Case No. IT-02-54-T

IN THE TRIAL CHAMBER

Before:
Judge Patrick Robinson, Presiding
Judge O-Gon Kwon
Judge Iain Bonomy

Registrar:
Mr. Hans Holthuis

Decision:
16 June 2004

__________________________________

The Office of the Prosecutor

Ms. Carla Del Ponte
Mr. Geoffrey Nice
Mr. Dermot Groome
Ms. Hildegard Uertz-Retzlaff

The Accused

Mr. Slobodan Milosevic

Amici Curiae

Mr. Steven Kay, QC
Prof. Timothy L.H. McCormack

1. On 7 April 2003, the Amici Curiae filed a motion seeking directions on their future role, including the question as to whether they should file a motion pursuant to Rule 98bis of the Rules of Procedure and Evidence (“Rules”) at the close of the Prosecution case.¹ On 27 June 2003, the Trial Chamber issued an order stating, inter alia, that “the amici curiae may submit a Motion pursuant to Rule 98 bis within seven days of the close of the Prosecution case”.²

2. Considerably later, on 4 February 2004, the Prosecution filed an objection to the Amici Curiae filing a Rule 98 bis Motion on behalf of the Accused, relying on a Separate Opinion of Judge Shahabuddeen concerning the right of the Amici Curiae to file applications on behalf of the Accused.³ The Trial Chamber disposed of the Prosecution Motion on 5 February 2004, stating that the Appeals Chamber itself had decided to consider an appeal brought by the Amici Curiae, and in so doing proceeded on the basis they had locus standi, that the filing by the Amici Curiae of a Motion pursuant to Rule 98 bis did not in any way prejudice the Prosecution, nor infringe the interests of the Accused, and that it was in the interests of justice as a whole for such a Motion to be brought.⁴

3. On 25 February 2004, the Prosecution closed its case and the Trial Chamber ordered, inter alia, that any motion under Rule 98 bis should be filed by the Accused or Amici Curiae by 8 March 2004, and that any Response by the Prosecution was to be filed by 22 March 2004.⁵ The Accused has not filed a motion under Rule 98 bis.
   B. The Rule 98 bis Motion

4. On 3 March 2004, the Amici Curiae filed their “Amici Curiae Motion for Judgement of Acquittal Pursuant to Rule 98bis”, along with two confidential Annexes and a public Annex (“Motion”). On 23 March 2004, the Prosecution filed its confidential “Prosecution Response to Amici Curiae Motion for Judgement of Acquittal Pursuant to Rule 98 bis” (“Response”).

5. The Motion may be summarised as follows:

   (1) The Prosecution has failed to establish the existence of an “armed conflict” in Kosovo prior to 24 March 1999, requiring parts of the Kosovo Indictment dependent on this legal precondition to be excised from that Indictment;⁶
   (2) The failure to establish that Croatia was a state before some time between 15 January and 22 May 1992. Consequently the conflict in Croatia was not international before that time and therefore all grave breaches counts in the Croatia Indictment which go to alleged crimes committed before these dates must be dismissed;⁷
   (3) There is no evidence that the Accused planned, instigated, ordered, committed, or otherwise aided and abetted in the planning, preparation, or execution of a genocide, any genocidal acts, or that he was complicit in such, and that the mens rea requirement for establishing the crime of genocide is incompatible with the mens rea requirement for the third category of a joint criminal enterprise and command responsibility, as alleged in the Bosnia Indictment;⁸ and
   (4) In relation to 185 separate allegations contained in the three Indictments, there is no or insufficient evidence.⁹

6. The Response may be summarised as follows:

   (1) In respect of the argument that the Prosecution has failed to establish there was an “armed conflict” in Kosovo prior to 24 March 1999, the evidence adduced by the Prosecution during the trial is sufficient (if accepted) to satisfy a trier of fact beyond reasonable doubt that an armed conflict existed in Kosovo at all times relevant to the Kosovo Indictment;¹⁰
   (2) In respect of the argument concerning the internationality of the conflict and the date on which Croatia became a state, as of 8 October 1991, the conflict in Croatia can be said to be international in character in so far as Croatia can be said to have satisfied the criteria of statehood under general international law by this date;¹¹
   (3) In respect of the argument concerning the lack of evidence that the Accused planned, instigated, ordered, committed, or otherwise aided and abetted, or was complicit in, the planning, preparation, or execution of a genocide, there is evidence if accepted such that a trier of fact could convict. The Prosecution submits that the mens rea requirement for establishing the crime of genocide is compatible with the mens rea requirement for the third category of a joint criminal enterprise and with command responsibility, and relies on a recent Appeals Chamber Decision in support of this submission;¹² and
   (4) In respect of some of the challenged allegations in the three Indictments, it is conceded that there is no or insufficient evidence led to meet the legal standard required under Rule 98 bis and the Prosecution does not object to a judgment of acquittal being entered in respect of these allegations. However, many of the challenges to the Indictments are not conceded by the Prosecution.¹³

7. The Trial Chamber will now consider the Motion by the Amici Curiae and the Prosecution Response.
   III. APPLICATION OF RULE 98 BIS – THE LAW

8. Rule 98bis provides as follows:
   Motion for Judgement of Acquittal

   (A) An accused may file a motion for the entry of judgement of acquittal on one or more offences charged in the indictment within seven days after the close of the Prosecutor’s case and, in any event, prior to the presentation of evidence by the defence pursuant to Rule 85 (A)(ii).

   (B) The Trial Chamber shall order the entry of judgement of acquittal on motion of an accused or proprio motu if it finds that the evidence is insufficient to sustain a conviction on that or those charges.

9. The degree of proof necessary in a Rule 98bis Motion was settled by the Appeals Chamber in Prosecutor v. Jelisic,¹⁴ where it confirmed its holding in Prosecutor v. Delalic¹⁵ that the test for determining whether “the evidence is insufficient to sustain a conviction” is “whether there is evidence (if accepted) upon which a tribunal of fact could be satisfied beyond reasonable doubt of the guilt of the accused on the particular charge in question... ; thus the test is not whether the trier of fact would in fact arrive at a conviction beyond reasonable doubt on the Prosecution evidence if accepted, but whether it could”;¹⁶ or, to put it as the Appeals Chamber later did in the same case, a Trial Chamber should only uphold a Rule 98bis Motion if it is “entitled to conclude that no reasonable trier of fact could find the evidence sufficient to sustain a conviction beyond reasonable doubt...”.¹⁷

10. The test had, of course, been correctly stated prior to that decision by several Trial Chambers, including this one, whose approach to the question in Prosecutor v. Kordic¹⁸ was cited with approval by the Appeals Chamber. In the passage cited in Prosecutor v. Jelisic, the Chamber referred to the common law origin of Rule 98bis, but also pointed out that that origin did not necessarily mean that this Rule was to be applied in the same way as proceedings for “no case to answer” in common law jurisdictions:

    [T]he regime to be applied for Rule 98 bis proceedings is to be determined on the basis of the Statute and the Rules, having in mind, in particular, its construction in the light of the context in which the Statute operates and the purpose it is intended to serve. That determination may be influenced by features of the regime in domestic jurisdictions with similar proceedings, but will not be controlled by it; and therefore, a proper construction of the Rule may show a modification of some of those features in the transition from its domestic berth.¹⁹

11. The main rationale for the “no case to answer” procedure is that an accused charged with a crime should not be called upon to answer that charge if, at the end of the prosecution case, there is insufficient evidence on which a jury acting reasonably could convict him. Crucial to an understanding of the “no case to answer ” procedure in common law jurisdictions is the differing roles of the judge and jury in criminal trials: the judge being the tribunal of law and the jury, the tribunal of fact. R. v. Galbraith²⁰ illustrates the purpose and function of the procedure in the United Kingdom (and, for that matter, in most common law jurisdictions).²¹ In discussing the two schools of thought as to the proper approach to be adopted by the judge at the close of the Crown’s case on a submission of “no case”, Lord Lane C.J. said that “a balance has to be struck between on the one hand a usurpation by the judge of the jury’s functions and on the other the danger of an unjust conviction ”.²² Thus an essential function of the procedure is to ensure that at the end of the Prosecution’s case the jury is not left with evidence which cannot lawfully support a conviction; otherwise, it may bring in an unjust conviction.

12. If there is a need in common law jurisdictions to ensure that the jury only considers evidence capable of sustaining a conviction, it is also necessary to ensure that the judge in deciding a submission of “no case to answer” does not usurp the functions of the jury to determine issues such as the credibility and reliability of evidence. The balance between the functions of the judge and the jury is reflected in the following passage from R v. Galbraith:²³

    (1) If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case. (2) The difficulty arises where there is some evidence but it is of a tenuous character, for example, because of inherent weakness or vagueness or because it is inconsistent with other evidence. (a) Where the judge concludes that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict on it, it is his duty, on a submission being made, to stop the case. (b) Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness’s reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence on which the jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury.

