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XV. DEPORTATION AND FORCIBLE TRANSFER²⁰⁹⁴

A. Exchanges from Bosanski Samac municipality to Croatia

1. Exchange to Lipovac on 4/5 July 1992

Witness A testified that the prisoners who were to be exchanged on 4 July 1992 in Lipovac were mostly Croats from Hasici and Tisina, and some Muslims from Samac. They were placed on buses in Samac and arrived at Lipovac at night. The exchange was postponed until the following day. Witness A testified that he was not asked whether he wanted to be exchanged. He stated that until 16 April 1992, he had never had the intention to leave Bosanski Samac.²⁰⁹⁵
Hasan Bicic gave evidence that most people who were exchanged on that day in Lipovac were elderly persons, women and children. Some were from Bosanski Samac, but most of them were Croats from the surrounding villages. About ten prisoners from the primary school gym were also exchanged. They first went to Sid, and the next day they were exchanged in Lipovac. When Hasan Bicic was asked before the Trial Chamber whether he left Bosanski Samac of his own free will, he answered, “from the very time of my arrest, nothing was according to my free will”.²⁰⁹⁶
Witness O testified that he was also exchanged in Lipovac on 5 July 1992. He stated that he was not asked whether or not he wanted to leave Bosanski Samac. He also stated that in April 1992, prior to his detention in the elementary school in Bosanski Samac, he had no intention of leaving Zasavica.²⁰⁹⁷
2. Exchange to Dragalic on 4 September 1992
Dragan Lukac testified that about 70-80 non-Serbs from Bosanski Samac were exchanged on 4 September 1992 in Dragalic. They were brought by bus from Bosanski Samac to Bosanski Gradiska, and then to Dragalic. While the bus waited in Bosanski Gradiska, another four buses arrived with people to be exchanged.²⁰⁹⁸ Dragan Lukac stated that he and three other prisoners were asked by Svetozar Vasovic whether they wanted to be exchanged and, “of course we said we did”.²⁰⁹⁹ He described his desire to be exchanged as a “normal human need” after everything he had experienced; he said that “anyone under those circumstances would be happy to get away from it all and to go somewhere where he’ll be free”. If the events of 17 April 1992 had not happened, he would have stayed in Bosanski Samac. He was never asked to sign a statement that he was voluntarily leaving Bosanski Samac.²¹⁰⁰
Similarly, Dragan Delic testified that he was not asked whether he wanted to be exchanged.²¹⁰¹ Muhamed Bicic testified that soldiers from UNPROFOR “or whatever they were” were present.²¹⁰² Snjezana Delic and Witness Q were also exchanged on this day. Snjezana Delic stated that there was no other way to normalize the life of her children, her husband, and herself in the town of Bosanski Samac.²¹⁰³ Witness Q was detained in the TO when he was exchanged.²¹⁰⁴
3. Exchange to Dragalic on 5 November 1992
Esad Dagovic testified that he was not asked if he wanted to be exchanged. He was “forced” to be exchanged.²¹⁰⁵ He testified that on the way to Dragalic, the buses stopped in Zasavica where a few women, children and elderly men boarded.²¹⁰⁶ Among those non-Serbs from Zasavica was Witness K who said in her testimony that she had applied to be exchanged in Zasavica, because she was seriously abused.²¹⁰⁷
Jelena Kapetanovic was also exchanged on that day in Dragalic. The representative of UNPROFOR asked her whether she would be exchanged on a voluntary basis or whether she preferred to return to Bosnia. He told her that if she returned to Bosnia, she would be free there and would go to Samac. According to Jelena Kapetanovic, that would have meant “freedom within the Samac camp town. And logically, […] I could hardly wait to cross over to the other side, where my family and husband was. I said that I’d be going to Croatia”.²¹⁰⁸ She also stated that nobody in Bosanski Samac was able to leave voluntarily, and that “the only path to freedom was through exchanges”.²¹⁰⁹
Jelena Kapetanovic testified that at this exchange, about 100 persons were involved, women and children, men and elderly men, and the number that crossed to Croatia had to correspond to the number of people entering Bosnia and Herzegovina. Representatives of UNPROFOR, the ICRC, the HVO, and the HV were present in Dragalic.²¹¹⁰
4. Exchange to Dragalic on 24 December 1992
Witness C testified that the people exchanged in Dragalic on 24 December 1992 were all prisoners, not only from Samac, but also from the surrounding villages. Witness C stated that he was not asked whether he wanted to be exchanged, and neither Miroslav Tadic nor anyone else on behalf of the exchange commission consulted with him as to whether he wanted to leave.²¹¹¹
5. Exchange to Lipovac on 29/30 January 1993
Nusret Hadzijusufovic testified that citizens from Bosanski Samac, and some detainees from Batkovic, were exchanged in Lipovac on 30 January 1993. He stated that he was exchanged for a Serb man, “almost as prisoners of war”, whereas civilians were not exchanged and just crossed over to the other side. Nusret Hadzijusufovic stated that he would not have wanted to leave Bosanski Samac had it not been for the conditions and the compulsory labour there.²¹¹²
6. Exchange to Dragalic on 15/16 June 1993
Ibrahim Salkic testified that at this exchange, about 150 to 170 non-Serb civilians were exchanged in two buses. They were prisoners from detention facilities in Bosanski Samac and other Muslims and Croats who had not been incarcerated. The buses drove from Samac via Crkvina to Dragalic. When Ibrahim Salkic was asked in court whether or not he had participated in the decision to be exchanged, he replied, “after all this suffering that one went through, […] it would not be fitting to ask somebody whether they wanted to or not. It was the only way to save my head. There was no other solution for me but to be exchanged”. Furthermore, Ibrahim Salkic testified that Stevan Todorovic had threatened him prior to his exchange, by saying that he should not dare to come back from the exchange line. Ibrahim Salkic said that he would not have left Samac without the war, and that he would never have left it of his own free will.²¹¹³
7. Exchange to Dragalic on 24 December 1993
Ediba Bobic testified that she went to the Red Cross in Bosanski Samac and had her name and the name of her son Bedrudin registered on an exchange list.²¹¹⁴ All the people who were exchanged were Croats and Muslims, and a number of them had been imprisoned in Zasavica.²¹¹⁵ She said that she made this decision as all the Muslims and Croats in Bosanski Samac had a hard life, and every night they expected something bad to happen. Also, she said that her son was seriously ill and he had to go every day for the work obligation.²¹¹⁶
Hajrija Drljacic testified that during this exchange, non-Serb civilians from Bosanski Samac and Zasavica crossed to the Croatian side. Hajrija Drljacic said that she “expected to leave for freedom, because we had no freedom where we had been before that”. Prior to the outbreak of the armed conflict in April 1992, she never wanted to leave Bosanski Samac. She testified that she would have never left that area if it had not been for the conditions that were imposed on the Muslim and Croat population, including the beatings and the arrests.²¹¹⁷
There were other exchanges of non-Serb civilians to Dragalic on 19 September 1992,²¹¹⁸ 7 October 1992,²¹¹⁹ and 7 January 1993.²¹²⁰

B. Exchange from Batkovic to Croatia on or about 20 February 1993
On or about 20 February 1993, Witness N and Witness E were exchanged in Lipovac.²¹²¹ Together with them, about 50 other prisoners from Batkovic were exchanged for 32 soldiers from Pale.²¹²² Witness N testified that he was happy to be put on an exchange list, as his “strongest desire was to reach or to cross into free territory”.²¹²³ Representatives of international organisations and TV stations were present.²¹²⁴
Witness E testified that he wanted to be exchanged. However, he also said that he did not want to leave Bosanski Samac prior to April 1992. Without the war, the arrests, the beatings, and the other forms of ill-treatment, he would not have left.²¹²⁵

C. Transfers of civilians within Bosnia and Herzegovina
1. Transfer from Bosanski Samac to Dubica, on 25/26 May 1992
Osman Jasarevic gave evidence that on 25/26 May 1992, 100 detainees, the overwhelming majority being Croats, and some Muslims from Bosanski Samac and the surrounding villages, were exchanged for Serbs in Dubica. Only a small number of the Croats and Muslims were exchanged as prisoners of war. Prior to the exchange, the detainees had been held in the secondary school in Bosanski Samac. The exchange took place across the river from Zasavica to Dubica. The people who were exchanged were transferred in groups of about five persons across the river. Osman Jasarevic testified that the ICRC asked him in the secondary school in Bosanski Samac whether he wanted to be exchanged.²¹²⁶ The ICRC told him that he was a prisoner of war.²¹²⁷ When he gave his statement, no local Serbs were present, except for the guards who were one meter away from him. Osman Jasarevic had been told by Stevan Todorovic, before he was taken by trucks to the location of the exchange, that he had to accept to be exchanged, otherwise he would be killed.²¹²⁸
2. Transfer from Bosanski Samac to Zasavica in September 1992
Jelena Kapetanovic testified that she was brought to Zasavica by Naser Sejdic and his patrol on 7 September 1992. She stayed in Zasavica from the beginning of September 1992 until her exchange on 5 November 1992.²¹²⁹ She stated that she had to remain in Zasavica and could only leave with an armed guard when she was taken to have injections.²¹³⁰
Witness K stated that she was taken to Zasavica on 7 September 1992 by three men, one of them was a policeman. She said that at that point, that mostly Croat and Muslim women were housed there in empty houses, while the husbands of these women were detained in Bosanski Samac or had been exchanged. There were also some children with their mothers in Zasavica as well as old people.²¹³¹
Witness K stated that people were only allowed to leave Zasavica for work, that they were under guard and that there were checkpoints at both exits of the village. She also said that they were told that the surrounding area was mined.²¹³²
Miroslav Tadic testified that in May 1992, about 100 people were sent to Zasavica, mostly older men and women; they were put in the houses of the people who were already there or entered houses that had been abandoned or were empty. Miroslav Tadic stated that he had no idea who ordered the transfer to Zasavica, and that the people were sent there as it was a Croat area and safe from shelling. He said that they had their functioning households with gardens, poultry, and pigs. They lived above the average at that time.²¹³³
3. Transfer from Bosanski Samac to Crkvina in May 1992
Velimir Maslic testified that in May 1992, a group of about 100 or 150 people, mostly Muslims and Croats, were taken by the police to the culture centre in Crkvina. They stayed there for about five and six days and were thereafter returned.²¹³⁴
4. Transfer from Bosanski Samac via Pelagicevo, Batajnica, and Pale to Sarajevo in May 1992
Izet Izetbegovic testified that from his arrest in Bosanski Samac onwards, and while he was transferred to various places ending up in Sarajevo, he had no choice in his movements.²¹³⁵

D. oluntary character of the exchanges
The Prosecution argues that some of the people who were exchanged were never asked whether they wanted to be exchanged (referring to Dragan Delic, Witness A and Witness C).
The Tadic Defence states that all of the people that were to be exchanged had to state at the exchange line whether they wanted to cross over to the other side (Dragan Lukac, Witness M, and Svetozar Vasovic). It further states that the choice was there and real, that it was an option that was offered and not a threat or a menace. The Tadic Defence argues that the motives for non-Serb civilians to be exchanged were the fear of war, the reunification of families, and the desire to fight for the opposite side.²¹³⁶
Witness DW 8/3 stated that he was supposed to be exchanged during the exchange to Lipovac on 29/30 January 1993 while he was imprisoned in Batkovic. When it was his turn to cross over on the site of the exchange, he told Miroslav Tadic that he did not want to go to the exchange. Miroslav Tadic told him, “if you don’t want to go, stay on the bus, and if you want to go, then go”. Witness DW 8/3 also stated that he and other prisoners in Batkovic knew that if a person did not want to leave, that person would return home. However, he stated that there were not too many who returned, and among those who did were Safet Hasanefendic, Mijo Radic and a young man he only knows by sight.²¹³⁷
Petar Karlovic, a defence witness for Simo Zaric, stated that the non-Serbs in Bosanski Samac had no choice but to leave or were forced to leave.²¹³⁸
Miroslav Tadic stated that it was a necessity for these people to leave, this necessity deriving from the war, the shelling, the economic situation, the separation of families, and better medical treatment. He said, however, that the necessity did not at all derive from ethnical discrimination.²¹³⁹
Miroslav Tadic testified that it was not up to the Exchange Commission to ask people whether they wanted to cross over. His evidence was that the relatives who asked for their exchange caused them to be brought to the separation line. He stated that these relatives would never understand that some did not want to come over. Therefore, after some time, the Exchange Commission had to bring the people to the separation line so that they could tell their relatives that they did not want to cross over.²¹⁴⁰

E. Evidence on the role of the Crisis Staff
Mirko Lukic testified that the Crisis Staff had the power to exchange people who were in detention.²¹⁴¹ Simeon Simic, however, stated that the Crisis Staff did not deal with exchanges except for nominating and appointing the Exchange Committee on 2 October 1992.²¹⁴² According to him, the Crisis Staff never discussed or passed any decisions on any matters related to the forced removal of non–Serb residents from their apartments in Samac.²¹⁴³ He said that the Committee’s President would come to inform the Crisis Staff from time to time about their work.²¹⁴⁴
Simeon Simic stated that the Crisis Staff wrote a letter to the federal Executive Council in Belgrade, stating that, “the Crisis Staff of our municipality has constantly been trying to reach an agreement on the resolution of the issue of the detained Serbs, and in that respect we have proposed that they be exchanged”.²¹⁴⁵ Blagoje Simic testified that this letter was discussed within the Crisis Staff, and they called it “a cry for help to be provided to the imprisoned Serbs” in Odzak.²¹⁴⁶
Simo Zaric testified that he informed the Crisis Staff about his first conversation with Ivan Cukic with respect to the exchange of Witness Q and others prior to the exchange of 25/26 May 1992 in Dubica. When he arrived, several members of the Crisis Staff were in the room, namely Blagoje Simic, Milan Simic, Simeon Simic, Bozo Ninkovic, Savo Popovic and Stevan Todorovic. He first spoke to the President, Blagoje Simic . Simo Zaric testified that he knew that the majority of the Crisis Staff members had nothing against an “all for all” exchange.²¹⁴⁷
Velimir Maslic, who became the President of the Exchange Committee in Bosanski Samac,²¹⁴⁸ testified that he never went to the Crisis Staff, the War Presidency or the Municipal Assembly to ask for any permission for any of the exchanges, but as a representative of the local Red Cross he had the obligation to inform the Executive Board of the Municipal Assembly on these matters.²¹⁴⁹

F. Evidence on role of the Accused
1. Blagoje Simic
(a) General
Stevan Todorovic testified that Blagoje Simic looked at some of the lists that Miroslav Tadic had prepared for the exchanges and that Blagoje Simic consulted with Miroslav Tadic on this.²¹⁵⁰
Sulejman Tihic stated that Blagoje Simic’s intentions to get rid of the non -Serb population even before the takeover of Bosanski Samac were apparent when he announced at a meeting in the building of the Municipal Assembly in Bosanski Samac just prior to the takeover, that Orasje and Odzak should become Croat municipalities, Gradacac a Muslim municipality, and Bosanski Samac a Serb municipality. According to Sulejman Tihic, Blagoje Simic said at this meeting, “I’m giving you time to decide, but if you don’t decide, the Serbs will know what to do”.²¹⁵¹
Izet Izetbegovic testified that Blagoje Simic stated at the same meeting, “[…] that if we didn’t agree on a concept (of the re-organisation of the municipalities (, that the Serbs would use force”, and that, “we have the JNA on our side, we have weapons, and if you don’t agree to those talks, you will lose everything”.²¹⁵²
Simeon Simic testified that the Crisis Staff never discussed or passed any decisions on any matters related to the forced removal of non–Serb residents from their apartments in Samac, and that Blagoje Simic never advocated such ideas.²¹⁵³.
Ediba Bobic stated that when she spoke to Blagoje Simic about her exchange, he said, “why, ma’am, are you leaving Bosanski Samac? This will pass. Everything will be fine.”²¹⁵⁴
Blagoje Simic stated that the exchange procedure was under the control of the Ministry of Justice and the security services in the field, both military and police, and that he did not decide personally who was eligible to be exchanged.²¹⁵⁵ He also stated that in Samac Municipality, only three percent of residents were exchanged.²¹⁵⁶
Miroslav Tadic testified that he and Blagoje Simic never talked about exchanges officially. If Blagoje Simic asked how it was going, Miroslav Tadic would tell him that it was not proceeding without difficulty but that it was coming along.²¹⁵⁷
Simeon Simic stated that Blagoje Simic never advocated the idea of forced removal of non–Serb residents from their apartments in Samac.²¹⁵⁸
(b) Transfer of non-Serb civilians to Dubica on 25/26 May 1992
With respect to the exchange on 25/26 May 1992 in Dubica, Blagoje Simic knew that it was organised by the International Red Cross. He thought 100 people were exchanged on the Serb side and 100 on the Croat side, and he stated that without the approval of all security services, both civilian and military organs and all three warring parties, the exchanges could not have taken place. ²¹⁵⁹ He also testified that he is familiar with P99 (Letter dealing with the situation of Serbs in Odzak, dated 17 May 1992) that had been prepared by the professional staff of the Municipal Assembly. He said that the signature on the document looks like his signature, and that he discussed this document with other members of the Crisis Staff during its sessions. They called it a cry for help to be provided to the imprisoned Serbs.²¹⁶⁰
Blagoje Simic testified that the Crisis Staff proposed to the Republic Commission to participate in the exchange process, in order to exchange the Serb prisoners in Odzak. He stated that the exchange was defined by an agreement signed between the three warring parties in Geneva and Budapest under the auspices of the ICRC, and that the agreement had a stipulation which said that there must be a consensus reached between all three when the exchange would be carried out. He said that to establish for whom the Serbs of Odzak would be exchanged was within the scope of the authorities of the exchange commission, within the Ministry of Justice of all three sides. He also said that the Crisis Staff wanted the Serbs in Odzak to be released without any exchange at all, and that all these people wanted to leave.²¹⁶¹
2. Miroslav Tadic
(a) General
Miroslav Tadic stated that altogether, the military Exchange Committee and the civilian Exchange Committee exchanged about 1100 people who left Samac, whereas about 1100 or 1080 people came to Samac. He also stated that there were considerably fewer Serbs who left Samac than non-Serbs.²¹⁶²
Miroslav Tadic stated that he organised exchanges of many prisoners from Bosanski Samac who were of Croat and Muslim ethnicity.²¹⁶³ Similarly, Ediba Bobic testified that Miroslav Tadic was the main man in charge of the exchanges.²¹⁶⁴ Vaso Antic stated that he knew about exchanges that were going on, presided over by Miroslav Tadic,²¹⁶⁵ and Svetozar Vasovic testified that Miroslav Tadic was working on exchanges.²¹⁶⁶
Miroslav Tadic stated that prior to 2 October 1992, no exchange committee had been formally established, “but because I did the most work on these tasks, I seemed to be the President of the commission”.²¹⁶⁷
Velimir Maslic stated that it was in practice Miroslav Tadic and himself who worked for the Exchange Committee of Bosanski Samac from the time of its inception on 2 October 1992.²¹⁶⁸
Miroslav Tadic testified that he was not given free rein in the exchanges, but was restricted by the Croatian side which was a part of the negotiating team, and nothing could be achieved without agreement. He said that he was also restricted by the police and the army who had to give approvals. If he had had a free hand, he would have exchanged all prisoners at once and he would have completed his job.²¹⁶⁹
Ljubomir Vukovic stated that during the first months of the war, Miroslav Tadic was the president of the commission for exchanges;²¹⁷⁰ very soon, Miroslav Tadic told him that this duty had been taken over by Velimir Maslic, the head of the Red Cross and the social welfare services. Ljubomir Vukovic said that Miroslav Tadic always went to Velimir Maslic for negotiations that had to do with exchanges. Ljubomir Vukovic heard Miroslav Tadic say a few times to Velimir Maslic that the other side was looking for such-and-such a person and giving them such-and-such a person.²¹⁷¹ Ljubomir Vukovic stated that Miroslav Tadic had to go to various consultations and negotiations with regard to exchanges, up to four or five times for a single exchange.²¹⁷²
Milutin Grujicic, who was appointed as President of the Commission for the Exchange of Prisoners of the 1st Krajina Corps on 29 May 1992,²¹⁷³ testified that he met Velimir Maslic and Miroslav Tadic and that they agreed that the civilian Exchange Committee would talk with the other side on the reunification of families and passage of civilians whereas the military commission dealt with the exchange of prisoners.²¹⁷⁴ Milutin Grujicic also stated that at his request Velimir Maslic and Miroslav Tadic received passes and permits from the Ministry of Justice of the Republika Srpska to move around on the territory of the 1st Krajina Corps, and the entire Republika Srpska.²¹⁷⁵ Milutin Grujicic also stated that it sometimes happened that, with the presence of the East Bosnia commission, either Miroslav Tadic or Velimir Maslic would collect persons who were to be exchanged, and he said that the cooperation of the military Exchange Commission with Velimir Maslic and Miroslav Tadic was correct and successful.²¹⁷⁶
Simeon Simic stated that Velimir Maslic and Miroslav Tadic were members of the civilian Exchange Committee that was established on 2 October 1992, and that they were in charge of the prisoner exchanges and exchanges of other people. As far as he can remember and from talking to Velimir Maslic,²¹⁷⁷ they also conducted exchanges of captured soldiers. Simeon Simic stated that they needed the permission of the military for the exchange of soldiers, and of the police for people who were detained by the police.²¹⁷⁸
(b) The exchange in Dubica on 25/26 May 1992
With regard to the exchange in Dubica on 25/26 May 1992, Bozo Ninkovic said that in order to get some information about how many Serbs were detained in Odzak in May 1992, the Crisis Staff designated Miroslav Tadic, who was from Novi Grad, Simo Zaric, from Trnjak Zorice, and Bozo Ninkovic, from Donja Dubica, to put together lists of these people.²¹⁷⁹ Bozo Ninkovic stated that this working group was of a temporary nature and that they compiled this list on the basis of records of the family members of those Serbs. When these lists were compiled, Miroslav Tadic handed them over to the Red Cross. Bozo Ninkovic said that the centre for reporting and monitoring was the only means of communication.²¹⁸⁰
Miroslav Tadic stated that he was engaged in the negotiations on the exchange of Serbs from Odzak to Samac in Dubica on 25/26 May 1992.²¹⁸¹ Miroslav Tadic knew the two Croats on the other side – Stjepan Mikic and Pero Zecevic – very well, and he said this as an answer to the question why he was going to the communications centre to talk to the other side.²¹⁸² Miroslav Tadic testified that Stjepan Mikic from the Odzak side proposed to agree with the ICRC on a certain number of people to be exchanged, that the Red Cross would help them, that their role would be to provide for the technical conditions for the exchange and that it would be best done in Zasavica. Miroslav Tadic stated that they talked through the communications centre, and that they had to ask for a cease-fire and to organise a boat. He said that at the exchange site, there were ten people who did not want to cross over. The man at the desk asked them again, but they did not want to go. Miroslav Tadic said that on the other side were also ten who did not want to cross. When he asked the man at the desk why these ten people did not come over, he answered that they possibly not wanted to. There was no way to find out. According to Miroslav Tadic, the Serbs who had come over and the Croats who had stayed behind were put on trucks and taken to Samac. Miroslav Tadic stated that he learned from the representatives of the ICRC that the people who did not want to be exchanged were free and, “it was particularly this principle that we applied in our work from then on”. He stated that he continued negotiations with the Odzak side after this exchange.²¹⁸³
The presence of Miroslav Tadic during the exchange on 26 May 1992 in Dubica was confirmed by Osman Jasarevic. Osman Jasarevic testified that Miroslav Tadic organised the exchange, in which the ICRC was involved, and the transport of the prisoners. He held the list and read out the names. Together with Simo Zaric, he stood by a truck and formed the groups of five or six people to be exchanged. Osman Jasarevic gave further evidence that Miroslav Tadic said that everybody had to be exchanged, and later Miroslav Tadic shouted that nobody should be allowed not to be exchanged. He also said that the exchange would be immediately stopped if someone did not want to cross to the other side.²¹⁸⁴
(c) The exchange in Lipovac on 5 July 1992
Miroslav Tadic testified that he went to the federal exchange commission of Yugoslavia in Belgrade to organise the exchange on 5 July 1992 in Lipovac. He was told there that he needed a document on the basis of which he could ask for approval to enter Yugoslavia, the UNPA zone, and to address UNPROFOR in Belgrade. When a man from the commission asked Miroslav Tadic whether there was an exchange commission in Bosanski Samac to make this request, he answered, “formally we are working, but we have no commission”. The man then asked Miroslav Tadic about a civilian body, to which he replied that there is a Crisis Staff. Thus, the request was written on behalf of the Crisis Staff, “to give this some weight”.²¹⁸⁵
Prior to this exchange, Miroslav Tadic had some lists, and people would ask him about exchanges, so that Hasan Bicic assumed “that he was in the organisation for this exchange in one way or another”. Hasan Bicic asked Miroslav Tadic to help his brother being released, and Miroslav Tadic said he would do his best.²¹⁸⁶
Witness A testified that during the exchange, Miroslav Tadic and Simo Zaric escorted the buses to the exchange site in a separate car. He also testified that on 5 July 1992, when the exchange took place, Miroslav Tadic said to Witness A, “let’s make sure that these people are exchanged”.²¹⁸⁷
Fadil Topcagic testified that Miroslav Tadic was the official representative at this exchange, and that Miroslav Tadic was present during the exchange the whole time.^{( 2188 )}
Simo Zaric stated that Miroslav Tadic, Ivo Maslic and Svetozar Vasovic were organizing this exchange.²¹⁸⁹
Witness DW 1/3 testified that this was the first exchange in which Witness DW 1/3 and Miroslav Tadic worked together. Miroslav Tadic told him that he (MT) had to get permission from the local police and the military authorities in Samac municipality. Witness DW 1/3 stated that the persons who were exchanged were registered as prisoners and civilians who had stated that they wanted to be exchanged.²¹⁹⁰ He also stated that in later exchanges, Witness DW 1/3 and Miroslav Tadic trusted each other so that they asked the persons themselves whether or not they wanted to cross over; Miroslav Tadic – and later Velimir Maslic – would address the Serbs and Witness DW 1/3 the Croats. According to Witness DW 1/3, only Velimir Maslic and Miroslav Tadic took part in the negotiations on behalf of the Exchange Committee of Samac municipality.²¹⁹¹
Witness DW 1/3 also testified that Miroslav Tadic told Witness DW 1/3 that he wanted to have exchanged as many Serbs from Odzak as possible who were his acquaintances and relatives.²¹⁹²
(d) The exchange in Nemetin on 14 August 1992
Witness P testified that the exchange in Nemetin, Croatia on 14 August 1992 was organised by Milan Panic, the then President of the FRY, and Franjo Gregurevic from the Croatian side.²¹⁹³ Miroslav Tadic testified that he had no influence on this exchange.²¹⁹⁴
(e) The exchange in Dragalic on 4 September 1992
Snjezana Delic testified that prior to the exchange in Dragalic on 4 September 1992, at which Miroslav Tadic was present,²¹⁹⁵ she went four or five times to Miroslav Tadic in order to get her husband and herself on an exchange list.²¹⁹⁶ Witness Q testified that Miroslav Tadic negotiated this exchange twice in the communications centre where he spoke with the Croat side.²¹⁹⁷ He told Witness Q that he had taken over the task of negotiating exchanges from Simo Zaric.²¹⁹⁸ Witness Q thanked him for his humaneness and for his role in the exchange.²¹⁹⁹
Miroslav Tadic stated that Witness Q, when he was exchanged, had no other choice in order to leave the town, although he also stated that Witness Q could have returned to Samac as he was well regarded by the citizens there.²²⁰⁰
Miroslav Tadic testified that before this exchange in September, two exchanges had not taken place because Zvonko Susak, a man from Korenica in the Samac municipality, who was at that time at a military clinic in Bijeljina, had not been brought. Miroslav Tadic stated that he went to Bijeljina with a civil policeman, that they found Zvonko Susak and brought him to Samac. Miroslav Tadic left Zvonko Susak with Simo Krunic, a policeman, and told him to keep an eye on him. Otherwise, he said, Krunic’s brother would not be exchanged the following day. After that, Miroslav Tadic went to the communications centre and confirmed that everything was organised for the exchange on the following day.²²⁰¹
Ilija Mihalj stated that Mijo Matanovic and Marko Milos told him to go and negotiate with Miroslav Tadic about the exchange of Ivo Doslic, who had been detained at that time in the secondary school gym in Samac.²²⁰² Ilija Mihalj knew that by September 1992 the exchanges had been going on for some months and that Miroslav Tadic had been involved in them in that area.²²⁰³ Ilija Mihalj also stated that he offered Miroslav Tadic 5.000 DM in order to have Ivo Doslic exchanged, and that Miroslav Tadic firmly rejected the money.²²⁰⁴ Ilija Mihalj said that the person who was in charge of this exchange was Milutin Grujicic, “this is what we heard and this is what we read about”.²²⁰⁵
(f) The exchange in Dragalic on 5 November 1992
Esad Dagovic stated that prior to the exchange in Dragalic on 5 November 1992, Miroslav Tadic called out the names of the people who were to be exchanged, and they boarded the buses in that order.²²⁰⁶ According to Witness K, Miroslav Tadic was present when the buses stopped in Zasavica and took more people.²²⁰⁷ Esad Dagovic and Jelena Kapetanovic stated that Miroslav Tadic escorted the column in a civilian car and was also present during the actual exchange. Esad Dagovic testified that at the site of the exchange, Miroslav Tadic read out names from a list, and the persons crossed to the other side.²²⁰⁸
(g) The exchange in Dragalic on 24 December 1992
Witness C stated that at the exchange in Dragalic on 24 December 1992, Miroslav Tadic read out the names on the list of people to be exchanged in the hangar where about 30 to 40 Croats and two or three Muslims were detained.²²⁰⁹
(h) The exchange in Dragalic on 7 January 1993
Mustafa Pistoljevic testified that at the exchange in Dragalic on 7 January 1993, Miroslav Tadic told him – several times – that he could go home and that he could even proceed to Croatia. Mustafa Pistoljevic said to him that he wanted to stay at home. Mustafa Pistoljevic arrived back in Bosanski Samac the same day.²²¹⁰
(i) The exchange in Lipovac on 29/30 January 1993
Nusret Hadzijusufovic testified that Miroslav Tadic was the man who told people who to release at the exchange in Lipovac on 29/30 January 1993, “he was the big boss”.²²¹¹ Miroslav Tadic stated that he was present at this exchange and negotiated with the Croat side.²²¹²
(j) The exchange in Lipovac on 20 February 1993
At the exchange in Lipovac on or about 20 February 1993, none of the accused was present.
(k) The exchange in Dragalic on 15/16 June 1993
Ibrahim Salkic stated that prior to the exchange from Bosanski Samac to Dragalic on 15/16 June 1993, Miroslav Tadic read out in Batkovic the names of people on a list who were to be exchanged later.²²¹³ Milutin Grujicic testified that he had agreed with the Bijeljina Corps that Miroslav Tadic should go to collect the prisoners. Due to technical problems the exchange could not take place on 15 June 1993 and had to be postponed to the following day. Miroslav Tadic brought the prisoners at around 11.00 a.m. to Dragalic. Then he told Milutin Grujicic that prisoners had been beaten in the SUP in Bosanski Samac, and Ibrahim Salkic showed to Milutin Grujicic, Miroslav Tadic, the representatives of the international community, and the representatives of Croatia what had happened to him.²²¹⁴
(l) The exchange in Dragalic on 24 December 1993
Prior to the exchange at Dragalic on 24 December 1993, Ediba Bobic testified that she had given Miroslav Tadic 12.000 DM in order to be exchanged.²²¹⁵ Miroslav Tadic testified that this testimony was a complete fabrication.²²¹⁶ Miroslav Tadic testified that he and the entire exchange commission were present at the negotiations with the other side, and that Milutin Grujicic conducted the negotiations in Dragalic sometime in early December.²²¹⁷ In Dragalic, Miroslav Tadic was one of the persons escorting the people who had to be exchanged.²²¹⁸ Hajrija Drljacic also testified that Miroslav Tadic was part of the escort.²²¹⁹ She stated that he entered a bus on the Croatian side.²²²⁰
Miroslav Tadic stated that he never even subconsciously wished that some of his fellow citizens left Samac forever. He thinks that he has helped the people who were exchanged.²²²¹ He also stated that there was always a possibility to return.²²²² He said that all of the people exchanged returned later on, that their property was restored, and that they could choose whether to return to Samac or live elsewhere.²²²³

