Judgment of the ICTY in the Case of Delalic et al: Factual and Legal Findings Part C

Source Document:http://www.un.org/icty/celebici/jugement/part4.htm
UNITED
NATIONS

Judgment of the International Criminal Tribunal for the Former Yugoslavia
in the case of

Delalic et al. (I.T-96-21) "Celebici" 16 November 1998

IV.Factual and legal findings:Part C

E. Superior Responsibility of Hazim Delic.

1. Introduction

It is alleged in the Indictment that Hazim Delic is responsible for offences both as a direct participant and as a superior. He is charged under the Indictment with direct responsibility pursuant to Article 7(1) of the Statute for the alleged offences of: murder and wilful killing (counts 1, 2, 3, 4, 5, 6, 11, and 12); torture and cruel treatment (counts 15 to 29); inhuman treatment and cruel treatment (counts 42 and 43); the subjection of detainees to inhumane conditions constituting the offences of wilfully causing great suffering or serious injury to body or health or cruel treatment (counts 46 and 47); the unlawful confinement of civilians (count 48); and the plunder of private property (count 49). These counts of the Indictment shall be considered below in sub-section F.
In addition, the Prosecution alleges that Hazim Delic, along with Zdravko Mucic and Zejnil Delalic, had responsibility for the operation of the Celebici prison-camp and was in a position of superior authority to all camp guards and to those who entered the camp and mistreated the detainees. It contends that he had reason to know that his subordinates were mistreating detainees and failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof. The Prosecution accordingly asserts that by failing to take the actions required of a person in command authority, Mr. Delic is responsible pursuant to Article 7(3) of the Statute for: wilful killing and murder (counts 13 and 14); torture and cruel treatment (counts 33 to 35); wilfully causing great suffering or serious injury to body or health and cruel treatment (counts 38 and 39); inhumane treatment and cruel treatment (counts 44 and 45); the subjection of detainees to inhumane conditions constituting the offences of wilfully causing great suffering or serious injury to body or health and cruel treatment (counts 46 and 47); unlawful confinement of civilians (count 48); and plunder (count 49).
By way of preliminary comment, the Trial Chamber notes that under counts 33 to 35, the Prosecution contends, inter alia, that Hazim Delic is responsible as a superior for the rapes alleged in paragraph 25 of the Indictment. Further, the Prosecution contends in counts 44 and 45, that Mr. Delic is responsible as a superior for, inter alia, inhumane acts involving the use of an electrical device alleged in paragraph 33 of the Indictment. In both of these paragraphs Mr. Delic is the only person alleged to be a direct participant in these acts. Therefore, the Trial Chamber notes that there are no subordinate acts for which he can be held responsible as a superior, even if the allegations in paragraphs 25 and 33 are found to be proven as pleaded.
In sub-section F below, the Trial Chamber will make its factual findings in relation to the underlying offences for which the accused is alleged to be criminally liable as a superior. Before proceeding further, however, it must first consider whether the evidence demonstrates, as the Prosecution contends, that Mr. Delic exercised superior authority such that the Trial Chamber may impose criminal liability pursuant to Article 7(3).

2. Arguments of the Parties

(a) The Prosecution

The Prosecution seeks to rely, in part, upon a statement Hazim Delic made to Prosecution Investigators on 19 July 1996⁸³⁶. In this statement Hazim Delic said that he worked as a locksmith in an enterprise in Konjic prior to the conflict⁸³⁷. Upon the outbreak of the armed conflict he was mobilised into a joint military police of the TO and HVO and was serving in the Celebici prison-camp from early May 1992, before the first prisoners arrived⁸³⁸. According to this statement, Mr. Delic served as an administrator in the prison, organising documents and logistics from about 27 July 1992⁸³⁹. From 18 November 1992 until 28 or 30 November 1992 he stated that he served as the commander or manager of the prison-camp.⁸⁴⁰
The Prosecution asserts that the evidence indicates that at all material times prior to his appointment as commander of the prison-camp, Mr. Delic was the deputy commander. According to the Prosecution, Article 7(3) does not limit command authority to the most senior commander thereby absolving the deputy commander of liability, as indicated by the use of the term "superior" as opposed to terms such as "commander" or "deputy commander". The central question is whether Hazim Delic was the superior of the individuals committing crimes in the Celebici prison-camp. The Prosecution makes three main factual allegations, which it contends establish that the accused was a superior of the individuals committing such crimes in the prison-camp.
First, the Prosecution argues that the deputy commander is liable to the extent of his or her authority, and that in some instances he may be liable as a commander. In this regard the Prosecution asserts that Zdravko Mucic was often absent from the prison-camp. It is alleged that the evidence shows that when Mr. Mucic was absent, Hazim Delic was in charge and exercised full authority, that is, he was the acting commander in Mr. Mucic’s absence. Secondly, the Prosecution contends that Mr. Delic held a superior position over the guards in the prison-camp, which included the ability to give the guards orders. In particular, it is asserted that Mr. Delic’s authority over the guards at the camp is demonstrated by the frequency with which he gave orders to them to mistreat the prisoners. Thirdly, it is alleged that the status of Mr. Delic as a superior is demonstrated by his exercise of considerable authority over various practical matters and events that took place in the Celebici prison-camp.
The Prosecution contends that it is not disputed that Hazim Delic knew about the crimes in the camp, and that he took no action to stop the killing and suffering of the detainees. Finally, it is alleged that he did not discipline the guards for their misdeeds, nor did he take action to prevent such acts, notwithstanding his authority and duty to do so. The Prosecution argues that the reason for this failure was that Mr. Delic was an active participant in these crimes. Further, it maintains that by his example, he condoned the commission of similar crimes by others and actually ordered the commission of some of the crimes by those under his control.
In closing oral submissions, the Prosecution conceded the possibility that Mr. Delic’s authority was not entirely unfettered and that he could not have instantly discharged a guard. However, it was clear that he could have taken any number of actions to prevent crimes or punish his subordinates for them, including: re-assigning the guards; confining them to barracks; preventing them from contact with the detainees; notifying superiors; recommending the guards be court-martialled; and resigning.⁸⁴¹
In reply to its submissions, the Prosecution contends that the Defence for Hazim Delic essentially advances a single legal argument in response to the charges of superior authority namely, that Article 7(3) of the Statute only applies to "commanders" and not to "deputy commanders" or "staff officers" who lack the authority to prevent or punish subordinates.
The Prosecution submits that the concept of superior in Article 7(3) of the Statute is clearly not limited to persons described as "commanders". Thus, within a single chain of command, a person described as "commander" may be the superior of a person described as "deputy commander", but it is also evident that the person described as "deputy commander" can be the superior of the person next in the chain of command, and so on. Accordingly, the Prosecution’s position is that, within an organisational unit, superior responsibility is not confined to the person who is at the head of the unit as a whole, but can apply to anyone in the unit who is a "superior" of anyone else in the unit.
The Prosecution submits that the evidence establishes the contrary of the Defence contention that the position of Hazim Delic was equivalent to that of a staff officer. According to the Prosecution, the evidence establishes that Mr. Delic was part of a chain of command, situated below the camp commander and above the camp guards.

(b) The Defence

The Defence characterises the Prosecution’s command responsibility case against Hazim Delic as resting on two premises, one legal and the other factual. The legal foundation is said to be that a non-commander can be found criminally liable under a theory of command responsibility. With respect to this premise, the Defence argues that superior responsibility is limited to commanders and civilian leaders with military command-like authority over subordinates. It submits that the use of the word "superior" in Article 7(3) of the Statute denotes only such persons. This Article cannot extend criminal liability to non-commanders simply because they hold a higher rank than that of the perpetrator of a particular crime.⁸⁴²
In support of this proposition the Defence draws a distinction between the status of "command" and that of "rank". It refers to United States army regulations when it contends that command is a right exercised by virtue of office, the key elements of which are authority and responsibility. Military rank, on the other hand, is characterised as the relative position or degree of precedence granted military persons marking their stations in military life, and confers eligibility to exercise command or authority within the limits of the law.
By reference to a number of commentators, the Defence contends that staff officers may be distinguished from commanders on the basis that they have no authority to command and do not prescribe policies, basic decisions or plans, as this responsibility rests with the commander. Thus, when it becomes necessary for a staff officer to issue an order in the name of a commander, responsibility remains with the commander even though he or she may have never have seen a written order or heard it given orally. With respect to the chain of command, the Defence quotes a commentary that defines this as the most fundamental and important organisational technique used by the army, which describes the succession of commanders, superior to subordinate through which command is exercised. It extends from the Commander in Chief down through the various grades of rank to the enlisted person leading the smallest army elements. Staff officers are not in the chain of command. Regardless of rank, only commanders can be in a chain of command. The issue of whether a non-commander is the superior, in terms of relative military rank, of someone in command of a subordinate unit, is irrelevant to the concept of command authority.
On the basis of the foregoing, the Defence states that commanders are persons specifically designated to command a military unit whereas others, that is those who are not commanders, assist the commander in carrying out the unit’s mission under the commander’s direction. In support of this argument, the Defence submits that the "commander" in the Army of Bosnia and Herzegovina, and the former JNA, had the authority to issue orders in his own name and bore responsibility for his unit’s performance. Others, including staff officers and deputy commanders, assisted the commander. In this regard, the Defence seeks to rely upon the testimony of Generals Arif Pasalic⁸⁴³ and Jovan Divjak⁸⁴⁴, who testified as witnesses for the Prosecution.
The Defence states that, despite the Prosecution’s allegation that Hazim Delic was deputy commander of the Celebici prison-camp at all relevant times, he cannot be convicted under the concept of command responsibility for the simple reason that he was not a commander. It is submitted that only commanders command and that, therefore, only they have the authority to punish or prevent violations of international humanitarian law. Since only commanders have the authority to take the steps necessary to avoid criminal liability for the acts of subordinates, only they should face criminal sanctions for the violations of subordinates.
The Defence also argues that the case of the Prosecution rests on the factual premise of the authority of Zdravko Mucic. In this regard, the Defence contends that whatever Mr. Mucic’s authority, the authority of Hazim Delic, as his deputy, could not be greater. In the absence of proof about the extent of the authority of Mr. Mucic, it is submitted that the Trial Chamber cannot determine whether Mr. Mucic acted reasonably within his authority to prevent and punish violations of international humanitarian law. Thus, the Defence contends that the Trial Chamber cannot find beyond reasonable doubt that Mr. Delic failed to carry out his responsibilities. The implication of this argument is that Mr. Delic’s authority as an alleged deputy commander is relative to that of Mr. Mucic, the alleged commander. Accordingly, a failure by the Prosecution to establish the extent of superior authority and thus criminal responsibility of Mr. Mucic, necessarily means that such a determination may not be made with respect to Mr. Delic.
In addition, the Defence seeks to refute the submission of the Prosecution that when Zdravko Mucic was absent, Hazim Delic was the superior responsible as commander. The Defence states that even if this assertion is legally correct, that is the deputy assumes command during a temporary absence of a commander who stays in communication with his command, the argument fails for lack of proof. It is submitted that the Prosecution, must prove that Mr. Mucic was in fact absent at the time of each alleged offence and that Mr. Delic was, in fact, the commander of the prison-camp at those times, under the law of Bosnia and Herzegovina. The Defence submits that the Prosecution has failed to meet this burden.

3. Discussion and Findings

The Trial Chamber has found, as noted in Section III above that a position of command is a necessary condition for the imposition of superior responsibility under Article 7(3) of the Statute. However, the existence of such a position cannot be determined by reference to formal status alone. The determining factor is the actual possession of power or control over the actions of subordinates.
Notwithstanding the submissions of the Defence, the Prosecution does not argue that the doctrine of command responsibility applies to those who do not exercise command and asserts as a matter of fact that the evidence demonstrates that Hazim Delic did exercise command in the Celebici prison-camp. Thus, the determination of the command responsibility of Mr. Delic depends on a factual determination as to the powers of command he did, or did not, possess in his position as "deputy commander" of the prison-camp. As such, the Trial Chamber must determine whether the evidence establishes beyond reasonable doubt that Mr. Delic’s position made him part of the chain of command in the Celebici prison-camp, thus providing him with the authority to issue orders and to prevent or punish the alleged criminal acts occurring in the prison-camp.
In a statement given to Prosecution investigators, Hazim Delic maintained that he was a member of the military police under joint TO and HVO command and as such, acted as a guard at the prison-camp, from early May 1992 until 27 July 1992⁸⁴⁵. Up until this time he contended that he had exactly the same duties and position as other guards⁸⁴⁶. After this date he stated that he was appointed as officer for personnel and logistics in the prison-camp.⁸⁴⁷
Numerous witnesses testified before the Trial Chamber as to the role played by Hazim Delic in the Celebici prison-camp. He was variously described in the following manner: "I think that he was Pavo’s deputy"⁸⁴⁸; "I cannot be exact, but I think he was the superior of the guards"⁸⁴⁹; "[w]e heard that Pavo was the most important, Pavo Mucic, and he [Delic] was his deputy"⁸⁵⁰; "commander of the guards"⁸⁵¹; "deputy-commander of the camp";⁸⁵² "[f]rom what I could observe, he was some kind of a commander. Whether he was a guard commander or something like that…"⁸⁵³; " I asked, "who is this man ?, and the people who were already sitting there said it was Hazim Delic, he is number two, he is God and your life depends on him";⁸⁵⁴ "[t]hey called him the Commander of the Guard and also the Deputy Commander….I am not familiar with what he was, but anyway that is what he was called"⁸⁵⁵. On this issue of Mr. Delic’s role in the prison-camp, Witness F stated,⁸⁵⁶