13. The test whether there is evidence, if accepted, on which a Trial Chamber could convict, will be applied on the following bases:

    (1) Where there is no evidence to sustain a charge, the Motion is to be allowed. Although Rule 98 bis speaks of the sufficiency of evidence to sustain a conviction on a charge, the Trial Chamber has, in accordance with the practice of the Tribunal, considered the sufficiency of the evidence as it pertains to elements of a charge, whether set out in separate paragraphs or schedule items;
    (2) Where there is some evidence, but it is such that, taken at its highest, a Trial Chamber could not convict on it, the Motion is to be allowed. This will be the case even if the weakness in the evidence derives from the weight to be attached to it, for example, the credibility of a witness. This is in accordance with the exception to the general principle in common law jurisdictions that issues of credibility and reliability must be left to the jury as the tribunal of fact.²⁴
    (3) Where there is some evidence, but it is such that its strength or weakness depends on the view taken of a witness’s credibility and reliability, and on one possible view of the facts a Trial Chamber could convict on it, the Motion will not be allowed. This accords with the general principle in common law jurisdictions that a judge must not allow a submission of no case to answer because he considers the prosecution’s evidence to be unreliable,²⁵ since by doing that he would usurp the function of the jury as the tribunal of fact.
    (4) The determination whether there is evidence on which a tribunal could convict should be made on the basis of the evidence as a whole.²⁶
    (5) Whether evidence could lawfully support a conviction must obviously depend on the applicable law of the Tribunal and the facts of each case. The common law cannot be relied on to rule evidence as incapable of supporting a conviction if on the basis of Tribunal jurisprudence the evidence is to be considered as having that capacity. Thus hearsay evidence, generally inadmissible in common law jurisdictions, is, pursuant to Rule 89(C), admissible, the principal factor determining admissibility being the reliability of the evidence.²⁷ Once admitted, it is for a Trial Chamber to determine the weight to be attached to hearsay evidence.²⁸
    (6) In view of the peculiarly common law origin of Rule 98bis, and the well known difficulties to which its application has given rise in the work of the Tribunal, the Trial Chamber considers it important to stress the point made both in Prosecutor v. Kordic²⁹ and Prosecutor v. Jelisic ³⁰ that a ruling that there is sufficient evidence to sustain a conviction on a particular charge does not necessarily mean that the Trial Chamber will, at the end of the case, return a conviction on that charge; that is so because the standard for determining sufficiency is not evidence on which a tribunal should convict, but evidence on which it could convict. Thus if, following a ruling that there is sufficient evidence to sustain a conviction on a particular charge, the Accused calls no evidence, it is perfectly possible for the Trial Chamber to acquit the Accused of that charge if, at the end of the case, it is not satisfied of his guilt beyond reasonable doubt.
    (7) When, in reviewing the evidence, the Trial Chamber makes a finding that there is sufficient evidence, that is to be taken to mean that there is evidence on which a Trial Chamber could be satisfied beyond reasonable doubt of the guilt of the accused.

    IV. CHALLENGES TO THE THREE INDICTMENTS
    A. KOSOVO INDICTMENT
    1. The Existence of an Armed Conflict in Kosovo prior to 24 March 1999

14. The Amici Curiae submit that, in order for the Trial Chamber to have jurisdiction over crimes pursuant to Articles 3 and 5 of the Statute, the crimes must have been committed in an armed conflict.³¹ They then go on to submit there was no evidence of an armed conflict in Kosovo in the FRY prior to 24 March 1999, that date being the commencement of the NATO bombing campaign.³² This submission is made against the background of the Kosovo Indictment, which charges that, at all relevant times, “a state of armed conflict existed in Kosovo in the FRY”.³³

    (a) Law

15. It is settled in the International Tribunal’s jurisprudence that Article 3 (violations of the laws or customs of war) and Article 5 (crimes against humanity ) of the Statute apply to acts committed in both internal and international armed conflicts.³⁴ It is also settled that Article 3 is a general, residual clause covering all serious violations of international humanitarian law not falling under Articles 2, 4, or 5 of the Statute, as well as violations of Common Article 3 of the Geneva Conventions, which specifically applies to cases of armed conflict not of an international character.³⁵ Both the Prosecution and the Amici Curiae agree as to the requirement of an armed conflict for Articles 3 and 5 of the Statute.³⁶

16. The test for determining the existence of an armed conflict was set out in the Tadic Jurisdiction Appeals Decision (“Tadic test”) as follows:

    [A]n armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State.³⁷

17. For the purposes of this Motion, the relevant portion of the Tadic test, which has been consistently applied within the Tribunal,³⁸ is “protracted armed violence between governmental authorities and organized armed groups”. This calls for an examination of (1) the organisation of the parties to the conflict and (2) the intensity of the conflict.³⁹

18. The Trial Chamber makes the following observations on the Tadic test.

19. First, the Tadic test is not inconsistent with the ICRC’s Official Commentary to Common Article 3 of the Geneva Conventions of 12 August 1949 (“ICRC Commentary ”),⁴⁰ upon which the Amici Curiae appear to place reliance.⁴¹ In this regard, the Trial Chamber observes that the ICRC Commentary is nothing more than what it purports to be, i.e., a commentary, and only has persuasive value. The ICRC Commentary sets out a more extensive list of criteria than the Tadic test, which may be considered when determining whether an armed conflict exists; but the ICRC itself states that “these different conditions, although in no way obligatory, constitute convenient criteria”;⁴² as such, the ICRC criteria are neither definitive nor exhaustive, and Common Article 3 “should be applied as widely as possible”.⁴³

20. Second, and of greater significance, the Tadic test is consistent with the ICC’s treatment of war crimes committed during armed conflict not of an international character. Article 8 of the ICC Statute defines “war crimes” committed during armed conflict not of an international character as “violations of article 3 common to the Four Geneva Conventions of 12 August 1949”,⁴⁴ but states that this definition “does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature”.⁴⁵ “War crimes ” under Article 8 also include “(o(ther serious violations of the laws and customs applicable in armed conflicts not of an international character”,⁴⁶ but this definition “does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature. It applies to armed conflicts that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups”.⁴⁷ It thus can be seen that Article 8 is not only consistent with the Tadic test, but also incorporates part of the Tadic Jurisdiction Appeals Decision into its own definition of “war crimes”.⁴⁸

21. Third, the Tadic test is consistent with Additional Protocol II to the Four Geneva Conventions.⁴⁹

22. The Trial Chamber will now carry out an examination of both elements of the Tadic test with a view to ascertaining whether they have sufficient evidential support.

    (b) Evidence of an armed conflict

    (i) Organisation of the KLA

23. The Amici Curiae submit that “[t]he KLA did not constitute a sufficiently organised armed group under responsible command or an organised military force ‘ responsible for its acts, acting within a determinate territory and having the means of respecting and ensuring respect for the Convention’”.⁵⁰ However, the Trial Chamber has considered the question of the degree of organisation of the KLA and found that there is in fact a sufficient body of evidence pointing to the KLA being an organised military force, with an official joint command structure, headquarters, designated zones of operation, and the ability to procure, transport, and distribute arms.

24. Lord Ashdown visited the region in June 1998.⁵¹ The Yugoslav Government had refused Lord Ashdown a visa to enter Kosovo, so he observed the operations of the KLA from the Albanian side of the border.⁵² He noted the extent of the KLA’s operations and witnessed an extensive passage of arms across the border; and it appeared to him that “the KLA were well organised ”.⁵³ Lord Ashdown called the village of Tropojë, in Albania, an “arms supermarket”; weapons were brought up by (probably) criminal organisations, and the KLA would send runners with orders of weapons.⁵⁴ He thus concluded that the KLA was visible and organised, had support, and was exporting and collecting arms.⁵⁵ Mr. Buja became aware of the existence of the KLA in 1996 and began supporting it.⁵⁶ In 1998, Mr. Buja was given instructions by the KLA headquarters, and he confirmed that during this time the KLA had an official structure.⁵⁷ From June 1998, he became the commander of a subzone⁵⁸ and in 1999 was the KLA Commander in Racak.⁵⁹ Dr. Rugova testified that the KLA began as individual groups, but then unified and had a joint command by the end of 1998 and early 1999.⁶⁰ Mr. Merovci testified that, in the course of 1998 and in the beginning of 1999, the KLA was an organised and commanded army.⁶¹ K6 testified that in 1996 the KLA was concentrated in Drenica in Kosovo and that he was aware of plans from 1991 to 1998 to eliminate the KLA, especially in Drenica.⁶²

25. On the basis of this evidence, the Trial Chamber is satisfied that the conflict in Kosovo meets the first element of the Tadic test.

    (ii) Intensity of the Conflict

26. The main purpose of the Tadic test is to distinguish an armed conflict from banditry, unorganized and short-lived insurrections, or terrorist activities, all of which are not subject to international law.⁶³

27. There is in fact a large body of evidence in support of the intensity of the conflict between the KLA and Serb forces prior to 24 March 1999. Much of the evidence cited by the Amici Curiae, in the Trial Chamber’s view, actually substantiates the case for the Prosecution that there was an armed conflict during the relevant times. The Trial Chamber has considered the question of intensity of the conflict and found supporting evidence, which will now be set out.

    a. Length or protracted nature of the conflict and seriousness and increase in armed clashes

