IN THE TRIAL CHAMBER

Before:
Judge Antonio Cassese, Presiding
Judge Richard May
Judge Florence Ndepele Mwachande Mumba

Registrar:
Mrs. Dorothee de Sampayo Garrido-Nijgh

Judgement of: 14 January 2000

__________________________________________________

The Office of the Prosecutor:

Mr. Franck Terrier
Mr. Michael Blaxill

Counsel for the Accused:

Mr. Ranko Radovic, Mr. Tomislav Pasaric, for Zoran Kupreskic
Ms. Jadranka Slokovic-Glumac, Ms. Desanka Vranjican, for Mirjan Kupreskic
Mr. Borislav Krajina, Mr. Zelimar Par, for Vlatko Kupreskic
Mr. Luko Susak, Ms. Goranka Herljevic, for Drago Josipovic
Mr. Petar Puliselic, Ms. Nika Pinter, for Dragan Papic
Mr. Petar Pavkovic, Mr. Mirko Vrdoljak, for Vladimir Santic

The trial of Zoran Kupreskic, Mirjan Kupreskic, Vlatko Kupreskic, Drago Josipovic, Dragan Papic, Vladimir Santic, hereafter the “accused”, before this Trial Chamber of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, hereafter “International Tribunal”, commenced on 17 August 1998 and came to a close on 10 November 1998.

Having considered all of the evidence presented to it during the course of this trial, along with the written and oral submissions of the Office of the Prosecutor , hereafter “Prosecution”, and the Defence for the accused, the Trial Chamber

HEREBY RENDERS ITS JUDGEMENT.

I. INTRODUCTION

1. The International Tribunal is governed by its Statute, adopted by the Security Council of the United Nations on 25 May 1993, hereafter “Statute”,¹ and by the Rules of Procedure and Evidence of the International Tribunal, hereafter “Rules”, adopted by the Judges of the International Tribunal on 11 February 1994 , as amended.² Under the Statute, the International Tribunal has the power to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991.³ Articles 2 through 5 of the Statute further confer upon the International Tribunal jurisdiction over grave breaches of the Geneva Conventions of 12 August 1949 (Article 2); violations of the laws or customs of war (Article 3); genocide (Article 4); and crimes against humanity (Article 5).

2. On 2 November 1995 the Prosecutor of the International Tribunal for the Former Yugoslavia (“the Tribunal”) issued an indictment charging Zoran Kupreskic, Mirjan Kupreskic, Vlatko Kupreskic, Vladimir Santic, Dragan Papic, Drago Josipovic, Stipo Alilovic and Marinko Katava with grave breaches under Article 2(a), (c), (d) and (g) as well as violations of the laws or customs of war under Article 3 of the Tribunal’s Statute. The basis of the indictment was the accused’s alleged participation in the two conflicts in the village of Ahmici in the Lašva River Valley in Bosnia and Herzegovina on 20 October 1992 and 16 April 1993. During those conflicts, a large number of the Muslim citizens of that village were killed and expelled from their homes as part of a campaign of “ethnic cleansing” by the Croatian military.

3. The indictment was reviewed and confirmed by Judge Gabrielle Kirk McDonald on 10 November 1995 against all accused. The Judge also issued an order for non -disclosure of the indictment on the same date. The latter order was vacated in part on 8 December 1995 by Judge Lal Chand Vohrah to allow the service of the arrest warrants against the accused and orders for surrender, signed by Judge Vohrah on the same day, on the Republic of Bosnia and Herzegovina. The non-disclosure order was further vacated by Judge McDonald on 3 April 1996 to allow the disclosure of the witnesses’ names to law enforcement agencies designated by the Prosecution for purposes of the protection of those witnesses. On 26 June 1996 the non-disclosure order was fully vacated by Judge McDonald.

4. Due to difficulties with respect to the service of the indictments on the accused , Judge McDonald on 20 November 1996 issued an order under Rule 61 of the Rules of Procedure and Evidence, inviting the Prosecutor to submit a written report on the measures taken to effect the personal service of the indictment up until 4 December 1996. The time limit was extended by an order of 4 December 1996 until 13 December 1996.