3. Simo Zaric
(a) The exchange in Dubica on 25/26 May 1992
With respect to the compilation of the lists of Serbs who remained in the municipality of Odzak in May 1992, Bozo Ninkovic testified that in order to get some information about how many Serbs were detained in Odzak in May 1992, the Crisis Staff designated Miroslav Tadic, who was from Novi Grad, Simo Zaric from Trnjak Zorice and Bozo Ninkovi c from Donja Dubica to put together lists of these people.²²²⁴
With regard to the negotiations preceding the exchange on 25/26 May 1992 in Dubica, Kosta Simic testified that a member from the Odzak Crisis Staff called him via the radio link in the Bosanski Samac communications centre, and asked him to inform Simo Zaric to be available at the radio link the following day at 10.00 a.m., together with Witness Q.²²²⁵ Simo Zaric testified that the Odzak side had asked for Witness Q in order to have him talk to Father Ivo Simic.²²²⁶ Witness DW 1/3 said that the next day, Ivan Cukic asked Simo Zaric via the radio link to assist him with the transfer of two of his brothers-in-law from Zasavica to the territory of Odzak municipality.²²²⁷ Simo Zaric stated that he answered that he had no authority to transfer people to Odzak, as he was in charge of totally different tasks,²²²⁸ but that he would be able to ask about these people and inform Ivan Cukic later about this.²²²⁹ Witness DW 1/3 testified that Father Ivo Simic told him that after he had asked Witness Q whether he wanted to come to Odzak, Witness Q had replied that he wanted to share the fate of his people;²²³⁰ according to Simo Zaric, Witness Q then suggested to Father Ivo Simic to find out whether some people could be exchanged.²²³¹ Thus, the Zaric Defence argues that it was for the first time in the conversation of these two persons that the possibility of Croats crossing to the Odzak side and Serbs coming to the Bosanski Samac side was discussed.²²³²
Witness Q, however, testified that Simo Zaric had asked him to appeal to the Odzak side to agree to an all for all-exchange. Simo Zaric was supposed to establish contact with the Odzak side – which was difficult at the time –, and Witness Q stated that he “was the ticket for such contacts”. Thus, he testified that in the beginning of the first conversation, it was said that he – Witness Q – wanted to talk to Father Ivo Simic. When Father Ivo Simic asked Simo Zaric whether Witness Q could be exchanged, Simo Zaric answered that Witness Q could not be released or exchanged until an all for all-exchange had been agreed upon. Witness Q also stated that Simo Zaric misrepresented the number of Croats and Muslims detained in Bosanski Samac when he talked to the Odzak side.²²³³
Witness Q also testified that “Mr. Pisarevic (Counsel for Simo Zaric( is trying to convince both me and all of us present here that Mr. Simo Zaric was not in charge of negotiations concerning the exchange. Mr. Simo Zaric was in charge of that, and he did that. […] He agreed and he proposed, actually a few days later, that they should agree on an exchange. […] One can also see that Mr. Simo Zaric was indeed in charge of negotiations concerning the exchange”. Witness Q also testified that an exchange took place just after the radio communications of Simo Zaric and the Odzak side, “and it may or must have been a result of those negotiations”.²²³⁴
Simo Zaric stated that he only attended one meeting at the communications centre and that he was asked to attend by members of the Crisis Staff from Odzak, one of whom was Mijo Knezevic and Ivan Cukic. Simo Zaric stated that it was the Crisis Staff and other people who were in charge of exchanges.²²³⁵
Simo Zaric subsequently informed the President of the Crisis Staff about the proposed exchange as well as Todorovic; they told him that if he spoke to this man again he could say that the Crisis Staff had nothing against a full exchange, “all for all”. Simo Zaric stated that they were talking like it would just be a temporary measure until the “madness abated”. A few days later, Simo Zaric went again with Witness Q to the communications centre after having been asked to do so by Ivo C ukic and Mijo Knezevic. When Ivo Cukic asked him about the two relatives, he answered that he had no authorisation, that he had heard that they were alive, but that he could not do anything about them being exchanged. Then Mijo Knezevic told him that he had authorisation from the Crisis Staff to exchange Simo Zaric’s family members, but Simo Zaric did not accept that. At the end of the conversation, Simo Zaric said to Blagoje Simic that he had put the proposals to the Crisis Staff and that they had nothing in principle against it. According to Simo Zaric, this is the only involvement he had in exchanges and negotiations on exchanges throughout the war.²²³⁶
Osman Jasarevic testified that Simo Zaric stood together with Miroslav Tadic by a truck and called out names of the people who were exchanged, and then they formed groups of five or six people.²²³⁷ Simo Zaric testified that he learned of the exchange “in a spontaneous conversation with Mr. Tadic”, and that the main reason why he was on the exchange site was that he had received information that the exchange would involve members of his family arriving from the municipality of Odzak.²²³⁸ Andrija Petric stated that Simo Zaric told him at the exchange site that he had come to meet his family from Trnjak and Dubica who would arrive in this exchange. When Andrija Petric told Simo Zaric that he did not want to be exchanged, Simo Zaric answered that he could not help him and that he should ask the representatives of the ICRC instead.²²³⁹
Bozo Ninkovic testified that on a second occasion some two or three days later, Simo Zaric told Ivan Cukic via radio link that his brothers-in-law were in detention and that he did not have the authority to transfer them to Odzak; then, Mijo Knezevic spoke to Simo Zaric via radio link, and there was a verbal exchange between the two in the course of which Simo Zaric was threatened to be hanged when the HVO would come to Samac.²²⁴⁰ After that, Simo Zaric broke off the connection and said that he did not want to talk with this man anymore.²²⁴¹ After that conversation, the Odzak side never asked for Simo Zaric again, and he never came to the communication centre again.²²⁴²
Stevan Todorovic stated that Simo Zaric participated in the creation of the first two or three lists of prisoners who were to be exchanged.²²⁴³
Ivan Cukic testified that Simo Zaric was involved in the discussions about exchanges with the other side, but he was not the only one. Altogether, Ivan Cukic spoke to him on three occasions.²²⁴⁴ Witness DW 1/3 stated that Stjepan Mikic had told him around the end of May 1992 that he had often talked to the municipality of Samac and that the man he often talked to was Simo Zaric.²²⁴⁵
(b) The exchange in Lipovac on 4/5 July 1992
Simo Zaric stated that he was present during the exchange on 4/5 July 1992 in Lipovac.²²⁴⁶ Witness A stated that Simo Zaric escorted the buses to the exchange site in a separate car.²²⁴⁷ Simo Zaric stated that he went there to see off friends of his who were going to be exchanged,²²⁴⁸ especially the Prgomet family, as his daughter Natasa was married to one of their family members. He also went to see some friends related to that family, and he had information that a large number of his “nearest and dearest” friends and relatives would be arriving from Odzak. Simo Zaric stated that the Prgomet family had asked him to see them off, because they would feel safer if he was with them. Simo Zaric and his driver Teodor “Toso” Tutnjevic came to the house of the Prgomet family and he helped them take their belongings to the playing field in front of the secondary school where the buses were prepared to take people to the exchange. Afterwards “Toso” went and collected the rest of the family as there were over thirty of them.²²⁴⁹
Fadil Topcagic testified with regard to this exchange that Velimir Maslic and Svetozar Vasovic worked on the exchanges, and that it was Stevan Todorovic who made the decision as to who was allowed to be exchanged.²²⁵⁰
The Zaric Defence submits that Simo Zaric did not participate in the exchange of 4/5 July 1992, and that mere presence at the exchange site does not signify participation in the negotiations or organisation of the exchange.²²⁵¹
Witness A testified that his wife had told him that she once overheard a conversation between Simo Zaric and Milos Bogdanovic over the radio transmitter. They were discussing exchanges, and Simo Zaric asked that two JNA pilots be exchanged for Witness A. Then, the conversation was disrupted and the exchange was not discussed anymore.²²⁵²
Witness M testified that in 1992, he overheard a conversation between Simo Zaric and Fadil Mustafic, who is related to Simo Zaric’s wife, in which Fadil Mustafic asked Simo Zaric, “Simo, when are you going to let me go?” Simo Zaric then replied, “Brother, be good and I’ll let you be exchanged”.²²⁵³

G. Findings

1. Voluntary character of the exchanges
The Trial Chamber accepts the evidence that some of the non-Serb civilians who were to be exchanged were asked whether they wanted to cross over to the other side.²²⁵⁴ This, however, does not necessarily indicate that these persons voluntarily agreed to be exchanged, as they could have been left without a genuine choice as to whether to leave or to remain in the area when they made their statement. In this context, the Trial Chamber notes the atmosphere of terror and fear created for the non-Serbs who were taken from their homes and held in various detention centres in the municipality of Bosanski Samac and in other locations. When these detainees had to state whether or not they wanted to be exchanged, they were not given guarantees that they would not be mistreated again. The Trial Chamber also accepts the evidence that some of the non-Serb civilians who were exchanged were not asked whether they wanted to be exchanged. In the view of the Trial Chamber, this is a strong indicator that these civilians were not voluntarily exchanged.
2. Exchanges from Bosanski Samac to Croatia
The Trial Chamber accepts the evidence on the seven exchanges from Bosanski Samac and Batkovic to Croatia referred to in paras 878-893. The Trial Chamber finds that the displacement of the witnesses involved in these exchanges constitutes unlawful deportation, as the witnesses were forcibly relocated. In this respect, the Trial Chamber reiterates that the term “force” is not limited to physical force. Instead, the essential requirement is that the relocation is involuntary in nature, i.e., that the victim does not have a real choice. The Trial Chamber notes that Prosecution witnesses Dragan Lukac, Hasan Bicic, Muhamed Bicic, Ibrahim Salkic, Esad Dagovic, Witness K, Dragan Delic, Nusret Hadzijusufovic, Witness C, Jelena Kapetanovic, Witness A, Witness O, and Witness Q were in detention when they were exchanged to Croatia. The detention conditions constituted a coercive environment that left the detainees without a real choice as to whether or not they wanted to be exchanged. The Trial Chamber is also satisfied that Ediba Bobic, Hajrija Drljacic and Snjezana Delic did not voluntarily agree to be exchanged, as the conditions under which they had to live did not provide them with a free choice. The Trial Chamber is satisfied that there was no justification for the deportation of the above-mentioned witnesses .
With regard to the exchanges of non-Serb civilians to Dragalic on 19 September 1992, 7 October 1992, and 7 January 1993, the Trial Chamber finds that insufficient evidence has been adduced to prove beyond reasonable doubt that an unlawful deportation has been committed.
3. Exchange from Batkovic to Lipovac on or about 20 February 1993
With respect to the relocation of Witness E and Witness N from Batkovic to Lipovac, the Trial Chamber is mindful of the fact that the Amended Indictment charges unlawful deportation under Count 2 only if the relocation was from the victims’ homes in the Bosanski Samac Municipality to other countries or to other parts of the Republic of Bosnia and Herzegovina not controlled by Serb forces. However, the Trial Chamber finds that the words “homes in the Bosanski Samac Municipality ” refer to the notion of residence rather than physical presence in the actual home: thus, the relocation of residents of Bosanski Samac – temporarily detained in Batkovic and thereafter exchanged to Croatia – is within the geographical scope of the Amended Indictment.
The Trial Chamber is satisfied that the displacement of Witness E and Witness N constitutes unlawful deportation. Both witnesses were detained at the time of their exchange, and the Trial Chamber is satisfied that the detention conditions constituted a coercive environment that did not provide the witnesses with a real choice as to whether or not they wanted to be exchanged. Thus, the Trial Chamber is satisfied that both witnesses were forcibly deported without lawful grounds.
4. Transfers of civilians within Bosnia and Herzegovina
(a) Transfer from Bosanski Samac to Dubica, on or about 26 May 1992
The Trial Chamber is satisfied that Osman Jasarevic was transferred to Dubica during this exchange. At the time of the exchange, Osman Jasarevic was detained in the primary school in Bosanski Samac. The Trial Chamber is satisfied that the detention facilities in the primary school constituted a coercive environment that made it impossible for Osman Jasarevic to decide according to his own genuine will whether or not he wanted to leave Bosanski Samac.
(b) Transfers of non-Serb prisoners between detention centres within Serb-held territory in Bosnia and Herzegovina
When deciding upon whether or not the transfer of non-Serb prisoners from one detention centre to another within Serb held territory in Bosnia and Herzegovina constituted forcible transfer, the Trial Chamber notes that the Prosecution pleaded deportation and forcible transfer in the context of ethnic cleansing. The Prosecution Pre-trial Brief states, that “the Serb authorities in Bosanski Samac made life so intolerable for most Bosnian Croat, Bosnian Muslim and other non-Serb residents of the municipality that they were forced to leave the area”; according to the Prosecution, this constituted a “successful” campaign of “ethnic cleansing”.²²⁵⁵ Similarly, the Prosecution Final Brief reads, that “the final stage in the plan to ethnically cleanse the Serb-held territory was the expulsion of the remaining Muslim and Croat inhabitants. [T]he Serb authorities deported them to Croatia or forcibly transferred them to Croat and Muslim held areas within Bosnia and Herzegovina. […] The effect of these expulsions – together with other acts undertaken by the Crisis Staff and its organs to ensure that Muslims and Croats would flee and not return – was the thoroughly (sic( cleansing of the municipality” (emphasis added).²²⁵⁶
For these reasons, the Trial Chamber finds that relocations of non-Serb prisoners from one detention centre to another within Serb-held territory in Bosnia and Herzegovina do not constitute forcible transfer unless the Accused had the intent that the victims did not return.
(c) Transfer from Bosanski Samac to Zasavica in September 1992
The Trial Chamber is satisfied beyond reasonable doubt that Jelena Kapetanovic and Witness K were transferred to Zasavica. The Trial Chamber finds that at the material time the living conditions in Bosanski Samac constituted a coercive environment that did not allow both witnesses to make a voluntary decision, based on their own free will, as to whether or not they wanted to go to Zasavica. However, the Trial Chamber is not satisfied beyond reasonable doubt that the reason for taking Jelena Kapetanovic and Witness K to Zasavica was to permanently displace them. Therefore, the Trial Chamber is not satisfied beyond reasonable doubt that they were forcibly transferred.
(d) Transfer to Crkvina in May 1992
The Trial Chamber is satisfied that a group of non-Serb civilians were detained in Crkvina in May 1992. After a few days, they were allowed to go home to Bosanski Samac while others had to go to Zasavica. The Trial Chamber is not satisfied beyond reasonable doubt that the reasons for taking these people to Crkvina were to forcibly transfer them, as the Prosecution did not adduce sufficient evidence that the victims were relocated with the intention to permanently displace them.
(e) Transfer from Bosanski Samac via Pelagicevo, Batajnica, and Pale to Sarajevo in May 1992
The Trial Chamber is satisfied that the relocation of Izet Izetbegovic from Bosanski Samac to Pelagicevo, by two Serb policemen , and then via Batajnica and Pale to Sarajevo in the end of May 1992, constitutes a forcible transfer.²²⁵⁷

XVI. FINDINGS ON GENERAL REQUIREMENTS OF ARTICLE 5 OF THE STATUTE
The Trial Chamber finds that the events, which took place in Bosanski Samac and Odzak between 17 April 1992 and 31 December 1993, constituted an attack on the civilian population. This attack included the forcible takeover of power in Bosanski Samac, and the subsequent acts of persecution and deportation against non-Serb civilians. The Trial Chamber is satisfied that a state of armed conflict existed in the Republic of Bosnia and Herzegovina during the above mentioned period²²⁵⁸ and that there was a nexus between the armed conflict and the acts of the Accused.
While Article 5 of the Statute requires that the attack must be either widespread or systematic, the Trial Chamber finds that the attack against non-Serb civilians in the Bosanski Samac and Odzak Municipalities was both systematic and widespread. The attack was preceded by a series of acts, which indicate that it was planned and carried out in an organized fashion. These acts include military training of Serb men from Bosanksi Samac at a camp near Ilok in mid March 1992,²²⁵⁹ securing the presence of Serb paramilitary forces who arrived in Batkusa on 11 April 1992,²²⁶⁰ and the establishment of the Crisis Staff on 15 April 1992.²²⁶¹ The forcible takeover on 17 April 1992 was followed by acts of systematic persecution against non-Serb civilians which included the arbitrary arrests of Bosnian Muslim and Bosnian Croat civilians and their unlawful detention in various facilities in Bosanski Samac, and in camps in Zasavica and Crkvina. Many were subjected to repeated beatings and other cruel and inhumane acts, in addition to deportation and forcible transfer.
The Trial Chamber finds that the attack in Bosanski Samac and Odzak was also widespread. It affected the vast majority of the residents of the Municipality. Approximately 250 non-Serb civilians were detained at the Territorial Defence Building in Bosanski Samac,²²⁶² the number of people detained at the secondary schools in Bosanski Samac was between 300 and 500.²²⁶³ In May 1992 almost 1000 people were detained at the Omladinski Dom in Crkvina.²²⁶⁴ A large number of them were subjected to torture or to cruel and inhumane treatment. Hundreds of non-Serbs were deported or focrcibly transferred.
The Trial Chamber is satisfied that the three Accused knew of the attack against the non-Serb civilians in Bosanski Samac and that their acts were part of this attack. Blagoje Simic telephoned Lt. Col. Stevan Nikolic on 17 April 1992 to inform him that the Crisis Staff of the Serbian Municipality of Bosanski Samac has been established and that with the assistance from members of the Serb police and the paramilitaries had taken over the vital facilities in town.²²⁶⁵ As the head of the de facto government, in the following months, Blagoje Simic was informed of the persecutory acts against non-Serb civilians, often organized or greatly facilitated by members of the Crisis Staff.
The Trial Chamber also accepts that, as a member of the Crisis Staff and as the member of the Exchange Commission, Miroslav Tadic became aware of the forcible takeover and of the following events. Simo Zaric was a member of the 4th Detachment since its establishment and served as the Assistant Commander for Intelligence, Reconnaissance, Morale and Information. In this capacity he was aware of the acts of mistreatment of non-Serb civilians. In view of the above, the Trial Chamber is satisfied that the general requirements of Article 5 are met with respect to each of the Accused.

XVII. FINDINGS ON ROLE OF THE ACCUSED

A. COUNT 1: PERSECUTIONS

1. Joint Criminal Enterprise
The Accused are charged under Article 7(1) of the Statute with respect to Count 1 (persecutions), which is pleaded in its entirety, and includes participation in a joint criminal enterprise. The Trial Chamber proceeds first to consider whether any of the Accused participated in a joint criminal enterprise to commit the crime of persecution, punishable under Article 5 (h) of the Statute. Given the Trial Chamber’s finding that the third category of joint criminal enterprise was not sufficiently pleaded in the Amended Indictment, the Trial Chamber proceeds to consider whether the Accused may be liable for commission of the crime of persecution with respect to category one and two of the joint criminal enterprise (basic form of joint criminal enterprise).
The Trial Chamber is satisfied upon the evidence that members of the Crisis Staff, including Blagoje Simic as President; the Serb police, including the Chief of Police, Stevan Todorovic, who was also a member of the Crisis Staff; Serb paramilitaries, including “Debeli” (Srcko Radovanovic, “Pukovnik”), “Crni” (Dragan Ðordevic), “Lugar” (Slobodan Miljkovic), and “Laki” (Predrag Lazarevic); and the 17th Tactical Group of the JNA; were participants in a joint criminal enterprise, responsible for executing the common plan to persecute non-Serb civilians in the Bosanski Samac Municipality.
The Trial Chamber is not satisfied that it is possible, upon the evidence, to extend the common plan to the political leadership of Republika Srpska, and to demonstrate that the Instructions for the Organisation and Activity of the Organs of the Serbian People in Bosnia and Herzegovina in Extraordinary Circumstances, published on 19 December 1991 by the SDS Main Board,²²⁶⁶ outlining a plan to divide the municipalities of Bosnia and Herzegovina into two categories, depending on whether the Serbs were in the majority, referred to as “Variant A”, or not, referred to as “Variant B”, were formally delivered from the SDS Executive Board on the national level to the municipal authorities in Bosanski Samac, as alleged by the Prosecution. The Trial Chamber is not satisfied beyond reasonable doubt that the civilian authorities took notice of it and acted accordingly. Thus, the Trial Chamber is not satisfied beyond reasonable doubt that the existence of a common plan to persecute non-Serbs in Bosanski Samac Municipality can be vertically extended to the political leadership of Republika Srpska.
The Trial Chamber finds, however, that the events that unfolded in Bosanski Samac before and after the takeover bear close similarity to what was envisaged in the above-mentioned instructions. The Trial Chamber is thus satisfied that, on a horizontal level, the participants in the joint criminal enterprise acted pursuant to a common plan to set up institutions and authorities to persecute non-Serb civilians in Bosanski Samac Municipality. On 29 February 1992, the Assembly of the Serbian People of the Municipality of Bosanski Samac and Pelagicevo was established, pursuant to the recommendation of the National Assembly of Republika Srpska.²²⁶⁷ In a meeting of the Municipal Assembly of Bosanski Samac and Pelagicevo in Obudovac on 28 March 1992, the Assembly elected the representatives of the Executive Board of the Serbian Municipality and Stevan Todorovic as the head of police. Also, in a meeting in March 1992, the Serbian Municipal Assembly decided that the President and the Vice-President of the Municipality and the President of the Municipal Board of the SDS should establish a Crisis Staff in case the war broke out. On 15 April 1992, a Crisis Staff was duly appointed in Bosanski Samac, and Blagoje Simic, the President of the SDS Municipal Board in Bosanski Samac, became its President. After the takeover it became clear that the Crisis Staff issued decisions and orders in accordance with decisions adopted by the Republika Srpska, that included an Order prohibiting political activities on the territory of Bosanski Samac Municipality, ²²⁶⁸ and implementation of Instructions for the Work of the Municipal Crisis Staffs of the Serbian People.²²⁶⁹
The Trial Chamber does not consider it necessary to make a finding on when the common plan at first was conceived, but instead infers the common plan from all the circumstances. There is sufficient evidence to conclude that participants in the joint criminal enterprise acted in unison to execute a plan that included the forcible takeover of the town of Bosanski Samac, taking over of vital facilities and institutions in the town, and persecuting non-Serb civilians in the Municipality of Bosanski Samac, within the period set forth in the Amended Indictment. This common plan was aimed at committing persecution against non-Serbs, including acts of unlawful arrest, detention or confinement, cruel and inhumane treatment, deportation and forcible transfer, and the issuance of orders, policies and decisions that violated fundamental rights of non-Serb civilians.
Prior to the takeover, members of the joint criminal enterprise worked together in preparation of the takeover of the town of Bosanski Samac as part of the common plan of persecution. The municipal section of the Ministry of Defence (Secretariat for National Defence), represented by Milos Bogdanovic, together with Stevan Todorovi c, as a member of the command of the 1st Detachment, pursuant to an order of the 1st Battalion of the 17th Tactical Group, participated in sending young men for military training to Ilok in mid-March 1992.²²⁷⁰ The trainees at Ilok were instructed by highly skilled members of “special units ”.²²⁷¹ On 11 April 1992 the paramilitaries arrived in Batkusa in JNA helicopters.²²⁷² Among the group of 50 men, 30 came exclusively from Serbia and the other 20 people were from Samac Municipality who were trained in Ilok.²²⁷³ “Crni”, “Lugar” and “Debeli” were a part of this group.²²⁷⁴ Maksim Simeunovic, Chief of Intelligence and Security for the 17th Tactical Group, Mico Ivanovic, Commander of the 1st Detachment, Major Brajkovic, the Chief of Staff of the 17th Tactical Group, and Stevan Todorovic, were present for the arrival of the paramilitaries.²²⁷⁵ The command of the 1st Detachment then made practical arrangements for them.²²⁷⁶ When a meeting was held on 12 April 1992 in Donji Zabar, Stevan Nikolic, Stevan Todorovic, Mico Ivanovic, Blagoje Simic, Simo Jovanovic “Crni” and “Debeli” were present to discuss the arrival of the paramilitaries.²²⁷⁷
On 15 April 1992, the members of the Municipal Assembly and its Executive Board met in Obudovac, among them Stevan Todorovic, Blagoje Simic, Milos Bogdanovic, Savo Popovic, Dusan Tanasic, Ivan Ivanovic, “Crni”, and Mirko Jovanovic. Blagoje Simic informed the others that he had arrived from a meeting with Lt. Col. Stevan Nikolic who had informed him about an impending attack by Croat and Muslim forces from Croatia with the assistance of local Croat and Muslim units from Bosanski Samac, and that the 17th Tactical Group intended to prevent this attack. Blagoje Simic related to them that Lt. Col. Stevan Nikolic said that he would jointly with the army prevent this incursion. Lt. Col. Stevan Nikolic also insisted that the Crisis Staff meet in Crkvina the following night on 16 April 1992. The Trial Chamber is satisfied beyond reasonable doubt that Blagoje Simic was in Crkvina in the early morning hours of 17 April 1992.
The takeover was conducted on 17 April 1992 in the town of Bosanski Samac by Serb police, paramilitaries. Members of the 17th Tactical Group of the JNA were present in town. Blagoje Simic telephoned Lt. Col. Stevan Nikolic on the morning of 17 April 1992 to inform him that the Crisis Staff of the Serbian Municipality of Bosanski Samac had been established, and that with the assistance of the Serb paramilitaries and the police, the Crisis Staff had occupied the most important facilities in town in order to takeover authority in Bosanski Samac. After this telephone conversation, Lt. Col. Stevan Nikolic ordered the 4th Detachment at 6. 00 a.m. to be in a state of combat readiness, and to participate in the collection of weapons.
Following the takeover of the town of Bosanski Samac, non-Serbs were arrested and detained by Serb police and paramilitaries, with the assistance of some members of the 4th Detachment, where they were subject to cruel and inhumane treatment, and interrogations. Non-Serbs were further subjected to acts of deportation and forcible transfer. The common goal to commit these acts of persecution could not have been achieved without the joint actions of the police, paramilitaries, 17th Tactical Group of the JNA and Crisis Staff: No participant could have achieved the common goal on their own. The Crisis Staff was responsible for coordinating the administration of the Municipality with the civilian police. The Crisis Staff implemented orders and decisions throughout its term that supported the system of persecution of non-Serbs. The cooperation between Blagoje Simic and the paramilitaries is exemplified by Blagoje Simic’s travel to Ugljevik in order to discuss with the Corps Commander the replacement of Colonel Ðurdevic by “Crni”, and in October 1992, the War Presidency requested the return of “Crni” and the paramilitaries.²²⁷⁸ The cooperation of the War Presidency that had been established on 21 July 1992, pursuant to a decision of the Presidency of Republika Srpska,²²⁷⁹ and Miroslav Tadic, is proven by the fact that on 2 October 1992 it established the Committee for the Exchange of Prisoners, and Miroslav Tadic was a member of the Committee.²²⁸⁰
Blagoje Simic, as President of the Crisis Staff, was at the apex of the joint criminal enterprise at the municipal level. Blagoje Simic knew that his role and authority were essential for the accomplishment of the common goal of persecution. As the President of the Crisis Staff and later the War Presidency and the Municipal Assembly, he was the highest-ranking civilian in Bosanski Samac Municipality, and the Crisis Staff was responsible for, inter alia, the economy, humanitarian and medical care, information and propaganda, procurement of food supplies, and communications.²²⁸¹ This means that the decisions and orders of the Crisis Staff provided for the legal, political, and social framework in which the other participants of the joint criminal enterprise worked and from which they profited. An example of this is an order of the Crisis Staff of 6 May 1992 pursuant to which all Crisis Staffs in local communes were to organise the feeding of soldiers and members of the paramilitaries.²²⁸² Thus, Blagoje Simic and the Crisis Staff supported the work of the Serb police, paramilitaries, and 17th Tactical Group. The Trial Chamber is convinced that Blagoje Simic and the other participants acted with the shared intent to pursue their common goal. The Trial Chamber finds on the evidence available that this category of joint criminal enterprise falls within the description of the first category, where all participants in the joint criminal enterprise share the same intent to discriminate against non-Serbs on account of racial, political, or religious grounds.
The Trial Chamber proceeds now to consider the individual criminal responsibility of Blagoje Simic, Miroslav Tadic and Simo Zaric with respect to the underlying acts of persecution as charged in Count 1 of the Amended Indictment.