28. K6 gave evidence that during 1996 and 1997, the KLA conducted many operations against the police, including killing people who had been employees of the police and those who had cooperated with the police, amounting to about 20 persons in 1997.⁶⁴ Mr. Aliu gave evidence about the killings and also commented that the “entire Albanian population mobilized” from the moment that the Jashari family was massacred.⁶⁵ Mr. Abrahams gave evidence that by February/March 1998, 50 ethnic Albanians, all of whom were members of the Jashari family, lost their lives in the village of Prekaz.⁶⁶ Mr. Abrahams testified that these killings “radicalized the Albanian population. Up until that point, the KLA was still a disorganized and somewhat mysterious organization”.⁶⁷ K6 testified that, after Drenica was attacked, concrete plans for the elimination of the KLA were drawn up and sent to Jovica Stanisic in Serbia.⁶⁸ Mr. Buja testified that, on 23 August 1998, there was a large scale offensive by Serbian forces against the villages of Racak, Petrova, and Mullopolc.⁶⁹ Mr. Elshani gave evidence of clashes in several areas around the town of Nagafc in Rahovec from 1998 to March 1999.⁷⁰ General Maisonneuve and Colonel Ciaglinski testified about armed clashes that took place in early January 1999, before the Racak incident.⁷¹ General Maisonneuve detailed an incident near Racak in which three policemen were killed on 8 January 1999 by the KLA during an ambush on the [timlje pass.⁷² Colonel Ciaglinski gave evidence of an incident concerning villages near Jablanica and Decani around 10 January 1999 where Serb forces launched a massive attack, using heavy artillery, against the villages from the Decani area towards Jablanica – they continued to shell the villages for two days.⁷³

    b. Spread of clashes over the territory

29. K6 testified that the KLA conducted operations in Junik, Decani, Malisevo, Orahovac, Istok, Obilic, and [alska Bajgora throughout 1998.⁷⁴ Mr. Abrahams also gave evidence that in May 1998, the KLA was definitely active in the Decani region and was bringing arms and supplies from Northern Albania and that, in his estimation, the Serbian and Yugoslav governments attempted to create a “cordon sanitaire, in other words clearing the border”.⁷⁵ Mr. Kadriu testified that in June/July 1998 there was a “very severe” conflict in the area of Drenica between the KLA and Serb forces and that the conflict was expanding.⁷⁶ General Drewienkiewicz, a member of the OSCE Department of Security in Sarajevo, gave evidence that there had been much violence in the summer of 1998 in Decani and Malisevo in the west of Kosovo and then in Podujevo, to the north of Pristina, and that positions previously occupied by the VJ in the summer of 1998 and then vacated as a result of the October 1998 agreement were gradually occupied by the KLA.⁷⁷

    c. Increase in number of governmental forces sent to Kosovo

30. Evidence was led that on 24 September 1998, a major Serbian offensive began to destroy the KLA in the triangle of municipalities: [timlje, Suva Reka, and Uro sevac; and during several days, Serbian soldiers, policemen, and paramilitaries poured into many villages in which the KLA was not active; the offensive lasted until 4 October 1998, involving massive Serbian forces and special military and paramilitary groups.⁷⁸

    d. Weapons used by both parties

31. Mr. Buja gave evidence regarding the type of weaponry with which the KLA were equipped; this included rifles, guns, and mortars.⁷⁹ Mr. Abrahams testified that, by March 1997, 700,000 arms were distributed or looted in Albania, giving the KLA a new source of weapons, contributing to its “rapid explosion”.⁸⁰

32. On the basis of this evidence, the Trial Chamber is satisfied that the conflict in Kosovo meets the second element of the Tadic test.

    (iii) Other Submissions of the Amici Curiae

33. The Trial Chamber now addresses briefly the other submissions of the Amici Curiae.

    a. Organised under civil authority

34. It is asserted that the KLA did not act under the direction of an organised civil authority that was prepared to observe the ordinary laws of war.⁸¹ Although the Trial Chamber does not accept that the organisation of a group under civilian authority is a requirement for the existence of an armed conflict, it considers that there is in fact sufficient evidence for a finding that the KLA acted under the direction of an organised civil authority.

35. When Lord Ashdown was in Kosovo between 26-29 September 1998, he met with Dr. Rugova who told him he (Rugova) was in control of the KLA and that the KLA would obey a cease-fire order from him – although Lord Ashdown did not entirely believe this because he considered Dr. Rugova to have had control over the KLA, through the LDK structure, in villages but not the larger guerrilla movement.⁸² Lord Ashdown testified that he had spoken with several village representatives who accepted Dr. Rugova as their leader.⁸³ Lord Ashdown explained his understanding of the “three KLAs”.⁸⁴ Colonel Ciaglinski gave evidence that around 15 March 1999, the KLA recognised its own police unit for the first time.⁸⁵ According to Dr. Rugova, the KLA had a political representative who spoke for them, a Mr. Demaci.⁸⁶ Mr. Barani stated that in 1998 Mr. Demaci was the political representative of the KLA and someone with whom he held talks to secure the release of two Serbs.⁸⁷ Mr. Bakalli, a member of the delegation of Kosovo Albanian leaders, who met with the Accused in April and May 1998, testified that, while he did not have direct contact with KLA troops or commanders, he was asked by Mr. Demaci, whom he described as the political representative of the KLA in Pristina, to be his advisor and to give him his political ideas and views; he also stated that the political representative of the KLA used to keep daily contacts with foreign diplomats.⁸⁸

    b. Control over territory

36. It is also asserted that the KLA did not exercise and maintain control over a part of the territory of Kosovo so as to enable it to carry out sustained and concerted military operations; rather, the KLA’s attacks were sporadic.⁸⁹ Here again, while the Trial Chamber does not accept that such control of territory is a requirement for the existence of an armed conflict, there is in fact evidence showing that the KLA was, at times in 1998 and 1999, in sufficient control of certain territory in Kosovo to conduct sustained and concerted military actions.

37. Mr. Crosland testified that the KLA controlled 50 percent of the territory in Kosovo, including three of the major roads across Kosovo early in the summer of 1998.⁹⁰ Mr. Crosland also referred to a small village called Crnoljevo just beyond Racak where the KLA had a quasi- control over a mountainous road that went up towards Dulje.⁹¹ Mr. Merovci testified that in 1998 and the beginning of 1999 the KLA had various regions under its control.⁹² Mr. Gerguri testified that in February 1999 the Serb army shelled Gornje Studime (in the Vucitrn Municipality in Kosovo)⁹³ because it was under KLA control.⁹⁴ Mr. Kabashi was a member of the KLA from 1997 until 25 March 1999⁹⁵ and testified that the entire town of Drenica was under the control of the KLA for a short while.⁹⁶ The date that Drenica was under control of the KLA is not clear; however, it occurred prior to 24 March 1999 because between 1997 and 1999 Mr. Kabashi found accommodation for people displaced from combat areas and the witness was only a member of the KLA until 25 March 1999.⁹⁷

    c. Evidentiary weight of human rights reports

38. The Amici Curiae also assert that limited evidentiary weight should be given to human rights reports.⁹⁸ In most cases, human rights reports constitute hearsay evidence, which is admissible under Rule 89 (C), provided it is relevant and reliable.⁹⁹ Whether such evidence will be evidence on which the Trial Chamber could convict depends on a number of factors, including the way in which the evidence was collected and presented, the nature of the evidence, for example how general or specific it is, and whether it is the only evidence relating to a specific charge. These reports must therefore be considered on a case by case basis.

39. The Trial Chamber has not found it necessary to refer to human rights reports in this connection.

    (c) Conclusion

40. The Trial Chamber therefore concludes that there is sufficient evidence of an armed conflict in Kosovo at the relevant times for the purposes of Rule 98bis .
    2. Deportation or Forcible Transfer

41. Article 2(g) of the Statute makes unlawful deportation or transfer of a civilian a grave breach.¹⁰⁰ Article 5(d) of the Statute makes deportation a crime against humanity.¹⁰¹ Article 5(i), which makes “other inhumane acts” a crime against humanity, has been interpreted as including forcible transfer.¹⁰²

42. Count 1 of the Kosovo Indictment charges the Accused with the offence of deportation as a crime against humanity, while Count 2 charges him with forcible transfer under other inhumane acts. Under the Croatia Indictment, Count 14 charges the Accused with deportation as a crime against humanity; Count 15 charges him with forcible transfer as an inhumane act, a crime against humanity, and Count 16 charges the Accused with unlawful deportation or transfer as a grave breach of the Geneva Conventions. Count 16 of the Bosnia Indictment charges the Accused with deportation, a crime against humanity; Count 17 of that Indictment charges the Accused with the offence of forcible transfer as an inhumane act, a crime against humanity, and Count 18 charges him with unlawful detention or forcible transfer, a grave breach of the Geneva Conventions.

43. The Amici Curiae challenge the sufficiency of evidence in relation to specific allegations set out in the Kosovo and Bosnia Indictments. The Trial Chamber deals with each of these allegations below in sections IV.A.4 and IV.C.2 of the Decision respectively. The Amici Curiae do not challenge specific allegations in the Croatia Indictment, but argue that the counts relating to deportation are only capable of being made out from the date on which Croatia became a state and had defined state borders across which civilians could be said to have been forcibly moved. The Trial Chamber deals with this issue below in section IV.B.1 of the Decision.

44. The Amici Curiae and Prosecution differ in respect of some of the elements which constitute the offences of deportation and forcible transfer. These arguments are set out in the relevant parts of this section below. The Amici Curiae submit that there is sufficient evidence of forcible transfer but not deportation in respect of some allegations in the Indictments. The Trial Chamber will now examine the law relating to the crimes of deportation and forcible transfer and then deal with the specific allegations of the Amici Curiae as to the insufficiency of the evidence.

    (a) Law

45. Deportation has been described as “the forced displacement of persons by expulsion or other coercive acts from the area in which they are lawfully present, across a national border, without lawful grounds”.¹⁰³ Forcible transfer has been described as a forced removal or displacement of people from one area to another which may take place within the same national borders.¹⁰⁴

46. The Chamber will analyse those elements of the two crimes which are relevant to the Motion. They are:

    (1) cross border transfer;
    (2) the involuntary nature of the movement; and
    (3) the intent of the perpetrator.