5. The Registrar publicised the indictment on 11 December 1996 under Rule 60 of the Rules of Procedure and Evidence. On 13 December 1996 the Prosecution submitted its report on the measures taken. Judge McDonald then ordered the Prosecutor on 6 January 1997 to submit the indictment to Trial Chamber II for public examination .

6. The accused Marinko Katava (on 14 May 1997), the accused Mirjan and Zoran Kupre skic and the co-accused Drago Josipovic (on 15 May 1997) and the accused Dragan Papic (on 28 May 1997), through their counsel, requested the Tribunal to quash the arrest warrants and declared their preparedness to come to The Hague; they were, however, fearful that they would have to spend a long time in detention before their case came to trial. They thus expressed their willingness to be questioned in Vitez . These applications were denied by an order of Judge McDonald of 16 June 1997.

7. On 3 October 1997, the Prosecutor applied to the Tribunal for an order for the detention of the accused. The order was granted on 3 October 1997 with regard to all accused by Judge Saad Saood Jan. On 4 October 1997, the Prosecutor applied for an order under Rule 59 bis of the Rules of Procedure and Evidence to allow her representatives to take any of the accused into custody and to transport them to the seat of the Tribunal. The application was granted by Judge Jan on the same date. The accused, with the exception of Vlatko Kupreskic, surrendered themselves on 6 October 1997.

8. On 8 October 1997 the accused, again with the exception of Vlatko Kupreskic, appeared before Trial Chamber I in accordance with Rule 62 of the Rules of Procedure and Evidence. They pleaded not guilty to the charges against them. Vlatko Kupre skic was arrested on 18 December 1997 and had his initial appearance before Trial Chamber II on 16 January 1998; he pleaded not guilty to all charges against him .

9. The Prosecution moved that the indictment against Marinko Katava be withdrawn , and leave to withdraw was granted on 19 December 1997 by a decision of Trial Chamber II of the same date, on the grounds that there was insufficient evidence against the accused to justify proceeding with his prosecution. On 23 December 1997, the Trial Chamber issued an order holding all pre-trial motions in abeyance on the grounds that the Prosecutor wished to amend the indictment. On the same date, the Trial Chamber granted leave to the Prosecution to withdraw the indictment against Stipo Alilovic, because the accused had since died.

10. On 16 January 1998, a status conference was held before Trial Chamber II. It resulted in the scheduling order of 21 January 1998 regarding the filing of the Prosecution’s pre-trial brief and other documents, as well as the Defence’s response to them. On 22 January 1998 the Trial Chamber issued an order for the protection of five of the Prosecution witnesses under Rule 75 of the Rules of Procedure and Evidence.

11. On 9 February 1998, the Prosecutor filed a motion for leave to amend the indictment , in which she replaced the previous charges under Article 2 of the Tribunal’s Statute with charges under Article 5(a), (h) and (i) of the Statute (murder, persecution and other inhumane acts) and changed the charges under Article 3 of the Statute by referring to Common Article 3(1)(a) of the Geneva Conventions (murder and cruel treatment).

12. Objections against the form of the indictment based on lack of specificity and cumulative charging were filed by counsel for the accused Dragan Papic on 25  March 1998, for Vlatko Kupreskic on 29 March 1998, for Vladimir Santic on 30 March 1998, for Zoran Kupreskic on 31 March 1998, for Drago Josipovic on 2 April 1998 and for Mirjan Kupreskic on 16 April 1998. The Prosecutor replied to these motions on 21 April 1998. On 29 March 1998, the accused Vlatko Kupreskic moved to be provisionally released, and on 15 April 1998 requested a severance of the case against him. A motion for severance was also filed by counsel for the accused Mirjan and Zoran Kupreskic on 17 April 1998. The Prosecutor replied to these on 28 April 1998. By a decision of 15 May 1998, the Trial Chamber rejected the accused’s motions as to defects in the form of the indictment. On the same day, the motions for severance of trials were also rejected and the motion of the accused Vlatko Kupreskic dismissed .

