UNITED NATIONS International Tribunal for the Case No. IT-03-68-T Prosecution of Persons Responsible for Serious Violations of Date: 30 June 2006 International Humanitarian Law Committed in the Territory of Original: English Former Yugoslavia since 1991 IN TRIAL CHAMBER II Before: Judge Carmel Agius, Presiding Judge Hans Henrik Brydensholt Judge Albin Eser Registrar: Mr. Hans Holthuis Judgement of: 30 June 2006 PROSECUTOR v. NASER ORIĆ JUDGEMENT The Office of the Prosecutor: Mr. Jan Wubben Ms. Patricia Viseur Sellers Mr. Gramsci Di Fazio Ms. JoAnne Richardson Mr. José Doria Counsel for the Accused: Ms. Vasvija Vidović Mr. John Jones Case No.: IT-03-68-T 30 June 2006 CONTENTS I. INTRODUCTION 1 A. THE ACCUSED 1 B. SUMMARY OF THE CHARGES 2 1. Charges of Murder and Cruel Treatment 2 2. Charges of Wanton Destruction 3 II. GENERAL CONSIDERATIONS REGARDING EVALUATION OF THE EVIDENCE 5 A. GENERAL MATTERS REGARDING THE ADMISSION OF EVIDENCE 5 B. AUTHENTICITY OF EXHIBITS 8 1. Prosecution Objections to the Admission of Documents Tendered by the Defence 9 2. Defence Objections to the Admission of Documents Tendered by the Prosecution 9 (a) Objections Based on Lack or Insufficient Chain of Custody 9 (b) Objections to Exhibits Which Have not Been Presented to any Witness 11 (c) Objections Based on the Nature of the Document 11 i. Computer Files 11 ii. ‘Combat Action Information Sheets’ from the ABiH 2nd Corps 12 (d) Objections Based on the Source of the Document 12 i. Documents Provided by the Republika Srpska Liaison Office 12 ii. Documents Provided by Republika Srpska Bureau for Co-operation With the Tribunal 13 iii. Documents From the Sokolac Collection 14 iv. Documents From the Impeached Banja Luka Source 17 v. Documents Provided by the ‘Law Projects Centre’ in Belgrade 17 vi. Documents From the Republika Srpska OBS Source 18 vii. Documents Provided by the Dutch Institute of War Documentation and the Dutch Evangelical Church 19 (e) Objections Based on Intrinsic Factors 21 i. Exhibit P84 21 ii. Exhibits P328 and P329 21 iii. Exhibits P598 and P598.1 23 (f) The Findings of Handwriting and Signature Experts 24 C. ALLEGATIONS OF NON-COMPLIANCE WITH PROSECUTORIAL OBLIGATIONS UNDER RULE 68 OF THE RULES 29 1. Non-Disclosure of Documents Relating to Nurif Rizvanović 29 2. General Conclusions on Rule 68 30 III. GENERAL OVERVIEW 31 A. BACKGROUND TO THE CONFLICT IN BOSNIA AND HERZEGOVINA 31 1. Events Leading to the Independence of Bosnia and Herzegovina 31 2. The Plan to Create a New Serbian State 32 3. Outbreak of Armed Conflict in Bosnia and Herzegovina 33 B. SREBRENICA AREA: THE SPECIFIC POLITICAL, MILITARY AND HUMANITARIAN CONTEXT OF THE CASE 34 1. General Information 34 2. The Rise of Tensions in the Srebrenica Area 35 3. The Takeover of Srebrenica by Bosnian Serb Forces and its Recapture by Bosnian Muslims 38 4. Srebrenica Under Siege 38 (a) The Military Situation in and Around Srebrenica 38 (b) The Humanitarian Situation in and Around Srebrenica 40 (i) The Influx of Refugees 40 i Case No.: IT-03-68-T 30 June 2006 (ii) The Shortage of Food and Shelter 42 (iii) Medical, Hygienic and Other Living Conditions 43 (c) The Re-establishment of Authorities in Srebrenica 43 (d) The Arrival of UNPROFOR in the Area 44 5. Srebrenica as a ‘Safe Area’ 44 IV. STRUCTURE OF SREBRENICA MILITARY AND CIVILIAN AUTHORITIES 46 A. ESTABLISHMENT OF THE ARMED FORCES OF BOSNIA AND HERZEGOVINA 46 1. National Level 46 2. Regional Level 48 B. THE BOSNIAN MUSLIM FORCES IN THE SREBRENICA AREA 49 1. Characteristics 49 2. Evolution of Bosnian Muslim Forces in the Srebrenica Area 52 (a) From the Srebrenica TO Staff to the Srebrenica Armed Forces Staff 52 (b) Attempts at Joining the Forces in Eastern Bosnia 56 (i) The Establishment and Development of the Sub-region 56 (ii) Nurif Rizvanović and the Drina Division 57 (c) A Geographically Dispersed Command Structure 59 (i) Heterogeneity of the Bosnian Muslim Local Fighting Groups in Eastern Bosnia 59 (ii) Parallel Existence of a Srebrenica Municipal TO Staff in Tuzla 66 (d) Military Authority in Srebrenica After Demilitarisation 66 3. Military Police 68 (a) The Creation of Military Police Units on the Republic and Regional Level 68 (b) Jurisdiction of the Military Police 69 (c) The Srebrenica Military Police 70 (i) Organisation of the Srebrenica Military Police 70 (ii) Activities of the Srebrenica Military Police Between July 1992 and March 1993 71 4. Communications 73 (a) Overview 73 (b) Relevant Structures 74 (c) Communications Within Srebrenica 75 (d) Communications Beyond Srebrenica 76 (e) Conclusion 77 5. Conclusion With Regard to the Structure of the Military Authorities in Srebrenica Before Demilitarisation 78 C. STRUCTURE OF THE CIVILIAN AUTHORITIES IN SREBRENICA 78 1. War Presidency of the Srebrenica Municipality 78 (a) Establishment and Composition 78 (b) Functioning 80 2. Civilian Police 81 D. JUDICIAL SYSTEM 82 1. Applicable Law 82 2. Court Structure in the SFRY 84 3. Court Structure in the Srebrenica Area Between April 1992 and July 1995 85 (a) April to September 1992 85 (b) September 1992 to June 1993 85 (i) Military Courts 85 (ii) Civilian Courts 87 (c) June to December 1993 89 (d) January 1994 to February 1995 90 (e) February to June 1995 90 E. RELATIONSHIP BETWEEN THE MILITARY AND THE CIVILIAN AUTHORITIES 91 V. JURISDICTION UNDER ARTICLE 3 OF THE STATUTE 93 ii Case No.: IT-03-68-T 30 June 2006 A. THE LAW 93 1. Preliminary Requirements 93 2. The Four Tadić Conditions 95 3. Additional Requirement Under Common Article 3 95 B. FINDINGS 95 1. Preliminary Requirements 95 2. The Four Tadić Conditions 96 3. Additional Requirement Under Common Article 3 97 C. CONCLUSION 97 VI. INDIVIDUAL CRIMINAL RESPONSIBILITY: THE LAW 98 A. RESPONSIBILITY UNDER ARTICLE 7(1) OF THE STATUTE 98 1. Instigation 99 (a) Actus Reus 99 (b) Nexus Between the Instigation and the Principal Crime 101 (c) Mens Rea 102 2. Aiding and Abetting 104 (a) Actus Reus 104 (b) Nexus Between Aiding and Abetting and the Principal Crime 107 (c) Mens Rea 108 B. RESPONSIBILITY UNDER ARTICLE 7(3) OF THE STATUTE 110 1. Nature and Elements of ‘Superior Criminal Responsibility’ 111 2. Scope of the ‘Principal Crime’ 112 3. ‘Superior-Subordinate Relationship’ 117 4. Mens Rea - ‘Knew or had Reason to Know’ 120 (a) Actual Knowledge 121 (b) Imputed Knowledge 122 5. ‘Failure to Prevent or Punish’ 125 (a) Two Distinct Duties 125 (b) Necessary and Reasonable Measures to Prevent 126 (c) Necessary and Reasonable Measures to Punish 129 (d) Position of the Parties 132 