    (i) Cross border transfer

47. The Amici Curiae submit that deportation presumes transfer beyond state borders, whereas forcible transfer relates to displacement within a state.¹⁰⁵ The Prosecution submits that deportation does not require cross border transfer, arguing that deportation is an umbrella term covering displacement both across borders and within a state.¹⁰⁶

48. An examination of the history of the law on deportation and forcible transfer facilitates an understanding of its development and its current status.

    a. Nuremberg Military Tribunal

49. During World War II, Germany carried out numerous acts of deportation of civilians under occupation.¹⁰⁷ A vast number of Germans were expelled from their territory and homes.¹⁰⁸ In the aftermath of the war, deportation was included in the Charter of the International Military Tribunal as a crime against humanity, giving the IMT jurisdiction over acts committed against persons of the same nationality as the principal offenders.¹⁰⁹ Article 6(c) of the Charter of the IMT established “deportation, and other inhumane acts committed against any civilian population, before or during the war” as crimes against humanity. Similarly, deportation of the civilian population was included as a crime against humanity in Control Council Law No. 10 and Principle VI of the Nuremberg Principles.¹¹⁰

50. One accused, Von Schirach, was convicted of deportation as a crime against humanity for his part in the removal of tens of thousands of Jews from Vienna into the “Ghetto of the East”, ghettos in Poland.¹¹¹

51. In United States of America v. Milch,¹¹² a Control Council Law No. 10 case, it was held:

    Displacement of groups of persons from one country to another is the proper concern of international law in as far as it affects the community of nations. International law has enunciated certain conditions under which the fact of deportation of civilians from one nation to another during times of war becomes a crime.... [D]eportation of the population is criminal whenever there is no title in the deporting authority or whenever the purpose of the displacement is characterised by inhumane or illegal methods.¹¹³

52. The IMT therefore dealt with deportation as a crime involving cross border transfer. It had no express jurisdiction to deal with forcible transfer, although, conceivably, that crime could have been covered in the reference to “other inhumane acts” in Article 6(c) of the Charter. The Trial Chamber has found no reference to forcible transfer in the Nuremberg Judgement.

b. Geneva Conventions

53. Following World War II, the Geneva Conventions begin to make explicit and distinct references to deportation and forcible transfer.¹¹⁴ Article 49 of the Geneva Convention IV provides:¹¹⁵

    Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive.

54. Then in 1977, Article 17 of Additional Protocol II to the Geneva Conventions,¹¹⁶ concerning violations of international humanitarian law in internal armed conflicts, deals with the prohibition of the forced movement of civilians, as follows:

    (1) The displacement of the civilian population shall not be ordered for reasons related to the conflict unless the security of the civilians involved or imperative military reasons so demand....

    (2) Civilians shall not be compelled to leave their own territory for reasons connected with the conflict.

55. Article 17 builds on the provisions of Article 49 of Geneva Convention IV. The first paragraph covers displacements of the civilian population within the territory of a State where a conflict is taking place.¹¹⁷ The second paragraph refers to the displacement of a population (individuals and groups) across state or territory borders. It was intended that the article would cover situations where groups of civilians were subject to expulsion across the boundaries by armed forces or groups. The term “territory” refers to the whole of the territory of a country.¹¹⁸

56. Thus, although Additional Protocol II does not deal with the crimes of deportation and forcible transfer in express terms, Article 17, paragraph 1 may be construed as referring to forcible transfer within the territory of a state, i.e., internal displacement, and paragraph 2 may be interpreted as referring to deportation outside the territory of a state, i.e., external displacement.

    c. International Law Commission

57. In its 1996 Draft Code of Crimes Against the Peace and Security of Mankind, the ILC dealt with crimes against humanity under Article 18, paragraph (g), which refers to “arbitrary deportation or forcible transfer of population” as a crime against humanity. The Commentary to the Code would seem to distinguish between deportation and forcible transfer:

    Whereas deportation implies expulsion from the national territory, the forcible transfer of population could occur wholly within the frontiers of one and the same State.¹¹⁹

    d. Tribunal Jurisprudence

58. The jurisprudence of the Tribunal is not uniformly consistent in relation to the element of cross border movement although, as will be seen, the preponderance of case law favours the distinction based on destination.

59. In Prosecutor v. Krnojelac, the Trial Chamber held that deportation requires the displacement of persons across a national border, to be distinguished from forcible transfer, which takes place within national boundaries.¹²⁰

60. In Prosecutor v. Krstic, the Trial Chamber held that “both deportation and forcible transfer relate to the involuntary and unlawful evacuation of individuals from the territory in which they reside. Yet, the two are not synonymous in customary international law. Deportation presumes transfer beyond State borders, whereas forcible transfer relates to displacements within a State”.¹²¹

61. In relation to the requirement that a national border must be crossed for deportation to be established, it was held in Prosecutor v. Stakic¹²² that Article 5(d) of the Statute must be read to encompass forced population displacements both across internationally recognised borders and de facto boundaries, such as constantly changing frontlines, which are not internationally recognised.¹²³ Thus, the definition of deportation of persons must include expulsion “from an area in which they are lawfully present to an area under the control of another party ”.¹²⁴ The Trial Chamber, relying on the ICC Statute and the Elements of Crimes,¹²⁵ emphasised that the first element of forcible transfer and deportation as crimes against humanity is that the victims were deported or forcibly transferred to another state or location.¹²⁶ The Trial Chamber held:

    [I]t is clear that the Statute of the International Criminal Court does not require proof of crossing an international border but only that the civilian population was displaced. This Trial Chamber is aware of the limited value of such a comparison when applied to acts that occurred prior to the establishment of the International Criminal Court. However, customary international law has long penalised forced population displacements and the fact that the Statute of the International Criminal Court has accepted the two terms ‘deportation’ and ‘forcible transfer’ in one and the same category only strengthens the view that what has in the jurisprudence been considered two separate crimes is in reality one and the same crime.¹²⁷

62. In Prosecutor v. Simic, the Trial Chamber held that to establish deportation under Article 5 of the Statute, the crossing of a national border must be proved.¹²⁸ The Trial Chamber noted that the European Union recognised Bosnia and Herzegovina as an independent state on 6 April 1992 and, therefore, the transfer of population across Bosnia and Herzegovina’s borders after this date satisfied the requirement of crossing a national border.¹²⁹ The Trial Chamber also referred with approval to the definitions in the Krnojelac and Blaskic cases.¹³⁰

63. The Trial Chamber held that the legal values protected by deportation and forcible transfer are the “right of the victim to stay in his or her home and community and the right not to be deprived of his or her property by being forcibly displaced to another location”,¹³¹ and that the elements of deportation and forcible transfer are substantially the same, except for the requirement that a national border must be crossed to establish deportation.¹³²

64. In the Tribunal jurisprudence, therefore, Prosecutor v. Stakic is the only case in which transfer across national borders is not treated as a requirement of the crime of deportation.

    e. Statute of the ICC

65. In the ICC Statute, the terms deportation and forcible transfer appear to be given the same meaning. Article 7(2)(d) provides:

    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.

66. One commentator, after noting that the crime against humanity of deportation in the ICC Statute is said to apply regardless of the purpose of the deportation, takes the view that in light of the common distinction between deportation, as involving cross-border transfer, and forcible transfer, as relating to movement within a country, it is likely that the common distinction between the two crimes was intended.¹³³ Two other commentators, who were involved in the preparatory work of the ICC Statute and Elements of Crimes, assert that a clear distinction between the two crimes was intended:

    The fourth and fifth inhumane acts, “deportation” and “imprisonment”, were clarified so as to exclude actions permissible under international law.... “Forcible transfer of population” was added as an alternative to “deportation” so as to encompass large-scale movements within a country’s borders.¹³⁴

67. In the Trial Chamber’s view, if this were the intention of the drafters of the ICC Statute, it would be in line with customary international law. However, the Trial Chamber recognises that the correctness of this interpretation must be a matter of dispute, since it contradicts what appears to be the plain meaning of Article 7(2)(d).

    f. Conclusions

68. Having examined the foregoing strands of jurisprudence, the Trial Chamber concludes that the distinction between deportation and forcible transfer is recognised in customary international law. Deportation relates to involuntary transfer across national borders, while forcible transfer relates to involuntary transfers within a state. Article 7(2)(d) of the ICC Statute, if it conflates the two crimes, does not reflect customary international law.

69. The Trial Chamber is persuaded by the reasoning in Prosecutor v. Simic, which is based on the premise that the values protected by both crimes are substantially the same, namely the “right of the victim to stay in his or her home and community and the right not to be deprived of his or her property by being forcibly displaced to another location”.¹³⁵ The Appeals Chamber in Prosecutor v. Krnojelac expresses this same principle:

    The prohibition against forcible displacements aims at safeguarding the right and aspiration of individuals to live in their communities and homes without outside interference. The forced character of displacement and the forced uprooting of the inhabitants of a territory entail the criminal responsibility of the perpetrator, not the destination to which these inhabitants are sent.¹³⁶

    In terms of these values, there is no detriment to a victim if the crime of deportation is confined to transfer across borders, because if it is established that he has not been so transferred, then he is protected by the prohibition against forcible transfer, which applies to involuntary movements within national borders. In other words, the values so properly identified by the Trial Chamber in Prosecutor v. Simic of a right to remain in one’s home and community are protected irrespective of whether deportation only takes place if there is transfer across borders.

    (ii) Involuntary Nature of the Movement

70. Another critical element of both crimes is the involuntary character of the displacement. The question arises as to what vitiates the voluntary nature of the movement.