13. On 6 April 1998, the Prosecutor filed a motion to delay the disclosure of witness statements and witness identities on the grounds that some of the Prosecution witnesses had complained about being approached by persons on behalf of the accused and asked to provide exonerating witness statements in exchange for money; some witnesses were also fearful of reprisals. On 28 April 1998, the Trial Chamber issued a scheduling order setting 15 May 1998 as a hearing date on which oral argument was heard in closed session on the Prosecutor’s motion of 6 April 1998 concerning the disclosure of witness statements and identities. On 21 May 1998, the Prosecution’s motion for delaying the disclosure of witness statements and identities was denied, but certain safeguards for the witnesses and a procedure for contact with these witnesses by the Defence were established, including requests for assistance to the International Police Task Force (IPTF), SFOR and Bosnia and Herzegovina of 12 June 1998 in order to ensure compliance with the abovementioned decision.

14. A scheduling order of the Trial Chamber of 20 May 1998 set 17 August 1998 as the date for the commencement of the trial and requested the parties to finalise their pre-trial preparations.

15. On 13 July 1998 the Prosecution filed its pre-trial brief in which it summarised the factual allegations against the accused and their legal evaluation.

16. On 15 July 1998 the accused Vlatko Kupreskic moved that the indictment against him be withdrawn on the basis of insufficient evidence. The motion was dismissed by a decision of 11 August 1998, on the grounds that the issues raised by the accused could only be dealt with by a full hearing on the merits.

17. The trial began with the case for the Prosecution on 17 August 1998 before Trial Chamber II composed of Judges Cassese (presiding), May and Mumba. The case for the Prosecution in chief ended on 15 October 1998.

18. On 21 September 1998 the Trial Chamber handed down a guideline decision on communication between parties and witnesses, stating that as a matter of principle , once a witness had made the solemn declaration, none of the parties must approach him or her except with the leave of the Trial Chamber.

19. The President of the Tribunal authorised an on-site visit of the Trial Chamber to Ahmici by a decision of 29 September 1998. However, due to security concerns , this visit did not take place.

20. On 7 December 1998, counsel for the accused Vlatko Kupreskic filed a motion for withdrawal of the indictment against his client on the basis that the evidence of the Prosecution was insufficient. The Trial Chamber construed this request as a motion for a judgement of acquittal under Rule 98 bis of the Rules of Procedure and Evidence, and denied the motion by a decision of 18 December 1998. The accused repeated his motion on 21 December 1998, and this motion was also rejected by a decision of the Trial Chamber of 8 January 1999.

21. On 11 January 1999, the presentation of the Defence case in-chief began, ending on 23 July 1999. The Prosecution presented rebuttal evidence between 27 September and 4 October 1999, and the Defence led rejoinder witnesses on 5 and 6 October 1999 .

22. The Trial Chamber issued a decision on the order of the presentation of the evidence on 21 January 1999, setting out the procedure for examination-in-chief, cross- and re-examination of witnesses, which restated the oral ruling of the Trial Chamber in the hearing of 15 January 1999.

23. On 3 February 1999, the Trial Chamber in a decision of the same date addressed the question put forward by the Defence as to whether the defence of tu quoque was available under international humanitarian law, answering the question in the negative, on the grounds that the obligations under humanitarian law were applicable erga omnes. The Trial Chamber restated its position in a decision of 17 February 1999.

24. On 11 February 1999, with the consent of the parties, the Trial Chamber issued a decision to proceed by way of deposition with the hearing of witnesses on 11 and 12 February 1999, as for medical reasons, Judge Cassese was temporarily indisposed . As Judge May was also temporarily indisposed on medical grounds on 24 February  1999, the Trial Chamber on 25 February 1999, at the request of the Prosecution but against the objections of counsel for Dragan Papic, issued a further decision to proceed by way of deposition with the hearing of witnesses on 24, 25 and 26 February 1999. This latter decision was appealed by counsel for Dragan Papic and reversed by the Appeals Chamber in its decision of 15 July 1999.⁵ However, counsel for Dragan Papic subsequently waived his right granted under the Appeals Chamber’s decision to have the respective witnesses re-heard before the full Trial Chamber.