2. Underlying Acts of Persecution
(a) Unlawful Arrests, Detention, Interrogations

(i) Blagoje Simic
Blagoje Simic, as President of the SDS Municipal Board, and President of the Serb Crisis Staff in the Municipality of Bosanski Samac (later renamed the War Presidency ), was the highest ranking civilian official in the Municipality. He oversaw the key objectives of the Crisis Staff that included consolidating Serb institutions and coordinating the functions of the authorities in Bosanski Samac, and presided over meetings of the Crisis Staff where operations of authorities in the Municipality were discussed. At these meetings, Stevan Todorovic, the Chief of Police, reported on the situation of arrests and detention in Bosanski Samac.²²⁸³ Although he did not have authority over the police, he was in a position of strong influence and control as President of the Crisis Staff, and did not take any significant steps in this position to prevent the continued arrests and detentions. His testimony that the Crisis Staff contacted the Ministry of Interior to complain about Stevan Todorovic not being worthy of his job, and made a written request to the Ministry of Defence to demobilise judges and establish courts, were insufficient steps taken, for someone in his position, to stop the system of unlawful arrests and detention continuing. Taking into consideration that the Crisis Staff had the responsibility to ensure the safety of the population,²²⁸⁴ Blagoje Simic, as the President of the Crisis Staff, was obliged to try every possible measure to prevent non-Serb citizens from being persecuted. As instructions for the work of the municipal crisis staffs came from the Prime Minister of Republika Srpska, he could have turned towards this authority by stating that due to the persecution of non-Serb citizens, he could not ensure the safety of all citizens. As a last resort, Blagoje Simic could have resigned, for instance after his he wounded himself accidentally in the leg on 23 July 1992 and subsequent medical treatment in Brcko and Belgrade.²²⁸⁵ However, he undertook no further steps to protect effectively non-Serb prisoners.
The Trial Chamber is satisfied that Blagoje Simic was aware of the persecution of non-Serbs in Bosanski Samac Municipality. The Report of the Command of the 2nd Posavina Infantry Brigade, 1 December 1992,²²⁸⁶ was disclosed to Blagoje Simic, and he attended a meeting in Pelagicevo where this was discussed.²²⁸⁷ The Report recorded that “(t)he massive arrests and isolation of Croats and Muslims followed, without any criteria.” Blagoje Simic was informed of the continued arrests and detention of non-Serbs during the conflict, and was in a position to express persuasive opinions at meetings with principal actors in the joint criminal enterprise. The fact that he was contacted by Simo Zaric to release Sulejman Tihic,²²⁸⁸ and also by Lt. Col. Stevan Nikolic, about the release of members of the 4th Detachment, ²²⁸⁹ demonstrates his strong influence over the arrest and detention of individuals, although it was the role of the chief of police to determine this.

Although the Trial Chamber cannot conclude beyond a reasonable doubt that Blagoje Simic ever entered any of the places of detention, he had to be aware of civilians being detained in facilities that included the SUP, TO, and primary and secondary schools in Bosanski Samac. He was also aware that detainees were held in camps in Zasavica and Crkvina, and transferred from the TO to Brcko and detained in other facilities presided over by the JNA in Bijeljina. The arrest and detention of civilians within the Municipality of Bosanski Samac was widely known. The police, paramilitaries, Crisis Staff and JNA, worked together to maintain the system of arrests and detention, and detainees were transferred amongst these facilities. While the Trial Chamber accepts that there is insufficient evidence to conclude that the Crisis Staff was responsible for ordering the isolation of Croats in Crkvina, it finds that once informed about the detention of civilians in Crkvina and Zasavica, Blagoje Simic did nothing to assist or release them. He continued to act as President of the Crisis Staff and at no point sought to resign due to the acts of persecution that were going on around him. He did not take any measures to impede the functioning of the joint criminal enterprise.
The Trial Chamber finds that the only reasonable inference that can be drawn from these facts is that Blagoje Simic shared the intent of the other participants in the joint criminal enterprise, executing the common plan of persecution, and participated in this joint criminal enterprise. Blagoje Simic could not have accepted the continued arrest and detention of non-Serb civilians, in his key position in the Municipality, without exercising discriminatory intent. Blagoje Simic shared the intention of other participants in the joint criminal enterprise to arrest and detain non-Serb civilians in the Municipality of Bosanski Samac and in Brcko and Bijeljina.

(ii) Miroslav Tadic
The Trial Chamber is not satisfied that there is sufficient evidence that Miroslav Tadic participated in the persecution of non-Serb prisoners through unlawful arrest and detention. While there is evidence that he was present at the detention facilities in Bosanski Samac, and had knowledge of their existence and conditions, he rarely entered the facilities, and visited these sites only in his role of conducting exchanges. Unlike Blagoje Simic, he did not hold a leading position in the Crisis Staff. His position as member of the Exchange Commission, did not afford him authority or influence over the arrest and detention of non-Serb civilians, nor did it require that he attend all meetings of the Crisis Staff. There is no evidence that he was contacted to make any decisions on the arrest or detention of non-Serbs. While the Trial Chamber is not satisfied beyond reasonable doubt that he shared the discriminatory intent of the joint criminal enterprise to persecute non-Serb civilians through their unlawful arrest and detention, his continued participation in conducting exchanges and transferring detainees, his attendance at meetings of the Crisis Staff and with some of the other direct perpetrators in the joint criminal enterprise in Belgrade, where the role of the paramilitaries was discussed, shows that he had knowledge of the discriminatory intent towards non-Serbs who were arrested and detained in facilities in Bosanski Samac, at the SUP, TO, primary and secondary schools, and in Brcko and Bijeljina.
While Miroslav Tadic had knowledge of the discriminatory intent of the joint criminal enterprise, the actions or omissions of Miroslav Tadic cannot be considered to have had a substantial effect on the perpetration of the offence of unlawful arrests and detention, and as such did not aid and abet the joint criminal enterprise. He was not in a position with power to prevent the work of the joint criminal enterprise and the corresponding criminal activity.

(iii) Simo Zaric

The Trial Chamber is not satisfied that Simo Zaric aided and abetted the joint criminal enterprise to commit acts of unlawful arrest or detention as persecution. In his position as Assistant Commander for Intelligence, Reconnaissance, Morale and Information in the 4th Detachment, he was responsible for conducting interrogations of some detainees at the SUP and in Brcko. The Trial Chamber does not find that these acts gave substantial assistance to the commission of acts of unlawful arrest, detention and confinement of non-Serbs, committed by the joint criminal enterprise . The Trial Chamber does not place any weight on his appointment as Chief of National Security, and finds that he did not conduct any interrogations of detainees during the brief period of this appointment.²²⁹⁰ Simo Zaric took steps to obtain the release of detainees, advocating the release of Sulejman Tihic,²²⁹¹ Witness N, ²²⁹² and members of the 4th Detachment.²²⁹³
Testimony that Stevan Todorovic ordered his policemen at the checkpoint in Gorice to arrest Simo Zaric on a trip to Belgrade,²²⁹⁴ and that he was mistreated by paramilitaries at the time that he advocated release of members of the 4th Detachment held at the SUP, is also consistent with Simo Zaric’s testimony that he did not share the objectives of the police and paramilitaries to unlawfully arrest and detain non-Serb civilians, and that he did not possess their discriminatory intent. While evidence was presented that he ordered the arrest of detainees Osman Jasarevic, Kemal Bobic, and Witness N, the Trial Chamber concludes that there is insufficient evidence that he ordered these arrests.
In his role of conducting interrogations of detainees, Simo Zaric was frequently present at the detention facilities, that included the SUP, TO and Brcko, where he saw detainees and the conditions that they were held in. He could see how the police, paramilitaries and JNA soldiers were unlawfully arresting and detaining people in these facilities.²²⁹⁵ Although Simo Zaric had knowledge of the unlawful arrest and detention of non-Serbs in Bosanski Samac and in Brcko and Bijeljina, his acts, that included conducting interrogations of detainees, did not give substantial assistance to the joint criminal enterprise committing these crimes.
(b) Cruel and inhumane treatment

(i) Blagoje Simic
The Trial Chamber is satisfied that Blagoje Simic participated in a joint criminal enterprise to persecute non-Serb prisoners in the detention facilities in Bosanski Samac through cruel and inhumane treatment, including beatings, torture, and confinement under inhumane conditions.
The Trial Chamber finds that the police, the military and the Crisis Staff were working hand in hand together in steering the Municipality of Bosanski Samac. The Crisis Staff, the War Presidency and the Municipal Assembly in succession, were the highest authority in the Municipality, and Blagoje Simic was the President of all three bodies. Stevan Todorovic, the Chief of Police, was a member of the Crisis Staff and frequently attended Crisis Staff meetings. Although Blagoje Simic and the Crisis Staff were not formally responsible for the police, the Trial Chamber is satisfied that they bore responsibility for the health, safety and welfare of all citizens in the area it administered, regardless of their ethnicity.²²⁹⁶ Such responsibility has been demonstrated in the “Instruction for the Work of Municipal Crisis Staffs of the Serbian people”,²²⁹⁷ signed by the incumbent Prime Minister of the Republika Srpska, Branko Deric, and in several decisions of the Crisis Staff.²²⁹⁸ When the Crisis Staff was replaced by the War Presidency and later by the Municipal Assembly, these bodies had the responsibility for the health and welfare of all citizens of the Municipality of Bosanski Samac. This responsibility especially lay with Blagoje Simic who was the President of these bodies.

The Trial Chamber has considered the submission of the Simic Defence that a comparison of Blagoje Simic’s role in the Crisis Staff with the position of bourgmestre of the accused in the Bagilishema case²²⁹⁹ shows that Blagoje Simic should be acquitted. The Simic Defence argues that Ignace Bagilishema had effective authority and control over the police,²³⁰⁰ while the police in Bosanski Samac was under the authority of the Ministry of Interior of Republika Srpska and not under Blagoje Simic’s authority. In this context, the Trial Chamber notes the finding in the Bagilishema Trial Judgement that Ignace Bagilishema had spoken on so-called “pacification” meetings in order to prevent the crimes he was charged with from happening.²³⁰¹ Furthermore, the Trial Chamber in Bagilishema held that Ignace Bagilishema could not be held criminally responsible “for not having done enough to punish crimes […].”²³⁰² In the present case, however, the Trial Chamber is not satisfied that Blagoje Simic undertook sufficient measures to prevent the persecutory acts against non-Serb civilians. The Trial Chamber reiterates that although Blagoje Simic was not directly responsible for the police or the military, his position as the highest-ranking civilian in Bosanski Samac Municipality gave him the opportunity and responsibility to take measures to protect the non-Serb civilian population.
The responsibility of the Crisis Staff and its successor bodies included the health, the safety and the welfare of the non-Serb citizens who were imprisoned in the detention facilities in Bosanski Samac. This means that, although the primary responsibility for the detention centres was with the police, the Crisis Staff and later the War Presidency and the Municipal Assembly had an obligation to provide for appropriate detention facilities in order to prevent the non-Serb citizens from being treated in a cruel and inhumane manner. The involvement of Blagoje Simic and his influence in detention matters is further demonstrated by the fact that Simo Zaric stated that he could not release Sulejman Tihic without Blagoje Simic’s approval.
In this context, the Trial Chamber is satisfied that Blagoje Simic, as the President of the Crisis Staff, worked hard to get medical supplies as required in the Municipality. The Trial Chamber infers from this that the detainees were deliberately denied adequate medical care. This also contributed to the unacceptable conditions deliberately created to force the non-Serb detainees to leave the Municipality. The Trial Chamber accepts the evidence of Dr. Ozren Stanimirovic who stated that he had the possibility to transfer those detainees who needed hospital care to the hospital, but that no such cases were referred to him.²³⁰³ In sum, the Trial Chamber is satisfied that Blagoje Simic failed to act according to this responsibility by not taking sufficient steps to avoid the cruel and inhumane treatment of non-Serb prisoners in the detention facilities in Bosanski Samac.
The Trial Chamber is satisfied beyond reasonable doubt that Blagoje Simic knew about the cruel and inhumane treatment, including the beatings, the torture and the inhumane confinement conditions of the non-Serb prisoners in detention facilities in Bosanski Samac. Stevan Todorovic, the Chief of Police, informed Blagoje Simic in the first days after the takeover about detainees who had been beaten and abused in the SUP. In this respect, the Trial Chamber notes that Bosanski Samac is a small town and that the cruel and the inhumane treatment of non-Serb prisoners was extensive and took place over a period of several months. The cries and moans of prisoners in the detention centres in Bosanski Samac and their forced singing of Serb nationalistic songs could be heard outside these premises. The fact that the Trial Chamber is not satisfied beyond reasonable doubt that Blagoje Simic ever visited any of the detention facilities is irrelevant in this respect. The Trial Chamber does not accept Blagoje Simic’s testimony that he did not know about such mistreatment.
The Trial Chamber is also satisfied that Blagoje Simic not only was aware of the discriminatory intent of the paramilitaries and the other perpetrators of the cruel and inhumane treatment, including beatings, torture and confinement under inhumane conditions of non-Serb prisoners in the detention facilities in Bosanski Samac, but that he shared this discriminatory intent. In this context, the Trial Chamber has carefully considered the testimonies of Sulejman Tihic and Izet Izetbegovic on statements made by Blagoje Simic in a meeting in the Municipal Assembly building in Bosanski Samac. Sulejman Tihic stated that Blagoje Simic referred to the partition of municipalities along ethnic lines by saying, “if you don’t decide, the Serbs will know what to do”. Izet Izetbegovic testified that Blagoje Simic said at the same meeting, that if the non-Serbs would not agree on the re-organisation of the municipalities, “the Serbs would use force”.
The Trial Chamber is satisfied that the only conclusion that can be drawn from the above-mentioned evidence and from the fact that Blagoje Simic continued to act as the highest-ranking civilian during the Indictment period is that he shared the discriminatory intent of the other participants in the joint criminal enterprise to persecute the non-Serb population of the Municipality of Bosanski Samac through cruel and inhumane treatment, including beatings, torture and confinement under inhumane conditions.
The Trial Chamber is not satisfied beyond reasonable doubt that sufficient evidence has been adduced to prove that Blagoje Simic was aware of the cruel and inhumane treatment of non-Serb prisoners in the detention facilities in Crkvina, in Brcko and in Bijeljina.

(ii) Miroslav Tadic
The Trial Chamber has observed that Miroslav Tadic played a prominent role in Bosanski Samac during the period of the Amended Indictment. He was Assistant Commander of the 4th Detachment, commander of the Civil Protection Staff, member of the Crisis Staff, and he held a leading position in the process of exchanging non-Serb civilians from the Municipality of Bosanski Samac. He was also a respected person in Bosanski Samac and the owner of the Café AS. As a member of the Crisis Staff, he bore responsibility for the health, the safety and the welfare of the prisoners in the detention facilities in the Municipality of Bosanski Samac. Taking into consideration that the cruel and inhumane treatment in the above-mentioned detention centres was extensive and took place over several months, the Trial Chamber is satisfied that Miroslav Tadic must have been aware of it. The Trial Chamber also notes that Miroslav Tadic stated that he learned from drunken people that they would go to the detention camps in Bosanski Samac and beat prisoners.
However, the Trial Chamber is not satisfied that the Prosecution has adduced sufficient evidence to prove that Miroslav Tadic's conduct – acts or omissions – had a substantial impact on the principals who committed the mistreatment. The Trial Chamber is not satisfied that Miroslav Tadic had the authority to restrain any perpetrator from committing persecutory acts including beatings, torture, and confinement under inhumane conditions against the non-Serb prisoners in the detention centres in Bosanski Samac, Crkvina, Brcko, or Bijeljina.

The Trial Chamber is not satisfied beyond reasonable doubt that Miroslav Tadic contributed to the joint criminal enterprise to persecute non-Serb prisoners in the detention facilities in Bosanski Samac, Crkvina, Brcko and Bijeljina through cruel and inhumane treatment, including beatings, torture and confinement under inhumane conditions.

(iii) Simo Zaric
The Trial Chamber is satisfied that Simo Zaric aided and abetted the joint criminal enterprise to persecute non-Serb prisoners in the detention facilities in Bosanski Samac through cruel and inhumane treatment, including beatings, torture and confinement under inhumane conditions.
Simo Zaric conducted interrogations with non-Serb prisoners who had been beaten. The Trial Chamber accepts that he did not take part in the beatings and that he did not approve of them. However, the Trial Chamber finds that his participation in the interrogations and in the interview of non-Serb prisoners by TV Novi Sad gave encouragement and moral support to the perpetrators of the cruel and inhumane treatment of non-Serb prisoners. In this context, the Trial Chamber takes into consideration that Simo Zaric was a former chief of the SUP in Bosanski Samac, Assistant Commander for Intelligence in the 4th Detachment, and a person highly engaged and respected in the social and cultural life in Bosanski Samac. The Trial Chamber finds that these characteristics of Simo Zaric prove beyond reasonable doubt that his participation in interrogations had a supportive effect on the perpetrators of the mistreatment . For these reasons, the Trial Chamber is satisfied beyond reasonable doubt that Simo Zaric substantially contributed to the cruel and inhumane treatment of non- Serb prisoners in the detention facilities in Bosanski Samac. His criminal responsibility covers cruel and inhumane treatment committed until July 1992 when he was appointed Assistant President of the Civilian Military Council in Odzak Municipality.

The Trial Chamber is satisfied that Simo Zaric was aware of the cruel and inhumane treatment of non-Serb prisoners in the detention facilities in Bosanski Samac. The Prosecution evidence²³⁰⁴ and his own admissions show that Simo Zaric knew that non-Serbs were mistreated because of their non-Serb ethnicity. He therefore knew of the perpetrators’ discriminatory intent.
However, the Trial Chamber is not satisfied that Simo Zaric shared or was aware of the discriminatory intent of the perpetrators of persecution through cruel and inhumane treatment including beatings, torture, and confinement under inhumane conditions, in Brcko and Bijeljina. The evidence adduced by the Prosecution does not prove beyond reasonable doubt that Simo Zaric had such awareness. Simo Zaric himself only acknowledged that he knew of persecutions against non-Serb civilians in the detention facilities in Bosanski Samac.
The Trial Chamber is not satisfied beyond reasonable doubt that Simo Zaric made a substantial contribution to the persecution of non-Serb prisoners through cruel and inhumane treatment, including beatings, torture, and confinement under inhumane conditions, in Crkvina.
(c) Forced Labour
The Trial Chamber is satisfied that the dangerous and humiliating forced labour assignments to which Bosnian Muslims and Bosnian Croats were subjected were part of the joint criminal enterprise to persecute non-Serb civilians in the municipalities of Bosanski Samac and Odzak.

(i) Blagoje Simic
The Trial Chamber is satisfied that in view of his position as President of the Crisis Staff, Blagoje Simic knew that Bosnian Muslims and Bosnian Croats were forced to perform dangerous or humiliating work. As the head of the de facto government, concerned with the welfare and the safety of the citizen, Blagoje Simic was aware of the existence of the forced labour programme. The Trial Chamber accepts the evidence that the Accused was seen at various locations where civilians performed forced labour.
The Trial Chamber is satisfied that Blagoje Simic intended to subject Bosnian Muslims and Croats to dangerous or humiliating work. Blagoje Simic, as the President of the Crisis Staff, participated in the appointment and the dismissal of the head of the Municipal Department for Defence, the body managing the forced labour programme, and occasionally heard reports from the head of this Department. He was aware of the overall situation in the Municipality and of the fact that civilians were used for trench digging and other dangerous military assignments. He did not take any measures within his authority to stop this practice. In view of his position as President of the Crisis Staff, he was aware of the fact that Bosnian Muslims and Bosnian Croats in detention were subjected to humiliating assignments, among other acts of cruel and inhumane treatment, and did not take sufficient action to prevent these incidents from happening. Noting the fact that only Bosnian Muslims and Bosnian Croats were subjected to these assignments, the Trial Chamber is satisfied that Blagoje Simic through his role in the appointment of the head of the Department administering the forced labour programme, and by his failure to take measures preventing the said acts from taking place, participated in the forced labour programme with the intent to discriminate against Bosnian Croats and Bosnian Muslims.

(ii) Miroslav Tadic

The Trial Chamber is satisfied that Miroslav Tadic was aware of the existence of the forced labour programme. The office of the Civilian Protection Staff, which he directed, was located in the same building where the coordinators of the forced labour programme were and where civilians had to report every morning for their forced labour assignments. The telephone line of the Civilian Protection Staff was used to transmit messages to the forced labour coordinators, and the employees of the Civilian Protection Staff sometimes personally delivered messages to the coordinators.
The Trial Chamber is not satisfied that Miroslav Tadic shared or was aware of Blagoje Simic’s intent and that of the other participants in the joint criminal enterprise to subject Bosnian Muslim and Bosnian Croats to dangerous or humiliating work. The Trial Chamber notes that not all types of forced labour assignments amount to persecution. While the evidence supports the fact that Miroslav Tadic was involved in the forced labour programme, the Trial Chamber is not satisfied that he participated in forcing non-Serbs to do dangerous or humiliating work. The Trial Chamber notes the testimony given by Nusret Hadzijusufovic regarding Miroslav Tadic’s participation in the use of the forced labour programme for looting. The Trial Chamber however is not satisfied that this evidence proves beyond reasonable doubt the fact that Miroslav Tadic committed or aided and abetted the crime of persecution in this respect.

(iii) Simo Zaric
The Trial Chamber is satisfied that in view of his position as a senior officer in the 4th Detachment and as Deputy to the President of the Civilian Council in Odzak, Simo Zaric was aware of the existence of the forced labour programme and of the fact that civilians were forced to perform dangerous work on the frontline and at other locations of strategic military importance. The Trial Chamber accepts the evidence of the witnesses who testified seeing Simo Zaric at various locations in Odzak while performing forced labour. Moreover, he personally saw civilians performing forced labour in Odzak.
The Trial Chamber is not satisfied that the evidence presented supports a finding that Simo Zaric substantially contributed to the dangerous or humiliating forced labour assignments. While the Trial Chamber accepts that Simo Zaric issued work assignments to civilians who were brought to Odzak, it is not satisfied that these assignments amount to cruel and inhumane treatment as a persecutory act. The Trial Chamber further finds that Simo Zaric’s omission to take measures preventing civilians being brought to the frontline for trench digging under the escort of soldiers from the 4th Detachment does not constitute a substantial contribution to persecution through forced labour assignments.
(d) Plunder

The Trial Chamber is not satisfied that the widespread plundering and looting of the property of Bosnian Muslims and Croats was part of the common plan to persecute non-Serb civilians. While the Accuseds’ knowledge of the occurrence of acts of looting is not contested in this case, the Trial Chamber is not satisfied that the Accused’s intentional participation in any form has been proved beyond reasonable doubt.