The role of Mr. Delic…I don’t know what it was, but I know that when he would appear, we had to get up, and the guards told us when he would appear. They said: "Here comes the boss", and he would come every morning, and based on that I think that most probably he was the Deputy Commander of the camp.
Dr. Petko Grubac testified that Hazim Delic was the "assistant warden" or the "deputy warden"⁸⁵⁷. Later in his testimony he stated that the accused was the deputy commander of the camp on the basis that the guards addressed him as such⁸⁵⁸. The witness explained that the detainees were not officially told what people’s positions were and that they learnt this from the behaviour and the attitudes of the persons who were in charge and from the way in which the guards addressed them.⁸⁵⁹
Thus, the evidence indicates that the detainees, while not in a position to precisely identify the rank of the accused, in general regarded him as a person who had influence over them and the guards, and as the deputy commander of the prison-camp at all relevant times. While this evidence is relevant to the Trial Chamber’s consideration, it is not dispositive of Mr. Delic’s status. The issue before the Trial Chamber is whether the accused had the power to issue orders to subordinates and to prevent or punish the criminal acts of his subordinates, thus placing him within the chain of command. In order to do so the Trial Chamber must look to the actual authority of Hazim Delic as evidenced by his acts in the Celebici prison-camp.
The witness who gave the most detailed evidence in this regard was Esad Landzo, a co-accused. He testified that when Zdravko Mucic was not present Hazim Delic was in charge of the camp⁸⁶⁰. More specifically, he testified that the guards did not receive written orders, but received oral orders by which they had to abide⁸⁶¹. In relation to orders given by Mr. Delic, he stated that "I carried out all the orders out of fear and also because I believed I had to carry [sic], execute them"⁸⁶². In his testimony Mr. Landzo alleged that Mr. Delic had ordered him to mistreat⁸⁶³ and to even kill detainees⁸⁶⁴. To the extent that these allegations are relevant to the specific incidents alleged in the Indictment, they shall be discussed below.
The Trial Chamber notes that, during his testimony, Esad Landzo admitted to previously telling lies about the events in the Celebici prison-camp. In addition, it was part of his defence that, during the relevant period of the Indictment, he suffered from a personality disorder which diminished his capacity to exercise free will and caused him to seek approval of authority figures by following their instructions. Accordingly, testimony that indicates that he was ordered by Mr. Delic to mistreat prisoners would support and be consistent with his defence of diminished mental capacity. It is for these reasons that the Trial Chamber cannot rely upon the evidence of this co-accused on the issue of the superior responsibility of Hazim Delic, unless such testimony is supported by other independent evidence.
Further evidence regarding the relationship that Hazim Delic had with the guards was given by Grozdana Cecez when she testified that she "just noticed that they all feared him"⁸⁶⁵. Witness M further stated that he thought that Mr. Delic’s role "was one of command, of somebody that the guards and prisoners feared, somebody who gives the orders"⁸⁶⁶. Branko Sudar testified that Mr. Delic occasionally severely criticised guards and shouted at them just as he shouted at the prisoners⁸⁶⁷ and that when Mr. Mucic was absent Mr. Delic would give the orders⁸⁶⁸. Stevan Gligorevic also stated that he believed the reasons for Mr. Delic’s visit to Hangar 6 was to control his guards, to control the detainees and to abuse them⁸⁶⁹ and that all the detainees had to obey him and all the guards had to obey him "and they were even afraid of him."⁸⁷⁰
Further, the Prosecution alleges that Hazim Delic ordered the guards to mistreat detainees. It provides an example of one occasion when he allegedly ordered the guards to beat the detainees from Bradina for breakfast, lunch and dinner, after the killing of Muslims near Repovci in 1992. Upon examination of the evidence, this allegation is inconclusive on the issue of the command authority of Mr. Delic. Witness R gave evidence that two or three days after Bradina burnt down for the second time Mr. Delic ordered that all people from Bradina be beaten three times during that day and these beatings were administered by either the guards or Mr. Delic himself⁸⁷¹. Witness F, gave more detailed testimony and stated that Mr. Delic cursed and beat detainees after the Repovci incident and then said to Mr. Landzo "[t]his is what the people from Bradina are to get for breakfast, lunch and dinner"⁸⁷². The witness then testified that Mr. Landzo continued with this beating every day for a prolonged period of time⁸⁷³. Later in his testimony the witness conceded that Mr. Landzo would beat prisoners "on his own as well, even when Mr. Delic was not around"⁸⁷⁴, that is, without being told to do so by Mr. Delic. The evidence with respect to this allegation suggests that Mr. Delic conducted a vindictive beating of the people from Bradina on one particular day and then told at least one other guard, Mr. Landzo to continue this beating. However, it is not proven that the beatings that followed from that day or were "ordered" by Mr. Delic.
Further, the Prosecution alleges that after the visit of the ICRC to the prison-camp Mr. Delic ordered the guards to beat the prisoners. Witness F⁸⁷⁵ and Mirko Dordic⁸⁷⁶ testified to this incident and indicated that Mr. Delic "ordered" or was "commanding" the guards in this collective beating.
In conclusion, this evidence is indicative of a degree of influence Hazim Delic had in the Celebici prison-camp on some occasions, in the criminal mistreatment of detainees. However, this influence could be attributable to the guards’ fear of an intimidating and morally delinquent individual who was the instigator of and a participant in the mistreatment of detainees, and is not, on the facts before this Trial Chamber, of itself indicative of the superior authority of Mr. Delic sufficient to attribute superior responsibility to him.
The Trial Chamber now turns to a consideration of the other tasks that Hazim Delic performed in the Celebici prison-camp in order to determine whether such tasks demonstrate the exercise of actual superior authority. Witness D, a member of the Military Investigative Commission, testified that the Commission would receive a list of detainees in the prison-camp from Zdravko Mucic. Then, the Commission would write out a list of people to be "interviewed". He stated that they would give the list of detainees to Mr. Mucic, and if he was not there to Mr. Delic⁸⁷⁷. Indeed, he stated that Mr. Mucic told the Commission members that they should give the list to Mr. Delic so that he could take further action⁸⁷⁸. Finally, he confirmed that of the prison-camp staff, only Mr. Mucic and Mr. Delic had access to the Commission files⁸⁷⁹. It is clear from his testimony that the role of Mr. Delic was to assist Mr. Mucic by organising and arranging for detainees to be brought to interrogations.
Witness R also confirmed that Hazim Delic’s role in the prison-camp was organisation when he stated that he was the commander in the "sense of everyday life, everyday organisation and checking of presence and being together with the guards, in the sense that Mr. Delic was the daily organiser of everything happening in Celebici.⁸⁸⁰" Further, both Petko Grubac⁸⁸¹ and Witness P⁸⁸² confirmed they would provide requests for the medicine they required for the detainees in the prison-camp and that Mr. Delic would attempt to acquire them.
This evidence indicates that Hazim Delic was tasked with assisting Zradvko Mucic by organising and arranging for the daily activities in the Celebici prison-camp. However, it cannot be said to indicate that he had actual command authority in the sense that he could issue orders and punish and prevent the criminal acts of subordinates.
After having reviewed the relevant evidence before it, the Trial Chamber finds that the Prosecution has failed to establish beyond reasonable doubt, that Hazim Delic lay within the chain of command in the Celebici prison-camp, with the power to issue orders to subordinates or to prevent or punish criminal acts of subordinates. Accordingly, he cannot be found to have been a "superior" for the purposes of ascribing criminal responsibility to him under Article 7(3) of the Statute. Having made this finding, the Trial Chamber need not consider the other elements of criminal responsibility of superiors under the Statute.

F. Factual and Legal Findings Relating to Specific Events Charged in the Indictment

1. Introduction

The Trial Chamber, having made its factual and legal findings on the superior responsibility of Zejnil Delalic, Zdravko Mucic and Hazim Delic shall now consider each of the counts of the Indictment in turn in order to make its findings on the acts alleged therein.
Before continuing with a consideration of the facts, it should finally be noted that counts 13, 14, 33 to 35, 38, 39, 44 and 45 of the Indictment charge Zejnil Delalic, Zdravko Mucic and Hazim Delic with superior responsibility for the criminal acts of their subordinates, including murder, torture, causing great suffering or serious injury and inhumane acts. Counts 42 and 43 of the Indictment charge Hazim Delic with direct participation in inhumane acts. The factual allegations set forth in the Indictment in support of these counts contain references to specific criminal acts, as well as references to unspecified criminal acts alleged to have occurred in the Celebici prison-camp. In consideration of the rights enshrined in Article 21 of the Statute, and in fairness to the accused, the Trial Chamber does not regard the unspecified criminal acts referred to in the above-mentioned counts as constituing any part of the charges against the accused. Accordingly, in its findings in relation to these counts, the Trial Chamber will limit itself to a consideration of those criminal acts specifically enumerated in the Indictment.

2. Killing of Sc3. epo Gotovac - Counts 1 and 2

Paragraph 16 of the Indictment alleges that two of the accused – Hazim Delic and Esad Landzo – were responsible for the killing of Scepo Gotovac, an elderly Serb detainee in the Celebici prison-camp. This alleged killing is charged in counts 1 and 2 of the Indictment as follows:

Sometime around the latter part of June 1992, Hazim DELIC, Esad LANDZO and others selected Scepo GOTOVAC, aged between 60 and 70 years. Hazim DELIC, Esad LANDZO and others then beat Scepo GOTOVAC for an extended period of time and nailed an SDA badge to his forehead. Scepo GOTOVAC died soon after from the resulting injuries. By their acts and omissions, Hazim DELIC and Esad LANDZO are responsible for:

Count 1. A Grave Breach punishable under Article 2(a)(wilful killing) of the Statute of the Tribunal; and

Count 2. A Violation of the Laws or Customs of War punishable under Article 3 of the Statute of the Tribunal and recognised by Article 3(1)(a)(murder) of the Geneva Conventions.

(a) Prosecution Case

In support of the allegations contained in these two counts, the Prosecution brought and examined twelve witnesses, namely, Mirko Babic, Branko Gotovac, Witness F, Stevan Gligorevic, Witness N, Dragan Kuljanin, Mirko Dordic, Witness B, Branko Sudar, Risto Vukalo, Rajko Draganic and Witness R. In its Closing Brief, the Prosecution does not seek to rely on the testimony of Mr. Gligorevic.

(b) Defence Case

In his interview with Prosecution investigators, given on 19 July 1996 (Exhibit 103), Hazim Delic admitted that Scepo Gotovac had been killed in the Celebici prison-camp, but denied that he had been involved in causing his death. He did, indeed, blame another guard for it. In its Closing Brief, the Defence for Mr. Delic does not make any specific arguments in relation to these counts apart from its general challenges to the credibility of the Prosecution witnesses.
On the other hand, Esad Landzo, while appearing as his own witness, admitted that he had participated in the beating which led to the death of Scepo Gotovac. However, in mitigation of his actions, he contended that he had done so at the instance of Zdravko Mucic and Hazim Delic. He alleged that they had given him a piece of paper bearing the name of Mr. Gotovac and directed that this person should leave the prison-camp on the following day with his "feet forward", which he took to mean that they intended him to be killed. In its Closing Brief, the Defence for Mr. Landzo challenges the accounts given by the Prosecution witnesses in relation to these counts.

(c) Discussion and Findings
It will be noticed that the Defence⁸⁸³ does not dispute that Scepo Gotovac died in the Celebici prison-camp, by violence, while he was a detainee there. According to most of the witnesses, in the early afternoon of the relevant day, which was in mid to late June 1992, Hazim Delic and Esad Landzo approached Mr. Gotovac, who sat near the door inside Hangar 6, and Hazim Delic accused him of having killed two Muslims in 1942. Mr. Delic informed him that these Muslims had been killed in the prison-camp itself. Hazim Delic further referred to some old enmity between their families and told Mr. Gotovac that he should not hope to remain alive. Scepo Gotovac denied these allegations, whereupon Hazim Delic started to beat him. He was then taken out of the Hangar and the sound of blows and his moaning could be heard inside the Hangar. After some time, he was dragged back into the Hangar.
A few hours later, in the evening, he was once more taken out of the Hangar and Hazim Delic and Esad Landzo again administered a severe beating. As a result of this, he could not even walk back to his place inside and was carried into the Hangar by two of the other detainees. A metal badge, possibly bearing the insignia of the SDS, had been pinned to his head and Esad Landzo threatened the rest of the inmates of the Hangar by saying that he would kill anyone who dared remove it. As a consequence of this second beating, Scepo Gotovac died in the Hangar a few hours later.
Although there are some variations in the statements of the witnesses to these events, the basic features of their testimony remains the same. While appreciating their evidence, it has to be borne in mind that they were speaking about an incident which had occurred five years earlier and that they were confined in a place where physical violence was not an uncommon event.
It is true that Scepo Gotovac was beaten outside Hangar 6, while the witnesses were seated inside and could not, therefore, see the person or persons who were actually beating him. However, in view of what they saw and heard inside the Hangar, it could reasonably be said that they were in a position to know what was happening outside. For example, they:

(a) saw Hazim Delic walking up to Scepo Gotovac and accusing him of killing two Muslims in 1942, and, on his denial, hitting him;

(b) saw Hazim Delic and Esad Landzo taking Scepo Gotovac outside Hangar 6;

(c) heard the sound of blows, as well as the cries and moans of Mr. Gotovac, immediately after he was taken out;

(d) saw Scepo Gotovac being brought back into the Hangar in a poor condition;

(e) saw him again being taken out of Hangar 6 at about evening time;

(f) heard the sound of blows and the moans and cries of Mr. Gotovac, coming from outside the Hangar;

(g) saw Scepo Gotovac being carried into the Hangar after a short time;

(h) saw that a metal badge was stuck on his forehead;

(i) heard Esad Landzo shouting that anyone who removed the badge would be similarly treated; and

(j) found Scepo Gotovac dead in the morning.
These circumstance, when considered together, leave no room for doubt with regard to the persons who were responsible for causing the death of Scepo Gotovac. On the basis of the evidence on record, it is clear that both Hazim Delic and Esad Landzo participated in the beating which resulted in the death of the victim.
The testimony of Esad Landzo that he was asked by Zdravko Mucic and Hazim Delic to kill Scepo Gotovac, has no support on the record. By his own admission, Mr. Landzo has told lies in the past and the Trial Chamber considers him to be an unreliable witness concerning events within the Celebici prison-camp. It is therefore not safe to accept any part of his story which does not find support from other independent evidence. We would, accordingly, reject his allegation that he had beaten and killed Mr. Gotovac at the instance of Zdravko Mucic and Hazim Delic.
On the basis of these facts and the previous discussion of the offences of wilful killing and murder under the Statute, the Trial Chamber finds that the killing of Scepo Gotovac was a clear case of such wilful killing and murder. As stated above, a person commits wilful killing under Article 2 and murder under Article 3, when he has the intention to kill his victim or when he inflicts serious injuries upon him in reckless disregard of human life. In this case, Hazim Delic and Esad Landzo twice beat up a man of about 70 years, within a space of four to five hours, so mercilessly that on the first occasion he was left moaning in the Hangar, and on the second occasion he could not make his way back inside by himself. He died a few hours later on account of the injuries that he had thus received.
For these reasons, the Trial Chamber finds both Hazim Delic and Esad Landzo guilty, under counts 1 and 2 of the Indictment, of wilful killing and murder, as charged.

3. Killing of Zeljko Milosevic. - Counts 3 and 4

Paragraph 17 of the Indictment states that:

Sometime around the middle of July 1992 and continuing for several days, Zeljko MILOSEVIC was repeatedly and severely beaten by guards. Sometime around 20 July 1992, Hazim DELIC selected Zeljko MILOSEVIC and brought him outside where Hazim DELIC and others severely beat him. By the next morning, Zeljko MILOSEVIC had died from his injuries. By his acts and omissions, Hazim DELI] is responsible for:

Count 3. A Grave Breach punishable under Article 2(a)(wilful killing) of the Statute of the Tribunal; and

Count 4. A Violation of the Laws or Customs of War punishable under Article 3 of the Statute of the Tribunal and recognised by Article 3(1)(a)(murder) of the Geneva Conventions.

(a) Prosecution Case
In support of the allegations in these two counts of the Indictment, the Prosecution seeks to rely principally on the evidence of Miro Golubovic, Novica Dordic, Milenko Kuljanin and Risto Vukalo. The Prosecution also called and examined Witness P, Witness J and Fadil Zebic who gave evidence in relation to these counts.
The Prosecution relies mainly upon the evidence of Milenko Kuljanin and Novica Dordic in support of its allegations. It alleges that Zeljko Milosevic was subjected to various serious beatings and mistreatment before he was killed by Hazim Delic. The Prosecution alleges that on one of these occasions Zeljko Milosevic was beaten with a piece of electrical cable and that on another occasion he was partially submerged in a manhole full of water for one night. Finally, the Prosecution alleges that after Zeljko Milosevic, in the presence of journalists visiting Celebici prison-camp, refused to make "confessions" that he had raped and tortured Muslims Hazim. Delic called him out of Tunnel 9, beat him, and that he died as a result. In support of its allegation, the Prosecution seeks to rely on Exhibit 185, a funeral certificate relating to Zeljko Milosevic.