25. On 6 May 1999, the Trial Chamber granted provisional release to the accused Drago Josipovic to attend the funeral of his mother who had died on 5 May 1999. The accused left the detention unit on 7 May 1999, accompanied by a staff member of the Tribunal, and returned there on 10 May 1999. Subsequently, the other accused also applied for provisional release: Drago Josipovic, Mirjan and Zoran Kupreskic by an oral motion during the hearing of 22 July 1999 and Dragan Papic by a written motion on 26 July 1999. All motions were denied by the Trial Chamber in its decision of 30 July 1999 on the grounds that while a majority of the Trial Chamber (Judge May dissenting) would be prepared to take exceptional circumstances into account , it nevertheless insisted that safety concerns be adequately addressed. In this regard, the relevant authorities of Bosnia and Herzegovina had refused to sign undertakings guaranteeing the return of the Kupreskic brothers to the detention unit and their arrest should they try to abscond, and thus the Trial Chamber could infer that such undertakings would also not be forthcoming with regard to the other two accused. Counsel for Drago Josipovic sought leave to appeal this decision by a motion of 4 August 1999 and counsel for the accused Kupreskic by a motion of 6 August 1999 . The Appeals Chamber, in two decisions of 18 August 1999,⁶ denied leave to appeal, no exceptional circumstances having been shown, but stated that the Trial Chamber had erred in inferring from the refusal of Bosnia and Herzegovina to give undertakings for the accused Kupreskic that no such undertakings would therefore have been given for the appellant Josipovic either.

26. The accused Vlatko Kupreskic applied anew for a judgement of acquittal under Rule 98 bis of the Rules of Procedure and Evidence on 23 July 1999; the request was denied by a decision of the Trial Chamber of 28 July 1999, which stated that Rule 98 bis only applied to a submission of no case to answer following the close of the case for the Prosecution, but was inapplicable once the evidence for the Defence had been put before the Court.

27. By decisions of 6 August 1999, the Registrar withdrew the assignment of defence counsel for all accused, on the basis that she had received information from the media that there had been an auction of paintings by Croat detainees organised by a Croatian support group, and that the revenues from this auction amounted to DM 4.300.000. From this the Registrar concluded that the accused were now able to pay for their own counsel. The accused objected to the withdrawal on the grounds that they had not received any significant financial support from that Croatian organisation apart from pocket money for the detention unit and support for their families. The Trial Chamber reversed the decisions of the Registrar by a decision of 3 September 1999; in the opinion of the Trial Chamber the burden of proof for the fact that the accused were no longer indigent was on the Registrar, and media reports alone could not be regarded as sufficient evidence for a court of law.

28. The accused Mirjan Kupreskic and Zoran Kupreskic filed another motion for provisional release on 3 September 1999, to which the application of Drago Josipovic was joined on the same date. Their motions were denied by the Trial Chamber in its decision of 13 September 1999 for lack of exceptional circumstances under Rule 65 of the Rules of Procedure and Evidence. For the same reasons, the Trial Chamber denied the requests for provisional release of Dragan Papic of 10 September 1999 and Vladimir Santic of 9 September in its decisions of 14 September 1999.

29. The Trial Chamber, over 111 days, heard a total of 56 witnesses for the prosecution during their case in chief and another 4 during rebuttal, 96 witnesses for the Defence and one court witness. The accused Mirjan Kupreskic, Zoran Kupreskic and Vlatko Kupreskic also gave sworn testimony as witnesses in their own case between 14 and 23 July 1999. The three other accused chose not to testify on their own behalf.

30. The final trial briefs of the Prosecution and of all Defence counsel were submitted on 5 November 1999. Closing arguments were heard between 8 and 10 November 1999.

31. The Prosecutor alleged the following facts and charged the following counts :

32. The accused helped prepare the April 1993 attack on the Ahmici-Santici civilians by: participating in military training and arming themselves; evacuating Bosnian Croat civilians the night before the attack; organising HVO soldiers, weapons and ammunition in and around the village of Ahmici-Šantici; preparing their homes and the homes of their relatives as staging areas and firing locations for the attack , and by concealing from the other residents the fact that the attack was imminent .