(i) Blagoje Simic
To prove Blagoje Simic’s participation in the plunder of non-Serb property, the Prosecution relies on the Crisis Staff Order of 24 April 1992 (Exhibit P88), authorizing the Crisis Staffs of the local communities to take over goods confiscated or recovered from zone of combat, and to ensure their storage in the warehouse of Bosanac D.D. and the premises of Uniglas in Bosanski Samac. The Trial Chamber is not satisfied that this order was issued with the goal to aid and abet the acts of plundering. With respect to the order for the requisition of Dragan Delic’s car for the needs of the Crisis Staff (Exhibit P49), the Trial Chamber notes that the authenticity of Blagoje Simic’s signature on this document is disputed and that this evidence is not supported by other evidence. While Stevan Todorovic and Simo Zaric, testified to the possible participation of Crisis Staff members in the removal of goods from the furniture factory Buducnost, and from department stores, none of these witnesses gave conclusive evidence about Blagoje Simic’s involvement in this practice.
The Trial Chamber accepts the arguments of the Defence that the Crisis Staff and Blagoje Simic personally took certain measures to limit the looting. These measures included the issuance of an order preventing companies from buying cattle from illegitimate owners, Exhibit D113/1, and a request for demobilization of judges serving in the military. The Trial Chamber accepts that the Crisis Staff Order of 24 April 1992 was issued to prevent random acts of plundering.

(ii) Miroslav Tadic

The Prosecution alleges that Miroslav Tadic participated in the looting through the forced labour programme. While some civilians who gathered every morning in front of the Retirement Home to perform forced labour had to participate in looting of private houses and shops, the Trial Chamber finds that Miroslav Tadic’s participation in these acts is not proven beyond a reasonable doubt. The Trial Chamber does not accept that Nusret Hadzijusufovic’s testimony regarding the fact that he was informed by Dzevad Celic about Miroslav Tadic’s authority to assign people for looting, or regarding Miroslav Tadic’s involvement in the distribution of firewood, proves beyond a reasonable doubt that Miroslav Tadic participated in the acts of plundering through the forced labour programme. The Trial Chamber notes that witnesses who were forced to loot testified that they received instructions from Serb civilians who were looting alongside with them, from the drivers who brought them to the respective locations or from the armed guards, and that looted goods were loaded onto private vehicles.
While the Trial Chamber accepts that goods found in abandoned shops were stored in the Agropromet warehouse and inventories of these goods were made by employees of the Civilian Protection Staff directed by Miroslav Tadic, it accepts the arguments of the Defence that this was done to protect perishable goods.

(iii) Simo Zaric
The Trial Chamber accepts that individual members of the 4th Detachment committed acts of plundering, sometimes directly, sometimes by forcing detainees or civilians to loot for them. The Trial Chamber notes that no direct evidence of Simo Zaric ’s participation in these acts was presented. It further notes that Simo Zaric was one of the senior officers of the 4th Detachment who initiated and signed the Report of the Thirteen Signatories, Exhibit P127, requesting measures to be taken against the widespread looting in Bosanski Samac. In view of the above the Trial Chamber is not satisfied that Simo Zaric’s intent to commit or to aid and abet the acts of plundering of non-Serb property, on discriminatory grounds, has been proved beyond reasonable doubt.
(e) Deportation and Forcible Transfer

The Trial Chamber finds that none of the Accused is criminally responsible for forcibly transferring non-Serb prisoners from one detention facility to another, as the Trial Chamber is not satisfied that the Accused had the intent to permanently displace these prisoners.

(i) Blagoje Simic
The Trial Chamber is not satisfied beyond reasonable doubt that Blagoje Simic is criminally responsible for the unlawful deportation of Witness N and Witness E in Lipovac on 20 February 1992. Both witnesses were in Batkovic at the time of the exchange, outside the Municipality of Bosanski Samac. The Trial Chamber finds that it has not been proven that Blagoje Simic participated in this deportation.
The Trial Chamber is satisfied that Blagoje Simic took part in the joint criminal enterprise to persecute non-Serb civilians by deporting and forcibly transferring them.

With regard to the forcible transfer of Osman Jasarevic on 25/26 May 1992 in Dubica, the Trial Chamber finds that Blagoje Simic and other members of the Crisis Staff were informed by Simo Zaric about the negotiations Simo Zaric had with the Odzak side prior to this exchange. Simo Zaric told the Odzak Exchange Commission that he could put proposals for this exchange to the Bosanski Samac Crisis Staff, and after he had informed Blagoje Simic about this proposed exchange, Blagoje Simic had nothing against an “all-for-all”-exchange. Blagoje Simic also testified that the Crisis Staff proposed to the Republic Exchange Commission to participate in the exchange. The Trial Chamber also accepts that the Crisis Staff ordered Miroslav Tadic, Simo Zaric and Bozo Ninkovic to compile lists with Serbs who were detained in Odzak prior to this exchange.
The Trial Chamber is satisfied that Miroslav Tadic informed the Crisis Staff regularly about the exchanges, and that on 2 October 1992 Blagoje Simic signed P83 as the President of the War Presidency, thereby appointing the civilian Exchange Committee that reported on its activities on a monthly basis to the War Presidency. The Trial Chamber notes that the system of exchanges took place over a period of about one and a half years, and that Blagoje Simic did not take sufficient measures to prevent non-Serbs from being unlawfully displaced. Therefore, the Trial Chamber is satisfied that Blagoje Simic participated in the unlawful deportation of Dragan Lukac, Hasan Bicic, Muhamed Bicic, Ibrahim Salkic, Esad Dagovic, Witness K, Dragan Delic, Snjezana Delic, Nusret Hadzijusufovic, Witness C, Hajrija Drljacic, Jelena Kapetanovic, Witness A, Ediba Bobic, Witness O, and Witness Q, and in the forcible transfer of Osman Jasarevic.
The Trial Chamber has carefully considered the testimonies of Sulejman Tihic and Izet Izetbegovic on statements made by Blagoje Simic in a meeting in the Municipal Assembly building in Bosanski Samac. Sulejman Tihic stated that Blagoje Simic referred to the partition of municipalities along ethnic lines by saying, that “if you don’t decide, the Serbs will know what to do”. Izet Izetbegovic testified that Blagoje Simic said at the same meeting, that if the non-Serbs would not agree on the re- organisation of the municipalities, “the Serbs would use force”. The Trial Chamber is also satisfied that Blagoje Simic was aware of the non-Serb ethnicity of the above persons who were unlawfully displaced, and he participated in the exchange procedure and was informed about it over a period of many months. The Trial Chamber is convinced that the extensive and continuing mistreatment of non-Serb civilians and their subsequent displacement proves that the participants in the joint criminal enterprise to persecute them had the shared intent to permanently displace them. The only reasonable inference from all these persecutory acts is that the perpetrators intended that the victims should not return. Thus, the Trial Chamber is satisfied that Blagoje Simic had a discriminatory intent with regard to the unlawful displacement of the persons mentioned above. For these reasons, the Trial Chamber finds that Blagoje Simic participated in the joint criminal enterprise to persecute the above -mentioned non-Serb civilians through deportation and forcible transfer, respectively.

(ii) Miroslav Tadic
The Trial Chamber finds that it has not been proven beyond reasonable doubt that Miroslav Tadic participated in the exchange in Nemetin on 14 August 1992.
The Trial Chamber further finds that the Prosecution did not prove beyond reasonable doubt that Miroslav Tadic is criminally responsible for the participation in the unlawful deportation of non-Serb civilians in the exchange from Batkovic to Lipovac on or about 20 February 1993.

The Trial Chamber is not satisfied that Miroslav Tadic participated in a joint criminal enterprise to persecute non-Serb civilians by unlawfully displacing Dragan Lukac, Hasan Bicic, Muhamed Bicic, Ibrahim Salkic, Esad Dagovic, Witness K, Dragan Delic, Snjezana Delic, Nusret Hadzijusufovic, Witness C, Hajrija Drljacic, Jelena Kapetanovic, Witness A, Ediba Bobic, Witness O, and Witness Q, and by forcibly transferring Osman Jasarevic.
The Trial Chamber is, however, satisfied beyond reasonable doubt that Miroslav Tadic substantially contributed to the deportation of Dragan Lukac, Hasan Bicic, Muhamed Bicic, Ibrahim Salkic, Esad Dagovic, Witness K, Dragan Delic, Snjezana Delic, Nusret Hadzijusufovic, Witness C, Hajrija Drljacic, Jelena Kapetanovic, Witness A, Ediba Bobic, Witness O, and Witness Q, and the forcible transfer of Osman Jasarevic, as acts of persecutions. Miroslav Tadic participated in the exchange procedure throughout the period of the Amended Indictment. He stated that prior to 2 October 1992, when no exchange committee had been formally established, “[…] I did the most work on these tasks, I seemed to be the President of the commission”. The Trial Chamber finds that not only Miroslav Tadic, but also numerous witnesses proved beyond reasonable doubt that he participated in the deportation of the witnesses mentioned above.
With regard to the mens rea, the Trial Chamber is not satisfied beyond reasonable doubt that Miroslav Tadic shared the discriminatory intent of the participants in the joint criminal enterprise. However, the Trial Chamber is satisfied that sufficient evidence has been adduced to prove beyond reasonable doubt that Miroslav Tadic was aware that the participants in the joint criminal enterprise to persecute non-Serb civilians through deportation and forcible transfer acted with a discriminatory intent. In this context, the Trial Chamber takes into account that Miroslav Tadic knew of the non-Serb ethnicity of the prisoners in Bosanski Samac who were later displaced, and he knew about their arrest, detention, and cruel and inhumane treatment in the detention facilities in Bosanski Samac. Taking into consideration that Miroslav Tadic was engaged in exchanges during almost the whole Indictment period, the Trial Chamber finds that he was aware of the discriminatory intent of the participants in the joint criminal enterprise to displace the above-mentioned non-Serb civilians from Bosanski Samac, thereby incurring criminal responsibility as an aidor and abettor.
However, the Trial Chamber is not satisfied that Miroslav Tadic was aware of this discriminatory intent already at the time of the forcible transfer of Osman Jasarevic to Dubica on 25/26 May 1992. As the Trial Chamber infers to a considerable extent Miroslav Tadic’s awareness of the perpetrators’ discriminatory intent from the repeated practice of exchanges, it is not satisfied beyond reasonable doubt that Miroslav Tadic already at the first exchange on 25/26 May 1992 was aware of such discriminatory intent. Furthermore, the Trial Chamber does not accept the testimony of Osman Jasarevic that Miroslav Tadic shouted on this occasion that everybody had to be exchanged. The Trial Chamber notes that no other witness of this or any other exchange testified about such a behaviour of Miroslav Tadic, and it is not satisfied beyond reasonable doubt that he made such a statement.

(iii) Simo Zaric
The Trial Chamber finds that it has not been established beyond reasonable doubt that Simo Zaric was involved in any exchange of non-Serb civilians after the exchange on 4/5 July 1992 in Lipovac.
The Trial Chamber is not satisfied that Simo Zaric participated in a joint criminal enterprise to persecute Osman Jasarevic by forcibly transferring him from Bosanski Samac to Dubica on 25/26 May 1992. With respect to the preparations for this exchange, the Trial Chamber has carefully considered the testimony of the persons involved in the conversations between the Serb and the Croat side, and prefers the testimony of Witness Q, to that of Simo Zaric. The Trial Chamber notes that Witness Q stated that Simo Zaric “was indeed in charge of negotiations concerning the exchange ”.

The Trial Chamber further notes that during his testimony in open court, Witness DW 1/3 gave evidence that was partly inconsistent with what he had stated in an interview given to the Office of the Prosecutor in March 1996. In the latter he had said, “I know for certain that two of the Serb negotiators were Zaric and Veljko Maslic. Stjepan Mikic told me that he had spoken with Simo Zaric. Zaric arranged the exchange.”²³⁰⁵ During his testimony before the Trial Chamber, he stated that, “perhaps that sentence [sc. “Stjepan Mikic told me”] should have been placed before all of this […] because I heard that from Stjepan Mikic so I don’t know for certain”.²³⁰⁶ The Trial Chamber notes that Witness DW 1/3 had signed P162 after it had been read out to him in the Croatian language, and he had been informed at that time that the statement might be used in legal proceedings before the Tribunal. He was also informed that he might be called to give evidence in public before the Tribunal. The Trial Chamber also notes that between the date of the interview and the date of the trial testimony almost seven years had passed. For these reasons, the Trial Chamber relies on what Witness DW 1/3 said in P162 about Simo Zaric being one of the two “Serb negotiators” mentioned above in this paragraph.
The Trial Chamber notes that Simo Zaric, together with Miroslav Tadic and Bozo Ninkovic, was designated by the Crisis Staff to be involved in compiling lists with the names of Serbs who were detained in Odzak prior to this exchange, as he hailed from Trnjak Zorice in Odzak Municipality and could provide information on many of these detained Serbs. Therefore, the Trial Chamber is satisfied that Simo Zaric contributed to the forcible transfer of Osman Jasarevic.
However, the Trial Chamber is not satisfied that the Prosecution did adduce sufficient evidence to establish beyond reasonable doubt that Simo Zaric acted with a discriminatory intent or was aware of the persecutory intent of the participants in the joint criminal enterprise to persecute non-Serb civilians through forcible transfers, including that of Osman Jasarevic. The Trial Chamber refers to what has been stated above with regard to Miroslav Tadic’s awareness of the discriminatory intent of the participants in the joint criminal enterprise to persecute Osman Jasarevic by forcibly transferring him on 25/26 May 1992 to Dubica. Likewise, the Trial Chamber is not satisfied beyond reasonable doubt that Simo Zaric already at the first exchange on 25/26 May 1992 was aware of such discriminatory intent. Therefore, the Trial Chamber finds that Simo Zaric is not criminally responsible for the persecution of Osman Jasarevic through his forcible transfer.
The Trial Chamber is not satisfied that Simo Zaric participated in the unlawful deportation of Hasan Bicic, Witness A and Witness O on 4/5 July 1992 in Lipovac. Although the Trial Chamber accepts the evidence that Simo Zaric was present at the exchange site, the Trial Chamber finds that the Prosecution has not adduced sufficient evidence to prove beyond reasonable doubt that Simo Zaric’s presence or any other activity constituted a participation in the exchange. Instead, the Trial Chamber accepts that his presence was due to the request of the Prgomet family and was also to welcome friends and relatives.

B. COUNT 2: DEPORTATION
Taking into consideration what has been stated above, the Trial Chamber is satisfied beyond reasonable doubt that Blagoje Simic is criminally responsible as a perpetrator of the deportation of Dragan Lukac, Hasan Bicic, Muhamed Bicic, Ibrahim Salkic, Esad Dagovic, Witness K, Dragan Delic, Snjezana Delic, Nusret Hadzijusufovic, Witness C, Hajrija Drljacic, Jelena Kapetanovic, Witness A, Ediba Bobic, Witness O, and Witness Q.
The Trial Chamber is also satisfied that it has been proven beyond reasonable doubt that Miroslav Tadic is criminally responsible as a perpetrator for the deportation of Dragan Lukac, Hasan Bicic, Muhamed Bicic, Ibrahim Salkic, Esad Dagovic, Witness K, Dragan Delic, Snjezana Delic, Nusret Hadzijusufovic, Witness C, Hajrija Drljacic, Jelena Kapetanovic, Witness A, Ediba Bobic, Witness O, and Witness Q. The Trial Chamber finds that sufficient evidence has been adduced to prove that Miroslav Tadic had the actus reus of deportation of the above-mentioned non-Serb civilians.
With regard to his mens rea, the Trial Chamber does not accept Miroslav Tadic’s statements that he never wished that some of his fellow citizens would leave forever, and that there was always a possibility to return.²³⁰⁷ The Trial Chamber is satisfied beyond reasonable doubt that the Prosecution has adduced sufficient evidence to prove that Miroslav Tadic had the intent to permanently displace non-Serb civilians from their homes in the Municipality of Bosanski Samac. The Majority is satisfied that the only inference from his substantial and continuing activity in the exchange of non-Serb civilians is that Miroslav Tadic had the intent that these non-Serb civilians are not returning, or that he at least knew that his actions were likely to permanently displace these non-Serb civilians and was reckless thereto.
With regard to the allegations that Miroslav Tadic had accepted bribes of non -Serb civilians who wanted to be exchanged, the Trial Chamber finds that such allegations have not been proved beyond reasonable doubt.
As Osman Jasarevic was not forcibly displaced over a national border, Simo Zaric can not be held criminally responsible for this offence pursuant to Article 5 (d) of the Statute.

XVIII. SENTENCING CONSIDERATIONS

A. Preliminary consideration: cumulative convictions
In accordance with the Appeals Chamber jurisprudence on cumulative convictions, the Trial Chamber takes into consideration in the determination of sentence the test applicable to cumulative convictions. In the present case, Blagoje Simic, stands convicted of persecutions, for, among others, deportation. Based on the same conduct, he is also found guilty of deportation as a crime against humanity. Miroslav Tadi c is convicted of the crime of persecution through deportation, and is also found guilty of deportation as a crime against humanity, based on the same conduct.
Cumulative convictions, i.e. convictions for different crimes under the Statute based on the same conduct, are permissible only if each crime involved has a materially distinct element not contained in the other. An element is materially distinct from another if it requires proof of a fact not required by the other. Where this test is not met, the Chamber must enter the conviction only for the crime with a materially distinct element, as being the more specific crime.²³⁰⁸
Both persecution and deportation as crimes against humanity require a demonstration that they were committed within the context of a widespread or systematic attack directed against a civilian population. A charge of persecution, in addition, requires proof that the acts supporting the charge were committed with a discriminatory intent. The crime of deportation as a crime against humanity does not contain an element which is materially distinct from the crime of persecution. As persecution requires the materially distinct element of discriminatory intent, it is the more specific provision. Therefore, a conviction is entered for persecution, but not for deportation, concerning the relevant conduct found to constitute the persecution charge.

B. Applicable law: sentencing factors²³⁰⁹
The jurisprudence of the Tribunal emphasises deterrence and retribution as the main general sentencing factors.²³¹⁰ Following these principles, the penalty imposed must be proportionate to the gravity of the crime and the degree of responsibility of the offender, and such penalty must have sufficient deterrent value to ensure that those who would consider committing like crimes will be dissuaded from so doing. The principle of retribution also allows a Trial Chamber to express the outrage of the international community at the commission of heinous crimes such as those adjudicated before the Tribunal.²³¹¹ Both these general sentencing factors form the backdrop against which the sentences of Blagoje Simic, Miroslav Tadic and Simo Zaric will be determined.
The factors to be taken into account in determining the sentence for an individual accused are expressed in Article 24 of the Statute and in Rule 101 (B) of the Rules. These include the gravity of the crime, the individual circumstances of the Accused, any aggravating or mitigating circumstances, and the general practice regarding prison sentences in the courts of the former Yugoslavia. The relevant provisions are set forth below:

Article 24

Penalties

The penalty imposed by the Trial Chamber shall be limited to imprisonment. In determining the terms of imprisonment, the Trial Chambers shall have recourse to the general practice regarding prison sentences in the courts of the former Yugoslavia.

In imposing the sentences, the Trial Chambers should take into account such factors as the gravity of the offence and the individual circumstances of the convicted person.

In addition to imprisonment, the Trial Chambers may order the return of any property and proceeds acquired by criminal conduct, including by means of duress, to their rightful owners.

Rule 100

Sentencing Procedure on a Guilty Plea

(A) If the Trial Chamber convicts the accused on a guilty plea, the Prosecutor and the defence may submit any relevant information that may assist the Trial Chamber in determining an appropriate sentence.

(B) The sentence shall be pronounced in a judgement in public and in the presence of the convicted person, subject to Sub-rule 102 (B).

Rule 101

Penalties

(A) A convicted person may be sentenced to imprisonment for a term up to and including the remainder of the convicted person’s life.

(B) In determining the sentence, the Trial Chamber shall take into account the factors mentioned in Article 24, paragraph 2, of the Statute, as well as such factors as:

(i) any aggravating circumstances;

(ii) any mitigating circumstances including the substantial cooperation with the Prosecutor by the convicted person before or after conviction;

(iii) the general practice regarding prison sentences in the courts of the former Yugoslavia;

(iv) the extent to which any penalty imposed by a court of any State on the convicted person for the same act has already been served, as referred to in Article 10, paragraph 3, of the Statute.

(C) Credit shall be given to the convicted person for the period, if any, during which the convicted person was detained in custody pending surrender to the Tribunal or pending trial or appeal.
When determining a sentence, the Trial Chamber must take into account the totality of the criminal conduct of the convicted persons. The details of the criminal conduct forming the basis of the convictions of the Accused, including the form and degree of participation of the Accused, have already been set out above, and will not be repeated in the context of this section.
(a) The gravity of the crime

Trial Chambers have consistently viewed the gravity of the offence as “the primary consideration in imposing sentence”.²³¹² The Appeals Chamber endorsed the following statement by the Trial Chamber in Kupreskic:

The sentences to be imposed must reflect the inherent gravity of the criminal conduct of the accused. The determination of the gravity of the crime requires a consideration of the particular circumstances of the case, as well as the form and degree of the participation of the accused in the crime.²³¹³
Crimes against humanity are inherently very serious crimes. In addition, persecution, is the only crime listed in Article 5 which requires a discriminatory intent.²³¹⁴ As set out above, acts found to constitute persecution are acts of the utmost gravity which entail the gross or blatant violations of fundamental human rights with the intention to discriminate on racial, religious or political grounds. All the constitutive acts of the persecutorial campaign found to be made out on the evidence are serious in themselves.²³¹⁵ The Trial Chamber has taken into account their scale and cumulative effect within the Municipality of Bosanski Samac. Further, for Persecutions to qualify as a crime against humanity, proof of the following elements is required: that “objectively the acts of the accused are linked geographically as well as temporally with the armed conflict”;²³¹⁶ that the acts of the accused were related to a widespread or systematic attack directed against any civilian population.²³¹⁷ In addition, the accused must have known that his acts were part of the attack, or at least have taken the risk that his acts were part of the attack. The Appeals Chamber accepted that this does not entail knowledge of the details of the attack.²³¹⁸ When charged as a crime against humanity, these offences are one element of an extensive criminal conduct. As the elements of these offences, such as the civilian character of the victims, and the discriminatory intent, form part of the requisite elements for the crimes charged to be made out, they will not be considered separately as aggravating factors.²³¹⁹
(b) Aggravating circumstances

The Appeals Chamber in Celebici held that “only those matters which are proved beyond reasonable doubt against an accused may be the subject of an accused’s sentence or taken into account in aggravation of that sentence.”²³²⁰ Only the circumstances directly related to the commission of the offence charged may be seen as aggravating.²³²¹
(c) Mitigating circumstances
Rule 101 (B)(ii) of the Rules provides that the Trial Chamber, in determining the sentence, shall take into account “any mitigating circumstances including the substantial co-operation with the Prosecutor by the convicted person before or after conviction.” Mitigating circumstances need only be proven on the balance of probabilities and not beyond a reasonable doubt.²³²²
A Trial Chamber has the discretion to consider any factors that it considers to be of a mitigating nature.²³²³ Mitigating factors will vary with the circumstances of each case. In previous cases, Chambers of the Tribunal have found the following factors to be mitigating: voluntary surrender, guilty plea, co-operation with the Prosecution, youth, expression of remorse, good character with no prior criminal conviction, family circumstances, acts of assistance to victims, diminished mental capacity, and duress.²³²⁴ Remorse has been considered as a mitigating factor in a number of cases before the Tribunal.²³²⁵ In order to accept remorse as a mitigating factor, a Trial Chamber must be satisfied that the expressed remorse is sincere.
A circumstance that the Trial Chamber is specifically required to consider in mitigation of the sentence pursuant to Rule 101 (B)(ii) is the “substantial co -operation with the Prosecution by the convicted person before or after conviction ”. In the Blaskic case, the Trial Chamber laid down the conditions under which an accused’s co-operation with the Prosecution may qualify as a mitigating factor:

Co-operation with the Prosecutor is the only circumstance explicitly provided for within the terms of the Rules. By this simple fact, it takes on a special importance. The earnestness and degree of co-operation with the Prosecutor decides whether there is reason to reduce the sentence on this ground. Therefore, the evaluation of the accused’ s co-operation depends both on the quantity and quality of the information he provides. Moreover, the Trial Chamber singles out for mention the spontaneity and selflessness of the co-operation which must be lent without asking for something in return. Providing that the co-operation lent respects the aforesaid requirements, the Trial Chamber classes such co-operation as a “significant mitigating factor ”.²³²⁶

(d) The general practice regarding prison sentences in the courts of the former Yugoslavia
Article 24(1) of the Statute and Rule 101 (B)(iii) of the Rules require the Trial Chamber, in determining a sentence, to take into account the general practice regarding prison sentences in the courts of the former Yugoslavia. The Appeals Chamber interpreted these provisions as follows:

It is now settled practice that, although a Trial Chamber should “have recourse to” and should “take into account” this general practice regarding prison sentences in the courts of the former Yugoslavia, this “does not oblige the Trial Chambers to conform to the practice; it only obliges the Trial Chambers to take account of that practice.” … Trial Chambers are not bound by the practice of courts in the former Yugoslavia in reaching their determination of the appropriate sentence for a convicted person.²³²⁷
Article 34 of the Criminal Code of the Socialist Federal Republic of Yugoslavia (“SFRY Criminal Code”), which was in force when the offences were committed, provides for imprisonment, among other forms of punishment.²³²⁸
Although there is no provision in the SFRY Criminal Code relating to crimes against humanity specifically,²³²⁹ Article 142 (“War Crimes against the Civilian Population”) prohibits criminal conduct which corresponds to the offence of which the Accused stand convicted, namely, Persecution as a crime against humanity. This Article provides that “whoever in violation of rules of international law effective at the time of war, armed conflict or occupation, orders that civilian population be subject to … torture, inhuman treatment… causing great suffering or serious injury to body and health…” shall be punished by imprisonment for not less than five years, and up to the death penalty.

Article 38 sets out the terms of imprisonment that may be imposed under the SFRY Criminal Code. It provides that for criminal acts for which a fifteen year sentence can be imposed, when the offence was perpetrated under particularly aggravating circumstances or caused especially grave consequences, a punishment of twenty years can be imposed. Additionally, where criminal acts are eligible for the death penalty, the court may impose a maximum sentence of 20 years’ imprisonment in lieu thereof .²³³⁰
Thus, under the criminal provisions in effect in the former Yugoslavia at the time the offences for which the Accused stand convicted were committed, the crime of Persecution would have attracted a sentence of between 5 and 20 years’ imprisonment.
Article 41 of the SFRY Criminal Code lays down the “general rules for determining sentence”, and states, in part, that:

A court shall determine sentence for the perpetrator of a crime within the boundaries prescribed by the code for this crime, bearing in mind the purpose of punishment and taking into account all circumstances influencing the degree of severity (mitigating and aggravating circumstances, and, in particular: the level of criminal responsibility, the motive for the crime, the level of threat to or violation of protected assets, the circumstances under which the crime was committed, the previous character of the perpetrator, his/her personal circumstances and conduct after the commission of the crime, and other circumstances relating to the personality of the perpetrator.
In accordance with the jurisprudence of the Tribunal, the Trial Chamber will consider the sentencing practice of the courts of the former Yugoslavia, although it is not bound by such practice, in the determination of a sentence.²³³¹
(e) Pattern of sentences

The Trial Chamber notes that a range or pattern of sentences within the Tribunal does not exist as yet.²³³² The Appeals Chamber held that a Trial Chamber may only have regard to sentences pronounced in other cases before the Tribunal in substantially similar circumstances.²³³³

C. Determination of sentences
The Prosecution generally submits that the Trial Chamber should take into account “at least three aggravating circumstances” in determining the appropriate sentence for each Accused: (1) the willingness of the Accused’s participation in the persecutory campaign;²³³⁴ (2) the duration of the criminal conduct, which is longer than two months and therefore, according to the Kunarac Appeals Chamber, is long enough to aggravate the sentence for the offence;²³³⁵ (3) the personality, responsibility, educational background and intelligence of each Accused.²³³⁶
The Prosecution requests that Blagoje Simic’s be sentenced to between 20 and 25 years in prison,²³³⁷ Miroslav Tadic between 15 and 20 years,²³³⁸ and Simo Zaric between 10 and 15 years.²³³⁹

1. Blagoje Simic
(a) Aggravating circumstances

(i) Gravity of the offence and manner in which the crimes were committed
Based on the above findings in relation to the criminal responsibility of Blagoje Simic, the Trial Chamber is satisfied that Blagoje Simic was a leading member of the joint criminal enterprise, which purpose was the taking of power in the Bosanski Samac Municipality, and entailed the removing of Bosnian Muslims and Bosnian Croats, regardless of whether they opposed the takeover or not. Blagoje Simic was the most prominent representative of the civilian authorities to take part in the enterprise . The Trial Chamber accepts that occurrence of an armed conflict in neighbouring Croatia, and the atmosphere of increasing tensions within the Municipality were difficult times and a “time of great uncertainty”²³⁴⁰. These circumstances, however, do not account for Blagoje Simic’s deliberate participation in the unfolding criminal events.
Even though he had a demanding work as a medical doctor, Blagoje Simic chose to become involved at the highest level of the civilian authorities within the Bosanski Samac Municipality, and assumed an active role, encompassing all aspects of life in the Municipality. Even though Blagoje Simic wounded himself accidentally in July 1992, and claimed to have played a minor role in the months following because of his injury, the Trial Chamber is not satisfied that his role in the campaign of persecution became less important, as there is no evidence that he was replaced as President. Had Blagoje Simic had doubts as to the propriety of events taking place in the Municipality, in particular as to the mistreatment meted out to the persons detained, which was brought to the attention of the Crisis Staff, he could have used the period after his injury to distance himself from the activities of the authorities in the Municipality.