(b) Defence Case
Hazim Delic was the only accused charged as a direct participant in the acts alleged in these counts. In the Motion to Dismiss⁸⁸⁴, his Defence submits, that on the facts, only two witnesses testified from personal knowledge regarding the alleged killing of Zeljko Milosevic, and their accounts differ. It is contended that Novica Dordic stated that when Arab journalists visited the prison-camp, Zeljko Milosevic and an other prisoner, had been asked to confess that they were snipers and that they had killed Muslims, and as a result of their refusal to do so, they were beaten by Hazim Delic and Esad Landzo, in the presence of the journalists. The Defence contends that Milenko Kuljanin had a sharply different story, in that the confession sought was in relation to the rape and torture of Muslim women and the torture and killing of children. Upon his refusal to do so, Zeljko Milosevic was returned to Tunnel 9. The Defence points out that, on the night that Zeljko Milosevic died, both of these witnesses were inside Tunnel 9 and thus could not observe what was occurring outside. Further, the Defence notes that, while both witnesses heard screams and moans, only one claims to have heard a shot. Finally, the Defence alleges that the evidence presented by the Prosecution is insufficient to prove that the beatings to which Zeljko Milosevic had been subjected to prior to the night of his death were severe.
Further, in a statement made by Mr. Delic in an interview with the Prosecution, on 19 July 1996, he stated that Zeljko Milosevic was killed in the prison-camp by another guard, whilst denying that he participated in causing his death (Exhibit 103).

(c) Discussion and Findings
The Defence does not dispute that Zeljko Milosevic died in the Celebici prison-camp. According to a number of Prosecution witnesses including Miro Golubovic, Novica Dordic, Milenko Kuljanin, Witness P, Risto Vukalo and Witness J, Zeljko Milosevic was subjected to a series of interrogations, beatings and other mistreatment during his detention in Tunnel 9. These were inflicted both inside and outside the tunnel, by Hazim Delic and Esad Landzo, because he was suspected of being a Serb sniper. On one occasion, he was called outside of Tunnel 9 and severely beaten with a piece of electrical cable by Mr. Delic. On another occasion, he was submerged in a manhole filled with water for a whole night.
Prior to his death, journalists had visited the prison-camp and Zeljko Milosevic was taken out of Tunnel 9 by Hazim Delic and asked to make "confessions" in front of these journalists, which he refused to do. After this incident, Zeljko Milosevic was called out of Tunnel 9 by Hazim Delic at night and the door of Tunnel 9 was closed. Mr. Delic spoke to Zeljko Milosevic and then inflicted a vicious beating upon him. Zeljko Milosevic did not return to Tunnel 9 that night. The following morning the motionless body of Zeljko Milosevic was observed by a number of Prosecution witnesses, lying near the hole where the prisoners had been taken to urinate.
With respect to the all of the allegations relating to these counts and particularly the incident which finally lead to the death of Zeljko Milosevic, the Trial Chamber lends particular credence to the testimony of Novica Dordic and Milenko Kuljanin. Novica Dordic was situated only a very short distance from the door of Tunnel 9. He was in a position to see and hear what was occurring outside the door, as it was open during the beatings leading up the final one occasioning Zeljko Milosevic’s death. This witness conceded that he did not see the final beating, as the door of Tunnel 9 was closed. However, he heard Mr. Delic call the victim out, after which he heard a discussion, then beatings and finally a shot. This is consistent with and supported by the testimony of Milenko Kuljanin, who testified that Hazim Delic called and personally took Zeljko Milosevic out of Tunnel 9, after which he heard the victim screaming, moaning and crying out for over an hour, indicating the severity of the beating inflicted upon him. The following morning Milenko Kuljanin, Novica Dordic and Witness J observed the victim’s dead body near the place where they were taken to urinate. Further, Milenko Kuljanin gave testimony relating to Hazim Delic’s state of mind. This witness stated that, after the journalists had visited the prison-camp and the victim had failed to make the confessions sought of him, Mr. Delic came back into Tunnel 9, bringing with him Zeljko Milosevic and the others who had previously been taken out to be interviewed. He threatened them by saying that they "would remember him well"⁸⁸⁵. In addition, Milenko Kuljanin testified that, the day before, Hazim Delic had "forewarned him [Zeljko Milosevic] of what was to come and told him to be ready" at one in the morning⁸⁸⁶. Although there are some variations between the testimony provided by the witnesses to these events, the fundamental features of this testimony, as it relates to Zeljko Milosevic’s last evening of life, are consistent and credible.
The Trial Chamber finds that in July 1992, after inflicting numerous beatings, Hazim Delic deliberately and severely beat Zeljko Milosevic for a period of at least an hour. The beatings leading up to and including the last prolonged and serious beating, and Mr. Delic’s threats to the victim prior to the last beating, demonstrate an intent to kill on the part of Mr. Delic. The Trial Chamber is further convinced that the beating inflicted on this occasion caused the death of the victim.
For these reasons, the Trial Chamber finds Hazim Delic guilty of wilful killing, under count 3 of the Indictment and of murder, under count 4 of the Indictment.

4. Killing of Simo Jovanovic. - Counts 5 and 6

In paragraph 18 of the Indictment, Hazim Delic and Esad Landzo are again alleged to be responsible for the killing of one of the detainees in the Celebici prison-camp, Simo Jovanovic. The acts of these two accused in this respect are charged in counts 5 and 6 as follows:

Sometime in July 1992 in front of a detention facility, a group including Hazim DELIC and Esad LANDZO over an extended period of time severely beat Simo JOVANOVIC. Esad LANDZO and another guard then brought Simo JOVANOVIC back into the detention facility. He was denied medical treatment and died from his injuries almost immediately thereafter. By their acts and omissions, Hazim DELIC and Esad LANDZO are responsible for:

Count 5. A Grave Breach punishable under Article 2(a)(wilful killing) of the Statute of the Tribunal; and

Count 6. A Violation of the Laws or Customs of War punishable under Article 3 of the Statute of the Tribunal and recognised by Article 3(1)(a)(murder) of the Geneva Conventions.

(a) Prosecution Case

In support of these charges, the Prosecution relies in its Closing Brief upon the testimony of twelve of its witnesses, namely, Mirko Babic, Mirko Dordic Witness F, Stevan Gligorevic, Nedeljko Draganic, Witness N, Witness P, Witness B, Branko Sudar, Rajko Draganic, Milovan Kuljanin and Witness R. It also refers to the oral testimony of Esad Landzo. It should be noted that Petko Grubac, Branko Gotovac and Fadil Zebic also testifed in relation to these allegations

(b) Defence Case

In his oral testimony before the Trial Chamber, Esad Landzo admitted that, on the relevant evening, he had taken Simo Jovanovic from Hangar 6, but that he had done so at the instance of some other guards who informed him that they had obtained permission from the authorities in this regard. Mr. Landzo denied that he had taken part in the beating of Mr. Jovanovic, and his Defence argued, in its Closing Brief, that no witness was able to claim to have seen who actually carried out the beating which led to his death.
Hazim Delic, in his interview with Prosecution investigators on 19 July 1996 (Exhibit 103), conceded that Simo Jovanovic had been killed whilst in the Celebici prison-camp, but denied that he had played any role in causing his death. The Defence for Mr. Delic, in its Closing Brief, made no particular submissions in relation to this incident.

Simo Jovanovic was a Bosnian Serb of about 60 years of age who had lived in the village of Idbar, in Konjic municipality. It seems that, prior to the war, he was the owner of a fish farm in the municipality, in addition to being involved in the running of a construction company in the town of Konjic. It appears from the testimony of some witnesses that he may have been arrested and detained by the MUP for a period prior to his transfer to the Celebici prison-camp. As a consequence of his mistreatment during this time, he was in need of medical treatment when he arrived at the prison-camp. He was, however, confined to Hangar 6 up until the time of his death. Each of the abovementioned witnesses for the Prosecution, with the exception of Witness P, were also kept in Hangar 6 at the relevant time and were thus in a position to depose about the circumstances relating to his death.
It appears that there were some guards employed in the Celebici prison-camp who came from the same village as Mr. Jovanovic and who had personal scores which they wished to settle with him. Thus, these individuals, with the assistance of Esad Landzo, would often take him out of the Hangar during the night and beat him severely. As a result, Mr. Jovanovic remained in a poor physical condition at all times.
Sometime at the end of June or beginning of July 1992, Esad Landzo called Simo Jovanovic out of the Hangar, as on previous occasions. There is some variation in the accounts of the witnesses on whether Mr. Landzo was alone on this occasion, or whether he was accompanied by some other guard or guards. In any case, Mr. Jovanovic was taken behind Hangar 6 and given a severe beating by a number of persons. His moans, cries and appeals for mercy could be heard inside the Hangar by the witnesses. After about 15 to 20 minutes he was brought back inside and died a few hours later.
As has been noted above, Esad Landzo admits that he took Simo Jovanovic out of Hangar 6 on the relevant evening, but denied that he joined the others in beating him. However, this version of events is not convincing. All of the witnesses testified that Mr. Landzo had taken Mr. Jovanovic out of the Hangar on previous occasions, during which he was also mistreated by other guards who knew him from his home village. It appears the Mr. Landzo did not report these incidents to the relevant persons in the prison-camp. Furthermore, there is witness testimony that Mr. Landzo himself had, on occasion, beaten the deceased inside the Hangar. In addition, on the day in question, at the very least, Mr. Landzo must have known why the other guards wished Simo Jovanovic called from the Hangar and he willingly lent his hand to the assailants. Therefore, even if his explanation that he did not personally hit the deceased were to be accepted, Esad Landzo cannot absolve himself of responsibility for his death as he clearly, at the very least, was in the position of facilitating the perpetration of the offence. As has been previously discussed individual criminal responsibility arises where the acts of the accused contribute to, or have an effect on, the commission of the crime and these acts are performed in the knowledge that they will assist the principal in the commission of the criminal act. Mr. Landzo himself stated that he had been posted outside of the Hangar to guard the detainees therein and there can be little doubt that he was aware of the intentions of Mr. Jovanovic’s assailants and that, without his help, they could not have laid their hands on said victim.
In relation to Hazim Delic, there is insufficient evidence to show that he was connected in any way with the killing of Simo Jovanovic. The only witness who mentions his presence at the time when the fatal beating was administered is Branko Sudar. According to this witness, he heard the voice of Mr. Delic coming from outside the Hangar, giving orders and, on a couple of occasions, saying "enough, stop the beating". It is to be noticed that this witness was present inside the Hangar while the beating was taking place outside.
It is not safe to ascribe responsibility to Hazim Delic for this incident, merely on the basis of voice recognition, when no other witness was able to confirm that they heard his voice at the time when Simo Jovanovic was fatally beaten. The only other witness who mentions Mr. Delic in relation to the victim is Witness P, who testified that, a few days before the death, he told Mr. Delic that Mr. Jovanovic’s condition was very poor and that he needed treatment in Building 22, which was not given. The conclusion cannot be reached that Mr. Delic was a party to the killing of Mr. Jovanovic on the basis that he did not follow this advice.
On the basis of the above discussion, the Trial Chamber finds that the death of Simo Jovanovic as a result of the injuries inflicted upon him during a prolonged and vicious beating, amounts to wilful killing and murder. Due to his participation in this beating, at the very least as an aidor and abettor who knowingly facilitated the beating inflicted by others, Esad Landzo is thus found guilty under counts 5 and 6 of the Indictment. On account of the lack of evidence brought concerning the participation of Hazim Delic in the acts causing the death of Mr. Jovanovic, the Trial Chamber finds him not guilty under these counts.

5. Killing of Bosko Samoukovic. - Counts 7 and 8

Paragraph 19 of the Indictment further alleges that the accused Esad Landzo is responsible for the killing of Bosko Samoukovic, a detainee in the Celebici prison-camp, who was 60 years of age and confined in Hangar 6. This alleged killing is charged in counts 7 and 8 of the Indictment as follows:

Sometime in July 1992, Esad LANDZO beat a number of detainees from Bradina with a wooden plank. During the beatings, Esad LANDZO repeatedly struck Bosko SAMOUKOVIC, aged approximately 60 years. After Bosko SAMOUKOVIC lost consciousness from the blows, he was taken out of the detention facility and he died soon after from his injuries. By his acts and omissions, Esad LANDZO is responsible for:

Count 7. A Grave Breach punishable under Article 2(a)(wilful killing) of the Statute of the Tribunal; and

Count 8. A Violation of the Laws or Customs of War punishable under Article 3 of the Statute of the Tribunal and recognised by Article 3(1)(a)(murder) of the Geneva Conventions.

(a) Prosecution Case
The Prosecution contends that, a few days after an incident in July 1992 when a number of Bosnian military policemen were attacked and killed near the village of Bradina, Esad Landzo selected Bosko Samoukovic from among the detainees in the Celebici prison-camp and so mercilessly beat him that he died around 15 to 20 minutes later in the so-called infirmary within the prison-camp.
In support of these allegations, the Prosecution relies upon the testimony of several of its witnesses, namely, Mirko Babic, Stevan Gligorevic, Nedeljko Draganic, Dragan Kuljanin, Mladen Kuljanin, Petko Grubac, Risto Vukalo, Mirko Dordic, Rajko Draganic and Witnesses F, N, P, M, B, and R. The Prosecution also refers to the testimony given by Esad Landzo in his own defence. It should also be noted that Miro Golubovic, Branko Sudar and Branko Gotovac provided further testimony in relation to the death of Mr. Samoukovic.

(b) Defence Case

In his oral testimony before the Trial Chamber, Esad Landzo admitted that he had beaten Bosko Samoukovic, but denied that he had ever intended to kill him. In this context he pointed out that he himself had taken Mr. Samoukovic to the so-called infirmary in the prison-camp and had asked the doctor to cure him. In justification of his mistreatment of the deceased, Mr. Landzo referred to an incident which occurred on 12 July 1992, in which a patrol party containing members of the local military police was ambushed near Bradina by armed Serbs and, as a result, all of the party were killed. Mr. Landzo stated that the assailants had mutilated the bodies of these military policemen, among whom were persons close to him, and, having seen their dead bodies, he felt extremely perturbed. Immediately thereafter and in this state of mind, he had inflicted the beating on Mr. Samoukovic.

