The Accused Naser ORIC, born 3 March 1967 in Potocari, Municipality of Srebrenica, Republic of Bosnia and Herzegovina  Apprehended by SFOR: 10 April 2003 Transferred to ICTY: 11 April 2003 Initial Appearance: 15 April 2003, pleaded “not guilty” to all the counts of the Indictment Judgement: 30 June 2006, sentenced to 2 years' imprisonment

The Indictment
History of the indictment
The initial indictment against Naser Orić was confirmed on 28 March 2003 and made public on 11 April 2003. Pursuant to the Trial Chamber Decision of 3 July 2003, the Prosecution filed an amended indictment on 16 July 2003. On 4 October 2004, the Trial Chamber ordered that the second amended indictment filed by the Prosecution on 1 October 2004 was the operative indictment against the accused. Following the decision by the Trial Chamber of 8 June 2005, in accordance with Rule 98bis, the Prosecution filed the third amended indictment on 30 June 2005. This was the operative indictment prior to the presentation of the defence case

Factual allegations:
According to the indictment, in May 1992 Naser Orić was appointed commander of the Srebrenica Municipal Territorial Defence (TO) Staff, which was later re-named the Srebrenica Armed forces. His command was further extended when he was appointed the commander of the Joint Armed Forces of the sub-region Srebrenica in early November 1992 encompassing the geographical regions of several municipalities, namely: Srebrenica, Bratunac, Vlasenica and Zvornik in eastern Bosnia.

The indictment generally alleged that, at all times relevant to the charges of the indictment, by virtue of his position and authority as commander, Naser Orić commanded all units that were operating within his area of responsibility. This included all units in combat activities in the municipalities of Srebrenica and Bratunac in Bosnia and Herzegovina, in particular the combat activities in Ratkovići on 21 and 27 June 1992, Ježestica on 8 August 1992, Fakovići on 5 October 1992, Bjelovac between 14 and 19 December 1992 and Kravica on 7 and 8 January 1993 and all units including the military police involved in the detention and custody of Serb individuals in Srebrenica.

According to the indictment, Naser Orić demonstrated both de jure and de facto command and control in military matters and exercised effective control over his subordinates.

Between 24 September 1992 and 20 March 1993, members of the military police under the command and control of Naser Orić, allegedly detained several Serb individuals in the Srebrenica police station and in the building behind the Srebrenica Municipal building. It was alleged that these detainees were subjected to physical abuse, serious suffering and injury to body and health. In some instances, prisoners were beaten to death.

Naser Orić, from about September 1992 to August 1995, knew or had reason to know that his subordinates were about to plan, prepare or execute the imprisonment, killing and/or cruel treatment of Serbs detained at the Srebrenica police station and the building behind the Srebrenica Municipal building, or had done so, and he failed to take necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.

The indictment further alleged that during the period May 1992 to February 1993, Muslim armed units engaged in various military operations against the Bosnian Serb Army (VRS) in eastern Bosnia. In the course of such operations, Muslim armed units in the municipalities of Bratunac, Srebrenica and Skelani, burnt and otherwise destroyed a minimum of 50 predominantly Serb villages and hamlets. As a result, thousands of Serb individuals fled the area.

Naser Orić was charged on the basis of individual criminal responsibility (Article 7(1) of the Statute) and on the basis of superior criminal responsibility (Article 7(3) of the Statute) with:

Wanton destruction of cities, towns or villages, not justified by military necessity (violations of the laws or customs of war, Article 3).

He was charged on the basis of superior criminal responsibility (Article 7(3) of the Statute) with:

Murder and cruel treatment (violations of the laws or customs of war, Article 3).

Trial
The trial commenced on 6 October 2004 before Trial Chamber II, Judge Carmel Agius (presiding), Judge Hans Henrik Brydensholt and Judge Albin Eser. The Prosecution completed its case-in-chief on 1 June 2005. On 8 June 2005, the Trial Chamber issued an oral decision pursuant to Rule 98bis. The defence began presenting its case on 4 July 2005 and concluded on 1 February 2006. The closing arguments of the Prosecution were presented on 3 and 4 April and of the Defence 5 and 6 April 2006.

Rule 98bis Decision
After the conclusion of the presentation of Prosecution evidence, the Trial Chamber can rule of whether there is a case to answer. If the Chamber believes that the Prosecution has not presented sufficient evidence to prove certain charge(s), it can dismiss those charges before the beginning of the presentation of defence evidence.