Further, there is no evidence that Blagoje Simic expressed concern as to the developments taking place or that he tried to alleviate the plight of those who were detained and subjected to mistreatment, including forced labour assignments. On one occasion, Sulejman Tihic, a political leader, asked for Blagoje Simic’s assistance in order to be released. Blagoje Simic ignored the request. The Trial Chamber accepts the evidence that Blagoje Simic, through his activities with the Crisis Staff, helped to improve the daily life conditions of some inhabitants of Bosanski Samac, regardless of their ethnicity. This, however, does not detract from the fact that he was actively participating in the persecution of Bosnian Muslims and Croats at the same time.
Blagoje Simic chose to be associated with members of the military, the police, and Serbian paramilitaries. In particular, he chose to continue to be involved in activities along with paramilitaries, and members of the police, who were known for their violent and brutal behaviour. In particular, despite having had strong disagreements with Stevan Todorovic, and generally disapproving of his behaviour, Blagoje Simic chose to be involved with him as a member of the same joint criminal enterprise. All these elements lead the Trial Chamber to consider Blagoje Simic as one of the principal participants in the campaign of persecution which befell non-Serbs in the Municipality of Bosanski Samac.

(ii) Position of Blagoje Simic as President of the Crisis Staff/War Presidency
The Trial Chamber agrees with the Prosecution submission²³⁴¹ that Blagoje Simic’s position as the President of the Crisis Staff, and later of the War Presidency should be considered as an aggravating factor, particularly as he headed these institutions throughout their entire existence.²³⁴² As noted above, as the most important civilian leader within the Municipality, he had a particular responsibility towards the entire population, even in times of armed conflict. As noted in Stakic, the “commission of offences by a person in such a prominent position aggravates the sentence substantially.”²³⁴³

(iii) Status of the victims and effects of the offences on the victims

The Trial Chamber finds that the victims were in a position of acute vulnerability, being in the custody and control of the Bosanski Samac authorities: they all had been in detention for several months, in several detention places, and suffered extensive and brutal beatings at the hands of others; they were defenceless and had no possibility to protect themselves. In addition, most of the victims were personally known by Blagoje Simic.

(iv) Personal circumstance: education

The Trial Chamber agrees with the Prosecution²³⁴⁴ that the fact that Blagoje Simic is intelligent, educated and a member of the medical profession constitute an aggravating circumstance. This is especially so in light of the fact that the systematic brutal mistreatment of Bosnian Muslim and Bosnian Croat detainees was brought to his attention, and he appears to have done nothing to alleviate their hardship. The Trial Chamber agrees with the approach taken in cases before the ICTR, and in Stakic that the professional background of Blagoje Simic as a medical doctor is an aggravating factor, although not a significant one.²³⁴⁵
(b) Mitigating circumstances

The Prosecution submits that no mitigating factors exist in his favour.²³⁴⁶

(i) Voluntary surrender
The Trial Chamber accepts that Blagoje Simic surrendered voluntarily on 12 March 2001 to the custody of the Tribunal. However, although this fact is a mitigating circumstance in itself, the Trial Chamber notes that Blagoje Simic, surrendered approximately three years after Miroslav Tadic and Simo Zaric, who also lived in Bosanski Samac up until their surrender. The Trial Chamber does not find that the weight given to Blagoje Simic’s surrender should be significant.

(ii) Remorse

The Trial Chamber is not satisfied that Blagoje Simic demonstrated any genuine remorse.

(iii) Personal cirscumstances (age, character, family circumstances)

The Trial Chamber does not challenge the truthfulness of the statements on Blagoje Simic’s “good character” and behaviour before the armed conflict. It does not, however, find that such statements are sufficient to counter the fact that at the time for which he stands convicted he exercised discriminatory intent. The Trial Chamber takes into account the age of Blagoje Simic at the time he committed the offences, 33 years old, and the fact that he is married and has three young children.

(iv) No prior criminal convictions

The Trial Chamber accepts that Blagoje Simic has no prior criminal convictions, and this is taken into consideration as a mitigating factor.

(v) Comportment in the Detention Unit and general attitude towards the proceedings

The Trial Chamber considers as a mitigating factor Blagoje Simic’s consent on 27 March 2002 that a new Judge be appointed pursuant to Rule 15bis. The fact that Blagoje Simic chose to testify at the beginning of the Defence case is taken into account as a mitigating factor.
The Trial Chamber accepts the Report submitted by the Deputy Commander of the Detention Unit testifying to the good conduct of Blagoje Simic while in detention.
(c) Comparison with other cases before the Tribunal or the ICTR

The Trial Chamber finds that the cases referred to by the Defence may not be considered as substantially similar. The Defence rightly noted that, at the time of the written and oral closing arguments, there were no cases by either of the Tribunals that adjudge a civilian leader who did not directly engage in crimes.²³⁴⁷ In relation to the Bagilishema case, the Trial Chamber observes that the Trial chamber in that case found that the accused had attempted all he could in order to change the course of events. In addition, he appears to have had more powers than Blagoje Simic.

2. Miroslav Tadic
(a) Aggravating circumstances

(i) Gravity of the offence and manner in which the crimes were committed
The Trial Chamber has found Miroslav Tadic guilty of aiding and abetting the joint criminal enterprise of persecution, because of his role in the exchanges. Miroslav Tadic was an actively involved in the process of exchanges, and in particular in drawing up lists of people who would be exchanged, and negotiating with the other side. His participation as an aider and abetter in the process of exchanges started in April 1992 and lasted until 31 December 1993, namely, more than one and a half year.

(ii) Status of the victims and effects of the offences on the victims

As noted in relation to Blagoje Simic, the victims of the campaign of persecution were particularly vulnerable and defenceless. Not all persons exchanged were detained under inhumane conditions and found to have been unable to consent freely to their exchange. Other civilians, although not detained, also found themselves in an environment which did not allow them to exercise a genuine choice. Miroslav Tadic was aware of these circumstances, and nonetheless chose to participate in the process of exchanges, which in practice removed their victims from their homes and community against their will.

(iii) Personal circumstance: education

The Trial Chamber finds that the fact that Miroslav Tadic, as a school teacher, is an intelligent and educated man is an aggravating factor. Miroslav Tadic was 56 at the time of the offences.
(b) Mitigating factors

(i) Benevolent acts

The Trial Chamber accepts the evidence showing that Miroslav Tadic helped some Bosnian Muslims during the war. Further, although Miroslav Tadic is found to have substantially contributed to exchanges found to constitute deportation, his motives were to help “the other side to find their relatives so that the other side would do the same for the Serbs”.²³⁴⁸

(ii) Voluntary surrender

Although Miroslav Tadic surrendered on 14 February 1998, and thus arguably, a significant period of time after becoming aware of the existence of an Indictment against him, the Trial Chamber finds this to constitute a mitigating circumstance, as at the time, he was one of the first accused persons to voluntarily surrender to the custody of the Tribunal.

(iii) Remorse

The Trial Chamber accepts that Miroslav Tadic expressed genuine remorse and finds this to be a mitigating circumstance.

(iv) Personal circumstances (age, character, family circumstance)

The Trial Chamber accepts that the statements submitted by the Tadic Defence show his prior good character, and notes that Prosecution witnesses also testified to his prior positive personality. The Trial Chamber heard evidence from both Prosecution and Defence witnesses that he was a popular local figure in Bosanski Samac and that people from all ethnicities frequented his café before the armed conflict. The Trial Chamber also takes into account Miroslav Tadic’s age, 66 years old. The Trial Chamber notes the medical report submitted on 26 June 2003 indicating poor health.

(v) No prior criminal conviction

The Trial Chamber accepts that Miroslav Tadic was never criminally convicted and finds this to be a mitigation circumstance.

(vi) Comportment in the Detention Unit and general attitude towards the proceedings

The Trial Chamber finds that the fact that Miroslav Tadic chose to testify on his own behalf a mitigating circumstance, although it would have been accorded more weight if he had chosen to do so earlier in the presentation of his case. The Trial Chamber agrees with the Defence submission that Miroslav Tadic demonstrated a cooperative attitude towards the Prosecution, by contacting the Office of the Prosecutor first, and by giving two interviews after his surrender, and finds that these factors are mitigating. The Trial Chamber further considers as a mitigating factor Miroslav Tadic’s consent on 27 March 2002 that a new Judge be appointed pursuant to Rule 15bis.
The Trial Chamber takes into account the Report submitted by the Commander of the Detention Unit testifying to the good conduct of Miroslav Tadic while in detention.

3. Simo Zaric

(a) Aggravating circumstances

(i) Gravity of the offence and manner in which the crimes were committed

The intrinsic gravity of the crime of persecution has been outlined above. The Trial Chamber has found Simo Zaric guilty of having aided and abetted several of the criminal acts forming the underlying acts of persecution pursuant to a joint criminal enterprise. Simo Zaric admitted himself that there was a campaign of persecution in Bosanski Samac pursuant to which Bosnian Muslim and Croats were targeted. Simo Zaric’s conduct’s constituted a significant participation.
Simo Zaric has been found by the Trial Chamber to have been an active member of the 4th Detachment. In particular, Simo Zaric participated in the establishment of the Detachment and advocated it publicly. Although members of the 4th Detachment were not found to have been members of the joint criminal enterprise, it was under the authority of the 17th Tactical Group which participated actively in the events forming the basis of the joint criminal enterprise.

By accepting to conduct interrogations of detainees he knew were subjected to brutal mistreatment, Simo Zaric allowed such mistreatment to continue and prolonged the unlawful detention of detainees. The Trial Chamber has accepted that Simo Zaric’s initiative to transfer a group of detainees from the TO in Bosanski Samac to JNA barracks in Brcko may have temporarily allowed for an improvement of their detention conditions. This act, however, may also be regarded as indicative that Simo Zaric had the power, due to his status within the 4th Detachment, to influence the course of events, and did not use it at other times, or later when most of the same detainees were brought back to Bosanski Samac, to the schools for further detention.
The Trial Chamber takes into account that Simo Zaric’s criminal conduct lasted for three months, a comparably short period.

(ii) Status of victims and effect of the offences on the victims
As noted above, the victims of the crime which Simo Zaric aided and abetted were defenceless and subjected to systematic and brutal mistreatment.

(iii) Personal circumstances: education and status

The Trial Chamber finds Simo Zaric’s education and background to be aggravating circumstances. The Trial Chamber accepts, that due to the various positions he occupied, including that of chief of the Public Security Station in Bosanski Samac prior to the armed conflict, Simo Zaric was a respected community leader, whose conduct influenced or supported others.
(b) Mitigating circumstances

(i) Benevolent acts during the time-period of the Amended Indictment

There is some evidence before the Chamber that Simo Zaric attempted to change the course of events. Although this conduct had been taken into consideration in the determination of Simo Zaric’s criminal liability, the Trial Chamber feels that some of these acts at the time also ought to be taken into account in mitigation : (1) that in April 1992, Simo Zaric advocated the release of Sulejman Tihic, Witness N, and of Muslim members of the 4th Detachment who had been arrested and were detained at the SUP and TO; (2) that Simo Zaric initiated and organised the transfer of a group of detainees from the TO to the Brcko barracks, which some of the detainees testified saved their lives; (3) that Simo Zaric, as soon as he heard about the Crkvina massacre, took steps to report the matter to higher authorities within the Municipality and in Serbia; (4) that Simo Zaric conducted his interrogations humanely in that no beatings accompanied them, and proper records of interviews were made ; (5) that Simo Zaric authored the “Thirteen Signatories” Report which documented some of the problems happening at the time, in an attempt to improve the situation.

(ii) Voluntary surrender

The Trial Chamber accepts that Simo Zaric’s voluntary surrender to the custody of the Tribunal on 24 February 1998 constitutes a mitigating factor, as even though it occurred some time after the Indictment against him had come to his attention, Simo Zaric was one of the first accused from Republika Srpska to surrender.

(iii) Remorse

The Trial Chamber accepts that Simo Zaric’s acceptance of remorse is genuine and qualifies as a mitigating circumstance.

(iv) Personal circumstances (age, character, family)

The Trial Chamber accepts the evidence concerning Simo Zaric’s good character. The Trial Chamber has noted Simo Zaric’s family circumstances.

(v) No prior criminal conviction

The Trial Chamber finds that the evidence demonstrating Simo Zaric’s lack of prior criminal conviction is a mitigating circumstance.

(vi) Comportment in detention and general attitude towards the proceedings

The Trial Chamber accepts that Simo Zaric cooperated to a certain extent with the Office of the Prosecutor by accepting to undertake three interviews, after his surrender. The Trial Chamber considers as a mitigating factor Simo Zaric’s consent on 27 March 2002 that a new Judge be appointed pursuant to Rule 15bis. The Trial Chamber also notes the Report of the Deputy Commander of the Detention Unit testifying to the good conduct of Simo Zaric in detention. The Trial Chamber has however taken into consideration the incident referred to in the report.

XIX. DISPOSITION

A. Sentence

FOR THE FOREGOING REASONS, having considered all of the evidence and the arguments of the Parties, the Statute and the Rules, the Trial Chamber finds as follows.

1. Blagoje Simic

A conviction is entered for Count 1 – Crime against humanity for persecutions based upon unlawful arrest and detention of Bosnian Muslim and Bosnian Croat civilians, cruel and inhumane treatment including beatings, torture, forced labour assignments, and confinement under inhumane conditions, and deportation and forcible transfer.
No conviction is recorded for Count 2, as the Trial Chamber finds it to be impermissibly cumulative with Count 1.
Count 3 is dismissed due to defects in the form of the Amended Indictment.
The Trial Chamber by a majority, Judge Per-Johan Lindholm dissenting, sentences Blagoje Simic to a sentence of imprisonment for seventeen (17) years.

2. Miroslav Tadic
The Trial Chamber by a majority, Judge Per-Johan Lindholm dissenting, enters a conviction for Count 1 – Crime against humanity for persecutions based upon deportation and forcible transfer.
No conviction is recorded for Count 2, as the Trial Chamber finds it to be impermissibly cumulative with Count 1.
Count 3 is dismissed due to defects in the form of the Amended Indictment.
The Trial Chamber by a majority, Judge Per-Johan Lindholm dissenting, sentences Miroslav Tadic to a sentence of imprisonment for eight (8) years.

3. Simo Zaric
The Trial Chamber by a majority, Judge Per-Johan Lindholm dissenting, enters a conviction for Count 1 – Crime against humanity for persecutions based upon cruel and inhumane treatement including beatings, torture, and confinement under inhumane conditions.
The Trial Chamber acquits Simo Zaric of Count 2.
Count 3 is dismissed due to defects in the form of the Amended Indictment.
The Trial Chamber by a majority, Judge Per-Johan Lindholm dissenting, sentences Simo Zaric to a sentence of imprisonment for six (6) years.

B. Credit for time served
Pursuant to Rule 101 (C), following his voluntary surrender to the custody of the Tribunal on 12 March 2001, and his subsequent detention at the Tribunal’s Detention Unit, Blagoje Simic is entitled to credit for 949 days towards service of the sentence imposed, together with the period he will serve in custody pending a determination by the President pursuant to Rule 103 (A) as to the State where the sentence is to be served. He is to remain in custody until such determination is made.
Pursuant to Rule 101 (C), following his voluntary surrender to the custody of the Tribunal on 14 February 1998, and his subsequent detention at the Tribunal’s Detention Unit, Miroslav Tadic is entitled to credit for 1568 days towards service of the sentence imposed, together with the period he will serve in custody pending a determination by the President pursuant to Rule 103 (A) as to the State where the sentence is to be served. He is to remain in custody until such determination is made.
Pursuant to Rule 101 (C), following his voluntary surrender to the custody of the Tribunal on 24 February 1998, and his subsequent detention at the Tribunal’s Detention Unit, Simo Zaric is entitled to credit for 1558 days towards service of the sentence imposed, together with the period he will serve in custody pending a determination by the President pursuant to Rule 103 (A) as to the State where the sentence is to be served. He is to remain in custody until such determination is made.
Judge Per-Johan Lindholm appends a separate and partly dissenting opinion.
Done in English and French, the English text being authoritative.
Dated this seventeenth day of October 2003,
At The Hague,
The Netherlands.
________________________________

Judge Florence Ndepele Mwachande Mumba

Presiding
__________________ ____________________
Judge Sharon A. Williams Judge Per-Johan Lindholm

[Seal of the Tribunal]
UNITED NATIONS
International Tribunal for the
Prosecution of Persons
Responsible for Serious Violations of
International Humanitarian Law
Committed in the Territory of
Former Yugoslavia since 1991
Case No. IT-95-9-T
Date: 17 October 2003
Original: English

IN TRIAL CHAMBER II
Before:
Judge Florence Ndepele Mwachande Mumba, Presiding
Judge Sharon A. Williams
Judge Per-Johan Lindholm
Registrar: Mr. Hans Holthuis
Judgement: 17 October 2003 

PROSECUTOR

v.

BLAGOJE SIMIC

MIROSLAV TADIC

SIMO ZARIC

SEPARATE AND PARTLY DISSENTING OPINION OF JUDGE PER-JOHAN LINDHOLM
The Office of the Prosecutor:
Mr. Gramsci Di Fazio
Mr. Philip Weiner
Mr. David Re
Counsel for the Accused:
Mr. Igor Pantelic and Mr. Srdjan Vukovic for Blagoje Simic
Mr. Novak Lukic and Mr. Dragan Krgovic for Miroslav Tadic
Mr. Borislav Pisarevic and Mr. Aleksandar Lazarevic for Simo Zaric

I. JOINT CRIMINAL ENTERPRISE
1. The Prosecution pleaded on 27 September 2002 that “the Prosecution case is one of a common purpose or joint criminal enterprise to persecute non-Serbs.”²³⁴⁹ Likewise, the Prosecution stated in its Final Brief that “the Accused are jointly charged with participating in a common purpose to persecute non-Serbs in Bosanski Samac, Odzak and elsewhere in Bosnia and Herzegovina […]”,²³⁵⁰ and in their Closing Arguments that “the words ‘acting in concert together’ […] simply (mean( complicity in a joint criminal enterprise […] to persecute”.²³⁵¹ The pleading was accepted as based on the so-called basic form of joint criminal enterprise.²³⁵² The majority of the Trial Chamber (“Majority”) states that certain persons, including, inter alia, Blagoje Simic and the 17th Tactical Group of the JNA, were participants in a joint criminal enterprise responsible for executing the common plan to persecute non-Serb civilians in Bosanski Samac Municipality.²³⁵³ The common plan is inferred from all the circumstances.²³⁵⁴
2. I dissociate myself from the concept or doctrine of joint criminal enterprise in this case as well as generally. The so-called basic form of joint criminal enterprise does not, in my opinion, have any substance of its own. It is nothing more than a new label affixed to a since long well-known concept or doctrine in most jurisdictions as well as in international criminal law, namely co-perpetration. What the basic form of a joint criminal enterprise comprises is very clearly exemplified by Judge David Hunt in his Separate Opinion in Milutinovic, Sainovic and Ojdanic.²³⁵⁵ The reasoning in the Kupreskic Trial Judgement is also illustrative.²³⁵⁶ The acts of – and the furtherance of the crime by – the co-perpetrators may of course differ in various ways.²³⁵⁷ If something else than participation as co-perpetrator is intended to be covered by the concept of joint criminal enterprise, there seems to arise a conflict between the concept and the word “committed” in Article 7(1) of the Statute. Finally, also the Stakic Trial Judgement limited itself to the clear wording of the Statute when interpreting “committing” in the form of co-perpetration. Stakic requires that co-perpetrators “can only realise their plan insofar as they act together, but each individually can ruin the whole plan if he does not carry out his part. To this extent he is in control of the act.”²³⁵⁸ The Stakic Trial Judgement can, based on the doctrine of “power over the act” (“Tatherrschaft”), be read as distancing itself from the concept of joint criminal enterprise.²³⁵⁹
3. The so-called extended form of joint criminal enterprise is also in a clear manner exemplified in the Separate Opinion in Ojdanic by Judge Hunt.²³⁶⁰ This form of joint criminal enterprise contains neither anything new. It defines the kind of mens rea regarded as sufficient to hold co-perpetrator A liable for a crime committed by co-perpetrator B going beyond their common plan. The mens rea according to the extended form of joint criminal enterprise is known in Civil Law countries as dolus eventualis and in several Common Law countries as (advertent) recklessness. Whether especially the latter form of mens rea was foreseen in the Statute and laid down in customary international law, as stated in the Tadic Appeal Judgement,²³⁶¹ is a question I leave aside.
4. In the Amended Indictment in this case the three accused are charged with persecutions “acting in concert together, and with other Serb civilian and military officials ”,²³⁶² and “acting in concert with others”.²³⁶³ Although the expressions are not linguistically identical and differ in meaning, it seems as if the expression “acting in concert together” should be the one agreed upon by the parties.²³⁶⁴ The Prosecution submits that those words “cover exactly the same things” as the concept of “joint criminal enterprise”.²³⁶⁵ The Defence argues that joint criminal enterprise cannot be inferred from “acting in concert together”.²³⁶⁶ The stand taken by the Defence is partly correct, partly wrong. “Acting in concert together ” and the basic form of joint criminal enterprise have exactly the same meaning, namely co-perpetration, whereas the extended form of joint criminal enterprise under no conditions can be inferred from the words “acting in concert together”.
5. Having said this, I have given the reasons for my dissociation from the concept of “joint criminal enterprise”. The concept or “doctrine” has caused confusion and a waste of time, and is in my opinion of no benefit to the work of the Tribunal or the development of international criminal law.
II. ABOUT DIFFERENT PLANS
6. The Majority concludes “that participants in the joint criminal enterprise acted in unison to execute a plan that included the forcible takeover of the town of Bosanski Samac. […] This common plan was aimed at committing persecution against non-Serbs […].”²³⁶⁷ In the following paragraph, the Majority states: “Prior to the takeover, members of the joint criminal enterprise worked together in preparation of the takeover of the town of Bosanski Samac as part of the common plan of persecution”. A careful reading cannot lead to any other conclusion than that the takeover was planned and carried out with a persecutory intent, to make it possible for the Serbs to persecute the non-Serbs.
7. I fully agree that the takeover of power in Bosanski Samac was planned and that it was carried out on 17 April 1992 by Serb police and the paramilitaries. However, I cannot agree with the finding by the Majority that the 17th Tactical Group of the JNA was involved in the takeover.²³⁶⁸ On the contrary, the commander Lt. Col. Stevan Nikolic, Captain Radovan Antic and Simo Zaric expressed their surprise when they were informed about the takeover.²³⁶⁹
8. Neither can I agree with the Majority that the takeover was planned and implemented with the purpose of persecuting the non-Serb population. It might well be that some of the persons involved in the planning had such evil intentions, but there is no evidence to the effect that there existed a persecutory plan between the three accused or between any two of them or between any of them and any other persons. I view the evidence adduced and connected with the takeover in a different and broader way. Not to repeat what is already found in this judgement I only want to point out the most important relevant facts, and add a few others. The following facts are established:
- Since autumn 1991, there were growing tensions between the ethnic groups all over Bosnia and Herzegovina.
- The ethnic groups were more and more arming themselves.
- In Bosanski Samac, the non-Serb population in the town, mostly Muslims under the leadership of Alija Fitozovic, were arming themselves. He stated that he at one point had about 200 men under his command, but not enough weapons for all of them.²³⁷⁰
- A new TO was set up in the week prior to the takeover, mainly manned by Muslims.²³⁷¹
- The Serb community in Bosanski Samac was surrounded by hostile armed forces, either paramilitaries or regular Croatian armed forces, to the West, the North and the East.
- Among the Serbs in Bosanski Samac there was a widespread and grave fear of an attack from outside the municipality, and as a result great numbers of Serbs fled the municipality or the men transferred their families to other, safer parts of Bosnia and Herzegovina.
- There was reliable intelligence about the risk of an imminent armed attack from outside the municipality in which the armed non-Serbs within the municipality would have participated.²³⁷²
- After the takeover, there was frequent shelling of Bosanski Samac from Croatia at the time relevant to the facts alleged in the Amended Indictment.
9. In light of all these facts I regard the takeover by the Serbs and the disarming of the non-Serbs as a pre-emptive armed operation, justified by avoiding an inter -ethnic bloodshed or even bloodbath.²³⁷³ I agree with the Majority that the takeover per se did not constitute any crime.²³⁷⁴ The tragedy that followed the takeover was in my view according to the evidence presented at the trial not a result of any previous plan amongst certain individuals. The situation went out of control due to the activities of a number of criminals who opened the sluice- gate to evil, which thereafter was willingly accepted and used by malicious and easily-led people.
III. THE LIABILITY OF THE ACCUSED
Blagoje Simic

1. Count 1 (persecutions as a crime against humanity) – Underlying omissions
10. I am satisfied that Blagoje Simic was aware of the unlawful arrests and detention of non-Serb civilians, the cruel and inhumane treatment, the forced labour, and the deportation and forcible transfer as these acts are described in the findings of the Trial Chamber. He did not order these acts to be carried out, nor did he personally take part in them. With the exception of deportation and forcible transfer, I don’t find any evidence showing that he explicitly accepted the aforementioned acts. As the highest-ranking civilian official in Bosanski Samac, however, it was his duty to do his utmost to prevent these acts and to protect the non-Serb civilian population. Instead of resorting to effective measures through the help of other high authorities, or to resign from office, he remained rather passive. He clearly omitted to do his duty.
11. As far as mens rea is concerned, I find that Blagoje Simic was aware of the discriminatory intent of the perpetrators of the above-mentioned acts, but, with exception for deportation and forcible transfer, he did not share this intent. His omissions to act had a substantial effect on the perpetration of the acts in question. As far as deportation and forcible transfer are concerned, I find actus reus in the form of omission to prevent the act. Like the Majority, I am satisfied that Blagoje Simic had the necessary mens rea, the intent to permanently displace the persons mentioned in the judgement on discriminatory grounds.²³⁷⁵ I find him therefore guilty of persecutions as a co-perpetrator.