Bosko Samoukovic was a Bosnian Serb from the village of Bradina, who was about 60 years of age and worked as a railway worker. He was arrested along with his two sons shortly after the forces of the Bosnian government wrested control of the village from the Bosnian Serbs who had been holding it. Upon his arrest he was detained in Hangar 6 in the Celebici prison-camp.
It is not disputed by the Defence for Mr. Landzo that Bosko Samoukovic was beaten inside Hangar 6. In addition, with the exception of Witness P and Dr. Petko Grubac, all of the other witnesses mentioned above were confined in the same Hangar and were in a position to see the beating inflicted upon Mr. Samoukovic. These witnesses have stated, with minor variations, that Esad Landzo walked up to the deceased, asked him his name and ordered him to stand up. Mr. Landzo then began beating him with a wooden plank, which was around one metre long and five or six centimetres thick, and which was ordinarily used to secure the door of the Hangar. This beating lasted for some time, until, ultimately, Bosko Samoukovic fell down. He was then carried to the makeshift infirmary in Building 22, where he succumbed to his injuries.
At the so-called infirmary the two doctors who were housed there examined Mr. Samoukovic. They observed that he was finding it difficult to breathe and had some broken ribs. Witness P testified that, on his inquiry, Mr. Samoukovic told him that he had been beaten by Esad Landzo. He further deposed that, before the arrival of the deceased in the infirmary, he had been hearing cries and the sound of blows from elsewhere in the prison-camp for about 20 minutes. Both Witness P and Dr. Grubac stated that Bosko Samoukovic died within 20 minutes of his arrival in the infirmary.
From the testimony of Witness P it would seem that the arrival of Esad Landzo at the infirmary was not out of any concern for the health of Bosko Samoukovic. This witness stated that Mr. Landzo in fact issued him with a threat, saying that Mr. Samoukovic should be "ready" by 6 o’clock or he (that is, the witness) should be "ready". Witness P understood this threat as implying that Bosko Samoukovic should be made ready for a another beating by the evening or he himself should get ready to receive a beating instead.
According to Dr. Grubac, Hazim Delic also came to the infirmary and, when he saw the condition of Bosko Samoukovic, he sent for Esad Landzo and inquired from him what he had done. Thereupon Esad Landzo asked the doctor to see that Mr. Samoukovic was treated and, indeed, to "cure" him.
Even should it be conceded that Mr. Landzo’s request to Dr. Grubac is evidence of some remorse for his actions, rather than a mere expression of his fear of recriminations from Mr. Delic, this can hardly detract from the gross nature of his conduct in mercilessly beating an elderly person with a heavy implement. It appears that the only reason for his assault on Mr. Samoukovic was that the latter was a Serb from Bradina and thus somehow deserving of punishment for the acts of other Serbs from Bradina in killing several Bosnian police officers. The ferocity of the attack can further be gauged from the fact that the victim did not survive for more than half an hour afterwards. Such a brutal beating, inflicted on an old man and resulting in his death, clearly exhibits the kind of reckless behaviour illustrative of a complete disregard for the consequences which this Trial Chamber considers to amount to wilful killing and murder. In these circumstances, any subsequent pleas to the doctor cannot detract from the gravity of Mr. Landzo’s inhuman conduct.
For the reasons stated above, the Trial Chamber finds Esad Landzo guilty under counts 7 and 8 of the Indictment for the wilful killing and murder of Bosko Samoukovic.

6. Killing of Slavko Susic. - Counts 11 and 12

In paragraph 21 of the Indictment, Hazim Delic and Esad Landzo are alleged to be responsible for the killing of Slavko Susic, another of the detainees in the Celebici prison-camp. The acts of these two accused in this respect are charged in counts 11 and 12 as follows:

Sometime around the latter part of July, or in August 1992, a group including Hazim DELIC and Esad LANDZO repeatedly selected Slavko SUSIC for severe beatings. Hazim DELIC, Esad LANDZO and others beat Slavko SUSIC with objects, including a bat and a piece of cable. They also tortured him using objects including pliers, lit fuses, and nails. After being subjected to this treatment for several days, Slavko SUSIC died from his injuries. By their acts and omissions, Hazim DELIC and Esad LANDZO are responsible for:

Count 11. A Grave Breach punishable under Article 2(a)(wilful killing) of the Statute of the Tribunal; and

Count 12. A Violation of the Laws or Customs of War punishable under Article 3 of the Statute of the Tribunal and recognised by Article 3(1)(a)(murder) of the Geneva Conventions.

(a) Prosecution Case

In respect of these two counts, the Prosecution brought and examined seven witnesses, namely, Grozdana Cecez, Miljoka Antic, Miro Golubovic, Novica Dordic, Milenko Kuljanin, and Witnesses J and P. Relying on these witnesses, the Prosecution contends that Slavko Susic was tortured to death by Hazim Delic and Esad Landzo in order to obtain information about a radio transmitter which he was suspected of having in his possession and using for guiding Serb gun-fire on his village.

(b) Defence Case

Both Hazim Delic and Esad Landzo have denied that they had killed Slavko Susic in the Celebici prison-camp. However, neither of these two accused dispute that Mr. Susic died while detained in the prison-camp as a result of violence. The position taken by Hazim Delic in his interview with the Prosecution investigators of 19 July 1996 (Exhibit 103), is that Mr. Susic was killed by a fellow Serb, who was also confined in Tunnel 9. For his part, Esad Landzo admitted during his oral testimony that he had once hit Mr. Susic in the back, by way of a push as he was being led by some guards into the Tunnel, but did not make any statement concerning the death of Mr. Susic. The Defence for Mr. Landzo, in its Closing Brief, seeks to attribute responsibility for this killing to another of the detainees in the prison-camp.

Slavko Susic was from the village of Celebici, where he was a teacher. After his arrest in June 1992, he was confined in the Celebici prison-camp, in Tunnel 9, which was apparently utilised to house those detainees considered to be the most dangerous.
It appears from the testimony of the Prosecution witnesses listed above that Hazim Delic and Esad Landzo mistreated Slavko Susic on one particular day in July 1992, over a continuous period, in order to extract information from him in respect of a radio transmitter. According to Milenko Kuljanin, Hazim Delic even deputed Zara Mrkajic, another of the detainees, to try to persuade Mr. Susic to disclose the location of the transmitter, but this had no success. As a result of further serious mistreatment by Mr. Delic and Esad Landzo, including being beaten with a heavy implement, Mr. Susic apparently finally offered to identify the place where the transmitter was lying hidden, whereupon Hazim Delic and some other guards accompanied him to his house. On the failure there to recover the transmitter, Mr. Susic was brought back to the prison-camp and subjected to a further severe beating.
Milenko Kuljanin also testified that he had seen Esad Landzo pulling the tongue of Slavko Susic with pliers, tying fuses round his legs and waist and then lighting them. He further stated that, while thus mistreating Mr. Susic, Esad Landzo was questioning him about the whereabouts of the abovementioned radio transmitter. It should be noted that Tunnel 9 had an iron door, which Mr. Kuljanin claimed was open at the time when Mr. Landzo was thus mistreating Mr. Susic. However, it is difficult to believe that, from the position that he occupied in the tunnel, Milenko Kuljanin could be in a position to see what was happening outside the door. It is to be noticed that the tunnel was below ground level and sloped downwards. There were also several steps in front of the door. A person who did not sit right beside the door thus could not have a clear view of what was occurring outside. There were six persons sitting between Mr. Kuljanin and the entrance to the tunnel and so his position was a short distance down the slope of the tunnel floor. The Trial Chamber is not convinced that from this location he would have been able to have a clear sight of the mistreatment meted out to Slavko Susic.
Of the witnesses examined by the Prosecution only three, namely, Novica Dordic, Milenko Kuljanin and Witness J, were confined in Tunnel 9. Mr. Dordic testified that he was inside the tunnel when Hazim Delic and Esad Landzo took Slavko Susic away. He deposed that, after a long time, Mr. Susic was pushed back into the tunnel and died shortly afterwards. Witness J claimed that, at the relevant time, he was present outside Tunnel 9 as he had been ordered to clear cigarette butts from the area. From this location he saw Slavko Susic with Esad Landzo, Zara Mrkajic and a guard apparently by the name of Focak. Witness J testified that these persons were pulling out Mr. Susic’s tongue with some kind of implement. Unlike Milenko Kuljanin, this witness made no mention of the use of fuses to mistreat Mr. Susic. Milenko Kuljanin also deposed that the body of Mr. Susic remained in the tunnel for two nights and a day after his death. This is contrary to the version of the other witnesses from the tunnel, who stated that the body of the deceased was removed on the morning following the events leading to his death.
Grozdana Cecez testified before the Trial Chamber that she had seen Hazim Delic beating Slavko Susic from a window of the reception building (Building A) where she was detained and that there was another guard with him at that time. Although she did not recognise this second guard, she thought that his name was Makaron. She further stated that, on the next day, she learnt from another guard that Slavko Susic had been killed by Zara Mrkajic. Milojka Antic also testified that she had seen Hazim Delic beating Mr. Susic and Delic had another guard with him at that time, whom she did not know. Another witness, Miro Golubovic, stated that, at the relevant time, he was confined in Building 22 and from there he saw Hazim Delic beating Slavko Susic. This witness mentioned the presence of Esad Landzo on the occasion and stated that as Slavko Susic fell on the concrete floor, Esad Landzo dragged him by the arms. Witness P further testified that he saw Hazim Delic and Esad Landzo beating Slavko Susic from the window of Building 22 and that Hazim Delic had a blunt weapon with him. He also stated that he saw Mr. Susic in the tunnel when he visited that place to give a penicillin injection to a prisoner there and that Mr. Susic was in extremely bad shape and appeared exhausted. Later, Witness P heard that Mr. Susic had been killed by one Macic.
Despite the varying nature of the testimony of its witnesses in relation to these charges, the Prosecution maintains that Slavko Susic died inside Tunnel 9 as a result of the injuries inflicted upon him by Hazim Delic and Esad Landzo. However, as observed above, the testimony of the three witnesses from the tunnel itself, who were examined in support of this allegation, is not entirely consistent in relation to the events leading to the death of Slavko Susic. Although there is strong suspicion that Mr. Susic died as a result of the severe beating and mistreatment inflicted upon him by Hazim Delic and Esad Landzo, it is not absolutely clear who inflicted the fatal injuries upon him and some of the Prosecution witnesses have indeed attributed the killing to other persons. In these circumstances, the Trial Chamber cannot be certain that the direct cause of the death of Slavko Susic was the beating and mistreatment given to him by these two accused.
Nonetheless, it is clear that Mr. Delic and Mr. Landzo were, at the very least, the perpetrators of heinous acts which caused great physical suffering to the victim and, while they are not charged in this manner, it is a principle of law that a grave offence includes a lesser offence of the same nature. Accordingly, the Trial Chamber finds Hazim Delic and Esad Landzo not guilty of the charges of wilful killing and murder but finds them guilty of wilfully causing great suffering or serious injury to body or health, a grave breach of the Geneva Conventions of 1949 punishable under Article 2 of the Statute, and cruel treatment, a violation of the laws or customs of war punishable under Article 3 of the Statute.

7. Various Murders in Paragraph 22 of the Indictment - Counts 13 and 14

Paragraph 22 of the Indictment states that:

With respect to the murders committed in Celebici camp, including: the murder in June 1992 of Milorad KULJANIN, who was shot by guards, one of whom said they wished a sacrifice for the Muslim festival of Bairaim; the murder of Zeljko CECEZ, who was beaten to death in June or July 1992; the murder of Slobodan BABIC, who was beaten to death in June 1992; the murder of Petko GLIGOREVIC, who was beaten to death in the latter part of May 1992; the murder of Gojko MILJANIC, who was beaten to death in the latter part of May 1992; the murder of Zeljko KLIMENTA, who was shot and killed during the latter part of July 1992; the murder of Miroslav VUJICIC, who was shot on approximately 27 May 1992; the murder of PERO MRKAJIC, who was beaten to death in July 1992; and including all the murders described above in paragraphs sixteen to twenty-one...

Zejnil Delalic, Zdravko Mucic and Hazim Delic are charged as superiors who knew or had reason to know that their subordinates were about to commit the above alleged acts or had done so, and had failed either to take the necessary and reasonable steps to prevent those acts or to punish the perpetrator thereof. Accordingly, they are charged as follows:

Count 13. A Grave Breach punishable under Article 2(a)(wilful killings) of the Statute of the Tribunal; and

Count 14. A Violation of the Laws or Customs of War punishable under Article 3 of the Statute of the Tribunal and recognised by Article 3(1)(a)(murders) of the Geneva Conventions.
The Trial Chamber’s findings as to the offences alleged in paragraphs 16 to 19 and 21 of the Indictment, as charged here, have been set out above. Further, as discussed above⁸⁸⁷, the Trial Chamber restricts itself to addressing the specific allegations in the Indictment and will, accordingly, limit itself to a consideration of the following eight factual allegations of murder.

(a) Murder of Milorad Kuljanin

The Indictment alleges that Milorad Kuljanin was shot by guards in the Celebici prison-camp in June 1992. In seeking to establish the facts in relation to this charge, the Prosecution relies principally upon the evidence given by Witness R, who testified that he could observe the killing from a point "maybe one step away" from where the act occurred⁸⁸⁸. Witness R testified that he saw Milorad Kuljanin being called out of Hangar 6 and questioned by one of the guards. He was then ordered to lie face down in a canal filled with urine, where, after being questioned further, he was shot in the head at close range. In his testimony, Witness R stated that Milorad Kuljanin’s death had occurred on Bairam, because he recalled that the guards, for several days prior to this incident, had repeatedly threatened that if they did not "slaughter ten of you [the detainees] for Bairam we are no [sic] good Muslims"⁸⁸⁹. The Prosecution submits that Witness R’s account of Mr. Kuljanin’s death is supported by the testimony of Stevan Gligorevic, Witness N, Dragan Kuljanin, Witness M, Mladen Kuljanin and Mirko Dordic. The Prosecution also relies upon Exhibit 185, a funeral certificate, to establish the alleged victim’s death.
The Defence⁸⁹⁰ contends that the evidence in relation to the present charge is so widely at variance that no reliance properly can be put upon it. It submits in this respect, inter alia, that the accounts of the killing of Milorad Kuljanin given by Witness N and Witness R, who both testified to having witnessed the incident, contain irreconcilable discrepancies. It further notes the existence of discrepancies in the evidence before the Trial Chamber as to the identity of the guard who called Milorad Kuljanin out of Hangar 6 prior to his death, and to the number of shots subsequently fired. On this basis, the Defence submits that the Prosecution has failed to prove the killing of Milorad Kuljanin beyond a reasonable doubt.
In addition to the seven witnesses relied upon by the Prosecution, evidence in relation to the present charge was given by the Prosecution witnesses Risto Vukalo and Witness F. The testimony of these nine witnesses is consistent as to the fact that Milorad Kuljanin was killed in the Celebici prison-camp on or around the religious holiday of Bajram in 1992. The Trial Chamber notes, however, that there exist significant inconsistencies in the evidence as to the precise circumstances surrounding this man’s death. In his testimony before the Trial Chamber, Witness R gave a detailed account of the killing of Milorad Kuljanin, which he stated he had observed from a very short distance. According to this witness, he was part of a group of five or six persons who were outside Hangar 6 in order to relieve themselves, when he observed Milorad Kuljanin being taken out of the Hangar by guards. Milorad Kuljanin was then subjected to questioning immediately in front of the group, forced to lie down in a ditch filled with urine where, after further questioning, he was shot three times from a distance of 20 to 30 centimetres. The Trial Chamber has not found it possible to reconcile this version of events with that provided by Witness N. In testimony, this witness described how he was in a group of ten other detainees who were visiting the latrines when they passed Milorad Kuljanin. The witness stated that four or five of the detainees who were in front of the group were forced to hit Milorad Kuljanin and that one of the guards thereafter pointed a gun at the victim’s forehead and fired two shots directly into his head. It will be noted that these two accounts differ in significant respects not only as to the events said to immediately precede the killing of Milorad Kuljanin, but also with respect to the number of detainees present on this occasion. In the latter respect, Mirko Dordic, in contrast to the foregoing accounts, testified that there were only three detainees outside Hangar 6 at the relevant time.
In view of these divergent accounts with respect to fundamental aspects of the alleged events, the Trial Chamber finds there exists a sufficient degree of uncertainty concerning the circumstances surrounding Milorad Kuljanin’s death as to prevent it from reaching any conclusive factual findings in relation to this charge. Accordingly, the Trial Chamber finds that it has not been proved beyond a reasonable doubt that the killing of Milorad Kuljanin constitutes wilful killing under Article 2 or murder under Article 3.