71. The Amici Curiae submit that movements across borders based on an individual’s free will to leave are lawful.¹³⁷ The Prosecution submits that the essential element is that the movement is involuntary in nature and the relevant persons had no real choice.¹³⁸

72. In Prosecutor v. Krnojelac, the Appeals Chamber held that it is the absence of genuine choice that makes displacement unlawful. Similarly, it is impossible to infer genuine choice from the fact that consent was expressed, where the circumstances deprive the consent of any value.¹³⁹

73. The Trial Chamber in Prosecutor v. Krstic relied on the definition of the term “forcibly” in the Elements of Crimes of the ICC. In Prosecutor v. Simic, the Trial Chamber referred to this definition. It was noted that the essential element is that the displacement be involuntary in nature, that “the relevant persons had no real choice”;¹⁴⁰ as noted by the Trial Chamber in Prosecutor v. Krnojelac, an apparent consent induced by force or threat of force should not be considered to be real consent.

74. Whether a person would have wished to leave the area, absent circumstances of discrimination or persecution, may also be considered as indicative of a person’s will. A lack of genuine choice may be inferred from, inter alia, threatening and intimidating acts that are calculated to deprive the civilian population of exercising its free will, such as the shelling of civilian objects, the burning of civilian property, and the commission of – or the threat to commit –other crimes “calculated to terrify the population and make them flee the area with no hope of return”.¹⁴¹

75. In Prosecutor v. Naletilic & Martinovic, the Trial Chamber noted that the jurisprudence of the Tribunal supports the proposition that the term “forcible ” should not be restricted to physical coercion.¹⁴² In Prosecutor v. Kunarac, the Appeals Chamber held that the coercive circumstances made “true consent... not possible”.¹⁴³

76. The determination as to whether a transferred person had a “real choice” has to be made in the context of all the relevant circumstances and on a case by case basis.¹⁴⁴

    (iii) Intent of the Perpetrator

77. The Amici Curiae submit that the forces of FRY and Serbia must be proved to have deportation as their objective and the victim to have acted as a consequence of their acts or conduct.¹⁴⁵ The Prosecution, however, submits that no specific intent of the perpetrator is required for deportation to be a crime against humanity;¹⁴⁶ all that is required is that the perpetrator either directly intended that the victims would leave or acted in the awareness of the substantial likelihood that this would occur as a consequence of their action.¹⁴⁷ The Prosecution also submits that the forces of FRY and Serbia in fact intended that the victims leave Kosovo and thus a determination of the destination intended by the perpetrator is unnecessary.¹⁴⁸

78. The Trial Chamber is of the opinion that in relation to forcible transfer or deportation there must be evidence of an intent to transfer the victim from his home or community; it must be established that the perpetrator either directly intended that the victim would leave or that it was reasonably foreseeable that this would occur as a consequence of his action. If, as a matter of fact, the result of the removal of the victim is the crossing of a national border then the crime of deportation is committed; if there is no such crossing, the crime is forcible transfer.

79. The crimes of deportation and forcible transfer have the same elements, except in relation to destination.

    (b) Application of the law

80. The Trial Chamber sets out in the relevant sections below its findings as to the sufficiency of evidence in respect of the specific allegations of deportation and forcible transfer raised by the Amici Curiae. In respect of the Kosovo Indictment, the findings are set out in the following section, IV.A.4. In respect of the Bosnia Indictment, the findings are set out in section IV.C.2. In respect of the Croatia Indictment, the findings are set out at section IV.B.2.
    3. Methodology for dealing with submissions of no or insufficient evidence

81. The Amici Curiae have made submissions that 185 separate allegations in the three Indictments are either unsupported by any evidence at all, or are insufficiently supported by evidence such that a Trial Chamber could find the allegations established beyond reasonable doubt. The Trial Chamber, in addition to examining the evidence cited by the Amici Curiae and Prosecution in support of their submissions, has carried out its own independent examination of all the evidence led in the case. The decisions set out in the table below concern the submissions relevant to the Kosovo Indictment. The same methodology will be applied to submissions concerning the Croatia and Bosnia Indictments.

82. The table sets out the specific reference to the Kosovo Indictment. The Trial Chamber then summarises the submissions of the parties, which it has examined in detail. The specific findings of the Trial Chamber are then set out succinctly. The final column of the table shows the evidence supporting its conclusions. This evidence may not be exhaustive of the evidence relating to the charges.

    4. Specific Challenges to the Kosovo Indictment

    Indictment Reference	Amici Curiae Submissions	Prosecution Submissions	Trial Chamber’s Decision	Evidence Examined
    Count 1, para. 63(a)(i) DEPORTATION Nogavac	The Amici Curiae submit that there is no evidence of deportation from Nogavac (Motion, at pp. 21-25, paras. 39-51).	The Prosecution submits that there is sufficient evidence and cites Mr. Elsani, Mr. Hoti, Mr. Popaj, and Mr. Krasniqi (Response, at paras. 87-95).	The Trial Chamber finds that there is sufficient evidence to support this allegation. The Motion is not allowed.	Mr. Hoti (Ex. 105 (partially under seal), statement dated 19 May 1999; T. 3590-3593) Mr. Popaj (Ex. 225 (partially under seal), statement dated 14 June 1999; T. 6669) Mr. Elshani (T. 787-822) Mr. Avdyli (a.k.a. Mr. Krasniqi (Ex. 227 (partially under seal), statement dated 4 April 1999 and statement dated 5 October 2001; T. 6731)
    Count 1, para. 63(i) DEPORTATION Gnjilane/Gjilan, Prilepnica/Përlepnicë town	The Amici Curiae submit that there is no direct evidence of deportation or forcible transfer in relation to Prilepnica/Përlepnicë and no evidence concerning the mosque at Vlastica or of destruction throughout the municipality (Motion, at pp. 25-28, paras. 52-60).	The Prosecution concedes that no direct evidence of deportation or forcible transfer was led in relation to Prilepnica/Përlepnicë; but, submits that Ex. 106 contains sufficient material to support the allegations made about this village (Response, at paras. 96-103).	The Trial Chamber finds that there is sufficient evidence to support this allegation. The Motion is not allowed.	Exhibit 106, OSCE Report, As Seen As Told, at pp. 200-205 Mr. Shabani (T. 1512-1602) Professor Riedlmayer (Ex. 88)
    Count 1, para. 63(j) DEPORTATION Urosevac/Ferizaj	The Amici Curiae submit that there is no evidence of shelling and/or attacking the villages of Biba/Bibe, Muhadzer Prelez/Prelez I Muhaxhereve, Raka/Rakaj, Papaz and Varos Selo/Varosh (Motion, at pp. 28-29, paras. 61-63).	The Prosecution submits that there is sufficient evidence, except with respect to Papaz where the Prosecution concedes no witness explicitly testified about the village (although villages nearby are mentioned). The Prosecution also relies upon Ex. 106 to support these allegations (Response, at paras. 104-109).	The Trial Chamber finds that there is sufficient evidence to support this allegation. The Motion is not allowed.	Mr. Bucaliu (T. 2040, T. 2106) K5 (T. 5521-5565) Mr. Florim Krasniqi (Ex. 138 (partially under seal), statement dated 23 April 1999; T. 4476-4477) Mr. Nebihu (T. 4507; Ex. 139 (partially under seal), statement dated 2 May 1999 and addendum dated 20 November 2001) Exhibit 106, OSCE Report, As Seen As Told, at pp. 200-205 Ex. 83 (Kosovo Atlas), at p. 12
    Count 1, para. 63(k) DEPORTATION Kacanik	The Amici Curiae submit that there is insufficient evidence provided by the witnesses heard as to the "involuntariness" of movement across a state border (Motion, at pp. 29-30, paras. 64-67).	The Prosecution submits that there is sufficient evidence and cites Mr. Hazbi Loku, Mr. Isuf Loku, Mr. Raka, and Mr. Lami, Mr. Vishi (Response, at pp. 40-42, note 215, paras. 110-111).	The Trial Chamber finds that there is sufficient evidence to support this allegation. The Motion is not allowed.	Mr. Hazbi Loku (T. 1924-1950) Mr. Isuf Loku (Ex. 144 (partially under seal), statement dated 11 June 1999) Mr. Raka (Ex. 125 (partially under seal), statement dated 26 November 1999)) Mr. Lami (Ex. 135 (partially under seal), statement dated 14 July 2000)) Mr. Vishi (Ex. 137 (partially under seal), statement dated 18 October 1999))
    Count 1, para. 63(l) DEPORTATION Decan/Decani	The Amici Curiae submit that there is insufficient evidence to support this allegation (Motion, at pp. 30-31, paras. 68-70).	The Prosecution submits that there is sufficient evidence and cites K-20 and Ex. 106 (Response, at para. 112).	The Trial Chamber finds that there is sufficient evidence to support this allegation. The Motion is not allowed.	K-20 (T. 2514) Ex. 106, OSCE Report, As Seen As Told Mr. Peraj (Ex. 143 (partially under seal), statement dated 18 April 2000 and addendum dated 15 February 2002); T. 4659-4663)
    Counts 3-4, para. 66(e) MURDER Dakovica/Gjakove: 134a Ymer Grezda Street	The Amici Curiae submit that there is no direct evidence and that the evidence that was adduced constitutes hearsay evidence and is insufficient to support these allegations (Motion, at pp. 31-33, paras. 71-75).	The Prosecution concedes that no direct evidence was adduced with respect to these allegations, but relies upon Ex. 106 and forensic exhumation evidence to support these allegations (Response, at pp. 42-43, paras. 113-115).	The Trial Chamber finds that there is sufficient evidence to support this allegation. The Motion is not allowed.	Dr. Baccard (T. 5265; Ex. 159, 168) Exhibit 145, Human Rights Watch Report, Under Orders Ex. 106, OSCE Report, As Seen, As Told Mr. Peraj (Ex. 143 (partially under seal), statement dated 18 April 2000 and addendum dated 15 February 2002); T. 4659-4663)
    Count 5, para. 68(c) PERSECUTIONS Prizren	The Amici Curiae submit that there is insufficient evidence and that the general hearsay evidence adduced is insufficient to support the allegation (Motion, at pp. 33-35, paras. 76-79).	The Prosecution submits that there is sufficient evidence and cites Mr. Beqiraj, Ex. 145, and Mr. Abrahams (Response, at pp. 43-45, paras. 116-119).	The Trial Chamber finds that there is sufficient evidence to support this allegation. The Motion is not allowed.	Mr. Beqiraj (Ex. 103; T. 3506-3537) Ex. 106, OSCE Report, As Seen, As Told Ex. 145, Human Rights Watch Report, Under Orders Mr. Thaci (T. 4558-4567; Ex. 140 (partially under seal), statement dated 13 November 1999) Mr. Abrahams (T. 6091-6092) K-31 (Ex. 267 (under seal), statement dated 16 October 1999)