2. Count 2 (deportation as a crime against humanity)
12. I am satisfied beyond reasonable doubt on the grounds I have mentioned above that Blagoje Simic is guilty as a co-perpetrator of the deportation of the persons named in the judgement as a crime against humanity.²³⁷⁶
Miroslav Tadic
13. The Majority finds Miroslav Tadic guilty on Count 1 and Count 2, entering a conviction for Count 1 only.
14. I concur with this finding of the Majority insofar as I am also convinced that Miroslav Tadic substantially contributed to the deportation of Dragan Lukac, Hasan Bicic, Muhamed Bicic, Ibrahim Salkic, Esad Dagovic, Witness K, Dragan Delic, Snjezana Delic, Nusret Hadzijusufovic, Witness C, Hajrija Drljacic, Jelena Kapetanovic, Witness A, Ediba Bobic, Witness O, and Witness Q. In his interviews with the Prosecution and throughout his testimony given before this Trial Chamber, Miroslav Tadic has never tried to conceal or underestimate his involvement in the practical arrangements for exchanges. In this context, I want to emphasize that Miroslav Tadic was not the inventor of the exchanges. I am convinced that the evidence showed that it was other members of the Crisis Staff who initially set the wheels of exchanges turning, and that such engagement of the Crisis Staff materialized in the Decision appointing a committee for the exchange of prisoners, dated 2 October 1992.²³⁷⁷
15. I also concur with the finding of the Majority that Miroslav Tadic did not share the discriminatory intent of the perpetrators, but that he was aware of their discriminatory intent to persecute non-Serb civilians through their deportation.
16. While I agree with the finding of the Majority that Miroslav Tadic had the actus reus and the mens rea of an aider and abettor of the crime of persecutions through deportation, after having heard the testimony of Miroslav Tadic and taken into consideration all other relevant evidence, I am convinced that Miroslav Tadic was acting in a situation of duress²³⁷⁸ when he took part in the deportation of the above-mentioned non-Serb civilians to Croatia.

1. Legal considerations
17. While the Statute remains silent with regard to grounds for excluding criminal responsibility, the Appeals Chamber thoroughly examined in the Erdemovic case the concept of duress. Although this examination mainly dealt with the question of whether duress can afford a complete defence to a statutory crime when the underlying offence of this crime is the killing of an innocent human being, while in the present case, the deportation of non-Serb civilians was directed against their protected legal values of freedom and property, the considerations of the Appeals Chamber are also valid for making the argument that the participation of Miroslav Tadic in the deportation of non-Serb civilians fulfils the prerequisites of duress in international customary law.
18. In their Joint Separate Opinion, Judge Mc Donald and Judge Vohrah quoted the United Nations War Crimes Commission (“UNWCC”) when referring to the requirements of duress under customary international law:

“The general view seems therefore to be that duress may prove a defence if (a) the act charged was done to avoid an immediate danger both serious and irreparable; (b) there was no other adequate means of escape; (c) the remedy was not disproportionate to the evil.”²³⁷⁹

19. The UNWCC had reviewed about 2.000 decisions of post-World War II international military case-law stemming from military tribunals of nine nations before it stated that the above-mentioned three requirements have to be met for duress to constitute a defence for a violation of international humanitarian law, and I am satisfied that this definition is part of international customary law.²³⁸⁰ Although these requirements do not explicitly refer to situations in which a person commits a criminal act in order to preserve another person from an immediate danger both serious and irreparable, I am persuaded that such action is covered by the concept of duress as set out in the above-mentioned definition. With regard to the first requirement, the UNWCC speaks of an “immediate danger both serious and reparable”, without specifying that such danger has to refer to legal values of the person who commits an act under duress, and not to a third person. I am convinced that such legal values of a third person must be equally protected, as no valid reason can be put forward to make a distinction between the protected legal values of the person acting under duress and those of a third person.²³⁸¹
20. It has to be noted that the present case differs from a “normal” case of a perpetrator acting under duress in order to protect another person. In “normal” cases of duress, the perpetrator commits an act against a legal value of the assailant A in order to protect victim B from an immediate danger to a protected legal value. In our situation, Miroslav Tadic infringed protected legal values of the very same persons – who were displaced from their homes and had to leave behind their property – that he was protecting by doing this. However, I am satisfied that the present situation is covered by the above-mentioned definition, as the wording of its requirements allows for this scenario to fall under duress. I am convinced that undue results that could result from the application of this finding in other cases will be avoided by the requirement that the crime committed has to be proportionate to the evil threatened.

2. Factual considerations
21. I have no doubt that the persecutions against non-Serb civilians in the detention centres in Bosanski Samac through cruel and inhumane treatment, including beatings, torture, and confinement under inhumane conditions, constituted an immediate danger, both serious and irreparable, to the life and limb as well as the mental health of the prisoners. I am also convinced that Miroslav Tadic participated in the deportation of these civilians in order to avoid such danger. During his trial testimony, he stressed on many occasions the humanitarian aspect of his involvement in exchanges : the goal of (re-)uniting families, of getting people out of distress, and of gathering information about relatives. He also stated that he had helped the people who had been exchanged.²³⁸² I am convinced that these statements have to be interpreted in such a way that the reason for Miroslav Tadic’s participation in the deportation of non-Serb prisoners was to spare them the persecutory acts they were exposed to in the municipality of Bosanski Samac, especially in the detention facilities. It must also be noted that the exchanges to a considerable degree were arranged in collaboration with the local Red Cross.
22. The exchanges were the only possibility of getting safely through the battle lines surrounding Bosanski Samac, and there was no other adequate means of escaping the horrors of the detention facilities in Bosanski Samac than by exchange. Miroslav Tadic did not have the authority to release any prisoner from the detention facilities, and the Prosecution did not adduce sufficient evidence to prove beyond reasonable doubt that he could have influenced the persons who were responsible for the detention to have the prisoners released.
23. I am also convinced that the participation of Miroslav Tadic in the deportation was not disproportionate to the evil avoided. Through the exchange process, the prisoners lost their property that they had to leave behind in Bosanski Samac. On the other hand, however, they gained their freedom to move, albeit restricted by the – in hindsight, temporary – impossibility to return to Bosanski Samac. In this context, it is also important to note that Miroslav Tadic by no means caused the inhumane and appalling conditions under which the Bosnian Muslim and Bosnian Croat civilians were kept.
24. With regard to the deportations of Snjezana Delic, who was living in Bosanski Samac not being imprisoned, and Witness K and Jelena Kapetanovic, who were detained in Zasavica, I am also convinced that the requirements for the application of the defence of duress are met. Although these three women were not suffering from the same horrendous conditions prevailing in the detention centres, their freedom to move was significantly restricted. As Snjezana Delic has stated, her and her family’s exchange was the only way to normalise their life.²³⁸³ Her husband was detained in Bosanski Samac,²³⁸⁴ and there had been two attempts to arrest her.²³⁸⁵ These incidents constituted an immediate danger to the little freedom she had left. Witness K and Jelena Kapetanovic were both held in captivity in Zasavica, without opportunity to leave the village at free will. Witness K’s husband was detained in Bosanski Samac,²³⁸⁶ and she testified that she had been seriously abused.²³⁸⁷ I am convinced that Miroslav Tadic participated in the deportation of these three women in order to relieve them from the distress they were in.
25. I am also convinced that there was no other adequate means available for Miroslav Tadic for getting Snjezana Delic, Witness K and Jelena Kapetanovic out of Bosanski Samac and Zasavica, respectively, than to deport them. As I already stated above, Miroslav Tadic did not have any authority to permit citizens to leave, and insufficient evidence has been adduced to prove that he could have helped them in any other way.
26. As in the case of the non-Serb detainees, I find that the remedy was not disproportionate to the harm avoided. Although the three women were deported to Croatia, the freedom of movement they gained through this exchange was greater than the loss of the property that Witness K and Jelena Kapetanovic already had to leave behind when they were transferred from Bosanski Samac to Zasavica and that Snjezana Delic left behind in Bosanski Samac. Again, it is important to note that Miroslav Tadic was not responsible for the three women being held under the circumstances they were in.
27. For all these reasons, I am convinced that Miroslav Tadic sincerely believed that the exchanges were the only means to get the non-Serb civilians out of their miserable and – in many cases – terrifying living conditions, and that he helped them to a better life. As Miroslav Tadic stated at the closure of the case: “I thought I was doing something humane, helping people in distress.”²³⁸⁸ His participation in their deportation helped them to exercise their right to freedom to a greater degree than during their detention and avoided the constant danger to the life and limb of the non-Serb prisoners in the detention facilities in Bosanski Samac. Furthermore, it has not been made out on the evidence that any other adequate means was available to Miroslav Tadic to free the non-Serb civilians from the situation they were in.
28. I am convinced beyond all doubts that Miroslav Tadic should be found not guilty in respect of Count 1 and Count 2.
Simo Zaric
29. The Majority finds Simo Zaric guilty on Count 1 as an aider and abettor of the joint criminal enterprise to persecute non-Serb civilians through cruel and inhumane treatment, including beatings, torture and confinement under inhumane conditions.
30. I concur with the Majority insofar as the evidence has proven beyond reasonable doubt that Simo Zaric was present on several occasions in the SUP and in the detention facility in Brcko, that he conducted interrogations of non-Serb detainees in both locations, and that he did not use any forceful means during these interrogations.²³⁸⁹ I also agree with the finding of the Majority that Simo Zaric did not share the discriminatory intent of the perpetrators who committed the crime of persecutions against these non-Serb detainees, but that he was aware of their mistreatment in the SUP, and that he also knew that prisoners who had been interrogated by him were beaten.
31. I respectfully disagree, however, with the finding of the Majority that the interrogations conducted by Simo Zaric constituted acts that had a substantial effect on the perpetration of persecutions through cruel and inhumane treatment.
32. I am not satisfied that Simo Zaric’s position in the interrogations and his status in the community gave moral support and encouragement amounting to a substantial assistance to the commission of the crime of persecutions. Quite to the contrary, Simo Zaric openly and strongly condemned the ill-treatment of non-Serb detainees.²³⁹⁰ When he saw that Sulejman Tihic had been beaten, while Simo Zaric had interrupted his interrogation and was not present, he immediately complained about the mistreatment to Stevan Todorovic and “Crni”.²³⁹¹ Their disdainful reaction is a clear indication that they did not feel any moral support or legitimizing effect from Simo Zaric’s conduct of interrogations.
33. No evidence has been adduced by the Prosecution as to whether the perpetrators of the persecutions felt any reassuring and encouraging effect from Simo Zaric’s presence in the detention facilities or his participation in the interrogations. The appalling conditions in the SUP had been set up and orchestrated by the Chief of Police, Stevan Todorovic and his henchmen, the paramilitaries, brought in by him among others from Serbia and consisting of a group of ruthless thugs like “Lugar ”, “Crni”, and “Debeli” and others of the same kind which by Stevan Todorovic were given free access to the different places of detention, day and night, in order to be able to beat up and torture, even kill, the detainees whenever they found themselves in the mood to do so. I fail to see how these people and their co-perpetrators could have been encouraged and morally supported to a substantial degree by the interrogations and presence of Simo Zaric, who on more than one occasion publicly denounced the mistreatment of detainees.
34. Therefore, I arrive at the conclusion that the presence of Simo Zaric and the conduct of interrogations at the SUP did not in any way affect the prevalent terror regime in the SUP or in the other detention facilities. It continued after his presence in the same manner as before. In the eyes of the paramilitaries, who were the worst torturers, Simo Zaric did not have any air of authority, which perhaps is best depicted by the way he was treated by some of them.²³⁹²
35. For these reasons, I find that the Prosecution has failed to prove its case against Simo Zaric beyond reasonable doubt, and that therefore Simo Zaric should have been found not guilty in respect of Count 1.
IV. DETERMINATION OF SENTENCE OF BLAGOJE SIMIC
Aggravating circumstances
36. I accept the aggravating circumstances the Majority agreed upon in paragraphs 1079-85.
Mitigating circumstances
37. I concur with what has been stated by the Majority in paragraphs 1087 to 1093. In addition, I want to mention that Blagoje Simic was subjected to heavy pressure by such ruthless persons as Stevan Todorovic and “Lugar”. Bozo Ninkovic testified, that “Lugar” would have carried out an act of reprisal against Blagoje Simic if Blagoje Simic had informed higher authorities.²³⁹³
Proportionality
38. In sentencing, proportionality usually means reaching a reasonable balance between the gravity of the offence and the punishment to be meted out. This is proportionality on the individual level. But there are other instances or relations in which proportionality is of importance, namely (i) the proportionality between punishments meted out in different cases, (ii) between punishments meted out to several defendants in one case, and (iii) between a punishment already meted out and another or others to be meted out in the same case.
39. In this context, I take into account the sentence passed on Stevan Todorovic, Chief of the Police in Bosanski Samac during the time covered by the Amended Indictment and a former co-accused. He was one of the main architects, if not the main architect of the terror regime in Bosanski Samac following the takeover on 17 April 1992. He was charged with a series of grave crimes (27 counts) including murder, rape, sexual assaults, and severe beatings. On 13 December 2000 he pleaded guilty to Count 1, namely persecutions, including beatings and murder, sexual assaults, ordering of torture, interrogation of detained persons and forcing them to sign false and coerced statements, participation in deportation etc. All these crimes were committed by Stevan Todorovic, a person holding a position in Bosanski Samac which obliged him to protect and defend all citizens of the municipality. On 31 July 2001, Stevan Todorovic was sentenced to ten years’ imprisonment.
39. Weighing all the relevant circumstances I come to the conclusion that seven years’ imprisonment is a proportionate and reasonable penalty for Blagoje Simic.
V. DISPOSITION
In agreement with the considerations of the Trial Chamber with regard to cumulative convictions,
(a) I agree with the Majority’s conviction of Blagoje Simic upon
Count 1: persecutions as a crime against humanity.
I find a sentence to seven (7) years’ imprisonment proportionate and just.
(b) I further find that Miroslav Tadic and Simo Zaric are not guilty of Count 1 and Count 2.
(c) I concur with the Majority in dismissing Count 3.
Done in English and French, the English text being authoritative.
________________________________
Judge Per-Johan Lindholm
Dated this seventeenth day of October 2003,
At The Hague,
The Netherlands

[Seal of the Tribunal]

XX. ANNEX I - GLOSSARY
ABiH Armed Forces of the Government of Bosnia and Herzegovina
Additional Protocol I Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), Geneva, 8 June 1977
Additional Protocol II Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977
Agreed Facts Prosecutor v. Blagoje Simic, Miroslav Tadic and Simo Zaric, Case No.: IT-95-9-T, Annex to Joint Statement of Admission by the Parties and Matters which are not in Dispute, 27 April 2001
Akayesu Trial Judgement Prosecutor v. Jean-Paul Akayesu, Case No.: ICTR-96-4-T, Judgement, 2 September 1998
Aleksovski Appeal Judgement Prosecutor v. Zlatko Aleksovski, Case No.: IT-95-14/1-A, Judgement, 24 March 2000
Aleksovski Trial Judgement Prosecutor v. Zlatko Aleksovski, Case No.: IT-95-14/1-T, Judgement, 25 June 1999
Amended Indictment Prosecutor v. Blagoje Simic, Miroslav Tadic and Simo Zaric, Case No.: IT-95-9-I, Fifth Amended Indictment, 30 May 2002
BCS Bosnian Croatian Serbian language
BiH Bosnia and Herzegovina
Blaskic Trial Judgement Prosecutor v. Tihomir Blaskic, Case No.: IT-95-14-T, 3 March 2000
Bosnia and Herzegovina Republic of Bosnia and Herzegovina
Bosniak Bosnian Muslim
Br|anin Decision on Form of Prosecutor v. Br|anin and Talic, Case No.:
the Amended Indictment IT-99-36-T, Decision on Objections by Momir Talic to the Form of the Amended Indictment, 20 February 2001
Br|anin Decision on Form of Prosecutor v. Radislav Br|anin and Momir Talic, Case No.: IT-99-36-T, Decision on Form of Further Amended Indictment and Prosecution Application to Amend, 26 June 2001
Celebici Appeal Judgement Prosecutor v. Zejnil Delalic et al., Case No.: IT-96-21-A, Judgement, 20 February 2001
Celebici Trial Judgement Prosecutor v. Zejnil Delalic et al., Case No.: IT-96-21-T, Judgement, 16 November 1998
Chamber Trial Chamber II Section B of the Tribunal
Closing Arguments Oral closing arguments of the parties
Commentary to Geneva Convention III Commentary, III Geneva Convention Relative to the Treatment of Prisoners of War (1949), International Committee of the Red Cross, Geneva, 1960
Commentary to Geneva Convention IV Commentary, IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War (1949), International Committee of the Red Cross, Geneva, 1958
Common Article 3 Article 3 of Geneva Conventions I through IV
Croat Bosnian Croat
Croatia Republic of Croatia
Deposition Transcript Transcript of depositions of Defence witnesses taken in Belgrade, 4-7 February 2003
ECHR European Convention for the Protection of Human Rights and Fundamental Freedoms adopted in Rome on 4 November 1950
Exhibits DX/1 Exhibits tendered by the Defence for Blagoje Simic and admitted into evidence by the Chamber
Exhibit DX/3 Exhibits tendered by the Defence for Miroslav Tadic and admitted into evidence by the Chamber
Exhibit DX/4 Exhibits tendered by the Defence for Simo Zaric and admitted into evidence by the Chamber
Exhibit PX Prosecution’s exhibits admitted into evidence by the Chamber
Furundzija Appeal Judgement Prosecutor v. Anto Furundzija, Case No.: IT-95-17/1-A, Judgement, 21 July 2000
Furundzija Trial Judgement Prosecutor v. Anto Furundzija, Case No.: IT-95-17/1-T, Judgement, 10 December 1998
Geneva Convention II Geneva Convention II for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of 12 August 1949
Geneva Convention III Geneva Convention III Relative to the Treatment of Prisoners of War of 12 August 1949
Geneva Convention IV Geneva Convention IV Relative to the Protection of Civilian Person in Time of War of 12 August 1949
Geneva Conventions Geneva Conventions I to IV of 12 August 1949
Hadzihasanovic Appeal Decision Prosecutor v. Enver Hadzihasanovic et al ., Case No. IT-01-47-AR72, Decision pursuant to Rule 72 (E) as to Validity of Appeal, 21 February 2003
Hague Convention IV The 1907 Hague Convention (IV) Respecting the Laws and Customs of War on Land of 18 October 1907
Hague Regulations Regulations Respecting the Laws and Customs of War on Land annexed to Hague Convention IV of 18 October 1907
HDZ Croatian Democratic Union
HV Army of the Republic of Croatia
HVO Croatian Defence Council (army of the Bosnian Croats)
ICC International Criminal Court
ICC Statute Statute of the International Criminal Court, adopted in Rome, 17 July, 1998.
ICCPR International Covenant on Civil and Political Rights
ICRC International Committee of the Red Cross
ICTR International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States, Between 1 January 1994 and 31 December 1994
ICTY International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991
IMT International Military Tribunal sitting at Nuremberg, Germany
Jelisic Appeal Judgement Prosecutor v. Goran Jelisic, Case No.: IT -95-10-A, Judgement, 5 July 2001
Jelisic Trial Judgement Prosecutor v. Goran Jelisic, Case No.: IT -95-10-T, Judgement, 14 December 1999
JNA Yugoslav Peoples’ Army
Kayishema Trial Judgement Prosecutor v. Clément Kayishema and Obed
Ruzindana, Case No.: ICTR-95-T, Judgement, 21 May 1999
Kordic Trial Judgement Prosecutor v. Dario Kordic & Mario Cerkez, Case No.: IT-95-14/2-T, Judgement, 26 February 2001
Krnojelac Trial Judgement Prosecutor v Milorad Krnojelac, Case No.:
IT-97 -25-T, Judgement, 15 March 2002
Krnojelac Appeal Judgement Prosecutor v Milorad Krnojelac, Case No.: IT-97-25-A, Judgement, 17 September 2003
Krstic Trial Judgement Prosecutor v. Radislav Krstic, Case No.: IT -98-33-T, Judgement, 2 August 2001
Kunarac Trial Judgement Prosecutor v. Dragoljub Kunarac et al., Case No. IT-96-23/1-T, Judgement, 22 February 2001
Kunarac Appeal Judgement Prosecutor v. Dragoljub Kunarac et al., Case No. IT-96-23/1-T, Judgement, 12 June 2002
Kupreskic Appeal Judgement Prosecutor v. Zoran Kupreskic et al., Case No.: IT-95-16-A, Judgement, 23 October 2001
Kupreskic Trial Judgement Prosecutor v. Zoran Kupreskic et al., Case No.: IT-95-16-T, Judgement, 14 January 2000
Kvocka Trial Judgement Prosecutor v. Miroslav Kvocka et al., Case No.: IT-98-30-T, Judgement, 2 November 2001
MUP Ministry of the Interior Police, also referred to as SUP, police station, public security station
Musema Trial Judgement Prosecutor v. Alfred Musema, Case No.: ICTR -96-13-T, Judgement, 27 January 2000
Muslim Bosnian Muslim
Naletilic Trial Judgement Prosecutor v. Mladen Naletilic and Vinko Martinovi c,
Case No.: IT-98-34-T, Judgement, 31 March 2003
Nuremberg Charter Charter of the International Military Tribunal for the Prosecution and Punishment of the German Major War Criminals, Berlin, 6 October 1945
Ojdanic Decision on Prosecutor v. Milan Milutinovic, Nikola
Joint Criminal Enterprise Sainovic and Dragoljub Ojdanic, IT-99-37-AR72, Decision on Dragoljub Ojdanic’s Motion Challenging Jurisdiction – Joint Criminal Enterprise, 21 May 2003
Prosecution The Office of the Prosecutor (OTP)
Prosecution Final Brief Prosecutor v. Blagoje Simic, Miroslav Tadic and Simo Zaric, Case No.: IT-95-9-T, Prosecution’s Revised Public (Redacted) Final Trial Brief, filed on 4 July 2003.
Prosecution Pre-trial Brief Prosecutor v. Blagoje Simic, Miroslav Tadic and Simo Zaric, Case No.: IT-95-9-T, filed 9th April 2001
Rules 92bis Statement Statement admitted pursuant to Rule 92bis of the Rules of Procedure and Evidence of the Tribunal
Statute Statute of the Tribunal
SAO Serb Autonomous Region
SDA Party of Democratic Action
SDB State Security Service
SDP Social Democratic Party, Reformed Communist Party
SDS Serbian Democratic Party
SFRY Socialist Federal Republic of Yugoslavia
Simic Defence Counsel for Blagoje Simic
Simic Final Brief Prosecutor v. Blagoje Simic, Miroslav Tadic and Simo Zaric, Case No.: IT-95-9-T, Dr. Blagoje Simic,s Public (Redacted and Corrected) Final Trial Brief, filed on 7 July 2003
Simic Pre-Trial Brief Prosecutor v. Blagoje Simic, Miroslav Tadic and Simo Zaric, Case No.: IT-95-9-T, filed on 7 May 2001
SPABAT Spanish Battalion of UNPROFOR
Stakic Trial Judgement Prosecutor v Milomir Stakic, Case No.:IT-97 -24-T, Judgement, 31 July 2003
SUP Secretariat of the Interior, also referred to as MUP, police station, public security station
T. Transcript of hearing in the present case. All transcript pages referred to in this judgement are taken from the unofficial, uncorrected version of the transcript. Minor differences may therefore exist between the pagination therein and that of the final transcript released to the public
Tadic Defence Counsel for Miroslav Tadic
Tadic Final Brief Prosecutor v. Blagoje Simic, Miroslav Tadic and Simo Zaric, Case No.: IT-95-9-T, Defendant Miroslav Tadic Final Brief (Public Redacted Version ), filed on 7 July 2003
Tadic Pre-Trial Brief Prosecutor v. Blagoje Simic, Miroslav Tadic and Simo Zaric, Case No.: IT-95-9-T, filed on 7 May 2001
Tadic Prosecution Interview I Interview of Miroslav Tadic by the OTP on 26 March 1998 (Exhibit P138)
Tadic Prosecution Interview II Interview of Miroslav Tadic by the OTP on 27 March 1998 (Exhibit P139)
Tadic Appeal Judgement Prosecutor v. Dusko Tadic, Case No.: IT-94- 1-A, Judgement, 15 July 1999
Tadic Trial Judgement Prosecutor v. Dusko Tadic, Case No.: IT-94-1 -T, Judgement, 7 May 1997
Tadic Jurisdiction Decision Prosecutor v. Dusko Tadic, Case No.: IT -94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995
TO Territorial Defence, and Territorial Defence building or headquarters
Tokyo Charter Charter of the International Military Tribunal for the Far East, Tokyo, 19 January 1946
Torture Convention Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment of 10 December 1984
Transcript witness Testimony of witness in another case before the Tribunal and admitted into this case by decision of the Chamber
Tribunal International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991
UNPROFOR United Nations Protection Forces
Vasiljevic Trial Judgement Prosecutor v. Mitar Vasiljevic, Case No. IT-98-32-T, Judgement, 2 November 2002
VJ Army of the Federal Republic of Yugoslavia
VRS Army of Republika Srpska
Zaric Defence Counsel for Simo Zaric
Zaric Final Brief Prosecutor v. Blagoje Simic, Miroslav Tadic and Simo Zaric, Case No.: IT-95-9-T, Defendant Simo Zaric’s Final Brief (Public Version), filed on 7 July 2003
Zaric Pre-Trial Brief Prosecutor v. Blagoje Simic, Miroslav Tadic and Simo Zaric, Case No.: IT-95-9-T, filed on 7 May 2001
Zaric Prosecution Interview I Interview of Simo Zaric by the OTP on 1 April 1998 (Exhibit P140)
Zaric Prosecution Interview II Interview of Simo Zaric by the OTP on 2 April 1998 (Exhibit P141)
Zaric Prosecution Interview III Interview of Simo Zaric by the OTP on 3 June 1998 (Exhibit P142)
ZNG Croatian National Guard Corps

XXI. ANNEX II - DRAMATIS PERSONAE
Radovan Antic Commander of 4th Detachment
Milos Bogdanovic Secretary of the Municipal Section of the Ministry of Defence, in charge of recruiting trainees at Ilok. Member of the Crisis Staff
Alija Fitozovic President of the SDA Safety Commission in Bosanski Samac
Izet Izetbegovic Founder of the SDA branch in Bosanski Samac and its President until 1991
Aleksandar Jankovic Member of the 1st Detachment, trainee at Ilok.
Simo Jovanovic Member of the 1st Detachment, trainee at Ilok. Formed the Rapid Reaction Company under TG 17
Dragan Lukac Acting Chief of the Public Security Station in Bosanski Samac, appointed by the Republican Ministry of the Interior on 11 April 1992. Formerly, in charge of the criminal investigation police in Bosanski Samac.
Mirko Lukic Vice-President of the Executive Board of the Municipal Assembly of the Serb Municipality of Bosanski Samac and Pelagicevo in formation. Member of the Crisis Staff.
Velimir Maslic Member of the Exchange Committee
Lazar Mirkic Secretary of the Municipal Secretariat for Economy
Mitar Mitrovic Secretary of the Crisis Staff.
Lt. Col. Stevan Nikolic Commander of the 17th Tactical Group of the JNA
Bozo Ninkovic Secretary of the Municipal Secretariat for National Defence. Member of the Crisis Staff.
Savo Popovic President of the Military and Civilian Council in Odzak. Member of the Crisis Staff and the War Presidency.
Jovo Savic Deputy Commander of the 4th Detachment
Maksim Simeunovic Chief of Intelligence and Security of the 17th Tactical Group
Blagoje Simic Vice-President of Municipal Assembly; President of Crisis Staff and later of the War Presidency; President of SDS Municipal Board
Cedomir Simic Brother of Blagoje Simic. Business coordinator of Bosanka company appointed by the Executive Board
Milan Simic President of the Executive Board appointed by the Crisis Staff on 30 May 1992
Simeon Simic Head of the Information Service of the Crisis Staff. Member of the Crisis Staff and the War Presidency
Miroslav Tadic Assistant Commander for Logistics of the 4th Detachment; Head of Exchange Commission; ex officio member of Crisis Staff
Dusan Tanasic Head of communications in the 2nd Posavina Brigade and Vice-President of the Assembly of the Serbian People of the Municipality of Bosanski Samac and Pelagicevo
Stevan Todorovic Chief of Police in Bosanski Samac. Member of the Crisis Staff
Sulejman Tihic President of the SDA branch in Bosanski Samac elected in 1991
Fadil Topcagic Member of the 4th Detachment and Member of the Crisis Staff
Djordje Tubakovic Worked for the Secretariat for National Defence. His job at the Secretariat for National Defence was the mobilisation and reinforcement of units. He formed the “Special Battalion”
Svetozar Vasovic President of the Municipal Committee of the Red Cross of the Municipality of Samac
Ljubomir Vukovic Member of the Civilian Protection Staff
Simo Zaric Assistant Commander for Intelligence, Reconnaissance, Morale and Information of the 4th Detachment; Chief of National Security Service for Bosanski Samac; Deputy to the President of the War Council for Security Matters in Odzak; Assistant Commander for Morale and Information of 2nd Posavina Brigade