(b) Murder of Zeljko Cecez

The Indictment alleges that Zeljko Cecez was beaten to death in the Celebici prison-camp in June or July 1992. In establishing the facts in relation to this event, the Prosecution relies on the testimony of Witness R. According to the testimony of this witness, Zeljko Cecez was called out of Hangar 6 in the evening of the same day that Milorad Kuljanin was killed. From his position inside the Hangar, the witness could then, for a period of about half an hour, hear the sound of a human body being beaten, together with the cries and moans of Zeljko Cecez. The witness testified that Zeljko Cecez was then brought back into the Hangar, where he first lay moaning but soon fell silent. The following morning, the witness had an opportunity to observe Zeljko Cecez’s lifeless body at close range for more than an hour. The body was covered in bruises and had an ash grey colour "as if there was never a drop of blood in that body"⁸⁹¹. The body was carried out of the Hangar by a detainee the same morning. The Prosecution submits that corroboration of this testimony is provided by the testimony of Witness N, Dragan Kuljanin, Mladen Kuljanin, Risto Vukalo, Witness F, Stevan Gligorevic, and Mirko Dordic, who were all present inside Hangar 6 at the time of the alleged events. In order to establish the death of the victim, the Prosecution further relies on Exhibit 185, a funeral certificate. The Prosecution further submits that the evidence suggests that Zeljko Cecez may have been killed because he had been a witness to the killing of Milorad Kuljanin. It relies in this respect on the testimony of Witness R, Witness F and Witness M.
The Defence submits that the Prosecution’s evidence in support of this alleged killing contains numerous inconsistencies. It thus observes that two of the Prosecution witnesses, Witness F and Mladen Kuljanin were unable to identify the individual who called Zeljko Cecez out of Hangar 6, while three other Prosecution witnesses, Mirko Dordic, Risto Vukalo and Witness R, testified that it was Esad Landzo who called him out. It further notes that the witnesses’ accounts of how Zeljko Cecez was brought back into the Hangar after the alleged beatings also differ. For example, while Stevan Gligorevic and Mladen Kuljanin assert that, after the beating, Zeljko Cecez was carried back to the Hangar by detainees, Witness N and Mirko Dordic contend that he was simply thrown back into the Hangar, whereas Witness R asserts that he was brought back by some guards who were accompanied by Esad Landzo.
With respect to the present charge, Witness R and Mirko Dordic have provided precise and fundamentally consistent accounts, barring insignificant discrepancies, of the incident alleged in the Indictment. This evidence, which the Trial Chamber accepts as accurate and truthful, is further supported in all material respects by the testimony of Witness N, Dragan Kuljanin, Mladen Kuljanin, Risto Vukalo, Witness F, Stevan Gligorevic, and Witness M. While noting the inconsistencies in the Prosecution’s evidence as pointed out by the Defence, the Trial Chamber does not believe them to be significant for the purposes of its findings in relation to this offence, recognizing that the type of incident herein described is alleged to have occurred with some frequency in the Celebici prison-camp and considering the period of time that elapsed between the events at issue and the witnesses’ testimony.
Based upon this evidence, the Trial Chamber finds it proven beyond reasonable doubt that Zeljko Cecez, on the relevant day, was called out of Hangar 6 in the Celebici prison-camp by one or more of the prison-camp guards. Outside the Hangar he was subjected to a prolonged and severe beating. Thereafter, Zeljko Cecez was taken back to the Hangar where, as a result of the injuries thus inflicted upon him, he died later that same night. The severity of the beating inflicted on Zeljko Cecez is attested to by the extent of the bruising on his body, as observed by Witness R the morning after his death.
In relation to the present charge and on the basis of the foregoing facts, the Trial Chamber finds that the act of severely beating Zeljko Cecez over a prolonged period of time evidences an intent to kill or to inflict serious injury in reckless disregard of human life. Accordingly, and as we have been left in no doubt that the injuries inflicted upon Zeljko Cecez in the course of the beatings led directly to his death, the Trial Chamber finds that the killing of Zeljko Cecez, as described above, constitutes the offence of wilful killing under Article 2 and murder under Article 3 of the Statute.

The Indictment alleges that Slobodan Babic was beaten to death in June 1992 in the Celebici prison-camp. The Prosecution acknowledges that Slobodan Babic was severely injured when he was brought to the prison-camp, and that these injuries would have contributed to his death. However, the Prosecution submits that, since the victim was detained in the Celebici prison-camp for several days without receiving any kind of medical care, during which time he was subjected to additional beatings, the Trial Chamber may conclude that a proximate cause of Mr. Babic’s death was his treatment in the prison-camp.
In order to establish the facts in relation to these allegations, the Prosecution notes that while various witnesses stated that when Mr. Babic arrived at the Celebici prison-camp he was in very poor physical condition, Mirko Babic testified that he did not see anyone in the Celebici prison-camp provide Slobodan Babic with medical care. The Prosecution further relies on the testimony of Witness N, who recounted that he observed Slobodan Babic being beaten in Building 22 by people in uniform soon after he was brought to the Celebici prison-camp. The Prosecution alleges that Mr. Babic was thereafter transferred to the "3^rd March" School. Witness P, who treated Mr. Babic at the "3^rd March" School, testified that Mr. Babic was severely injured when he arrived and remained unconscious until his death, a few days later. Witness P’s testimony in this respect was supported by that of Dr. Petko Grubac. The Prosecution also relies upon Exhibit 185, a funeral certificate, to establish Slobodan Babic’s death.
With reference to the testimony of Mirko Babic, Branko Gotovac, Witness N and Risto Vukalo, the Defence notes the weight of evidence to suggest that Slobodan Babic had been severely beaten and injured before his arrival at the Celebici prison-camp. Specifically, it contends that the beatings described by Risto Vukalo are consistent with the injuries described in the evidence given by Witness P and Dr. Petko Grubac. Conversely, the Defence contends that there is no evidence that Slobodan Babic died as a result of any injuries or lack of treatment he received in the Celebici prison-camp.
In his testimony before the Trial Chamber, Risto Vukalo described how Slobodan Babic, prior to his arrival at the Celebici prison-camp, was subjected to severe physical abuse which resulted in serious injuries. This evidence is supported by the testimony of Mirko Babic. Further, Branko Sudar, Witness N, and Branko Gotovac all testified as to the poor physical condition of Slobodan Babic during his detention in the Celebici prison-camp. For example, Branko Sudar testified that, upon his arrival in Building 22, he saw Slobodan Babic "covered in blood and lying on the floor."⁸⁹²
The foregoing evidence is not disputed between the parties. Moreover, the Defence does not dispute the testimony of Witness P and Dr. Petko Grubac, that Slobodan Babic died a few days after being transferred to the temporary medical centre at the "3rd March" School.
In relation to the treatment to which Slobodan Babic was subjected in the Celebici prison-camp itself, Witness N testified as to how uniformed men entered the building where he and Slobodan Babic were detained, and hit the latter several times. According to this witness "though he [Slobodan Babic] was half dead, they continued hitting him". ⁸⁹³
The Trial Chamber finds that Slobodan Babic, as a result of physical mistreatment following his arrest, was seriously injured prior to his arrival in the Celebici prison-camp. He was detained in the prison-camp for a period of several days, during which time he was, on one occasion, hit repeatedly by a number of uniformed men. He was subsequently transferred to the temporary medical clinic at the "3^rd March" School, where he remained until his death a few days later.
In relation to the present charge and on the basis of the foregoing facts, the Trial Chamber cannot exclude the possibility that Slobodan Babic’s death was caused by perpetrators unconnected to the Celebici prison-camp after his transfer to the "3^rd March" School. Accordingly, the Trial Chamber finds that the charge of wilful killing and murder of Slobodan Babic has not been proven beyond reasonable doubt.

(d) Murder of Petko Gligorevic(g)

The Indictment alleges that Petko Gligorevic was beaten to death in the latter part of May 1992 in the Celebici prison-camp. In establishing the facts in relation to this incident, the Prosecution relies on the testimony of four witnesses. Stevan Gligorevic testified that, upon his arrival at the Celebici prison-camp, he and the other new detainees were forced to stand up against a wall with their hands raised. They were subjected to verbal abuse and severe beatings with rifle butts, sticks, and other objects, by several groups of uniformed men, over a period of many hours. The witness testified that he saw that Petko Gligorevic had died as a result of the beatings. The Prosecution further relies on the supporting accounts provided by Mladen Kuljanin, Zoran Ninkovic and Witness F, all of whom belonged to the group of detainees who were subjected to the beatings, and each of whom was able to confirm that Petko Gligorevic died as a result of those beatings. Mladen Kuljanin specfically testified to seeing how "[a]t one point, he [Petko Gligoervic] fell down from the beating and some soldiers came over and ordered two prisoners to pull him up. Then he got up. When the next group came over to beat us, Petko fell down again and never got up again."⁸⁹⁴ Mladen Kuljanin further identified Hazim Delic as one of the people participating in the beatings⁸⁹⁵. Similarly, Zoran Ninkovic testified that at one point during the beatings he observed Hazim Delic standing in the area where the beatings occured. ⁸⁹⁶
The Defence contends that the Prosecution has presented no evidence demonstrating that any person associated with the Celebici prison-camp participated in the alleged collective beating or any other act which may have lead to the death of Petko Gligorevic.
The Trial Chamber finds the testimony of the four witnesses relied upon by the Prosecution to be trustworthy. All four were present during the events leading up to the death of Petko Gligorevic and their respective accounts are, in all material respects, consistent.
The Trial Chamber finds that Petko Gligorevic, upon his arrival at the Celebici prison-camp, was forced to stand against a wall with his hands raised, along with the other new detainees. Thereafter, he was subjected to savage beatings by several groups of uniformed men. The perpetrators used rifle butts and other wooden and metal objects to beat the detainees. The beatings continued for a period of several hours and, for at least a part of this period, Hazim Delic was present. As a direct result of the injuries he sustained from these beatings, Petko Gligorevic died sometime during the beatings, or soon thereafter.
Considering the severity of the beatings to which Petko Gligorevic was subjected and the fact that the perpetrators used metal and wooden objects to inflict the blows, the Trial Chamber finds that the beatings were administered with an intent to kill or to inflict serious injury in reckless disregard of human life. Accordingly, as we have been left in no doubt that the injuries inflicted upon Petko Gligorevic in the course of the beatings led directly to his death, the Trial Chamber finds that the killing of Petko Gligorevic, as described above, constitutes wilful killing under Article 2 and murder under Article 3 of the Statute.

(e) Murder of Gojko Miljanic

The Indictment alleges that Gojko Miljanic was beaten to death in the Celebici prison-camp in the latter part of May 1992. The Prosecution alleges that this victim died as a result of injuries sustained in a collective beating which commenced upon his arrival at the Celebici prison-camp. The Prosecution contends that this was the same incident in which Petko Gligorevic was killed. In order to establish the facts in relation to this incident, it relies on the evidence of Witness N, Stevan Gligorevic, Witness F, Mladen Kuljanin and Zoran Ninkovic. The latter four of these witnesses formed part of the group of prisoners that were subjected to beatings on this occasion and in their testimony they described the nature and duration of the beatings they were forced to endure. Stevan Gligorevic, Mladen Kuljanin and Witness F also testified to having seen Gojko Miljanic in Hangar 6 after the beatings and stated that he died the next morning as a result of the severe injuries he had sustained. Witness N also stated that he saw the victim die in his son’s arms in the Hangar.
The Defence contends that the Prosecution has presented no evidence showing that any person associated with the Celebici prison-camp participated in the alleged collective beating or any other act which may have lead to the death of Gojko Miljanic.
As stated above, in connection with the Trial Chamber’s findings in relation to the killing of Petko Gligorevic, the Trial Chamber finds the firsthand accounts of Zoran Ninkovic, Stevan Gligorevic, Witness F and Mladen Kuljanin to be trustworthy with respect to the collective beating as a result of which Gojko Miljanic is alleged to have died. Further, the Trial Chamber accepts the testimony of the latter three witnesses, as supported by Witness N, as to the death of Gojko Miljanic in Hangar 6 sometime during the following 24 hour period. Accordingly, the Trial Chamber finds that Gojko Miljanic, upon his arrival at the Celebici prison-camp, was subjected to a collective beating in the same manner as found for the killing of Petko Gligorevic. After the beatings, Mr. Miljanic was taken back to Hangar 6, where he subsequently died as a result of the injuries he sustained.
Considering the severity of the beatings to which Gojko Miljanic was subjected and the fact that the perpetrators used rifle butts and other metal and wooden objects to inflict the blows, the Trial Chamber finds that the beatings were administered with an intent to kill or to inflict serious injury in reckless disregard of human life. Accordingly, as we are convinced that the injuries inflicted upon Gojko Miljanic in the course of the beatings led directly to his death, the Trial Chamber finds that the killing of Gojko Miljanic, as described above, constitutes wilful killing under Article 2 and murder under Article 3 of the Statute.

(f) Murder of Zeljko Klimenta

The Indictment alleges that Zeljko Klimenta was shot and killed during the latter part of July 1992 in the Celebici prison-camp. To establish the facts in relation to this incident, the Prosecution relies upon the testimony of eight witnesses, including that of Vaso Dordic, who provided an eyewitness account of this killing. The Prosecution further relies on the supporting accounts of this killing as provided by a number of witnesses who were inside the Hangar at the relevant time, including Mirko Babic, Nedeljko Draganic, Dragan Kuljanin, Mladen Kuljanin, Mirko Dordic and Witness R. These witnesses all described hearing Zeljko Klimenta being called out of the Hangar. Several minutes later they heard a shot. Soon thereafter, one or more of the other detainees entered the Hangar to announce that Mr. Klimenta had just been killed. Further, Witness N and Mladen Kuljanin testified to having seen Zeljko Klimenta’s body near the Hangar soon afterwards. The Prosecution also relies upon Exhibit 185, a funeral certificate, to establish the death of the victim.
The Defence notes that the Prosecution evidence in relation to the instant charge contains numerous inconsistencies. It submits, inter alia, that contradictory accounts have been given by Milovan Kuljanin and Vaso Dordic, who both claim to have been eyewitnesses to the killing. It contends that it is impossible to reconcile the different accounts given by these two witnesses and that, therefore, their evidence cannot be relied upon. In addition, the Defence seeks to impeach the testimony of Vaso Dordic by pointing out inconsistencies between his testimony and his previous statement made to the Prosecution as regards the circumstances surrounding the killing of Mr. Klimenta. The Defence further contest the Prosecution’s assertion that the killing was intentional, submitting that there is some evidence to suggest that it could have been accidental and that the Prosecution has therefore failed to carry its burden of proving beyond a reasonable doubt that the killing of Zeljko Klimenta constitutes wilful killing or murder.
The Trial Chamber heard evidence from 18 witnesses in relation to the circumstances surrounding the death of Zeljko Klimenta. The testimony of these witnesses was uniformly consistent with respect to the fact that Zeljko Klimenta was shot by a guard in the Celebici prison-camp and died as a result of his injuries soon thereafter. Indeed, the Defence for Zejnil Delalic concedes this much in its final submissions⁸⁹⁷. However, the accounts of these witnesses as to the details of the circumstances surrounding Zeljko Klimenta’s death conflict in a number of ways. Most critically, the testimony of the two witnesses who stated that they had personally observed the killing differs significantly as to the circumstances surrounding this event. In his testimony, Vaso Dordic described how he and Zeljko Klimenta were ordered to take the latrine bucket out of Hangar 6. According to this witness, he and the victim were engaged in cleaning the bucket at the toilet behind the Hangar when a guard called to Zeljko Klimenta to approach him. After the guard and Zeljko Klimenta had lit up cigarettes, the latter started moving towards the Hangar. The guard aimed his rifle at him and called out, telling the victim not to run or he would kill him, whereupon Zeljko Klimenta started running towards the Hangar. The guard then fired his rifle at Zeljko Klimenta, hitting him in the small of the neck. In contrast, Milovan Kuljanin testified that Mr. Klimenta went outside Hangar 6 in order to relieve himself and that as he was walking towards the latrine ditch, a guard fired at him, hitting him in the back of the head and killing him instantly.
While the Trial Chamber has been left in no doubt that Zeljko Klimenta was killed whilst being detained at the Celebici prison-camp, the nature of the inconsistencies in the evidence presented on this issue prevents the Trial Chamber from reaching any conclusive factual findings concerning the specific circumstances surrounding his death. Accordingly, the Trial Chamber finds that it has not been proven beyond a reasonable doubt that the killing of Zeljko Klimenta constitutes wilful killing under Article 2 or murder under Article 3.