    B. CROATIA INDICTMENT

    1. International Armed Conflict – Croatian Statehood

83. The Amici Curiae contend that in respect of the grave breaches counts in the Croatia Indictment, the Prosecution must prove that an armed conflict was international at all relevant times.¹⁴⁹ It is the Prosecution’s case that the armed conflict was international from 8 October 1991, which is the date on which Croatia’s declaration of independence became effective.¹⁵⁰ The Amici Curiae, however, submit that the conflict only became international at a point in time between 15 January 1992, when Croatia was recognised by the European Community, and 22 May 1992, when it became a member of the United Nations.¹⁵¹

84. The Appeals Chamber, in the Tadic Jurisdiction Appeal Decision, held that an international armed conflict is required for Article 2 of the Statute to apply, that is, there must be a conflict involving two or more states; in other words, the Article does not apply to a civil war.¹⁵² Article 2 of the Statute deals with grave breaches of the Geneva Conventions of 1949. If the submission of the Amici Curiae is correct, those counts of the Croatia Indictment that deal with grave breaches, covering the period from 8 October 1991 and a point in time between 15 January 1992 and 22 May 1992, would have to be dismissed. Accordingly, it is necessary to determine whether Croatia was a state or became a state on 8 October 1991, as argued by the Prosecution, or whether it only became a state at some time between 15 January 1992 and 22 May 1992, as contended by the Amici Curiae.

    (a) Definition of a State

85. The best known definition of a state is the one provided by Article 1 of the Montevideo Convention, which provides as follows:

    The State as a person of international law should possess the following qualifications : (a) a permanent population; (b) a defined territory; (c) government ; and (d) capacity to enter into relations with other States.¹⁵³

86. These four criteria have been used time and again in questions relating to the creation and formation of states. In fact, reliance on them is so widespread that in some quarters they are seen as reflecting customary international law. Thus, one commentator says, “It has become common practice to regard this provision of the Montevideo Convention, a regional treaty, as a crystallization of the state of customary international law and it has exercised great influence on the way in which the legal characteristics of statehood have been understood since”.¹⁵⁴ While the Trial Chamber does not feel obliged to determine the question of the status of the criteria as customary international law, it feels sufficiently confident to rely on them as reflecting well-established core principles for the determination of statehood. In that regard, the Trial Chamber observes that, although other criteria have been developed for determining statehood, some of which are referred to in the Motion,¹⁵⁵ the Montevideo provisions may be characterized as the criteria in relation to which there is least dispute, although, of course, their application to particular situations may give rise to differing views.

87. The Trial Chamber does not consider it productive to engage in a discussion of the relative merits of the declaratory and constitutive theories of recognition in relation to the creation and formation of states.¹⁵⁶ Its conclusion, however, is that the formation of states is a matter that is regulated by law, that is, the criteria of statehood are laid down by law.¹⁵⁷ That law, in the Trial Chamber’s view, is reflected in the four criteria set out in the Montevideo Convention. Both parties have relied on those criteria. It is the opinion of the Trial Chamber that in the circumstances of this case, these criteria form the appropriate test to determine whether Croatia was a state prior to 15 January 1992.¹⁵⁸

88. The Montevideo Convention’s definition of a state is consistent with the definition by the Arbitration Commission of the International Conference on the Former Yugoslavia (“Badinter Commission”) in its Opinion No. 1. The Badinter Commission considered that “the State is commonly defined as a community which consists of a territory and a population subject to an organised political authority: that such a State is characterised by sovereignty”.¹⁵⁹

89. Both the Prosecution and the Amici Curiae have referred to the Opinions of the Badinter Commission.¹⁶⁰ In fact, the Prosecution has relied upon the Opinions to conclude that Croatia was a state as of 8 October 1991.¹⁶¹ The Amici Curiae, on the other hand, have submitted that the Arbitration Commission’s opinions are of limited legal relevance.¹⁶²

90. The Badinter Commission’s mandate was to arbitrate differences submitted to it by the relevant authorities.¹⁶³ It consisted of jurists, three of whom were Presidents of the constitutional courts of their countries, including its President, Robert Badinter, who was the President of the Constitutional Council of France.¹⁶⁴ The Trial Chamber notes that at the time when Opinion No. 11, which deals with Croatian statehood, was issued, the Badinter Commission also included an eminent international lawyer in the person of Jose Maria Ruda, a former President of the International Court of Justice, and Elizabeth Palm, a Judge of the European Court of Human Rights.¹⁶⁵

91. The Amici Curiae contend that the Badinter Commission was not independent.¹⁶⁶ However, the Trial Chamber has examined the instrument that created the Badinter Commission¹⁶⁷ and has found nothing therein to indicate that it was subject to direction from any Member State of the European Community, the European Community itself, or any political entity. Moreover, the Trial Chamber has found nothing to suggest that the Badinter Commission was not independent in carrying out its work.

92. Although the Badinter Commission was clearly not a judicial body, the Trial Chamber views it as a body of independent and competent jurists, and considers its Opinions as material on which it may, as appropriate, draw in its determination of the question of Croatian statehood.

93. The Trial Chamber now proceeds to an examination of the criteria of statehood to determine whether Croatia met those criteria on 8 October 1991 or at a later date.

    (i) Population

94. With regard to this criterion, in relation to which the Amici Curiae have made no specific submission, there does not appear to be much controversy. The Prosecution submits that Article 1 of the Constitution of Croatia dated 22 December 1990 addresses this point.¹⁶⁸ That Article states, “The Republic of Croatia is a unitary and indivisible democratic and social State. Power in the Republic of Croatia derives from the people and belongs to the people as a community of free and equal citizens. The people shall exercise this power through the election of representatives and through direct decision making”.¹⁶⁹ The Prosecution has also referred to the evidence given by Mr. [arinic that “Croatia is a national state of the Croatian people and a state of all other nations and minorities who are citizens of the Republic of Croatia” and that “minorities” included Serbs.¹⁷⁰

95. The Trial Chamber finds that at 8 October 1991 Croatia had a permanent population.

    (ii) Defined Territory

96. It is settled that the entity claiming to be a state must be in control of a certain area, although practice indicates that it is not necessary that its boundaries be defined. For example, Israel was admitted to the UN at a time when her borders were disputed,¹⁷¹ and Albania was recognised by a number of states despite a lack of settled frontiers.¹⁷² Moreover, it appears to be settled that claims to the territory as a whole or a part thereof do not affect the question of statehood.¹⁷³ Therefore, claims by the Serbs to SAO Krajina, Western Slavonia, Dubrovnik, SAO SBWS would not, by themselves, be adverse to the emergence of the Croatian state.

97. The Amici Curiae have not made any specific submission on this question, their main point being that the Croatian government did not exercise effective control over its entire territory.¹⁷⁴

98. On the other hand, the Prosecution has advanced a number of submissions in support of Croatian statehood on 8 October 1991. These submissions are as follows :

    (1) There must be a reasonably stable political community and this must be in control of a certain area.¹⁷⁵

    (2) Past practice shows that the existence of fully defined frontiers is not required and that what matters is the effective establishment of a settled community.¹⁷⁶

    (3) During examination-in-chief and cross-examination, the fact that there was a defined Croatian territory was not disputed.¹⁷⁷

    (4) Maps used during the testimony of witnesses defined Croatian territory and usually followed the Republican borders within the SFRY.¹⁷⁸

    (5) The Serbian leadership, including the Accused, did not dispute the existence of a Croatian territory, but rather pursued the redistribution of territories in Croatia based on ethnic principle.¹⁷⁹

    (6) In October 1991, official SFRY documentation recognised both “the territory of the Republic of Croatia” and “the Republic of Croatia”.¹⁸⁰

    (7) Due to the foregoing, the republican borders of Croatia became international frontiers.¹⁸¹

99. The Trial Chamber finds in the material referred to in the Prosecution submissions enough evidence of a defined Croatian territory.