XXII. ANNEX III – LIST OF WITNESSES
PROSECUTION WITNESSES
BICIC, Hasan
BICIC, Muhamed
BOBIC, Ediba
BOBIC, Kemal
DAGOVIC, Esad
DAGOVIC, Safet
DELIC, Dragan
DELIC, Snjezana
DONIA, Robert (expert)
DR. GOW (expert)
DRLJACIC, Hajrija
FITOZOVIC Alija
HADZIJUSUFOVIC, Nusret
IZETBEGOVIC, Izet
JASAREVIC Osman
KAPETANOVIC Jelena
LUKAC, Dragan
MEHINOVIC, Kemal
O’DONNELL, Bernard (OTP INVESTIGATOR)
PARADZIK, Blaz
ROY, Yves (OTP INVESTIGATOR)
SALKIC, Ibrahim
SUBASIC, Hasan
TABEAU, Ewa (expert)
TIHIC, Sulejman
TODOROVIC Stevan
Witness A
Witness C
Witness E
Witness G
Witness K
Witness L
Witness M
Witness N
Witness O
Witness P
Witness Q
DEFENCE WITNESSES
Viva Voce Witnesses
Blagoje Simic
BLAGOJEVIC, Veselin
LUKIC, Mirko
NINKOVIC, Bozo
PALEKSIC, Slavko
POPOVIC, Savo
SIMIC, Blagoje
SIMIC, Simeon
STANIMIROVIC, Ozren
TANASIC, Dusan
Miroslav Tadic
BORBELI, Mladen
GRUJICIC, Milutin
MASLIC, Velimir
PISTOLJEVIC, Mustafa
RADIC, Dario
TADIC, Miroslav
VASOVIC, Svetozar
VUKOVIC, Ljubomir
Witness DW 1/3
Witness DW 2/3
Simo Zaric
ANTIC, Radovan
ARNAUTOVIC, Jusuf
BUZAKOVIC, Goran
DJURDJEVIC, Savo
GAVRIC, Dusan
OMERANOVIC, Mustafa
PETRIC, Andrija
SAVIC, Jovo
SEJDIC, Naser
SEKULIC, Stoko
SIMEUNOVIC, Maksim
SIMIC, Kosta
SARKANOVIC, Vladimir
TIHIC, Pasaga
TUTNJEVIC, Teodor
ZARIC, Simo
DEFENCE WITNESSES
(continued)
Deposition Witnesses
Blagoje Simic
CORDASEVIC, Ljubomir
DUJKOVIC, Stanko
NIJEMCEVIC, Mitar
SAVIC, Milos
SJENCIC, Slobodan
STEFANOVIC, Dragoljub
Miroslav Tadic
BICAKCIC, Muharem
GRBIC, Nevenka
LAZIC, Djoko
PAVLOVIC, Gordana
TOVIRAC, Mihajlo
SEHAPOVIC, Ahmet
Simo Zaric
ARANDJIC, Stevan
CULAPOVIC, Milos
CUKIC, Ivan
ERLETIC, Jovan
JEKIC, Milan
TUBAKOVIC, Marko
Rule 92bis Witnesses
Blagoje Simic
ANDRIC, Pelka
AVDIC, Nedzmija
BABIC, Mijo
BRALIC, Mithat
CVIJETIC, Desanka
JANKOVIC, Aleksandar
JOVANOVIC, Simo
KRSTANOVIC, Perica
LAKIC, Jovo
MARUSIC, Branislav
MIRKIC, Lazar
NUKIC, Amir
PIVASEVIC, Stanko
SIMIC, Cedomir
Miroslav Tadic
ARSLANOVIC, Abdulah
ATIC, Muhamed
BOJIC, Stanko
DAMJANOVIC, Stojan
DUJKOVIC, Djordje
KURESEVIC, Marko
MIHALJ, Ilija
PETKOVIC, Milka
TUBAKOVIC, Djordje
VOLASEVIC, @eljko
Witness DW 3/3
Witness DW8/3
Simo Zaric
ANTIC, Vaso
ANTUNOVIC, Mato
FOCAKOVIC, Hasim
JASENICA, Dzemal
KARLOVIC, Petar
NIKOLIC, Stevan
PAVIC, Mirko
PRGOMET, Djuro
RAMUSOVIC, Nizam
TOPCAGIC, Fadil
TOPCAGIC, Viktorija
TOPOLOVAC, Mihajlo
ZARIC, Fatima
JOINT EXPERT WITNESSES
ALEKSIC, @ivojin (expert)
KECMANOVIC, Nenad (expert)
NIKOLIC Pavle (expert)
RADOVANOVIC, Svetlana (expert)
WILMOT, Richard General (expert)
WITNESS CALLED BY THE TRIAL CHAMBER
MITROVIC, Mitar

XXIII. ANNEX IV – AMENDED INDICTMENT
THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA
CASE NO. IT-95-9

THE PROSECUTOR OF THE TRIBUNAL

AGAINST

BLAGOJE SIMICMIROSLAV TADICSIMO ZARIC

FIFTH AMENDED INDICTMENT
The Prosecutor of the International Criminal Tribunal for the former Yugoslavia, pursuant to her authority under Article 18 of the Statute of the Tribunal charges :

Blagoje SIMIC,

Miroslav TADIC

Simo ZARIC
with crimes against humanity and a GRAVE BREACH of the GENEVA CONVENTIONS of 1949 as set forth below:
The Accused

Blagoje SIMIC, born in 1960, is a medical physician from Kruskovo Polje, Bosanski Samac municipality. From 1991 to 1995, Blagoje SIMIC was president of the Serbian Democratic Party (SDS) in Bosanski Samac. Blagoje SIMIC was Vice-Chairman of the town assembly from 1991 to the 17th of April 1992, and from the 4th of November 1991 to at least the 30th of November 1992, he was the Deputy of the Assembly of the self-declared "Serb Autonomous Region of Northern Bosnia," later called the "Serb Autonomous Province of Semberija and Majevica," of the "Serb Republic of Bosnia and Herzegovina." On or about the 17th of April 1992, Blagoje SIMIC was appointed President of the Serb Crisis Staff in the "Serbian Municipality of Bosanski Samac." On or about the 21st of July 1992, the Crisis Staff was re-named the "War Presidency of the Serbian Municipality of Bosanski Samac," and Blagoje SIMIC was named President of the War Presidency. On or about the 22nd of January 1993, Blagoje SIMIC was elected President of the "Samac Municipal Assembly " and served in that position until after the announcement of the original indictment in this case. In each of these positions beginning on or about the 17th of April 1992, and at all times material to this indictment, Blagoje SIMIC was the highest ranking civilian official in the municipality of Bosanski Samac.

Miroslav TADIC, also known as Miro Brko, born on the 12th of May 1937 in the village of Novi Grad, Odzak municipality, worked as a high school teacher and later ran the cafe "AS" at his home in Bosanski Samac. In 1991 Miroslav TADIC became a member of the Fourth Detachment, a JNA-organised territorial defence unit. As the Assistant Commander for Logistics, he worked closely with Simo ZARIC in their respective roles within the Fourth Detachment. After the 17th of April 1992, Miroslav TADIC became Chairman of the Bosanski Samac "Exchange Commission " and was responsible for organising and carrying out the majority of so-called prisoner "exchanges" through which non-Serb civilians were expelled from their homes. He remained a member of the Exchange Commission until at least 1995. While serving in the capacity of Chairman of the Exchange Commission, Miroslav TADIC also was a member of the Serb Crisis Staff.

Simo ZARIC, also known as Solaja, born on the 25th of July 1948, in the village of Trnjak, Odzak municipality, is a former police chief of Bosanski Samac and a former intelligence agent for the State Security Service (SDB). In 1991, Simo ZARIC began to organise and supervise a JNA-sponsored territorial defence unit known at first as the Fourth Detachment and later renamed the 5th Battalion of the 2nd Posavina Brigade. Upon creation of the Fourth Detachment, Simo ZARIC was appointed the "Assistant Commander for Intelligence, Reconnaissance, Morale and Information." On the 29th of April 1992, Simo ZARIC was appointed "Chief of National Security Service" for Bosanski Samac by the Serb Crisis Staff. After the Serb take-over of Odzak in July 1992, Simo ZARIC was appointed by the Bosanski Samac Crisis Staff to be the "Deputy to the President of the War Council for Security Matters" of the Odzak municipality. In these positions of authority, Simo ZARIC reported directly to and took orders from the Serb Crisis Staff in Bosanski Samac. On the 1st of September 1992, Simo ZARIC was appointed "Assistant Commander of the 2nd Posavina Brigade for Morale and Information" of the Bosnian Serb Army. Between April and July 1992, Simo ZARIC worked with Miroslav TADIC to arrange so-called prisoner "exchanges" through which non -Serb civilians were expelled from their homes. Simo ZARIC remained a member of the Bosnian Serb Army until 1995.

INDIVIDUAL CRIMINAL RESPONSIBILITY

Each of the above accused is individually responsible for the crimes alleged against him in this indictment, pursuant to Article 7(1) of the Tribunal Statue. Individual criminal liability includes planning, instigating, ordering, committing, or otherwise aiding and abetting the planning, preparation or execution of any crime referred to in Articles 2 to 5 of the Statue of the Tribunal.

GENERAL LEGAL ALLEGATIONS

Unless otherwise set forth above, all acts and omissions alleged in this indictment took place between about September 1991 and about the 31st of December 1993 in the Republic of Bosnia and Herzegovina in the territory of the former Yugoslavia.

At all times relevant to this indictment, a state of armed conflict and partial occupation existed in the Republic of Bosnia and Herzegovina.

At all times relevant to this indictment, all of the persons described in this indictment as victims were protected by the Geneva Conventions of 1949.

Each of the accused in this indictment was required to abide by the laws and customs governing the conduct of war, including the Geneva Conventions of 1949.

All acts and omissions charged as crimes against humanity were part of a widespread or systematic attack against the Bosnian Croat and Bosnian Muslim civilian residents of the municipalities of Bosanski Samac and Odzak.

Paragraphs 5 to 9 are re-alleged and incorporated into each of the charges set forth below.

CHARGES

COUNT 1(Persecutions)

Beginning in, or about September 1991 and continuing to at least the 31st of December 1993, Blagoje SIMIC, Miroslav TADIC, and Simo ZARIC, acting in concert together, and with other Serb civilian and military officials, planned, instigated, ordered, committed, or otherwise aided and abetted the planning, preparation, or execution of a crime against humanity, that is, the persecutions of Bosnian Croat, Bosnian Muslim and other non-Serb civilians on political, racial, or religious grounds, throughout the municipalities of Bosanski Samac, Odzak and elsewhere in the territory of Bosnia and Herzegovina.

The crime of persecutions was perpetrated, executed, and carried out by or through the following means:

the forcible take-over by Serb forces of cities, towns and villages inhabited by Bosnian Croat, Bosnian Muslim and other non-Serb civilians;

the unlawful arrest, detention or confinement of Bosnian Croats, Bosnian Muslims and other non-Serb civilians on political, racial or religious grounds and not for their protection and safety;

the cruel and inhumane treatment of Bosnian Croats, Bosnian Muslims and other non -Serb civilians including beatings, torture, forced labour assignments and confinement under inhumane conditions;

the deportation, forcible transfer and expulsion of Bosnian Croats, Bosnian Muslims and other non-Serb civilians from their homes and villages by force, intimidation and coercion; and

the wanton and extensive destruction, plundering and looting of the property of Bosnian Croats, Bosnian Muslims and other non-Serb civilians including dwellings, businesses, personal property and livestock.

the destruction or willful damage of institutions dedicated to religion, namely two Catholic churches, one in the town of Bosanski Samac about and between August 1992 and January 1993 and the other in the village of Hrvatska Tisina, about and between April 1992 and August 1992, and two mosques, one in the town of Bosanski Samac about and between August 1992 and November 1992 and the other in the town of Odzak, in or about July 1992.

From about the 17th of April 1992 to at least the 31st of December 1993, Blagoje SIMIC, both prior to, and while serving as President of the Bosanski Samac Serb Crisis Staff, and as President of the War Presidency, acting in concert with others, planned, instigated, ordered, committed, or otherwise aided and abetted the planning, preparation, or execution of the crime of persecutions as described in paragraphs 11 and 12 above, through his participation in the following acts or omissions, among others:

the forcible take-over of the municipality of Bosanski Samac by Serb forces;

the issuance of orders, policies, decisions and other regulations in the name of the Serb Crisis Staff and War Presidency and the authorisation of other official actions which violated the rights of the Bosnian Croat, Bosnian Muslim and other non-Serb civilians to equal treatment under the law and infringed upon their enjoyment of basic and fundamental rights;

the unlawful arrest, detention or confinement of Bosnian Croats, Bosnian Muslims and other non-Serb civilians on political, racial or religious grounds and not for their protection and safety;

the cruel and inhumane treatment of Bosnian Croats, Bosnian Muslims and other non -Serb civilians including beatings, torture, forced labour assignments and confinement under inhumane conditions;

the deportation, forcible transfer and expulsion of Bosnian Croats, Bosnian Muslims and other non-Serb civilians from their homes and villages by force, intimidation and coercion; and

the wanton and extensive destruction, plundering and looting of the property of Bosnian Croats, Bosnian Muslims and other non-Serb civilians including dwellings, businesses, personal property and livestock.

the destruction or willful damage of institutions dedicated to religion, namely two Catholic churches, one in the town of Bosanski Samac about and between August 1992 and January 1993 and the other in the village of Hrvatska Tisina, about and between April 1992 and August 1992, and two mosques, one in the town of Bosanski Samac about and between August 1992 and November 1992 and the other in the town of Odzak, in or about July 1992.

From about September 1991 to at least the 31st of December 1993, Miroslav TADIC, both prior to and while serving as a member of, and as Chairman of, the Exchange Commission, and as a member of the Serb Crisis Staff, acting in concert with others, planned, instigated, ordered, committed, or otherwise aided and abetted the planning, preparation, or execution of the crime of persecutions as described in paragraphs 11 and 12 above, through his participation in the following acts or omissions, among others:

the forcible take-over of the municipality of Bosanski Samac by Serb forces;

the unlawful arrest and confinement of numerous Bosnian Croat, Bosnian Muslim and other non-Serb civilians on political, racial or religious grounds and not for their protection and safety;

the cruel and inhumane treatment of Bosnian Croats, Bosnian Muslims and other non -Serb civilians including beatings, torture, forced labour assignments and confinement under inhumane conditions;

the deportation, forcible transfer and expulsion of Bosnian Croats, Bosnian Muslims and other non-Serb civilians, including women, children and the elderly, from their homes and villages by force, intimidation and coercion; and

the wanton and extensive destruction, plundering and looting of the property of Bosnian Croats, Bosnian Muslims and other non-Serb civilians including dwellings, businesses, personal property and livestock.

the destruction or willful damage of institutions dedicated to religion, namely two Catholic churches, one in the town of Bosanski Samac about and between August 1992 and January 1993 and the other in the village of Hrvatska Tisina, about and between April 1992 and August 1992, and two mosques, one in the town of Bosanski Samac about and between August 1992 and November 1992 and the other in the town of Odzak, in or about July 1992.

From about September 1991 to about the 31st of December 1992, Simo ZARIC, both prior to and while serving in various positions such as the "Assistant Commander for Intelligence, Reconnaissance, Morale and Information" of the Fourth Detachment, "Chief of National Security Service" in Bosanski Samac, "Deputy to the President of the War Council for Security Matters" in Odzak, and "Assistant Commander of the 2nd Posavina Brigade for Morale and Information," acting in concert with others, planned, instigated, ordered, committed, or otherwise aided and abetted the planning, preparation, or execution of the commission of the crime of persecutions as described in paragraphs 11 and 12 above, through his participation in the following acts or omissions, among others:

the forcible take-over of the municipality of Bosanski Samac by Serb forces;

the unlawful arrest and confinement of numerous Bosnian Croat, Bosnian Muslim and other non-Serb civilians on political, racial or religious grounds and not for their protection and safety;

the cruel and inhumane treatment of Bosnian Croats, Bosnian Muslims and other non -Serb civilians including beatings, torture, forced labour assignments and confinement under inhumane conditions;

the interrogation of Bosnian Croats, Bosnian Muslims and other non-Serb civilians who had been arrested and detained and forcing them to sign false and coerced statements ;

the deportation, forcible transfer and expulsion of Bosnian Croats, Bosnian Muslims and other non-Serb civilians, including women, children and the elderly, from their homes and villages by force, intimidation and coercion; and

the wanton and extensive destruction, plundering and looting of the property of Bosnian Croats, Bosnian Muslims and other non-Serb civilians including dwellings, businesses, personal property and livestock.

the destruction or willful damage of institutions dedicated to religion, namely two Catholic churches, one in the town of Bosanski Samac about and between August 1992 and January 1993 and the other in the village of Hrvatska Tisina, about and between April 1992 and August 1992, and two mosques, one in the town of Bosanski Samac about and between August 1992 and November 1992 and the other in the town of Odzak, in or about July 1992.

By these actions Blagoje SIMIC, Miroslav TADIC, and Simo ZARIC, acting in concert together and with others, planned, instigated, ordered, committed or otherwise aided and abetted the planning, preparation, or execution of:

Count 1: Persecutions on political, racial and religious grounds, a CRIME AGAINST HUMANITY, punishable under Article 5(h) of the Statute of the Tribunal.

COUNTS 2 and 3(Deportation and Transfer)

From about the 17th of April 1992 to about the 31st of December 1993, Blagoje SIMIC planned, instigated, ordered, committed or otherwise aided and abetted the planning, preparation or execution of the unlawful deportation and forcible transfer of hundreds of Bosnian Croat, Bosnian Muslim and other non-Serb civilians, including women, children and the elderly, from their homes in the Bosanski Samac municipality to other countries or to other parts of the Republic of Bosnia and Herzegovina not controlled by Serb forces.

From about the 17th of April 1992 to about the 31st of December 1993, Miroslav TADIC planned, instigated, ordered, committed or otherwise aided and abetted the planning, preparation or execution of the unlawful deportation and forcible transfer of hundreds of Bosnian Croat, Bosnian Muslim and other non-Serb civilians, including women, children and the elderly, from their homes in the Bosanski Samac municipality to other countries or to other parts of the Republic of Bosnia and Herzegovina not controlled by Serb forces.

From about the 17th of April 1992 to at least the 31st of December 1992, Simo ZARIC planned, instigated, ordered, committed or otherwise aided and abetted the planning, preparation, or execution of the unlawful deportation and forcible transfer of hundreds of Bosnian Croat, Bosnian Muslim, and other non-Serb civilians, including women, children and the elderly, from their homes in the Bosanski Samac municipality to other countries or to other parts of the Republic of Bosnia and Herzegovina not controlled by Serb forces.

By these actions Blagoje SIMIC, Miroslav TADIC, and Simo ZARIC planned, instigated, ordered, committed or otherwise aided and abetted the planning, preparation, or execution of:

Count 2: Deportation, a CRIME AGAINST HUMANITY, punishable under Article 5(d) of the Statute of the Tribunal; and

Count 3: Unlawful deportation or transfer, a GRAVE BREACH of the Geneva Conventions of 1949 (hereafter Grave Breach), punishable under Article 2(g) of the Statute of the Tribunal.

ADDITIONAL FACTUAL ALLEGATIONS

The municipalities of Bosanski Samac and Odzak are located along the northern border of Bosnia and Herzegovina just across the Sava River from the Republic of Croatia. The municipalities are located within an area referred to as the "Posavina Corridor " which links western Bosnia and Herzegovina with Serbia to the east.

In 1991, after Slovenia and Croatia declared their independence from the Socialist Federative Republic of Yugoslavia (SFRY), the citizens of Bosnia and Herzegovina were forced to consider whether to declare their independence or to remain a part of Yugoslavia. For the most part Bosnian Croats and Bosnian Muslims favoured independence, while the Bosnian Serbs, led by the Serbian Democratic Party (SDS) and the Yugoslav National Army (JNA) favoured remaining a part of Yugoslavia.

Bosnia and Herzegovina declared its independence from Yugoslavia on the 29th of February 1992. Long before this, however, the SDS and the JNA had been making plans for the probability of a war, which included the creation of separate Serb-controlled municipalities throughout Bosnia and Herzegovina. The Republic of Bosnia and Herzegovina was recognised as an independent nation by the United States and countries of the European Community on the 7th of April 1992.

A significant aspect of the plans of the SDS and the JNA was to establish exclusive Serb control over large segments of territory in western, northern and eastern Bosnia and Herzegovina, much of which had large populations of Bosnian Croats, Bosnian Muslims and other non-Serb civilians. In order to achieve control over this territory, the Bosnian Serbs planned to isolate and expel as many non-Serbs as possible in a process that became known as "ethnic cleansing."

Because of their location on the northern edge of the "Posavina Corridor," control over the municipalities of Bosanski Samac and Odzak was vital to Bosnian Serb efforts to create a Serb-controlled land bridge between Serbia in the east and the Krajina Serbs in Croatia and other parts of western Bosnia and Herzegovina.

On the 29th of February 1992, the Serb authorities announced the formation of a separate "Serbian Municipality of Bosanski Samac."

On the 17th of April 1992, Serb military forces from Bosnia and Herzegovina and elsewhere in the former Yugoslavia seized control of the town of Bosanski Samac by force and, within a few days, controlled the entire municipality of Bosanski Samac. The Serbs then announced that the government of the municipality of Bosanski Samac had been replaced by the "Serbian Municipality of Bosanski Samac."

Prior to the 17th of April 1992, almost 17,000 Bosnian Croats and Bosnian Muslims, of a total population of about 33,000, lived in the municipality of Bosanski Samac. Following the forcible take-over of the Bosanski Samac municipality by Serb forces, the majority of the non-Serb residents fled, or were forced to leave the area, so that by May 1995, fewer than 300 of the 17,000 Bosnian Croat and Bosnian Muslim residents remained.

On or about the 13th of July 1992, the 1st Krajina Corps of the Bosnian Serb Army seized control of the neighbouring municipality of Odzak by force. As the Serb military forces advanced on Odzak, the majority of the non-Serb residents fled from the area. Those non-Serbs who had not fled before the take-over fled, were killed, or were forced to leave.

Prior to July 1992, approximately 22,500 Bosnian Croat and Bosnian Muslim residents, out of a total population of 30,000, lived in the Odzak municipality. In November 1995, at the time of the signing of the Dayton Peace Agreement, virtually all of the 22,500 Bosnian Croat and Bosnian Muslim residents had fled or were forced to leave the Odzak municipality.

Immediately after the forcible take-over of the Bosanski Samac municipality, Serb authorities established the "Serbian Municipality of Bosanski Samac Crisis Staff " (Serb Crisis Staff) which took the place of the duly-elected municipal assembly and maintained control over all aspects of the municipal government. In accordance with their plan for "ethnic cleansing," Serb authorities arrested and detained a large number of the non-Serb men, forced many of the non-Serb residents to leave their homes, transferred many non-Serb residents to other villages where they were detained against their will, instituted a number of discriminatory laws and regulations directed against the non-Serbs, required most of the non-Serbs to participate in forced labour projects, undertook the wide-scale looting of the private and commercial property belonging to the non-Serbs, expelled and deported a significant number of the non-Serb residents, and otherwise made life so impossible and oppressive that most Bosnian Croat, Bosnian Muslim and other non-Serb residents of the municipality fled, or were forced to leave the area.

After the military take-over of the Odzak municipality, the Serb Crisis Staff in Bosanski Samac also assumed control over the civilian government of the Odzak municipality. Although most of the non-Serb residents had fled from the Odzak municipality before the Serb military forces took control, those who remained were subjected to similar acts of discrimination and oppression as those imposed on the non-Serb residents in the Bosanski Samac municipality. Many of the non-Serb residents working on forced labour projects in Bosanski Samac were ordered to take part in looting the private and commercial property of the non-Serb residents of the Odzak municipality.

From approximately the 1st of September 1991 to the 31st of December 1993, Blagoje SIMIC, Miroslav TADIC, and Simo ZARIC, acting in concert together and with various individuals on the Serb Crisis Staff and other political, municipal and administrative bodies, the police force, and the army, committed, planned instigated, ordered or otherwise aided and abetted a campaign of persecutions for the common purpose of ridding the Bosanski Samac and Odzak municipalities of all non-Serbs and in furtherance of the campaign committed other serious violations of international humanitarian law directed against the Bosnian Croat, Bosnian Muslim and other non -Serb civilians residing in the Bosanski Samac and Odzak municipalities in the territory of Bosnia and Herzegovina. Any reference to the words "acting in concert together " shall be restricted to Count 1.

__________________Graham T. Blewitt Deputy-Prosecutor

Dated this 30th day of May 2002, In The Hague, The Netherlands

XXIV. ANNEX V- PROCEDURAL BACKGROUND

A. Pre-Trial proceedings

1. Indictment, surrender of the accused and composition of the Trial Chamber

Blagoje Simic, Miroslav Tadic and Simo Zaric were originally indicted together with Stevan Todorovic, Slobodan Miljkovic, aka “Lugar”, and Milan Simic. The initial Indictment was confirmed by Judge Lal Chand Vohrah on 21 July 1995.
Miroslav Tadic voluntarily surrendered on 14 February 1998. At his initial appearance on 17 February 1998 he pleaded “not guilty” to the charges against him. The same day the case was brought before Trial Chamber I composed of Judge Claude Jorda (Presiding), Judge Fouad Riad and Judge Almiro Rodrigues.²³⁹⁴ Simo Zaric voluntarily surrendered to the Tribunal on 24 February 1998. At his initial appearance the next day he pleaded “not guilty” to the charges against him.
On 15 June 1998 the Prosecution filed a motion for leave to amend the initial Indictment, which was granted by Judge Lal Chand Vohrah on 25 August 1998.²³⁹⁵ On 1 September 1998, Judge Almiro Rodrigues was designated Pre-Trial Judge pursuant to Rule 65ter of the Rules.²³⁹⁶ Milan Simic, Miroslav Tadic and Simo Zaric had a further appearance on 3 September 1998 where they again pleaded “not guilty” to the charges in the First Amended Indictment. A Second Amended Indictment was confirmed on 11 December 1998.
On 18 December 1998, the case was assigned to Trial Chamber III composed of Judge Richard May (Presiding), Judge Mohamed Bennouna and Judge Patrick Lipton Robinson.²³⁹⁷ Judge Robinson was appointed Pre-Trial Judge on 26 January 1999.²³⁹⁸ On 31 March 1999, Judge David Hunt was temporarily assigned to Trial Chamber III, replacing Judge Richard May.²³⁹⁹
On 13 December 2000, Stevan Todorovic appeared before Judge Patrick Lipton Robinson and entered a guilty plea to Count 1 (persecutions) of the Second Amended Indictment, which he confirmed before the full Trial Chamber on 24 January 2001. The same day the Trial Chamber entered a finding of guilt and ordered the proceedings against Stevan Todorovic to be separated from those against the other accused.²⁴⁰⁰
On 12 March 2001, Blagoje Simic surrendered voluntarily to the Tribunal. At his initial appearance on 15 March 2001, he pleaded “not guilty” to the charges against him as contained in the Second Amended Indictment. The same day, Judge Mohamed Fassi Fihri was assigned to Trial Chamber III replacing Judge Mohamed Bennouna.²⁴⁰¹ By 20 March 2001 Trial Chamber III consisted of Judge Patrick Lipton Robinson (Presiding ), Judge Richard May and Judge Mohamed Fassi Fihri.²⁴⁰²
The Third Amended Indictment was confirmed on 15 May 2001, and on 7 August 2001, the President ordered the case to be assigned to Trial Chamber II composed of Judge Florence Ndepele Mwachande Mumba (Presiding), Judge Amarjeet Singh and Judge Sharon A. Williams.²⁴⁰³
After the start of trial on 10 September 2001, the Prosecution sought leave to amend the Third Amended Indictment on 5 December 2001. ²⁴⁰⁴ The motion dealt with, inter alia, the insertion of the words “acting in concert together” in paras 14 to 19 and 20 to 23 of the Third Amended Indictment, and the clarification of “property” referred to in paras 14(e), 15(f), 17(e), and 18(f) as comprising the destruction or wilful damage of institutions dedicated to religion. The Joint Defence objected to this motion on 11 December 2001.²⁴⁰⁵ The Trial Chamber granted the motion on 20 December 2001.²⁴⁰⁶
By order of the President on 11 April 2002, Judge Per-Johan Viktor Lindholm was assigned to Trial Chamber II, replacing Judge Amarjeet Singh.²⁴⁰⁷
On 13 May 2002, Milan Simic and the Prosecution filed a “Joint Motion for Consideration of Plea Agreement by Milan Simic and the Office of the Prosecutor”. The Trial Chamber granted leave for the Prosecution to withdraw the remaining counts against Milan Simic on 15 May 2002.²⁴⁰⁸
On 28 May 2002, the Trial Chamber separated the trial of Milan Simic from the trial of Blagoje Simic, Miroslav Tadic and Simo Zaric, and ordered the Prosecution to file the Fifth Amended Indictment, in which the charges against Milan Simic were struck out.²⁴⁰⁹ The Fifth Amended Indictment was filed on 30 May 2002.