(g) Murder of Miroslav Vujicic
The Indictment alleges that Miroslav Vujicic was shot in the Celebici prison-camp on approximately 27 May 1992. The Prosecution alleges that Miroslav Vujicic was shot and killed by a guard after attempting to escape a collective beating to which he, among others, was subjected immediately upon his arrival in the Celebici prison-camp. It is alleged that this was the same incident in which Petko Gligorevic died and that Hazim Delic was present during the beatings. The Prosecution seeks to establish the facts in relation to this count by relying on the testimony of Witness F, Stevan Gligorevic, Witness N, Mladen Kuljianin, Zoran Ninkovic and on Exhibit 185.
The Defence attempts to cast doubt on the testimony of the Prosecution’s witnesses relating to this count by pointing out that their accounts of the killing differed as to the number of shots fired.
As stated above, in connection with the Trial Chamber’s findings in relation to the killing of Petko Gligorevic, the Trial Chamber accepts as trustworthy the firsthand accounts of Stevan Gligorevic, Witness F, Mladen Kuljanin and Zoran Ninkovic with respect to the collective beating in connection with which Miroslav Vujicic is alleged to have been killed. Specifically in relation to the present charge, Witness F testified how, at one point during the beating Miroslav Vujicic was taken out of the line up, made to lie down on the ground and hit several times. Miroslav Vujicic then got up and started running away from the scene of the beatings, whereupon shots were fired, killing him. This account is supported by the testimony of Witness F and Stevan Gligorevic. While the latter of these witnesses stated that he was unable observe these events, he testified to hearing shots being fired and later seeing the victim’s body lying in the grass. The death of Miroslav Vujicic was further supported by Exhibit 185, a funeral certificate.
Accordingly, the Trial Chamber finds that a group of detainees were collectively beaten in the same manner as found for the killing of Petko Gligorevic upon arrival at the Celebici prison-camp. At some point during this beating, Miroslav Vujicic started to run away from the scene of this physical abuse, whereupon he was shot and killed by one of the individuals participating in the collective beatings.
In the instant case it is established that Miroslav Vujicic was shot and killed by one of the individuals participating in the collective beating, as described above, in the Celebici prison-camp. The Trial Chamber finds that, under these circumstances, the use of a firearm against an unarmed individual demonstrates an intent to kill or to inflict serious injury in reckless disregard of human life. Accordingly, the Trial Chamber finds that the killing of Miroslav Vujicic constitutes the offences of wilful killing under Article 2 and murder under Article 3 of the Statute.

(h) Murder of Pero Mrkajic

The Indictment alleges that Pero Mrkajic was beaten to death in July 1992. In seeking to establish the facts in relation to this charge, the Prosecution relies upon the testimony of five witnesses. Both Dragan Kuljanin and Witness F testified that, upon his arrival at the Celebici prison-camp, Pero Mrkajic was in a serious medical condition. Dragan Kuljanin further testified that Mr. Mrkajic was beaten outside Hangar 6. This was supported by the testimony of Dr. Petko Grubac. Both Witness P and Dr. Grubac, who worked in the makeshift prison-camp infirmary, attested to the extensive bruising and injuries on Mr. Mrkajic’s body and confirmed the fact that Mr. Mrkajic died in this infirmary. The Prosecution further relies on Exhibit 185, a funeral certificate.
Noting the existence of evidence that Pero Mrkajic was already badly injured upon his arrival at the Celebici prison-camp, and that he suffered from diabetes, the Defence contends that both or either of these facts caused his death, rather than any unlawful act committed by a person in the Celebici prison-camp.
In his testimony before the Trial Chamber, Dragan Kuljanin described how Pero Mrkajic was severely beaten prior to his arrival at the Celebici prison-camp. This evidence is consistent with that given by Witness F, who testified that Pero Mrkajic was in a very poor physical condition when he arrived at the Celebici prison-camp. Dragan Kuljanin further testified that Pero Mrkajic, like himself, had been subjected to beatings outside Hangar 6. This evidence is supported by the testimony of Dr. Petko Grubac, who stated that Pero Mrkajic told him that he had been beaten up, and that his injuries had been inflicted in Hangar 6. Dr Petko Grubac and Witness P, who both had an opportunity to observe the medical condition of the victim, testified that he died some days after his arrival at the infirmary. In his testimony, Dr. Grubac clearly stated that, in his opinion, Pero Mrkajic did not die as a result of his diabetic condition.
Based upon this evidence, the Trial Chamber finds that Pero Mrkajic was already seriously injured when he arrived at the Celebici prison-camp. Despite the serious nature of his medical condition, Mr. Mrkajic was subjected to further beatings during his period of detention within the prison-camp. He was subsequently transferred to the so-called infirmary, where he remained until his death a few days later.
In relation to the present charge and based upon the foregoing facts, the Trial Chamber finds that the act of beating Pero Mrkajic, given the serious nature of his medical condition, demonstrates an intent on the part of the perpetrators to kill or to inflict serious injury in reckless disregard of human life.
The Trial Chamber notes that it is a well-recognised legal principle that a wrongdoer must take the victim as he finds him. Thus, if a perpetrator by his acts shortens the life of his victim, it is legally irrelevant that the victim may have died shortly thereafter from another cause. To establish criminal liability in situations where there are pre-existing physical conditions which would cause the victim’s death, therefore, it is only necessary to establish that the accused’s conduct contributed to the death of the victim. Based upon the facts set out above, the Trial Chamber is convinced that this test is satisfied in relation to the present charge. Accordingly, the Trial Chamber finds that the killing of Pero Mrkajic constitutes the offence of wilful killing under Article 2 and murder under Article 3 of the Statute.

(i) Responsibility of the Accused

Under the counts of the Indictment here under consideration, Zejnil Delalic, Zdravko Mucic and Hazim Delic are charged with responsibility as superiors pursuant to Article 7(3) of the Statute. As set out above, Zejnil Delalic and Hazim Delic have respectively been found not to have exercised superior authority over the Celebici prison-camp. For this reason, the Trial Chamber finds Zejnil Delalic and Hazim Delic not guilty of wilful killings and murders, as charged in counts 13 and 14 of the Indictment.
The Trial Chamber has above established that Zdravko Mucic was in a de facto position of superior authority over the Celebici prison-camp. It has further found that Zdravko Mucic in this position knew or had reason to know of the violations of international humanitarian law committed in the Celebici prison-camp, but failed to prevent these acts or punish the perpetrators thereof. For this reason, and on the basis of the findings made above, the Trial Chamber finds Zdravko Mucic responsible pursuant to Article 7(3) of the Statute for the wilful killing and murder of Zeljko Cecez, Petko Gligorevic, Gojko Miljanic, Miroslav Vujicic and Pero Mrkajic. Also on the basis of the findings made above, the Trial Chamber finds that Zdravko Mucic is not responsible for the wilful killing and murder of Milorad Kuljanin, Slobodan Babic and Zeljko Klimenta, as alleged in Indictment.
In his position as a superior, Zdravko Mucic is further responsible for the wilful killing and murder of Scepo Gotovac, Zeljko Milosevic, Simo Jovanovic and Bosko Samoukovic, as alleged in paragraphs 16, 17, 18 and 19 of the Indictment, and found proven by the Trial Chamber above. The Trial Chamber finds that Zdravko Mucic is not responsible for wilful killing and murder of Slavko Susic as alleged in paragraph 21 of the Indictment. However, in accordance with the findings made above, Zdravko Mucic is responsible for wilfully causing great suffering or serious injury to body or health to, and cruel treatment of, Slavko Susic.

8. Torture or Cruel Treatment of Momir Kuljanin - Counts 15, 16 and 17

In paragraph 23 of the Indictment, Hazim Delic and Esad Landzo are alleged to be responsible for the torture or cruel treatment of Momir Kuljanin, a detainee at the Celebici prison-camp. The acts of these two accused in this respect are charged in counts 15, 16 and 17 as follows:

Sometime beginning around 25 May 1992 and continuing until the beginning of September 1992, Hazim DELIC, Esad LANDZO and others repeatedly and severely beat Momir KULJANIN. The beatings included being kicked to unconsciousness, having a cross burned on his hand, being hit with shovels, being suffocated, and having an unknown corrosive powder applied to his body. By their acts and omissions, Hazim DELIC and Esad LANDZO are responsible for:

Count 15. A Grave Breach punishable under Article 2(b) (torture) of the Statute of the Tribunal; [and]

Count 16. A Violation of the Laws or Customs of War punishable under Article 3 of the Statute of the Tribunal and recognised by Article 3(1)(a) (torture) of the Geneva Conventions; or alternatively

Count 17. A Violation of the Laws or Customs of War punishable under Article 3 of the Statute of the Tribunal and recognised by Article 3(1)(a) (cruel treatment) of the Geneva Conventions.

(a) Prosecution Case

The Prosecution relies on the testimony of Witness M, Witness P, Dragan Kuljanin, Mirko Dordic, Milenko Kuljanin, Witness R, Stevan Gligorevic and Mladen Kuljanin in support of the allegations made in these counts of the Indictment. In addition, it places emphasis on the admissions made by Esad Landzo while appearing as a witness in his own defence. Witness N and Milovan Kuljanin also provided testimony about these alleged incidents, although the Prosecution does not seek to rely upon them in its Closing Brief.

(b) Defence Case

Hazim Delic has denied that he tortured or cruelly treated Momir Kuljanin in the Celebici prison-camp. In his interview with the Prosecution investigators, Mr. Delic took the position that he did not even know Mr. Kuljanin, although he might be able to recognise him if he saw him.
Esad Landzo admitted before the Trial Chamber that he had on occasion burnt Momir Kuljanin’s hand, but stated that he had done so at the instigation of an unidentified "muslim" from the village Homolje and under the orders of Hazim Delic. According to Mr. Landzo, this "muslim" had some prior grudge against Momir Kuljanin and had approached Hazim Delic, who then ordered Landzo to "teach the Chetnik a lesson and to burn a bit his hands so that he wouldn’t be touching in connection with some women [sic]".⁸⁹⁸

Momir Kuljanin is a Bosnian Serb who lived in the village of Bradina and was employed in the marketing section of the Yugoslav railway company. He was also the treasurer of the local branch of the SDS and belonged to the local police force reserves. When the joint forces of the TO, HVO and MUP launched their operation to regain control of Bradina in May 1992, Mr. Kuljanin took part in the resistance mounted by the local Bosnian Serbs, but on the successful conclusion of the operation he surrendered to these Bosnian government forces with the automatic rifle which he possessed as a member of the reserve police, and was taken to the Celebici prison-camp for detention. To begin with, he was confined in Tunnel 9 but was later moved to Hangar 6.
In support of these counts, the main witness for the Prosecution was the victim himself, who stated that he was beaten almost daily whilst in the prison-camp. In addition, on one particular occasion Hazim Delic and Esad Landzo took him out of the Hangar and, while Delic walked over to his car parked around 10 metres away, Landzo started kicking and hitting the victim with karate chops, which rendered him unconscious. Esad Landzo then collected some papers, which he set on fire and over which he heated a knife. Mr. Landzo forced Momir Kuljanin to hold the heated knife in his hand, the result of which was the infliction of a serious burn on his palm. Mr. Landzo then cut two lines across Mr. Kuljanin’s hand with the same knife. The resulting blisters led to the swelling of his hand and, due to the lack of medical attention, the wound subsequently became septic.
The victim testified that, on another occasion, Hazim Delic and Esad Landzo took him out of Hangar 6 and, in the presence of some other guards, a gasmask was put on his head and the screws tightened. With this mask on he could hardly breathe. His trousers were then taken off up to the knees and some powder was applied on his body which did not hurt him at that time. He was then taken to a manhole where water was thrown on him and he experienced terrible pain and a burning sensation. With the mask still in place, he also felt choked and became unconscious. He was then thrown back into the Hangar. He also stated that, as a result of the beatings that he received at that time, five of his ribs were fractured.
Momir Kuljanin was twice examined in the so-called infirmary in Building 22, by Witness P. In his testimony, Witness P referred to the burnt hand of Mr. Kuljanin, but made no mention of his broken ribs. It seems unlikely that Witness P would have failed to mention that such further injuries had also occurred and this discrepancy therefore indicates that there may be some doubt cast on the accuracy of this part of the victim’s testimony. Thus, the Trial Chamber cannot safely rely upon his testimony without other evidence in support of it.
Insofar as the burning of his hand is concerned, there is sufficient additional evidence available from the testimony of some of the other detainees confined in Hangar 6 at the relevant time. In this context we may refer particularly to the statements of Dragan Kuljanin, Mirko Dordic, Milenko Kuljanin and Witness R. According to these witnesses, Esad Landzo took Momir Kuljanin out of the Hangar and, when he returned, he had burns on his hand. Stevan Gligorevic also saw the burnt hand of Mr. Kuljanin. It should also be noted that Esad Landzo himself has admitted that he had inflicted the burns on Mr. Kuljanin’s hand.
With regard to the other allegations contained in the three counts, concerning the beatings, use of the gasmask to choke the victim, and application of a corrosive powder, the Trial Chamber has not been presented with any evidence in support of the testimony of the victim himself and, in light of the discrepancy noted above, considers it unsafe to hold that these allegations are also proven.
There is, furthermore, no evidence on the record which supports the assertion of Esad Landzo that he burnt the hand of Momir Kuljanin at the instance of an unidentified "muslim" or under the direction of Hazim Delic. The actions of Mr. Landzo are clearly of a cruel nature, inflicted with the intent of causing severe pain and suffering to Mr. Kuljanin, and for the purposes of punishing and intimidating him, as well as contributing to the atmosphere of terror reigning in the camp and designed to intimidate all of the detainees. Furthermore, Mr. Landzo’s acts were perpetrated in his role as a guard at the Celebici prison-camp and, as such, he was an official of the Bosnian authorities running the prison-camp.
Accordingly, the Trial Chamber finds Esad Landzo guilty of torture under counts 15 and 16 of the Indictment. Count 17 is thus dismissed, being charged in the alternative to count 16. On the basis of the lack of sufficient evidence of his participation in the acts alleged, the Trial Chamber finds Hazim Delic not guilty under any of the three counts.