100. The Badinter Commission, in Opinion No. 3, concluded that except where otherwise agreed, former boundaries became frontiers protected by international law.¹⁸² This conclusion was based on the uti posseditis principle of respect for territorial status quo.¹⁸³ The Badinter Commission also relied on the principle that all external frontiers must be respected; that boundaries between, inter alia, Croatia and Serbia may not be altered except by agreement freely arrived at.¹⁸⁴ Later, in Opinion No. 11, the Badinter Commission found that Croatia became a state on 8 October 1991.¹⁸⁵

101. The Trial Chamber concludes that there is evidence of a defined Croatian territory as of 8 October 1991.

     (iii) Government

102. The existence of an effective government is an important criterion of statehood.¹⁸⁶ It is here that the Amici Curiae make their strongest point. They contend that the Croatian government had “insufficient control over a substantial part of its territory for it to be considered an independent State.... The armed conflict was still ongoing in many areas of Croatia”.¹⁸⁷ There is evidence of an ongoing conflict in the SAO Krajina, Western Slavonia, Dubrovnik, and SAO SBWS. However, the Amici Curiae have not sought to say what percentage of Croatian territory is represented by those areas in respect of which they submit there was insufficient control. The Prosecution has referred to evidence that in August 1991 Croatia had control over 70 to 75 percent of its territory and that 25 to 30 percent was under Serb control. This evidence came from General Agotic, Mr. Kriste, and two maps.¹⁸⁸

103. The Prosecution also submits that the principle of effective control should not be calculated in strictly mathematical terms, but rather that the critical criterion is the sway the government holds over its territory and population, and that there is enough evidence of that factor.¹⁸⁹

104. The Trial Chamber observes a certain inconsistency in relation to the submission of the Amici Curiae, that Croatia had “insufficient control over a substantial part of its territory”:¹⁹⁰ even if the Amici Curiae are correct that Croatia did not become a state until some time between its recognition by the EC Member States on 15 January 1992 and its admission to the United Nations on 22 May 1992, it is clear that Croatia was still not in control of a substantial part of its territory at that time. Thus, by their own reasoning, Croatia would not have been a state in the period between 15 January 1992 and 22 May 1992.

105. Even if the test is a strict mathematical calculation as distinct from the sway the government holds over the territory and population, as argued by the Prosecution,¹⁹¹ the Trial Chamber holds that the evidence cited by the Prosecution shows sufficient control by the Croatian government over its territory to satisfy the requirement of an effective government.

106. Moreover, the Prosecution has also referred to evidence showing that Croatia had an effectively functioning government by 8 October 1991, with ministerial personnel ¹⁹² and other personnel being sent to represent the government at meetings, including some with international institutions,¹⁹³ as well as the performance of a variety of other government functions.¹⁹⁴ Further, admitted exhibits evidence the adoption of significant legislation.¹⁹⁵

107. The Badinter Commission considered that the form of internal political organisation and the constitutional provisions were relevant factors in determining the government’s sway over the population and territory.¹⁹⁶

108. The Trial Chamber is satisfied that there is evidence of Croatia having an effective government as of 8 October 1991.

     (iv) Capacity to enter into International Relations – Independence

109. Independence is generally regarded as the decisive criterion of statehood and the best evidence of it is the capacity to enter into international relations.¹⁹⁷

110. Croatia declared its independence on 25 June 1991, but was requested by the ministerial “troika” of the European Community to postpone implementation of its declaration for three months from 7 July 1991, which was the date of the Common Declaration on Peaceful Solution of the Yugoslav Crisis, (“Brioni Declaration”).¹⁹⁸ Croatia declared its independence on 8 October 1991.¹⁹⁹

111. The Amici Curiae have made no submissions on this point. But there is an abundance of evidence adverted to by the Prosecution in support of Croatia’s independence on 8 October 1991. This evidence includes:

     (1) The Presidents of Serbia and Croatia entered into bilateral negotiations;²⁰⁰

     (2) Representatives of Croatia entered into negotiations with international observers and signed resulting agreements such as the Brioni Declaration on 8 July 1991 and the “Igalo agreement” on 17 September 1991;²⁰¹ and

     (3) The Croatian government was accepted by the EU and UN Commissions and representatives around 8 October 1991.²⁰²

112. In the Trial Chamber’s view, further evidence of Croatia’s independence by 8 October 1991 may be gathered, albeit indirectly, from the breakdown of the SFRY, which resulted in the cessation of control over the affairs of Croatia. The evidence of the breakdown of the federal government comes from a number of sources, including the then President of the SFRY, Mr. Mesic,²⁰³ and the then Prime Minister of the SFRY, Mr. Markovic.²⁰⁴ On 16 March 1991, the Accused appeared on television saying that Yugoslavia ceased to function and Serbia did not recognise any decision made by the Presidency.²⁰⁵

113. In relation to the question of Croatia’s independence, the Badinter Commission said that the suspension of the declaration of independence ceased to have effect on 8 October 1991 and only then did Croatia break all links with the organs of the SFRY and become a sovereign state in international law.²⁰⁶

114. The Trial Chamber therefore finds that there is evidence of Croatia’s independence by 8 October 1991.

     (b) Conclusion

115. The Trial Chamber concludes that there is sufficient evidence that Croatia was a state by 8 October 1991 for the purposes of Rule 98 bis, and therefore dismisses the Motion with respect to the grave breaches counts relating to the period between 8 October 1991 and 22 May 1992.
     2. Specific Challenges to the Croatia Indictment

116. The Amici Curiae submit that, should the Trial Chamber accept that Croatia was not a state as of 8 October 1991, the Accused would be entitled to have a judgement of acquittal entered in respect of counts 17, 22, 25, and 28, which charge the Accused with grave breaches of the Geneva Conventions, and which allegedly took place before Croatia became a state and therefore before the conflict became international. As set out immediately above, the Trial Chamber has found that Croatia was a state at 8 October 1991 and therefore the relevant grave breaches counts will not be dismissed.