6. Relationship Between a Superior’s Failure and Subordinates’ Crimes 132 C. THE RELATIONSHIP OF RESPONSIBILITY UNDER ARTICLES 7(1) AND 7(3) OF THE STATUTE 133 VII. CHARGES AND FINDINGS WITH REGARD TO MURDER (COUNT 1) AND CRUEL TREATMENT (COUNT 2) 137 A. THE LAW 137 1. Murder 137 2. Cruel Treatment 138 B. THE FACTS AND FINDINGS 139 1. Introduction 139 2. General Conditions at the Srebrenica Detention Facilities 140 (a) Preliminary Remark 140 (b) Srebrenica Police Station 141 (c) Building Behind the Municipal Building 142 (i) General 142 (ii) Male Cell 143 (iii) Female Cell 144 (d) The Srebrenica Hospital 145 3. Murder 145 (a) Incident at the Srebrenica Police Station in September 1992: Dragutin Kukić 145 iii Case No.: IT-03-68-T 30 June 2006 (b) Incidents at the Building Behind the Municipal Building Between 6 February 1993 and 20 March 1993 147 (i) Jakov Đokić 147 (ii) Dragan Ilić 149 (iii) Milisav Milovanović 150 (iv) Kostadin Popović 151 (v) Branko Sekulić 153 4. Cruel Treatment 154 (a) Incidents at the Srebrenica Police Station in September and October 1992 154 (i) Nedeljko Radić 154 (ii) Slavoljub Žikić 156 (iii) Zoran Branković 158 (iv) Nevenko Bubanj 159 (v) Veselin Šarac 160 (b) Incidents at the Srebrenica Police Station and the Building Behind the Municipal Building Between December 1992 and March 1993 161 (i) Ilija Ivanović 161 (ii) Ratko Nikolić 163 (iii) Rado Pejić 165 (iv) Stanko Mitrović 167 (v) Mile Trifunović 168 C. INDIVIDUAL CRIMINAL RESPONSIBILITY OF THE ACCUSED 169 1. Superior-Subordinate Relationship 169 (a) Submissions 169 (b) Whether Members of the Srebrenica Military Police Bear Responsibility for the Crimes of Murder and Cruel Treatment 170 (i) Identity of the Direct Perpetrators 170 (ii) Identity of the Detaining Force 171 (iii) Responsibility of the Srebrenica Military Police 173 a. September-October 1992 174 b. December 1992-March 1993 175 c. Conclusion as to the Responsibility of the Srebrenica Military Police 175 (c) Whether the Accused Effectively Controlled the Srebrenica Military Police 176 (i) Prior to 14 October 1992 177 (ii) The Reorganisation of the Srebrenica Military Police in October and November 1992 178 (iii) After 27 November 1992 180 a. The Role of Hamed Salihović 181 b. The Role of Osman Osmanović 182 c. The Role of Ramiz Bećirović 183 d. The Role of Zulfo Tursunović 184 e. Analysis 185 i. Whether Hamed Salihović, Osman Osmanović, Ramiz Bećirović and Zulfo Tursunović Exercised Effective Control Over the Srebrenica Military Police 185 ii. Whether the Accused Exercised Effective Control Over Osman Osmanović and Ramiz Bećirović 187 iii. Other Considerations Regarding a Superior-Subordinate Relationship With the Accused 188 (d) Conclusion as to the Existence of a Superior-Subordinate Relationship 188 2. Actual or Imputed Knowledge 189 (a) Submissions 189 (b) Actual or Imputed Knowledge of Murder and Cruel Treatment at the Srebrenica Police Station in September and October 1992 190 (c) Murder and Cruel Treatment at the Srebrenica Police Station and at the Building Behind the Municipal Building Between December 1992 and March 1993 192 iv Case No.: IT-03-68-T 30 June 2006 (i) Actual Knowledge 192 (ii) Imputed Knowledge 194 (d) Conclusion as to Actual or Imputed Knowledge 197 3.