko SJB No: 16-501-421/92 of 29 July 1992 sent to the Herzegovina Corps; T174 List of active members of Trebinje CSB - Gacko SJB who worked in this police station in May 1992 and received advance payment of personal income for the month of May; T175 Information on the work of Trebinje CSB from 1 July to 15 August 1992; 129

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T176 Order to conduct an investigation into activities of paramilitaries in the municipalities of Gacko and Nevesinje No: 01-223/92 of 3 July 1992; T177 Letter by the Presidency of SR BiH to the Government of SR BiH No: 01 456/92 of 7 August 1992; T178 Manifesto of the Municipal Assembly Gacko sent to the Muslim people dated 11 July 1992; T179 Newsletter of 18 August 1992; T180 Newsletter No. 5, Sarajevo MUP, 24 April 1992; T181 Newsletter No. 6, Sarajevo MUP, 25 April 1992; T182 Newsletter No. 7, Sarajevo MUP, 26 April 1992; T183 Newsletter No. 70. of 20 July 1992; T184 Letter of MUP SR BiH No. strictly confidential 01-2/92 of 16 May 1992 sent to CSB Banja Luka, Bijeljina, Doboj, Sarajevo and Trebinje; T185 Letter of MUP SR BiH Sarajevo strictly confidential 10-11/92 of 17 July 1992 sent to CJB; T186 Decision of the National Assembly Speaker No. 02-130/92 of 12 May 1992 on the strategic goals of the Serb people in BiH; T187 Document of MUP SR BiH sent to CJB-attention of Chiefs No: 10-14/92 of 19 July 1992; T188 Order MUP SR BiH strictly confidential 01-1/92 of 15 May 1992; T189 Order MUP SR BiH No: 01-54/92 of 20 April 1992; T190 Order MUP SR BiH strictly confidential No. 01-1/92 of 4 May 1992; T191 Rulebook on disciplinary responsibility of employees of the Ministry of Interior of the Serb Republic at wartimes; T192 Minutes of the meeting of heads in the Ministry of Interior of Republika Srpska held on 5 November 1992 in Bijeljina; T193 Information of the MUP RS BiH Sarajevo on some aspects of the work and future tasks; T194 Minutes of the extended session of heads of the Ministry of Interior of the Serb Republic held on 9 September 1992 in Košuta on Jahorina Mt.; T195 Letter of the MUP SR No: strictly confidential 10-22/92 of 17 August 1992 sent to the Security Services Center and Administrations in the headquarters; T196 Payroll of reserve workers for July 1992 personal income at Trebinje CSB Trebinje- Gacko SJB; T197 Payroll for July 1992, Trebinje CSB - Bileća SJB; T198 Payroll for July 1992, Trebinje CSB - Nevesinje SJB; T199 Payroll for active workers of Foča SJB in June 1992; T200 Receipt of the Missing Persons Institute of BiH No: 01-40-CEN-15/2008 of 5 December 2008 to the name of Dervan Pervan; T201 Records of the Cantonal Court, Mostar, No: Kri: 1/99 of 20 October 1999 on identification of exhumed bodies in the territory of Gacko- Republika Srpska; T202 Record of crime-scene investigation, Cantonal Court, Mostar No: Kri: 1/99 of 19 October 1999; T203 Rulebook on internal organization of the Ministry of Interior at times of imminent threat of war and wartimes;

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T203A Rulebook on internal organization of the Republic Secretariat of Interior of the Socialist Republic of Bosnia and Herzegovina of 29 January 1990; T204 Decision of the Assembly of Serb Autonomous Region Herzegovina No. 9-12-6-56/92 of 13 July 1992 on the cessation of work of the Government of Serb Autonomous Region Herzegovina; T205 SIPA record of examination of witness Hata Mehremić No: 17-13/3-1- 04-2-7/08 of 15 January 2008;

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ANNEX II

DEFENSE EVIDENCE

O1-1 SIPA record of the examination of witness B; O1-2 Information of the Municipal War Veterans’ Organization, Nevesinje No: 81/08 of 1 September 2008; O1-3 Letter by Mićo Stanišić, Minister of Internal Affairs No: 10-260/92 of 24 August 1992 sent to the Security Services Center and Public Security Stations; O1-4 Instruction of treatment of detained persons; O1-5 Combat report of the Herzegovina Corps Command strictly confidential No. 147-273 of 3 July 1992; O1-6 Work Report of Kalinovik SJB for the period from April to August 1992 No: 17-16/01-211-579/92 of 18 August 1992; O1-7 Finding of the expert Dr. Mile Matijević; O1-8 Order of the Light Infantry Brigade Command No. strictly confidential: 44-30 of 29 October 1992 related to escorting of prisoners of war; O1-9 List of persons dismissed from Foča KPD for the purpose of exchange of 21 October 1992; O1-10 Authorization of the Herzegovina Corps Command strictly confidential No: 76-647/1 of 22 August 1993 to take over prisoners of war and Receipt on takeover of Croat prisoners of war by Ranko Višnjevac; O1-11 List of detained persons released from Foča KPD for the purpose of exchange; O1-12 List of Muslim detainees released from Foča KPD for the purpose of exchange with detained Serbs from Konjic; O1-13 Order of the Light Infantry Brigade Command No. confidential 44-61 of 5 December 1992 to transport 12 prisoners of war from Foča garrison to Kalinovik garrison; O1-14 Dispatch note of the Herzegovina Corps Command- Intelligence and Security Division strictly confidential No. 15-137 of 4 October 1994; O1-15 Information on the work of Trebinje CSB of 20 August 1992 for the period from 1 July to 15 August 1992; O1-16 Document by the Ministry of Interior of the Serb Republic of BiH sent to the CJB - attention of Chiefs No: 10-14/92 dated 19 July 1992, strictly confidential; O1-17 Witness statement of Bahrija Trebović given to the ICTY investigators on 7 November 2001; O1-18 Information on the case IT-04-82 –Boškovski and Tarčulovski and the case IT-04-83 - Rasim Delić O1-19 Rulebook on the manner of discharging of public security service duties;

O2-1 SIPA record of the examination of witness B; O2-2 Decision of the MUP Sarajevo No: 10-952 of 1 April 1992 temporarily assigning Milko Mučibabić to the position of a police officer at Nevesinje SJB; O2-3 Personnel questionnaire related to Milko Mučibabić; 132

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O2-4 Personnel questionnaire related to Milko Mučibabić for the establishment of the rank of authorized official No: 17-4/09-111-13/35 of 14 September 1995; O2-5 List of workers in CSB-SM Nevesinje who worked in this police station during April and received advance payment of personal income for April ; O2-6 Duty roster, SJB Nevesinje for 16 June 1992; O2-7 Information, Trebinje CSB, No: 01-172/92 of 30 July 1992 on the activities of paramilitaries in the territory of Serb autonomous region Herzegovina; O2-8 Receipt of the hunters’ club Srndać Nevesinje No: 195/08 of 12 November 2008; O2-9 SIPA Receipt on temporary seizure of items No:: 17-04/2-04-2-25/07 of 7 November 2007; O2-10 Law on Internal Affairs of SR BiH; O2-11 Rulebook on disciplinary responsibility of workers of the MUP of the Serb Republic at the times of war.

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