2. Assignment of Counsel
On 18 March 1998, the Registrar assigned Borislav Pisarevic as defence counsel for the accused Simo Zaric pursuant to Rule 45(B).²⁴¹⁰ Aleksandar Lazarevic was appointed co-counsel for Simo Zaric on 1 August 2001.
At the request of Blagoje Simic, Igor Pantelic was assigned as counsel for Blagoje Simic on 21 March 2001, after Miroslav Tadic had agreed to the replacement of his then lead counsel Igor Pantelic by his then co-counsel Novak Lukic. On 19 July 2001, Dragan Krgovic was assigned co-counsel for Miroslav Tadic, and on 7 September 2001, Srdjan Vukovic was assigned co-counsel for Blagoje Simic.

3. Status Conferences and Pre-Trial case management
The Pre-Trial proceedings in this case lasted for more than three and a half years. In 1999, Status Conferences were held on 21 January, 4 March, 30 July, and 23 November; in 2000, on 1 March, 28 June, and 11 October; and in 2001, on 8 February, 15 May and 10 September 2001. Moreover, legal issues arising in this case necessitated the holding of several hearings on specific matters.²⁴¹¹ A first Pre-Trial Conference was held on 29 April 1999. As the trial was then adjourned until 10 September 2001, another Pre-Trial Conference was held on 26 June 2001.

4. Conflict of interest
On 16 December 1998, the Prosecution filed a motion seeking to resolve the issue of potential conflict of interest regarding defence counsel for Simo Zaric, Borislav Pisarevic. The motion was filed prior to the commencement of the trial to determine whether Borislav Pisarevic was likely to be called as a witness at trial.²⁴¹²
After hearing the parties, the Trial Chamber concluded that there was a potential for a conflict arising at trial between Borislav Pisarevic and his client Simo Zaric. However, the Trial Chamber found that Article 9(5) of the Code of Professional Conduct for Defence Counsel Appearing Before the International Tribunal (“Code of Professional Conduct”) constituted an appropriate mechanism for dealing with the conflict at the Pre-Trial stage. Article 9(5)(b)(ii) of the Code of Professional Conduct provided that “where a conflict of interest does arise, counsel must obtain the full and informed consent of all potentially affected clients to continue the representation, so long as counsel is able to fulfil all other obligations under this Code”. Simo Zaric gave his consent in writing to Borislav Pisarevic continuing as his counsel on 13 April 1999.
The issue of a potential conflict of interest was revisited during trial, as a number of witnesses mentioned in their evidence the name of Borislav Pisarevic. In light of the fact that the Prosecution team had changed since 1999, the Trial Chamber requested the Prosecution to inform the Trial Chamber which future witnesses would refer to Borislav Pisarevic during their testimony. The Trial Chamber advised Borislav Pisarevic that he would only be allowed to conduct cross-examination of such witnesses if permitted by the Trial Chamber. The Trial Chamber’s view was that it retained the final discretion as to whether Borislav Pisarevic was allowed to carry out the cross-examination, or whether his co-counsel Aleksandar Lazarevic would be requested to proceed instead.

5. Provisional Release
Miroslav Tadic and Simo Zaric sought their provisional release on 19 January 1999. Their application was denied on 15 February 1999 by the Trial Chamber on the ground that they had failed to establish the existence of exceptional circumstances to justify their release.²⁴¹³ Both accused appealed the decisions. The Appeals Chamber issued its decision on 28 July 1999,²⁴¹⁴ vacating the Trial Chamber’s decision on the ground that, contrary to the expectations of the accused, the decision had been issued solely on the basis of written submissions. At the same time the Appeals Chamber also directed that an oral hearing on the accused’s application for provisional release be held, and that the host country be heard, as required by Rule 65(B) of the Rules. The hearing was held on 23 November 1999, and was followed by written submissions from both sides.²⁴¹⁵ The Trial Chamber issued its decisions for both accused on 4 April 2000.²⁴¹⁶ It considered that Rule 65(B) of the Rules, as amended, no longer required an accused to demonstrate exceptional circumstances before the release might be ordered, and rejected the Prosecution’s contention that the amendment to Rule 65(B) of the Rules was ultra vires. It found Rule 65(B) of the Rules, as amended, to be consistent with any provision in the Statute and,“with the internationally recognised standards regarding the rights of the accused which the International Tribunal is obliged to respect”. As a result, Miroslav Tadic and Simo Zaric were provisionally released from 19 April 2000 until 3 September 2001.
The Prosecution filed an application for leave to appeal the Trial Chamber’s decisions on provisional release pursuant to Rule 65(D) of the Rules. The Appeals Chamber rejected the application on 19 April 2000.²⁴¹⁷ During his provisional release, Miroslav Tadic filed seven motions to provisionally leave his residence for medical treatment and therapy. The Trial Chamber allowed the accused to travel to the Clinical Hospital Centre in Banja Luka four times.²⁴¹⁸
On 26 July 2001, the Trial Chamber ordered the termination of the provisional release of Milan Simic, Miroslav Tadic and Simo Zaric and their return to the Tribunal on 3 September 2001.²⁴¹⁹

6. Separation of Trials
On 8 July 1999, Simo Zaric filed a motion seeking to have his trial separated from the trial of the other co-accused pursuant to Rule 82(B) of the Rules. The Trial Chamber denied the relief sought after having heard the oral arguments of the parties on 23 November 1999.²⁴²⁰ It issued its reasoning on 3 February 2000.²⁴²¹ The Trial Chamber considered that it was not satisfied that any such conflict of interest for granting a separate trial under Rule 82(B) of the Rules existed. It stated that a joint trial avoided the duplication of evidence, minimised hardship to witnesses and was generally in the interests of judicial economy. Additionally, the Trial Chamber was of the view that the separation of the accused’s trial was unlikely to yield an earlier date for the commencement of his trial.

7. Contempt proceedings
On 9 June 1999, the Trial Chamber ordered the date set for the commencement of the trial to be vacated and the trial to be adjourned, due to contempt allegations against the accused Milan Simic and defence counsel Branislav Avramovic and Igor Pantelic.²⁴²² On 7 July 1999, the Trial Chamber found that it did not have good reason to believe that Igor Pantelic may be in contempt of the Tribunal, but found that it did have good reason to believe so with regard to Milan Simic and Branislav Avramovic. On 30 June 2000, the Trial Chamber rendered its judgement and decided that the allegations of contempt against Branislav Avramovic and Milan Simic had not been proven beyond reasonable doubt and that they were not in contempt of the Tribunal.²⁴²³

8. ICRC Decision
On 10 February 1999, the Prosecution sought a ruling from the Trial Chamber under Rule 73 of the Rules as to whether a former employee of the International Committee of the Red Cross (“ICRC”) may be called to give evidence of facts that came to his knowledge by virtue of his employment.²⁴²⁴ The same day, the ICRC filed an “Application for Leave to Appear as Amicus Curiae under Rule 74”,²⁴²⁵ which was granted by the Trial Chamber on 16 March 1999, on an ex parte and confidential basis.²⁴²⁶ The Prosecution filed its written submissions on 23 March 1999,²⁴²⁷ and the ICRC on 13 April 1999.²⁴²⁸ In addition, the ICRC, in support of its position, provided the Trial Chamber with the opinions of two experts.
The Trial Chamber delivered its decision on 27 July 1999 on an ex parte and confidential basis.²⁴²⁹ It held that “the ICRC’s principled position of non-testimony before courts can be regarded as a consequence of the principles which underlie its activities, in particular the principles of neutrality, impartiality and independence”.²⁴³⁰ It concluded that:

the ratification of the Geneva Convention by 188 States can be considered as reflecting the opinio juris of these State Parties, which […] leads the Trial Chamber to conclude that the ICRC has a right under customary international law to non-disclosure of the Information.²⁴³¹
As to whether the ICRC’s confidentiality interest should be balanced against the interests of justice, the Trial Chamber found that it was bound “by this rule of customary international law, which, in its content, does not admit of, or call for, any balancing of interest.”²⁴³² With regard to the question as to whether protective measures could adequately meet the ICRC’s confidentiality interest, the Trial Chamber stated that where “there is a rule of customary international law barring it from admitting the Information […] the question of the adoption of protective measures does not arise.”²⁴³³ Judge David Hunt appended a Separate Opinion to this decision.²⁴³⁴ The confidentiality of that decision was lifted by an order of the Trial Chamber on 1 October 1999.²⁴³⁵

9. Judicial Notice

On 16 December 1998, the Prosecution requested the Trial Chamber to take judicial notice of the international character of the conflict in Bosnia-Herzegovina starting on 6 March 1992, or at the latest by 6 April 1992, and ending at the earliest on 19 May 1992.²⁴³⁶ The Prosecution based its request alternatively on Rule 94(A) of the Rules (facts of common knowledge ), or Rule 94(B) of the Rules (adjudicated facts or documentary evidence from other proceedings of the Tribunal).
The Trial Chamber issued its decision on 25 March 1999.²⁴³⁷ It dismissed the motion on the ground that each Trial Chamber, based on the specific circumstances of each case, is required to make its own determination on the nature of the armed conflict upon the specific evidence presented to it. It took proprio motu judicial notice of the fact that Bosnia and Herzegovina proclaimed its independence on 6 March 1992, and that its independence was recognised by the European Community and by the United States on 6 and 7 April 1992, respectively.

10. Protective Measures
On 8 April 1999, the Prosecution asked the Trial Chamber for protective measures, including the use of pseudonyms, for eight witnesses.²⁴³⁸ As the Defence did not object, the Trial Chamber granted the motion on 26 May 1999.²⁴³⁹ It ordered in addition to the use of pseudonyms A, B, C, E, F, G H and I, inter alia, that the witnesses shall testify with facial image distortion, and where requested by the witness, with voice distortion. The Trial Chamber ordered the Prosecution, on 23 May 2001, to disclose to the Defence the identity of each protected witness, not less than six weeks prior to the date on which it was anticipated that each protected witness would testify.²⁴⁴⁰

11. Disclosure
The Tadic Defence, the Zaric Defence and the Prosecution agreed upon reciprocal disclosure pursuant to Rules 66(B) and 67(C) of the Rules.²⁴⁴¹ The disclosure procedure between the Simic Defence and the Prosecution followed Rule 66(A) and (C) of the Rules.

12. Pre-Trial Briefs and admitted facts
The final version of the Prosecution Pre-Trial Brief as well as its list of witnesses and exhibits was filed on 9 April 2001 pursuant to Rule 65ter ( E)(i),(ii),(iii) of the Rules. All accused filed their Pre-trial Briefs on 7 May 2001 pursuant to Rule 65ter (F) of the Rules. On 27 April 2001, the Prosecution filed a statement with a list of facts and admissions agreed upon by all parties.²⁴⁴²

13. Evidentiary matters
On 25 July 2001, the Trial Chamber admitted the transcript of the testimony of Prosecution expert witness Dr. Gow in the Tadic and Celebici cases, ruling that Dr. Gow would not be called for further cross-examination by the Defence in the present case, as it was satisfied that Dr. Gow had been extensively cross -examined by counsel in the previous cases.²⁴⁴³
On 3 September 2001, Blagoje Simic filed a motion to exclude evidence relating to acts committed by former co-accused Stevan Todorovic,²⁴⁴⁴ in which he sought the exclusion of “detailed” evidence of witnesses in relation to acts committed by Stevan Todorovic. The motion was joined by the other accused on 10 September 2001. The Prosecution objected to the motion on 6 September 2001. The Trial Chamber, pursuant to Rules 73 and 89 of the Rules, denied the motion on 11 September 2001, holding that evidence in relation to acts committed by Stevan Todorovic may be relevant to the charges against the accused and therefore admissible.²⁴⁴⁵
On 6 September 2001, the Prosecution filed a motion to add further exhibits to the confidential Prosecution exhibit list filed on 9 April 2001. The Prosecution asked the Trial Chamber to be allowed to add transcripts from three telephone interviews with Miroslav Tadic, and one with Simo Zaric, all conducted in April or May 1996, to the exhibit list, and to admit the transcript of the interviews into evidence. Miroslav Tadic objected to the motion, arguing that, inter alia, the accused had not been presented with the Indictment prior to the first telephone interview. The Trial Chamber denied the motion pursuant to Article 21 of the Statute, and Rules 53bis and 89(D) of the Rules on 11 September 2001.²⁴⁴⁶ It found that it was not satisfied that effective service of the Indictment was made prior to any of the telephone interviews, and that, consequently, the accused did not fully appreciate the seriousness of the Indictment at the material time nor understand fully the nature of the Indictment against them.
On 10 September 2001, the Trial Chamber orally granted a Prosecution motion of 3 July 2001 to maintain the deportation charges under Article 5 (d) and Article 2 (g) of the Statute.²⁴⁴⁷ The Trial Chamber held that such approach did not violate the right of the accused to a fair trial, as was argued by Blagoje Simic in a motion on the issue.²⁴⁴⁸

B. TRIAL PROCEEDINGS

1. General
The trial started on 10 September 2001 and ended on 4 July 2003. Altogether, the Trial Chamber sat 234 trial days. The number of witnesses the Prosecution and the Defence intended to call was reduced by the Trial Chamber at the Pre-Trial Conference and the Pre-Defence Conference. The Prosecution presented 36 live witnesses, among them two expert witnesses. Seven witness statements were admitted pursuant to Rule 92bis of the Rules, and three of these witnesses gave live testimony. In total, 190 Prosecution exhibits were admitted. The Prosecution case ended on 3 September 2002. The Defence case started on 12 November 2002 and ended on 4 June 2003.
On 17 October 2002, the Joint Defence filed their pre-defence briefs pursuant to Rule 65ter (G) of the Rules.²⁴⁴⁹ The Trial Chamber ordered the accused to provide additional information with respect to the witnesses and documents mentioned in the pre-defence briefs, ²⁴⁵⁰ whereupon the accused filed additional motions.²⁴⁵¹ On 7 November 2002, the Trial Chamber decided on the number of witnesses for each accused both testifying viva voce and pursuant to Rule 92bis of the Rules, and on the amount of hours for the presentation of the case of each accused.²⁴⁵² The Simic Defence was granted 80 hours, the Tadic Defence 70 hours, and the Zaric Defence 90 hours, excluding character witnesses and expert witnesses for all three accused.²⁴⁵³ The Simic Defence called in total 29 witnesses. Nine witnesses gave live evidence and six witnesses gave deposition evidence pursuant to Rule 71 of the Rules. Fourteen witnesses gave statements pursuant to Rule 92bis of the Rules, and five of them testified before the Trial Chamber. The Tadic Defence called in total 28 witnesses . Ten witnesses gave live evidence and six witnesses gave deposition evidence according to Rule 71 of the Rules. Twelve witnesses gave statements pursuant to Rule 92bis of the Rules, seven of which testified before the Trial Chamber. The Zaric Defence called in total 35 witnesses. Sixteen witnesses gave live evidence and six witnesses gave deposition evidence pursuant to Rule 71 of the Rules. Thirteen witnesses gave statements pursuant to Rule 92bis of the Rules, six of which testified before the Trial Chamber. All three accused elected to testify on their own behalf. The Simic Defence tendered 183 exhibits into evidence, the Tadic Defence 196 exhibits, and the Zaric Defence 56 exhibits. The Joint Defence presented five expert witnesses, three of them testified in court. The Trial Chamber called one witness proprio motu.

2. Evidentiary Issues
On 10 September 2001, the Prosecution tendered a document, entitled “Instructions for the organisation and activity of organs of the Serbian people in Bosnia and Herzegovina in extraordinary circumstances, dated 19 December 1991”. On 11 September 2001, the Joint Defence objected to the admission of this document into evidence.²⁴⁵⁴ On 11 and 12 February 2002, the Trial Chamber heard the evidence of Bernard O’Donnell, an investigator with the Office of the Prosecutor, who testified to matters related to the authenticity and reliability of the document. On 2 May 2002, the Trial Chamber orally admitted the document referred to as “Variant A and B”²⁴⁵⁵ into evidence, after having heard the submissions of the Parties on 18 February and 2 May 2002. The Trial Chamber held that the evidence it had heard to that date showed that there were sufficient indicia of reliability in relation to this document to warrant its admissibility.²⁴⁵⁶
On 23 July 2002, the accused filed a motion to strike the testimony of Hasan Subasic who had been following the testimonies of other witnesses on the internet, arguing that this violated Rule 90(C) of the Rules.²⁴⁵⁷ The Prosecution opposed the motion.²⁴⁵⁸ The Trial Chamber denied the motion and found, inter alia, that it falls to the Trial Chamber to determine the probative value of the witness’ evidence, taking into account all the relevant factors.²⁴⁵⁹
In an oral decision on 7 November 2002, the Trial Chamber granted the Prosecution’s motion²⁴⁶⁰ to exclude the proposed Defence expert evidence of Oliver Nikolic.²⁴⁶¹ In another oral decision on 7 November 2002, the Trial Chamber rejected proprio motu the report of the proposed Joint Defence expert Colonel Ostoja Barasin, filed on 20 September 2002.²⁴⁶² The request of the Joint Defense for Certification pursuant to Rule 73 of the Rules – in respect to the latter expert – was dismissed in an oral decision on 4 December 2002.²⁴⁶³
On 11 December 2002, the Joint Defense filed the expert opinion of Prof. Dr. Zivojin Aleksic.²⁴⁶⁴ On 29 January 2003, the Trial Chamber granted the motion of the Prosecutor to exclude the expert evidence of Dr. Leposava Kron.²⁴⁶⁵ On 5 February 2003, the Joint Defense asked for certification of this decision,²⁴⁶⁶ which was denied by the Trial Chamber on 28 February 2003.²⁴⁶⁷
On 19 February 2003, the Joint Defence asked the Trial Chamber to issue an order to the government of the Federation of Bosnia and Herzegovina for the production of materials for the preparation of the report of expert witness Dr. Svetlana Radovanovic.²⁴⁶⁸ The Trial Chamber ordered the government of the Federation of Bosnia and Herzegovina to produce data of the 1991 census of Bosnia and Herzegovina to the Defence as soon as possible.²⁴⁶⁹
On 17 March 2003, the Joint Defence requested the Trial Chamber to assign a military expert,²⁴⁷⁰ and the Prosecution orally replied on 24 March 2003.²⁴⁷¹ On 4 April 2003, the Trial Chamber orally denied the request of the Joint Defence.²⁴⁷² On 8 April 2003, the Joint Defence asked for the expert report of General Wilmot admitted in the Stakic case to be admitted into evidence.²⁴⁷³ On 28 April 2003, the Trial Chamber allowed the motion and admitted the expert opinion of General Wilmot and the transcripts of his testimony in the Stakic case into evidence.²⁴⁷⁴
On 20 February 2003, the Prosecution orally sought leave to cross-examine Miroslav Tadic on issues contained in the three telephone interviews mentioned in the “Decision on Prosecutor’s Request to Add Further Exhibits to the Confidential Prosecution Exhibit List Filed on the 9th of April 2001” of 11 September 2001. The Prosecution intended to cross-examine Miroslav Tadic as to inconsistencies between the three telephone interviews and his live testimony before the Trial Chamber. The Prosecution submitted that these inconsistencies would only go to his credibility, not to his guilt.²⁴⁷⁵ On 11 March 2003, the Trial Chamber issued its reasons for the oral decision on 20 February 2003,²⁴⁷⁶ which denied the oral Prosecution motion to cross-examine Miroslav Tadic as to his credibility with regard to inconsistencies contained in three telephone interviews given by the accused to the Prosecution.²⁴⁷⁷
On 2 April 2003, the Prosecution applied to cross-examine a witness about material inconsistencies between matters contained in his statement given pursuant to Rule 92bis of the Rules and his evidence given before the Trial Chamber on 1 April 2003.²⁴⁷⁸ On the same day, the Trial Chamber rejected the application, holding that “paragraphs that are struck off ( in statements given pursuant to Rule 92bis of the Rules( are not to be resurrected by being referred to at all.²⁴⁷⁹ On 3 April 2003, the Prosecution filed a motion asking the Trial Chamber to redetermine its decision of 2 April 2003, and to allow the Prosecution to cross-examine Defence witnesses as to inconsistencies between their Rule 92bis statements and their trial testimony.²⁴⁸⁰ The Trial Chamber granted certification on 28 April 2003.²⁴⁸¹ On 11 April 2003, the Prosecution filed a motion asking the Trial Chamber to redetermine its oral decision of 15 April 2003²⁴⁸² against a Prosecution application to allow a witness to refresh his memory from parts of a statement containing a declaration pursuant to Rule 92bis of the Rules not admitted into evidence.²⁴⁸³ The Trial Chamber granted certification on 2 May 2003.²⁴⁸⁴ Following both certifications, the Prosecution filed two interlocutory appeals.²⁴⁸⁵ On 26 May 2003, the Appeals Chamber granted both appeals and quashed both decisions of the Trial Chamber.²⁴⁸⁶
On 4 April 2003, the Trial Chamber issued a Subpoena ad testificandum to one witness.²⁴⁸⁷

3. Depositions
On 14 November 2002, the Joint Defence filed a motion to allow the taking of depositions of 44 witnesses,²⁴⁸⁸ to which the Prosecution replied on 29 November 2002.²⁴⁸⁹ The Trial Chamber ordered on 11 December 2002 that, inter alia, some of those witnesses testify viva voce, and that some others testify pursuant to Rules 92bis or 71 of the Rules.²⁴⁹⁰ On 22 January 2003, the Joint Defence submitted a list of witnesses whose testimonies were to be given pursuant to Rule 71 of the Rules, indicating the estimated time for their examination-in-chief.²⁴⁹¹ The depositions of 18 witnesses – six for each accused – were taken in Belgrade between 4 and 7 February 2003.
On 7 February 2003, the Joint Defense requested a certification of the Trial Chamber’s decision²⁴⁹² that other Defenses would not be allowed to cross-examine witnesses called by the Defense of a particular accused.²⁴⁹³ The Trial Chamber denied the motion on 28 February 2003.²⁴⁹⁴

4. Protective measures
On 20 November 2001, the Trial Chamber granted orally a motion by the Prosecutor for protective measures for Witnesses K and L.²⁴⁹⁵ On 24 June 2002, the Trial Chamber held that the pseudonyms O, P, and Q should be used when referring to the respective Prosecution witnesses.²⁴⁹⁶
On 25 July 2002, the Trial Chamber granted a Prosecution Request²⁴⁹⁷ permitting the Prosecution to provide closed session testimony of Stevan Todorovic to the accused, the appointed lawyers and the amici curiae in the proceedings Prosecutor v. Milosevic.²⁴⁹⁸ On 26 July 2002, President Jorda granted a motion²⁴⁹⁹ by the Prosecution to vary the protective measures orders issued in the proceedings Prosecutor v. Simic et al. to the extent necessary to permit the Prosecution to provide the statements, transcripts of testimony, and related exhibits of the relevant witnesses to the Accused, the appointed lawyers and the Amici Curiae in Prosecutor v. Milosevic.²⁵⁰⁰
In an oral decision on 9 December 2002, the Trial Chamber granted a motion²⁵⁰¹ by Miroslav Tadic to allow that the testimony of one witness be received via video-link.²⁵⁰² On 29 January 2003, the Zaric Defence asked, inter alia, for safe conduct for eight witnesses, protective measures for three witnesses, and to allow one witness to testify via video-link.²⁵⁰³ On 31 January 2003, the defence for Blagoje Simic and Miroslav Tadic filed a motion to allow two witnesses to testify via video-link, and on 14 February 2003, the Trial Chamber granted these motions.²⁵⁰⁴ For the Prosecution, Hasan Subasic testified via video-link.²⁵⁰⁵

5. Judgement of acquittal
On 12 and 13 September 2002, all accused filed a motion for a judgement of acquittal pursuant to Rule 98bis of the Rules.²⁵⁰⁶ The Prosecution filed its response on 27 September 2002.²⁵⁰⁷ In its oral decision on 9 October 2002, the Trial Chamber rendered a judgement of acquittal on (i) the aspect of “destruction” of the property of Bosnian Croats, Bosnian Muslims and other non-Serb civilians including dwellings, businesses, personal property and livestock as contained in paras 13(f), 14(e) and 15(f) of the Indictment (Count 1, persecutions), and on (ii) the whole offence of destruction or wilful damage to institutions dedicated to religion as contained in paras 13(g), 14(f) and 15(g) of the Indictment.²⁵⁰⁸

6. Miscellaneous
On 20 February 2003, Dr. Falke stated that due to health problems of Simo Zaric, shorter sitting hours were advisable.²⁵⁰⁹ On 17 April 2003, Simo Zaric underwent surgery and was in good physical condition afterwards.²⁵¹⁰ On 15 May 2003, Dr. Falke advised the Registrar that there was no medical reason why Simo Zaric could not attend full days in court. Dr. Falke also stated that full days in court were not ideal for Miroslav Tadic.²⁵¹¹
On 9 and 10 January 2003, Miroslav Tadic waived his right to be present during the court proceedings on 10 January 2003.²⁵¹² On 2 April 2003, Simo Zaric waived his right to be present during the court proceedings in the morning session of the same day.²⁵¹³ On 11 April 2003, Simo Zaric gave his consent for three witnesses of the Simic Defence to be examined in his absence; he did not consent for another witness to be examined in his absence.²⁵¹⁴
The Prosecution and the Defence for the three accused filed their confidential Final Trial Briefs on 18 and 19 June 2003, respectively.²⁵¹⁵ Redacted public versions of the briefs were filed by the Prosecution on 24 June 2003,²⁵¹⁶ by the Simic Defence and Tadic Defence on 7 July 2003, and by the Zaric Defence on 19 June 2003. Closing arguments were heard between 30 June and 4 July 2003. The hearing was closed on 4 July 2003.

XXV. ANNEX VI - MAP