     Indictment Reference	Amici Curiae Submissions	Prosecution Submissions	Trial Chamber’s Decision	Evidence Examined
     Count 1, para. 36(l) PERSECUTIONS Sarengrad, Bapska, Nadin, and Bruska	The Amici Curiae submit that there is insufficient evidence to support these allegations (Motion, at paras. 102-103).	The Prosecution submits that there is sufficient evidence and that "the relevant evidence for each of the four named villages is set out below", but makes no reference to where such evidence can be found in its Response (Response, at para. 155).	The Trial Chamber finds that there is sufficient evidence to support these allegations. The Motion is not allowed.	Mr. Kraljevic (T. 25411; Ex. 516, tab 1, statement dated 8 November 1995 and addendum dated 17 June 2003, tab 2) Mr. Babic (T. 12855, 13065, 13400, 13405-13406) Ex. 326, tab 11 Mr. Miljanic (Ex. 501, statement dated 25 July 1996, at para. 11, and addendum dated 19 June 2003; T. 24318) Ms. Denona (Ex. 576, statement dated 25 September 1996, at pp. 2, 4)
     Counts 2-5, para. 40   EXTERMINATION, MURDER, AND WILFUL KILLING Bacin	The Amici Curiae submit that there is insufficient evidence of who killed 43 persons in Bacin on 21 October 1991 and no evidence to support the remainder of the allegation (Motion, at paras. 105-107).	The Prosecution concedes that no eye-witnesses to the killings gave evidence, but submits that there is sufficient evidence to sustain the allegation, citing one survivor (C-1141) and the pattern of evidence adduced through Mr. Babic and Mr. Josipovic (Response, at paras. 157-162).	The Trial Chamber finds that there is sufficient evidence to support these allegations. The Motion is not allowed.	C-1141 (T. 11913, 11921-11928, 11930-11940, 11944, 11965, 11970-11977, 11981-11982, 11989-11990; Ex. 344 (under seal)) Colonel Grujic (T. 17282-17283; Ex. 402, tabs 6-10) Mr. Josipovic (Ex. 521, statement dated 10 November 2000 and addendum dated 7, 11 March 2002) Dr. Strinovic (T. 17910; Ex. 409-410) Mr. Babic (T. 13649)
     Counts 2-5, para. 41 EXTERMINATION, MURDER, AND WILFUL KILLING Saborsko, Poljanak, and Lipovanic	The Amici Curiae concede that there is evidence of attacks on Saborsko, Poljanak, and Lipovanic by the JNA, TO, and Martic’s police, but submit that there is insufficient evidence that Serb forces killed all remaining inhabitants found when they entered the villages (Motion, at para. 108).	The Prosecution submits that there is sufficient evidence, citing the pattern of evidence adduced through Mr. Babic and exhumations adduced through Mr. Marjanovic (Response, at paras. 163-168).	The Trial Chamber finds that there is sufficient evidence to support these allegations. The Motion is not allowed.	Mr. Babic (T. 13064-13069) Mr. Marjanovic (T. 25010-25014, 25021-25033; Ex. 511) C-1220 (T. 11561, 11589-11600, 11602-11603, 11609-11610) Mr. Vukovic (Ex. 479, tab 1A (public redacted version), statement dated 20 January 2001 and addendum dated 18 June 2003; T. 23713) C-1230 (T. 23724-23726; Ex. 480, tab 2A (public redacted version), statement dated 28 February 2001) Colonel Grujic (T. 17254; Ex. 401-403) General Agotic (T. 23236) Ms. Bicanic (Ex. 519. statement dated 20 January 2001; T. 25533-25537)
     Counts 2-5, para. 50 EXTERMINATION, MURDER, AND WILFUL KILLING Detention facility in the police building in Dalj	The Amici Curiae (1) submit that hearsay evidence was produced by the Prosecution in the form of a letter in support of the allegation, (2) concede there is evidence that 9 of the 11 persons listed in the Indictment were later exhumed, (3) but submit that there is no direct eye-witness evidence that these persons were shot and buried by members of the TO of the SAO SBWS led by Zeljko Raznatovic ("Arkan") (Motion, at paras. 109-111) .	The Prosecution submits that there is sufficient evidence that the eleven victims named in the Indictment were murdered by members of the TO of the SAO SBWS led by Arkan (Response, at paras. 169-172).	The Trial Chamber finds that there is sufficient evidence to support these allegations. The Motion is not allowed.	C-013 (T. 15170-15171, 15187-15200, 15304, 15345-15349; Ex. 375, tabs 1-2; Ex. 376 (under seal)) Mr. Sutalo (Ex. 520, statement dated 17 April 1999 and addendum dated 18 June 2003; T. 25550, 25575) Colonel Grujic (T. 17290-17318; Ex. 401-403) C-025 (T. 14132-14137)
     Counts 2-5, para. 51 EXTERMINATION, MURDER, AND WILFUL KILLING Detention facility in the police building in Dalj	The Amici Curiae submit that there is insufficient evidence because there is no eye-witness evidence with respect to these allegations. The only evidence is hearsay in the form of an "Official Note" from the Ministry of Interior, which refers to 12 dead bodies being removed from a room at the detention facility (not 28 as alleged in the Indictment) and "does not clarify whether these individuals were civilians or Croats" (Motion, at paras. 112-114).	The Prosecution submits that there is sufficient evidence and cites Dr. Strinovic, Mr. Rastija, and Colonel Grujic (Response, at paras. 173-177).	The Trial Chamber finds that there is sufficient evidence to support these allegations. The Motion is not allowed.	Dr. Strinovic (T. 17944-17945) C-025 (Ex. 356 (under seal), 357, 358 (under seal)) C-013 (T. 15193-15199; Ex. 375, 376 (under seal), statement dated 17 May 1999, 377) Mr. Rastija; Ex. 629, deceased witness statement dated 1 March 2002) Colonel Grujic (T. 17292-17314; Ex. 401-403) C-037 (Ex. 327, tab 4)
     Counts 2-5, para. 53 EXTERMINATION, MURDER, AND WILFUL KILLING Training centre of the TO in Erdut	The Amici Curiae submit that there is insufficient evidence with respect to the alleged murder of Marija Senasi (Motion, at paras. 115-117).	The Prosecution submits that there is sufficient evidence with respect to each of the allegations and cites C-020 (Response, at paras. 178-184).	The Trial Chamber finds that there is sufficient evidence to support these allegations. The Motion is not allowed.	C-020 (T. 12165-12182; Ex. 347 (partially under seal)) B-071 (T. 18403-18404; Ex. 416, tab 3) Mr. Milanovic (Ex. 549, tab 7) Colonel Grujic (T. 17292-17318; Ex. 401-403) C-057 (Ex. 607)
     Counts 2-5, para. 55 EXTERMINATION, MURDER, AND WILFUL KILLING Vukovar	The Amici Curiae submit that there is insufficient evidence to support these allegations, i.e., that the alleged actions were taken pursuant to a request by Goran Hadzic and the means by which the alleged victims were killed (Motion, at paras. 118-121).	The Prosecution submits that there is sufficient evidence to support the allegations because a reasonable inference can be drawn from exhumation evidence (adduced through Colonel Grujic and Dr. Strinovic) and the evidence of C-1175 and C-1071 that "the story of one of these victims can stand for the story of all" (Response, at paras. 185-188).	The Trial Chamber finds that there is sufficient evidence to support these allegations. The Motion is not allowed.	Colonel Grujic (T. 17290-17297; Ex. 401-403) C-1175 (Ex. 517 (under seal); T. 25483, 25485-25487, 25513) Mr. Dulovic (T. 11649-11913) B-071 (Ex. 416, tab 3; T. 18403-18404) Dr. Strinovic (Ex. 409-410, tab 45) C-1071 (Ex. 518, tab 1 (under seal), statement dated 10 May 2001; T. 25506)
     Counts 2-5, para. 56 EXTERMINATION, MURDER, AND WILFUL KILLING TO training centre in Erdut	The Amici Curiae submit that there is insufficient evidence to support these allegations (Motion, paras. 122-124).	The Prosecution submits that there is sufficient evidence and cites Colonel Grujic and Mr. Sutalo (Response, at p. 71, notes 356-357, para. 189).	The Trial Chamber finds that there is sufficient evidence to support these allegations. The Motion is not allowed.	Colonel Grujic (Ex. 401-403; T.17292-17318) Mr. Sutalo (Ex. 520; T. 25540) B-071 (Ex. 416, tab 3; T. 18403-18404)
     Counts 2-5, para. 57 EXTERMINATION, MURDER, AND WILFUL KILLING TO training centre in Erdut	The Amici Curiae submit that the evidence of C-1162 is insufficient to support this allegation (Motion, at paras. 125-129).	The Prosecution submits that there is sufficient evidence and cites C-1162 and Colonel Grujic (Response, at paras. 190-194).	The Trial Chamber finds that there is sufficient evidence to support these allegations. The Motion is not allowed.	Colonel Grujic (Ex. 401-403; T. 17292-17318) C-1162 (Ex. 481 (partially under seal), statement dated 10 June 1999 and addendum dated 17 June 2003) B-071 (Ex. 416, tab 3) Ms. Albert (Ex. 631, statement dated 17 December 1998)
     Counts 2-5, para. 58 EXTERMINATION, MURDER, AND WILFUL KILLING TO training centre in Erdut	The Amici Curiae submit that there is insufficient evidence to support this allegation (and its level of detail) (Motion, at paras. 130-131).	The Prosecution submits that there is sufficient evidence and cites Dr. Strinovic (Response, at paras. 195-198).	The Trial Chamber finds that there is sufficient evidence to support these allegations. The Motion is not allowed.	Colonel Grujic (Ex. 401-403; T. 17292-17318) C-020 (Ex. 346 (under seal), 347 (partially under seal); T. 12177-12179) B-071 (Ex. 416, tab 3) Dr. Strinovic (T. 17955)
     Counts 6-13, para. 64(b) UNLAWFUL CONFINEMENT, IMPRISONMENT, TORTURE, AND INHUMANE ACTS Military barracks in Kumbor in Montenegro	The Amici Curiae submit that there is (1) no direct evidence regarding the existence, organisation, and leadership of this particular detention facility, (2) no evidence regarding alleged offences committed there, and (3) no evidence that it was "run by the JNA" (Motion, at paras. 132-136).	The Prosecution concedes that this allegation is unsupported by evidence (Response, at paras. 199-201).	The Trial Chamber finds that there is insufficient evidence to support these allegations. The Motion is allowed.	Colonel Grujic (Ex. 401- 403; T. 17292-17318) General Marinovic (Ex. 374, statement dated 7 August 2000)
     Counts 6-13, para. 64(f) UNLAWFUL CONFINEMENT, IMPRISONMENT, TORTURE, AND INHUMANE ACTS Military barracks in Zrenjanin in Serbia	The Amici Curiae submit that there is insufficient evidence because (1) Colonel Grujic was only asked one question by the Prosecution and (2) no evidence was adduced regarding (a) who established and subsequently ran the facility and (b) whether any offences were committed at this camp (Motion, at paras. 137-138).	The Prosecution concedes that this allegation is unsupported by evidence (Response, at paras. 202-203).	The Trial Chamber finds that there is insufficient evidence to support these allegations. The Motion is allowed.	Colonel Grujic (Ex. 401-403; T. 17292-17318) C-1149 (T. 24267-24268)
     Counts 6-13, para. 64(h) UNLAWFUL CONFINEMENT, IMPRISONMENT, TORTURE, AND INHUMANE ACTS Prison in Knin, SAO Krajina	The Amici Curiae submit that there is no direct evidence regarding the existence, conditions, organisation, or possible crimes committed at the prison (Motion, at paras. 139-140).	The Prosecution submits that there is evidence to support this allegation and cites Mr. Babic who testified that he received information from, inter alia, his Minister of Justice (Risto Matkovic) that there were two prisons in Knin where non-Serbs were detained (Response, at paras. 204-205).	The Trial Chamber finds that there is insufficient evidence to support these allegations. The Motion is allowed.	Colonel Grujic (Ex. 401-403; T. 17306) Mr. Babic (T. 13067) C-037 (T. 10452-10453, 10851-10858; Ex. 332 (under seal), statement dated 4 May 2002)
     Counts 6-13, para. 64(j) UNLAWFUL CONFINEMENT, IMPRISONMENT, TORTURE, AND INHUMANE ACTS Police buildings and the hangar near the railway station in Dalj, SAO SBWS	The Amici Curiae submit that there is insufficient evidence because no evidence was adduced that this facility was administered by the JNA and Mr. Sutalo expressly testified to the contrary (Motion, paras. 139-140).	The Prosecution submits that there is sufficient evidence and cites C-013 who testified regarding the co-operation between the JNA, the local Serb TO, and the SAO SBWS government led by Goran Hadzic in the SAO SBWS region (Response, at paras. 206-210).	The Trial Chamber finds that there is sufficient evidence to support these allegations. The Motion is not allowed.	C-013 (T. 14148, 15127-15128, 15148-15151, 15158, 15169-15172, 15234-15236, 15300) C-1175 (T. 25464-25469) Mr. Sutalo (Ex. 520, statement dated 17 April 1999 and addendum dated 18 June 2003; T. 25576-25578)
     Counts 6-13, para. 64(p) UNLAWFUL CONFINEMENT, IMPRISONMENT, TORTURE, AND INHUMANE ACTS Police station in Opatovac, SAO SBWS	The Amici Curiae submit that there is no evidence as to the "police station" in Opatovac operating as a detention facility (Motion, at paras. 144-145).	The Prosecution submits that there is sufficient evidence, but concedes that C-1126 was the only witness to testify about detention and mistreatment in Opatovac (Response, at paras. 211-214).	The Trial Chamber finds that there is insufficient evidence to support these allegations. The Motion is allowed.	C-1126 (Ex. 485, tab 2A (public redacted version), statement dated 13 February 1996 and addendum dated 18 June 2003; T. 23762-23777)
     Counts 17-20, para. 71 WANTON DESTRUCTION AND PL