9. . Torture and Rape of Grozdana Cecez - Counts 18, 19 and 20

Paragraph 24 of the Indictment states that:

Sometime beginning around 27 May 1992 and continuing until the beginning of August 1992, Hazim DELIC and others subjected Grozdana CECEZ to repeated incidents of forcible sexual intercourse. On one occasion, she was raped in front of other persons, and on another occasion she was raped by three different persons in one night. By his acts and omissions, Hazim DELIC is responsible for:

Count 18. A Grave Breach punishable under Article 2(b) (torture) of the Statute of the Tribunal;

Count 19. A Violation of the Laws or Customs of War punishable under Article 3 of the Statute of the Tribunal and recognised by Article 3(1)(a)(torture) of the Geneva Conventions; or alternatively

Count 20. A Violation of the Laws or Customs of War punishable under Article 3 of the Statute of the Tribunal and recognised by Article 3(1)(a)(cruel treatment) of the Geneva Conventions.

(a) Prosecution Case

In support of these counts, the Prosecution relies on the testimony of Ms. Cecez, the victim of the multiple rapes alleged, and that of Witness P, Witness D, Dr. Grubac and Witness T. Ms. Cecez testified before the Trial Chamber that, after her arrival in the Celebici prison-camp, on 27 May 1992, she was taken to a room in Building B, where Hazim Delic, who was using a crutch at the time, interrogated her about the whereabouts of her husband. She further stated that she was then required to go to another room where she was raped by Mr. Delic in front of two other men. On her third night in the Celebici prison-camp, and her first night in Building A, she testified that she was raped by four other men, one of whom was a witness for the Prosecution and who denied this allegation during his testimony. Ms. Cecez also testified that she was raped by another man at the end of July 1992.
The Prosecution contends that the following witnesses, including Defence witnesses, confirmed that Mr. Delic was using a crutch at the time in question: Mirko Dordic, Dr. Grubac, Witness T, Dr. Jusufbegovic, Agan Ramic, Nurko Tabak and Emir Dzajic. Further, it seeks to rely on a medical report showing the period when Mr. Delic was in hospital, between 21-25 May 1992, for an injury to his right leg. ⁸⁹⁹
The Prosecution submits that other witnesses support the account given by Ms. Cecez. Witness D, one of the members of the Military Investigative Commission working in the prison-camp, reported that a typist at the prison-camp had told him that the guards were boasting of having raped women prisoners, including Ms. Cecez. This testimony was, in the view of the Prosecution, confirmed by a 1992 document signed by members of the Commission which stated they had learned from the female detainees that they had each been taken out during the night but they did not want to say what had happened to them. Further, this document stated that some members of prison-camp security had stated that the women had been sexually abused⁹⁰⁰. Further, the Prosecution seeks to rely on Witness T, who testified that Hazim Delic had boasted to him that he had raped 18 Serb women and it was his intention to rape more in the future, and the testimony of Esad Landzo, who said that Delic had bragged to him, while they were in prison together, that he had raped both Ms. Cecez and Ms. Antic. The Prosecution also refers to the evidence of Dr. Grubac, who testified that he was informed by Ms. Cecez that the women in the prison-camp were being raped.
Ms. Cecez testified that, during the rape, Hazim Delic told her she was in the Celebici prison-camp because of her husband and that she would not have been there if he had been around. Further, she testified that Zdravko Mucic had asked about the whereabouts of her husband. The Prosecution submits that the evidence of Witness D supported this, by stating that Ms. Cecez had to stay in the Celebici prison-camp because there was information that her husband was hiding in the vicinity of Konjic.

(b) Defence Case

Hazim Delic was the only accused charged as a direct participant in these counts of the Indictment and, as such, only his Defence made submissions in relation to them⁹⁰¹. The Defence for Mr. Delic submits that the only direct evidence of the rapes comes from the alleged victim, and that the remainder of the evidence is indirect. It is submitted that the testimony of Ms. Cecez is unsatisfactory and evasive and, if she was in fact telling the truth, her evidence cast severe doubt on her ability to recall and recount past events.
In his interview with the Prosecution investigatiors, given on 19 July 1996, Mr. Delic denied having raped Ms. Cecez. He admitted that Ms. Cecez was brought to the Celebici prison-camp because of her husband but that he only ever had coffee with her. Mr. Delic denied that he had heard reports that Ms. Cecez had been raped.⁹⁰²
The Defence contends that there is no evidence that the purpose of the alleged rapes was to elicit information from Ms. Cecez. At trial, Ms. Cecez gave evidence that she was raped on 27 May 1992 by Mr. Delic, after which he mentioned her husband as the reason that she was in the prison-camp, but not as the reason for the alleged rape. Further, the Defence argues that the interrogation regarding her husband ended before the alleged rape began and was not resumed after the rape, which, in the view of the Defence, would have to be proven if the purpose of the alleged rape was to obtain information. There is no evidence that information had been sought or given prior to the other alleged rapes.
Further, the Defence maintains that Ms. Cecez had identified Hazim Delic as a perpetrator of rape on the basis that he was using a crutch but was unable to identify the accused in the Prosecution’s photo array.
The Defence additionally submits that the testimony of Ms. Cecez lacks credibility for a number of other reasons. First, she made corrections to the statements she had previously made to the Prosecution and was, accordingly, contradicting facts she had formerly asserted as being true. Secondly, she claimed she was unable to recall having spoken to Belgrade TV, and the Defence claims that it is extraordinary that she would forget such an incident. Thirdly, Ms. Cecez testified to having had contraceptive pills in the Celebici prison-camp, which she stated had been prescribed by her doctor, but her doctor denied this. Similarly, Ms. Antic testified that Ms. Cecez provided her with contraceptive pills, but Ms. Cecez denied this. Fourthly, Ms. Cecez alleged that a machine gun had been fired near her. Such an incident would not be easily forgotten and the fact that she mentioned it for the first time at trial, in the opinion of the Defence, indicates that she had manufactured this evidence.
With respect to the supporting evidence, the Defence states that Witness P testified that he deduced that Ms. Cecez had been raped based upon certain statements made by Mr. Delic, but he provided no explanation as to how or why he had drawn this conclusion. Secondly, statements by Ismeta Pozder, the typist in the prison-camp, relating to a rape by Mr. Delic and introduced into evidence by Witness P and Witness D, represents hearsay evidence. Thirdly, the fact that Witness D claimed not to know who to report the rape to, despite being a former police officer and secret policeman was incredible and casts serious doubt on his evidence as a whole. Fourthly, Emir Dzajic, a witness for the Defence, asserted that Ms. Cecez had never complained to him about having been subjected to sexual assaults and denied having been present when such assaults took place. Furthermore, he denied that rape was part of the normal interrogation process in the Celebici prison-camp.

The Trial Chamber notes that sub-Rule 96(i) of the Rules provides that no corroboration of the testimony of a victim of sexual assault shall be required. It is alleged in the Indictment that Ms. Cecez was raped by Hazim Delic and by other persons. The Trial Chamber finds the testimony of Ms. Cecez, and the supporting testimony of Witness D and Dr. Grubac, credible and compelling, and thus concludes that Ms. Cecez was raped by Mr. Delic, and others, in the Celebici prison-camp.
Ms. Cecez, born on 19 April 1949, was a store owner in Konjic until May 1992. She was arrested in Donje Selo on 27 May 1992, and taken to the Celebici prison-camp. She was kept in Building B for the first two nights of her detention and was then taken to Building A on the third night, where she stayed until her release on 31 August 1992. Upon her arrival at the prison-camp she was taken by a driver, Mr. Dzajic, to a room where a man with a crutch was waiting, whom she subsequently identified as Hazim Delic. Another man subsequently entered the room. Ms. Cecez was interrogated by Mr. Delic, who asked her about the whereabouts of her husband and slapped her. She was then taken to a second room with three men, including Mr. Delic. Hazim Delic who was in uniform and carrying a stick, then ordered her to take her clothes off. He then partially undressed her, put her face down on the bed and penetrated her vagina with his penis. He subsequently turned her over on to her back, took off the remainder of her clothes and again penetrated her vagina with his penis. During this time, Mr. Dzajic was lying on another bed in the same room and the other man present was standing guard at the door of the room. Mr. Delic told her that the reason she was there was her husband, and that she would not be there if he was. Later that evening Zdravko Mucic came to the room where she was being kept and asked about the whereabouts of her husband. He noticed her appearance and asked her whether anyone had touched her. She did not dare to say anything as Delic had instructed her not to do so. However Mr. Mucic "could notice that I [Ms. Cecez] had been raped because there was a big trace of sperm left on the bed". ⁹⁰³
The effect of this rape by Hazim Delic was expressed by Ms. Cecez, when she stated: "… he trampled on my pride and I will never be able to be the woman that I was"⁹⁰⁴. Ms. Cecez lived in constant fear while she was in the prison-camp and was suicidal. Further, Ms. Cecez was subjected to multiple rapes on the third night of her detention in the prison-camp when she was transferred from Building B to a small room in Building A. After the third act of rape that evening she stated "[i]t was difficult for me. I was a woman who only lived for one man and I was his all my life, and I think that I was just getting separated from my body at this time."⁹⁰⁵ In addition, she was subjected to a further rape in July 1992. As a result of her experiences in the prison-camp Ms. Cecez stated that "[p]sychologically and physically I was completely worn out. They kill you psychologically." ⁹⁰⁶
The fact that Ms. Cecez was being kept in the Celebici prison-camp was supported by the evidence of Witness D, a member of the Investigative Commission, who stated that Ms. Cecez had to be kept there due to information from the field that her husband was armed and hiding in the vicinity of Konjic. In further evidence in support of these counts, Witness D was also told by a typist in the prison-camp that the guards had boasted of having raped Ms. Cecez. Witness D then testified that he told the typist that she should advise Zejnil Delalic and she stated that she would do so. Further credence is added to the evidence of Ms. Cecez by Dr. Grubac, a fellow inmate, who testified that he had observed that the women in the prison-camp were crying, in a difficult condition and that he had the impression that they were ashamed. When Dr. Grubac asked Ms. Cecez what was wrong with them, she told him that women were being taken out and raped each night.
The Trial Chamber finds that acts of vaginal penetration by the penis under circumstances that were coercive, quite clearly constitute rape. These acts were intentionally committed by Hazim Delic who was, an official of the Bosnian authorities running the prison-camp.
The purposes of the rapes committed by Hazim Delic were, inter alia, to obtain information about the whereabouts of Ms. Cecez’s husband who was considered an armed rebel; to punish her for her inability to provide information about her husband; to coerce and intimidate her into providing such information; and to punish her for the acts of her husband. The fact that these acts were committed in a prison-camp, by an armed official, and were known of by the commander of the prison-camp, the guards, other people who worked in the prison-camp and most importantly, the inmates, evidences Mr. Delic’s purpose of seeking to intimidate not only the victim but also other inmates, by creating an atmosphere of fear and powerlessness. In addition, the violence suffered by Ms. Cecez in the form of rape, was inflicted upon her by Delic because she is a woman. As discussed above, this represents a form of discrimination which constitutes a prohibited purpose for the offence of torture.
Finally, there can be no question that these rapes caused severe mental pain and suffering to Ms. Cecez. The effects of the rapes that she suffered at the hands of Hazim Delic are readily apparent from her own testimony and included living in a state of constant fear and depression, suicidal tendencies, and exhaustion, both mental and physical.
For these reasons, the Trial Chamber finds Hazim Delic guilty of torture, under count 18 and count 19 of the Indictment for the rape of Ms. Cecez. As count 20 of the Indictment is charged in the alternative to count 19, it is dismissed in light of the guilty finding for count 19 of the Indictment.

10. Torture and Rape of Witness A - Counts 21, 22 and 23

Paragraph 25 of the Indictment states that:

Sometime beginning around 15 June 1992 and continuing until the beginning of August 1992, Hazim DELIC subjected a detainee, here identified as Witness A, to repeated incidents of forcible sexual intercourse, including both vaginal and anal intercourse. Hazim DELIC raped her during her first interrogation and during the next six weeks, she was raped every few days. By his acts and omissions, Hazim DELIC is responsible for:

Count 21. A Grave Breach punishable under Article 2(b) (torture) of the Statute of the Tribunal;

Count 22. A Violation of the Laws or Customs of War punishable under Article 3 of the Statute of the Tribunal and recognised by Article 3(1)(a)(torture) of the Geneva Conventions; or alternatively

Count 23. A Violation of the Laws or Customs of War punishable under Article 3 of the Statute of the Tribunal and recognised by Article 3(1)(a)(cruel treatment) of the Geneva Conventions.
Ms. Milojka Antic is referred to in the Indictment as Witness A. During the hearing and prior to her testimony, the Prosecution advised the Trial Chamber that she was not a protected witness and on this basis she has been subsequently referred to by her full name.

(a) Prosecution Case

The Prosecution submits that Ms. Antic was raped on three separate occasions in the Celebici prison-camp. Ms. Antic testified that, upon her arrival at the Celebici prison-camp on 15 June 1992, she was taken to Building A and interrogated with another detainee, by persons including Hazim Delic and Zdravko Mucic. Subsequently, during her first night in the prison-camp, she was called out and brought to Mr. Delic, who interrogated her once again and raped her. In addition to her testimony, the Prosecution relies upon the statement of Ms. Cecez, who said, "Hazim Delic raped Milojka that first night. The girl cried for 24 hours. She could not stop."⁹⁰⁷
Ms. Antic further testified that she was raped a second time by Hazim Delic. On this occasion, she said that she was ordered by Mr. Delic to go to Building B with Ms. Cecez, to take a bath. She stated that she complied with this order, and was then taken to the same room where she had been raped previously. She testified that Delic started to rape her anally causing her great pain and her anus to bleed. She stated that he turned her on to her back and raped her vaginally. Ms. Antic also testified that she was raped a third time by Hazim Delic. On this occasion he came to the door of her room in Building A and ordered Ms. Cecez to go out into the corridor, after which he raped her. Further supporting testimony was presented by the Prosecution through Ms. Cecez’s testimony that "Delic would make me go to the front room and he raped her [Ms. Antic] in broad daylight". ⁹⁰⁸
The Prosecution refers to other supporting evidence in relation to these counts. This includes the testimony of Witness P, who stated that the typist in Building B had told him that Hazim Delic had said that he was keeping Ms. Antic for himself and that she was a virgin; the testimony of Witness T, who informed the Trial Chamber that Mr. Delic had boasted of raping Serb women; the testimony of Esad Landzo, who said that Mr. Delic had boasted of raping Ms. Cecez and Ms. Antic; the testimony of Witness D, who testified that the typist told him that women in the prison-camp were being raped; the testimony of Dr. Grubac, who stated that he had been told by Ms. Cecez that women were being raped; and Exhibit 162, a report from the Military Investigative Commission which reported that female detainees were being sexually abused.