Rule 98bis was amended on 8 December 2004 and the decision in the Orić case was the first application of the amended rule. The new procedure is entirely oral, and it is no longer party driven. Thus, it is much quicker. The Trial Chamber found that the standard of review remains the same, namely whether the Prosecution’s evidence, if believed, is sufficient for any reasonable trier of fact to find that guilt of the accused has been proved beyond reasonable doubt.

In its Rule 98bis ruling, the Trial Chamber found that there was evidence which, if believed, would be capable of proving that the general legal requirements for the application of Article 3 are met, namely that:

an armed conflict existed between 10 June 1992 and 20 March 1993 on the territory of Bosnia and Herzegovina;
there was a nexus between the acts of Naser Orić and such armed conflict;
the crimes of murder, cruel treatment, wanton destruction and plunder constitute violations of rules of international customary law which protect important values and entail individual criminal responsibility; and that
regarding the crimes of murder and cruel treatment, the persons alleged to have been killed or subjected to cruel treatment were persons taking no active part in the hostilities at the relevant time.

The Trial Chamber elaborated on the applicable law in relation to both the underlying crimes and criminal responsibility.

Having considered all the evidence presented by the Prosecutor, the Trial Chamber entered a judgement of acquittal of Naser Orić of the charges against him in Counts 4 and 6 of the second amended indictment, namely the charge of plunder of public or private property, a violation of the laws and customs of war. More specifically, the indictment charged Naser Orić only with the plunder of “cattle, furniture and television sets”. The Trial Chamber found that there was very little evidence pertaining to the plunder of furniture and TV sets and thus that the evidence adduced did not fulfil the jurisdictional requirement of Article 1 of the Statute, namely the requirement that the violations be serious.

While the Trial Chamber held that there was ample evidence which, if believed, could lead to the conclusion that several hundred heads of cattle were appropriated during or immediately after the attacks, it found that any criminal responsibility of Naser Orić was offset by the real and present necessity to acquire food for the survival of the population of Srebrenica. Having recognised that the defence of necessity was an established principle in customary international law in 1992 and 1993, the Trial Chamber considered the extraordinary humanitarian circumstances in Srebrenica at the time. It thus found that there was abundant evidence that Srebrenica was isolated, that the starving population was drastically increasing with the influx of refugees and that there had been repeated calls for help.

The Trial Chamber noted that there was no evidence that the taking away of cattle was disproportionate or that the direct perpetrators of the appropriation of cattle had brought about the humanitarian situation themselves, but rather that these acts had become indispensable for the survival of the population of Srebrenica. The Trial Chamber thus held that the Prosecution failed to adduce evidence capable of supporting a conviction for the crime of plunder of public or private property and consequently acquitted Naser Orić of Counts 4 and 6 of the second amended indictment.

The Trial Chamber ordered the continuation of the case against Naser Orić in relation to the other counts in the indictment, namely Counts 1, 2, 3 and 5. However, with regard to the alleged murder of Bogdan Živanović in Count 1 and the alleged cruel treatment of Miloje Obradović in Count 2, the Trial Chamber found that there was no evidence capable of supporting a conviction and that Naser Orić consequently did not need to address these alleged incidents. Similarly, with regard to the alleged wanton destruction in the villages of Radijevići and Božići set out in Counts 3 and 5, the Trial Chamber found that there was no evidence capable of supporting a conviction and that Naser Orić therefore does not need to address those alleged incidents during the Defence case.

For practical purposes, the Trial Chamber asked the Prosecution to present an amended version of the indictment to reflect the above mentioned findings. The third amended indictment was filed on 30 June 2005.

On 30 June 2006 Tribunal judges convicted Naser Oric of failing to take steps to prevent the murder and cruel treatment of a number of Serb prisoners in the former UN ‘safe area’. They sentenced Naser Oric to two years' imprisonment.

Trial Chamber III:
Judge Carmel Agius (Presiding)
Judge Hans Henrik Brydenholt
Judge Albin Eser

Office of the Prosecutor:
Jan Wubben
Patricia Sellers
Gramsci Di Fazio
Joanne Richardson
Jose Doria

Counsel for the accused
Vasvija Vidovic
John Jones

Closing arguments for the Prosecution
3 and 4 April 2006

Closing arguments for the Defence
5 and 6 April 2006

STATISTICS
Witnesses called by Prosecution 52
Witnesses called by Defence 30
Exhibits (total) 1649