33. Under COUNT 1 all six accused are charged with a CRIME AGAINST HUMANITY, punishable under Article 5(h) (persecution) of the Statute of the Tribunal, on the grounds that from October 1992 until April 1993 they persecuted the Bosnian Muslim inhabitants of Ahmici-Šantici and its environs on political, racial or religious grounds by planning, organising and implementing an attack which was designed to remove all Bosnian Muslims from the village and surrounding areas. As part of this persecution , the accused participated in or aided and abetted the deliberate and systematic killing of Bosnian Muslim civilians, the comprehensive destruction of their homes and property, and their organised detention and expulsion from Ahmici-Šantici and its environs.

34. Under COUNTS 2-9 the accused Mirjan and Zoran Kupreskic are charged with murder as a CRIME AGAINST HUMANITY, punishable under Article 5(a) (murder) of the Statute of the Tribunal, and a VIOLATION OF THE LAWS OR CUSTOMS OF WAR, punishable by Article 3 of the Statute of the Tribunal and recognised by Article 3(1)(a) (murder) of the Geneva Conventions. When the attack on Ahmici-Šantici commenced in the early morning of 16 April 1993, Witness KL was living with his son, Naser, Naser’s wife, Zehrudina , and their two children, Elvis (aged 4) and Sejad (aged 3 months). Armed with an automatic weapon, Zoran and Mirjan Kupreskic entered Witness KL’s house. Zoran Kupreskic shot and killed Naser. He then shot and wounded Zehrudina. Mirjan Kupre skic poured flammable liquid onto the furniture to set the house on fire. The accused then shot the two children, Elvis and Sejad. When Witness KL fled the burning house , Zehrudina, who was wounded, was still alive, but ultimately perished in the fire . Naser, Zehrudina, Elvis and Sejad all died and Witness KL received burns to his head, face and hands.

35. Under COUNTS 10 and 11 Zoran and Mirjan Kupreskic are charged with a CRIME AGAINST HUMANITY, punishable by Article 5(i) (inhumane acts) of the Statute of the Tribunal and a VIOLATION OF THE LAWS OR CUSTOMS OF WAR, punishable under Article 3 of the Statute of the Tribunal and recognised by Article 3(1)(a) (cruel treatment of the Geneva Conventions, on the grounds of killing Witness KL’s family before his eyes and causing him severe burns by burning down his home while he was still in it.

36. Under COUNTS 12-15 the accused Vlatko Kupreskic is charged with murder and inhumane and cruel treatment as CRIMES AGAINST HUMANITY, punishable under Article 5(a) (murder), and Article 5(i) (inhumane acts) of the Statute of the Tribunal, as well as VIOLATIONS OF THE LAWS OR CUSTOMS OF WAR, punishable by Article 3 of the Statute of the Tribunal and recognised by Article 3(1)(a) (murder and cruel treatment) of the Geneva Conventions. Before the 16 April 1993 attack, HVO soldiers armed with automatic rifles congregated at the residence of the accused in Ahmic i. When the attack commenced, several HVO units used his residence as a staging area. Other HVO soldiers shot at Bosnian Muslim civilians from the accused’s house throughout the attack. Members of the Pezer family, who were Bosnian Muslims, decided to escape through the forest. As they ran by the accused’s house toward the forest , the accused and other HVO soldiers in front of his house, aiding and abetting each other, shot at the group, wounding D‘enana Pezer, the daughter of Ismail and Fata Pezer, and another woman. Dzenana Pezer fell to the ground and Fata Pezer returned to assist her daughter. The accused and the HVO soldiers shot Fata Pezer and killed her.

37. Under COUNTS 16-19, Drago Josipovic and Vladimir Santic are charged with CRIMES AGAINST HUMANITY, punishable under Article 5(a) (murder) and 5(i) (inhumane acts of the Statute of the Tribunal, as well as with VIOLATIONS OF THE LAWS OR CUSTOMS OF WAR, punishable by Article 3 of the Statute of the Tribunal and recognised by Article 3(1)(a) (murder and cruel treatment) of the Geneva Conventions. On 16 April 1993, numerous HVO soldiers, including the accused, attacked the home of Musafer and Suhreta Pušcul, while the family, which included two young daughters, was sleeping . During the attack, the accused and other HVO soldiers, aiding and abetting one another, forcibly removed the family from their home and then killed Musafer Pušcul whilst holding members of his family nearby. As part of the attack, the HVO soldiers , including the accused, vandalised the home and then burned it to the ground.