(b) Defence Case

Hazim Delic is the only accused charged as a direct participant in these counts and, as such, only his Defence counsel made submissions in relation to them⁹⁰⁹. The Defence for Mr. Delic submits that the only eyewitness evidence to the alleged acts came from the alleged victim, and that the remainder of the evidence was indirect. This evidence cannot, therefore, provide a basis for a finding of guilt beyond reasonable doubt.
In his interview with Prosecution investigators, on 19 July 1996, Mr. Delic claimed that he did not know Ms. Antic. He asserted that he had never raped anybody and that he did not know of any women being raped at the Celebici prison-camp.⁹¹⁰
The Defence submits that the Prosecution has presented no evidence that the purpose of the first alleged rape was to elicit information. While Ms. Antic testified that she was first raped after being interrogated by Mr. Delic, she did not allege that the interrogation was resumed after the rape, which, in its view, would have been the logical course of events if its purpose was to secure answers to interrogation. Further, the Defence seeks to discredit Ms. Antic’s evidence on the first rape on the basis that she did not mention it to anyone, whereas Ms. Cecez claimed that Ms. Antic had told her of rape. Thus, the Defence contends that both accounts can not be correct.
Concerning the alleged second rape, the Defence submits that Ms. Antic’s testimony contradicted the evidence of Ms. Cecez. While Ms. Antic testified that she had a bath before being raped for a second time, Ms. Cecez’s testimony does not support this claim.
The Defence also makes a number of general submissions in order to discredit the alleged victim’s evidence. First, Ms. Antic failed to inform either of the doctors who examined her - Witness P and Dr. Grubac - that she had been raped. Secondly, Ms. Antic was unable to identify the accused from a photo array, although she mentioned that one of the images looked familiar and she recognised the forehead, nose and mouth, whereas one would expect the perpetrator’s face to be imprinted on her mind. Thirdly, Ms. Antic had previously told the Prosecution’s investigators that she had been raped every two or three days during her first six weeks at the Celebici prison-camp. This is inconsistent with the evidence she gave at trial, where she said she was raped on three occasions. Fourthly, Ms. Antic gave evidence at trial that she had overheard Zdravko Mucic referring to her as the "right type for you" to Mr. Delic, but she did not include this in her prior statement to the Prosecution’s investigators.
Further, Ms. Antic testified that she had been offered contraceptive pills by Ms. Cecez, but that she had refused them as unnecessary. According to the Defence, this was denied by Ms. Cecez and contradicts an earlier statement made by Ms. Antic where she stated that she had taken the contraceptive pills as she was afraid of becoming pregnant. In fact, Ms. Antic had undergone a hysterectomy some years before the conflict and could not therefore have been at risk from pregnancy. When questioned at trial regarding this inconsistency in her testimony, Ms. Antic said she hadn’t known the results of the operation. Thereafter, Dr. Jusufbegovic, a medical practitioner, testified that it was unlikely that a doctor would not disclose, nor a woman ask about, the success of such an operation. In this regard, the Defence submits that her testimony is wholly contradictory.

Ms. Antic is a Bosnian Serb born in 1948. In 1992, she lived in the village of Idbar with her mother. She was arrested in her village on 15 June 1992 and taken to the Celebici prison-camp. After her arrival, she was detained in Building A along with other women, where she was kept until her release on 31 August 1992. Upon her arrival at the Celebici prison-camp, she was immediately interrogated together with another woman, by Hazim Delic, Zdravko Mucic and another person. In answer to a question by Mr. Mucic, she stated that she was not married, at which point Mr. Mucic said to Mr. Delic, "[t]his is just the right type for you".
The Trial Chamber notes that Sub-rule 96(i) of the Rules, provides that no corroboration of the victim’s testimony shall be required. It agrees with the view of the Trial Chamber in the Tadic Judgment, quoted in the Akayesu Judgement, that this sub-Rule:

accords to the testimony of a victim of sexual assault the same presumption of reliability as the testimony of victims of other crimes, something long been denied to victims of sexual assault by the common law.⁹¹¹
Despite the contentions of the Defence, the Trial Chamber accepts Ms. Antic’s testimony, and finds, on this basis, and the supporting evidence of Ms. Cecez, Witness P and Dr. Petko Grubac, that she was subjected to three rapes by Hazim Delic. The Trial Chamber finds Ms. Antic’s testimony as a whole compelling and truthful, particularly in light of her detailed recollection of the circumstances of each rape and her demeanour in the court room in general and, particularly, under cross-examination. The alleged inconsistencies between her evidence at trial and prior statements are immaterial and were sufficiently explained by Ms. Antic. She consistently stated under cross-examination that, when she made those prior statements, she was experiencing the shock of reliving the rapes that she had "kept inside for so many years"⁹¹². Further, the probative value of these prior statements is considerably less than that of direct sworn testimony which has been subjected to cross-examination.
The Trial Chamber thus finds that Ms. Antic was raped for the first time on the night of her arrival in the prison-camp. On this occasion she was called out of Building A and brought to Hazim Delic in Building B, who was wearing a uniform. He began to interrogate her and told her that if she did not do whatever he asked she would be sent to another camp or she would be shot. Mr. Delic ordered her to take her clothes off, threatened her and ignored her crying pleas for him not to touch her. He pointed a rifle at her while she took her clothes off and ordered her to lie on a bed. Mr. Delic then raped her by penetrating her vagina with his penis, he ejaculated on the lower part of her stomach and continued to threaten and curse her.
She was brought back to her room in Building A in tears, where she stated that she exclaimed, "Oh, fuck you, God, in case you exist. Why did you not protect me from this?"⁹¹³ The following day, Hazim Delic came to the door of the room where she was sleeping and she began crying upon seeing him. He then said to her "[w]hy are you crying? This will not be your last time". Ms. Antic stated during her testimony "I felt so miserably [sic], I was constantly crying. I was like crazy, as if I had gone crazy."⁹¹⁴ The rape and the severe emotional psychological suffering and injury experienced by Ms. Antic was also reported by Ms. Cecez and Dr. Grubac.
The second rape occurred when Hazim Delic came to Building A and ordered Ms. Antic to go to Building B to wash herself. After doing so, she was led to the same room in which she was first raped, where Delic, who had a pistol and a rifle and was in uniform, was sitting on a desk. She started crying once again out of fear. He ordered her to take her clothes off. She kept telling him that she was sick and asking him not to touch her. Out of fear that he would kill her she complied with his orders. Mr. Delic told her to get on the bed and to turn around and kneel. After doing so he penetrated her anus with his penis while she screamed from pain. He was unable to penetrate her fully and she started to bleed. Mr. Delic then turned her around and penetrated her vagina with his penis and ejaculated on her lower abdomen. After the rape Ms. Antic continued crying, felt very ill and experienced bleeding from her anus, which she treated with a compress, and was provided with tranquillisers.
The third rape occurred in Building A. It was daylight when Hazim Delic came in, armed with hand grenades, a pistol and rifle. He threatened her and she again said that she was a sick woman and asked him not to touch her. He ordered her to undress and get on the bed. She did so under pressure and threat. Mr. Delic then pulled his trousers down to his boots and raped her by penetrating her vagina with his penis. He then ejaculated on her abdomen.
The Trial Chamber finds that acts of vaginal penetration by the penis and anal penetration by the penis, under circumstances that were undoubtedly coercive, constitute rape. These rapes were intentionally committed by Hazim Delic who was an official of the Bosnian authorities running the prison-camp.
The rapes were committed inside the Celebici prison-camp and on each occasion Hazim Delic was in uniform, armed and viciously threatening towards Ms. Antic. The purpose of these rapes was to intimidate, coerce and punish Ms. Antic. Further, at least with respect to the first rape, Delic’s purpose was to obtain information from Ms. Antic, as it was committed in the context of interrogation. In addition, the violence suffered by Ms. Antic in the form of rape, was inflicted upon her by Delic because she is a woman. As discussed above, this represents a form of discrimination which constitutes a prohibited purpose for the offence of torture.
Finally, there can be no question that these rapes caused severe mental and physical pain and suffering to Ms. Antic. The effects of the rapes that she suffered at the hands of Hazim Delic, including the extreme pain of anal penetration and subsequent bleeding, the severe psychological distress evidenced by the victim while being raped under circumstance where Mr. Delic was armed and threatening her life, and the general depression of the victim, evidenced by her constant crying, the feeling that she was going crazy and the fact that she was treated with tranquilizers, demonstrate most emphatically the severe pain and suffering that she endured.
For these reasons, the Trial Chamber finds Hazim Delic guilty of torture under count 21 and count 22 of the Indictment for the multiple rapes of Ms. Antic. As count 23 of the Indictment was charged in the alternative to count 22, it is dismissed in light of the guilty finding for count 22 of the Indictment.

11. Torture or Cruel Treatment of Spasoje Miljevic19. - Counts 24, 25 and 26

In paragraph 26 of the Indictment, Hazim Delic and Esad Landzo are alleged to be responsible for the torture of Spasoje Miljevic, another detainee in the Celebici prison-camp. The acts of these two accused in this respect are charged in counts 24, 25 and 26 as follows:

Sometime beginning around 15 June 1992 and continuing until August 1992, Hazim DELIC, Esad LANDZO and others mistreated Spasoje MILJEVIC on multiple occasions by placing a mask over his face so he could not breath, by placing a heated knife against parts of his body, by carving a Fleur de Lis on his palm, by forcing him to eat grass, and by severely beating him using fists, feet, a metal chain, and a wooden implement. By their acts and omissions, Hazim DELIC and Esad LANDZO are responsible for:

Count 24. A Grave Breach punishable under Article 2(b) (torture) of the Statute of the Tribunal; [and]

Count 25. A Violation of the Laws or Customs of War punishable under Article 3 of the Statute of the Tribunal and recognised by Article 3(1)(a) (torture) of the Geneva Conventions; or alternatively

Count 26. A Violation of the Laws or Customs of War punishable under Article 3 of the Statute of the Tribunal and recognised by Article 3(1)(a) (cruel treatment) of the Geneva Conventions.

(a) Prosecution Case
In support of the allegations made in relations to these counts, the Prosecution relies primarily on the testimony of Witness N, along with that of Branko Gotovac, Dragan Kuljanin, Branko Sudar, Risto Vukalo, Rajko Draganic and Witnesses F, R, and P. The Prosecution also makes reference to the testimony of Mr. Landzo himself.

(b) Defence Case

In his interview with Prosecution investigators on 19 July 1996 (Exhibit 103), Hazim Delic denied that he had taken part in the mistreatment of Spasoje Miljevic and, in fact, stated that he did not even know that Spasoje Miljevic was a detainee in the Celebici prison-camp. Mr. Delic told the Prosecution investigators that, if Mr. Miljevic had been tortured in the camp, there should have been a report about it in the camp commander’s office.
During his oral testimony Esad Landzo admitted before the Trial Chamber that he had beaten and caused burns to Spasoje Miljevic. Apparently in justification, he stated that he had once caught Mr. Miljevic stealing food intended for the elderly detainees and that it was on this occasion that he had beaten the victim. As regards the infliction of burns to Mr. Miljevic, Mr. Landzo contended that he had been instructed by Hazim Delic to inflict them.

Spasoje Miljevic is a Bosnian Serb from the village of Homolje who, in May 1992, was working in a restaurant in the neighbouring village of Viniste, several kilometres away from Konjic town. He was arrested on 23 May 1992 by the forces of the Bosnian government and was taken to the Celebici prison-camp that evening. There he was confined in Building 22. The victim testified that he was severely beaten by some persons in uniform in the prison-camp on the morning of 24 May while being questioned, as result of which his jaw was cracked and some teeth knocked out and he could not eat anything, nor was he able to stand up unassisted. He stayed in Building 22 for around 13 days and was then moved to Hangar 6. While he was detained in the Hangar, Hazim Delic and Esad Landzo continued to mistreat him.
Apart from his general mistreatment, which consisted of frequent beatings and kickings, the victim referred during his testimony to three specific incidents. He stated that, on 15 July 1992, Esad Landzo took him out of the Hangar and made him sit on the floor behind an adjoining building. Mr. Landzo put a gasmask on his head, tightened the screws such that he felt suffocated, and then repeatedly heated a knife and burnt the victim’s hands, left leg and thighs. When he had finished inflicting these burns upon the victim, Esad Landzo removed the mask and proceeded to kick and hit him on the way back to the Hangar. On this same occasion, Mr. Landzo also forced the victim to eat grass, as well as filling his mouth with clover and forcing him to drink water. The burns thus inflicted subsequently became septic, and were bandaged several days later in Building 22.
Describing a later incident, the victim stated that Esad Landzo called him out of the Hangar, put a mask on his head to stop him from making noise and covered the front of the mask with a piece of white cloth to ensure that he could not see his tormentors. Mr. Landzo and several other persons then started beating him with a baseball bat. He thought (although he was not sure) that Hazim Delic had been present and watched this incident. The victim also testified that, on yet another occasion, Esad Landzo took him out of the Hangar, along with Branko Gotovac and his two sons, and beat them with a wooden plank, as well as placing a lit match underneath the victim’s thumb nail.
Branko Gotovac provided testimony in support of this latter incident, stating that he and his two sons were taken out of Hangar 6 at the same time as Spasoje Miljevic, on one of the occasions of the latter’s mistreatment. He was thus in a position to see that Mr. Miljevic had a mask put on his head by Mr. Landzo, as did one of his sons, and they were hit. Witness F, Dragan Kuljanin and Witness R were inside the Hangar when the incident relating to the burning of Spasoje Miljevic took place. They stated that on this occasion Spasoje Miljevic was taken out of the Hangar and when he returned they could see that he had burns on his hands. Risto Vukalo testified that he had been told by the victim that Esad Landzo had heated a knife and burnt his hands. Branko Sudar and Rajko Draganic further stated that Spasoje Miljevic was burnt inside the Hangar, although this testimony is contrary to that of the victim himself and the other witnesses. Witness P testified that he had treated Spasoje Miljevic for his burn injuries which were on the lower parts of his legs as well as on the portion just above the knees.
As already stated, Esad Landzo has admitted that he had caused the burn injuries to the legs of Spasoje Miljevic. Thus, on this basis and that of the testimony of the other witnesses, this part of the case of the Prosecution stands established. In addition, there is no reason to disbelieve the testimony of the victim when he said that Esad Landzo had placed a gasmask on his head, had forced him to eat grass, had filled his mouth with clover and water and had beaten him.
Insofar as Hazim Delic is concerned, the victim stated that he had seen him standing by the tin wall of the Hangar on one occasion when he was being taken out by Esad Landzo for the purpose of mistreatment. He was not, however, sure if Hazim Delic actually viewed the mistreatment. In these circumstances and in the absence of other substantiating evidence from the Prosecution, it is not safe to hold that Hazim Delic was a party to the mistreatment of Spasoje Miljevic at the hands of Esad Landzo. Moreover, the victim himself testified that, sometime after Esad Landzo had caused burns on his person, Hazim Delic inquired from him if Mr. Landzo had "played" with him. This apparently provocative query by Mr. Delic suggests that he may have been unaware of the precise circumstances in which the victim was burnt.
The contention of Esad Landzo that he had caused the burn injuries to Spasoje Miljevic under the directions of Hazim Delic stands entirely unsupported by any other evidence on record. The Trial Chamber therefore has no hesitation in rejecting it as unsubstantiated. As in the case of other acts of mistreatment perpetrated by Mr. Landzo, the Trial Chamber is appalled by the cruel nature of his conduct, which was clearly intended to cause severe pain and suffering to Spasoje Miljevic, for the purposes of punishing and intimidating him, as well as contributing to the atmosphere of terror reigning in the prison-camp and designed to intimidate all of the detainees. Furthermore, Mr. Landzo’s acts were perpetrated in his role as a guard at the Celebici prison-camp and, as such, he was an official of the Bosnian authorities running the prison-camp.
For the reasons recorded above the Trial Chamber finds Esad Landzo guilty of torture under counts 24 and 25 of the Indictment. Count 26 is accordingly dismissed, being in the alternative to count 25. Due to the insuffiency of evidence relating to the participation of Hazim Delic in these acts of torture , the Trial Chamber finds Hazim Delic not guilty under any of these three counts.