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

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 D

12. Torture and Cruel Treatment of Mirko Babic. - Counts 27, 28 and 29

In paragraph 27 of the Indictment, Hazim Delic and Esad Landzo are alleged to be responsible for the torture of Mirko Babic, a detainee in the Celebici prison-camp. The acts of these two accused in this respect are charged in counts 27, 28 and 29 as follows:

Sometime around the middle of July 1992, Hazim DELIC, Esad LANDZO and others mistreated Mirko BABIC on several occasions. On one occasion, Hazim DELIC, Esad LANDZO, and others placed a mask over the head of Mirko BABIC and then beat him with blunt objects until he lost consciousness. On another occasion, Esad LANDZO burned the leg of Mirko BABIC. By their acts and omissions, Hazim DELIC and Esad LANDZO are responsible for:

Count 27. A Grave Breach punishable under Article 2(b) (torture) of the Statute of the Tribunal; [and]

Count 28. 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 29. 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 relation to these charges, the Prosecution brought and examined six witnesses to support the testimony of the victim himself, Mirko Babic. These witnesses were Branko Gotovac, Witnesses N and R, Branko Sudar, Risto Vukalo and Rajko Draganic.

(b) Defence Case

Hazim Delic, in his interview with Prosecution investigators, on 19 July 1996, (Exhibit 103) denied that he had tortured or cruelly treated Mirko Babic. Esad Landzo also made a similar denial in testimony before the Trial Chamber. Both stated that they did not even know Mr. Babic. However, in his interview with Prosecution investigators, recorded on 18 July 1996, (Exhibit 102) Esad Landzo did admit that he knew Mirko Babic but repudiated the allegations of maltreatment.
As discussed below, the Defence for Mr. Landzo also relied on the testimony of Ramo Salihovic as well as a photograph provided by a doctor who examined Mr. Babic in the Netherlands (Defence Exhibit D2/4), which was discussed also by the Defence witness, Dr. Eduardo Bellas.

(c) Discussion and Findings

Mirko Babic is a Bosnian Serb from Bjelovcina, a village about 15 kilometres from Konjic town, and was 59 years of age at the time relevant to the Indictment. He was a forest guard and a member of the SDS, although, according to his own testimony, not an active one. According to the testimony of the victim himself, the forces of the Bosnian government engaging the Bosnian Serbs in the region entered Bjelovcina on 21 May 1992, whereupon Mr. Babic fled into the forest, carrying a revolver which he owned. He was, however, arrested on the following day by soldiers in green camouflage uniforms, whom he identified as bearing the insignia of the TO. Upon his arrest, he was taken to his house and severely beaten and mistreated. He was then, on the evening of 23 May, taken to the Celebici prison-camp. There, he was kept in Building 22, which was extremely overcrowded, for the first 20 days. During that time he did not receive any physical mistreatment. He was then transferred to Hangar 6 and finally was released from the prison-camp on 1 September 1992.
Mr. Babic appeared as the primary witness for the Prosecution in relations to these counts of the Indictment and testified that Hazim Delic and Esad Landzo had mistreated him on several occasions while he was confined in Hangar 6. On one particular occasion, these two accused took him out of the Hangar to a place about 15 metres away, where they put some kind of mask on his head and, together with some other person or persons, started beating him. As a consequence of this beating and being hit with a wooden plank, he lost consciousness. Mr. Babic further deposed that some days later, around 20 July 1992, Esad Landzo once again took him out of the Hangar to the same place and asked him to lie down and bare his legs up to the knees. Mr. Landzo then poured some petrol on his right leg and set it alight. His leg was thus seriously burnt and later developed blisters.
In relation to this particular burning incident, Mr. Babic made a prior written statement to Prosecution investigators which differed slightly from his oral testimony (Exhibit D1/4). In this prior statement, he told the Prosecution that Esad Landzo had ripped off his trousers with a knife and, as a result, he became naked. Before the Trial Chamber, his relation of these events was that Esad Landzo made him lie down on the floor and asked him to roll up his trousers and bare his leg before burning him.
Branko Gotovac is from a neighbouring village to that where Mirko Babic resided and, according to the testimony of the former, they were very close to each other. It is, therefore, surprising that, in his evidence before the Trial Chamber, Mr. Gotovac does not refer to the burning of the leg of Mirko Babic. Similarly, Branko Sudar and Risto Vukalo say nothing in respect of this incident. Witness N, during his testimony, stated first that he had seen Mr. Babic’s leg burning when he returned to the Hangar, but later this witness contradicted this statement by testifying that he had seen only the scar of the burn on Mr. Babic’s leg. Rajko Draganic, on the other hand, stated that Mirko Babic was burnt inside the Hangar, which is contrary to the testimony of the victim himself. Witness R deposed that Esad Landzo took Mirko Babic out of the Hangar and when the latter returned after some time, his trousers were burning. However, according to the prior written statement of Mirko Babic, the fire on his leg was extinguished within 20 seconds of being lit. If this statement is accepted, Witness R could not have seen Mr. Babic’s trousers burning.
The Defence for Mr. Landzo led evidence to show that at some time prior to 1992, Mirko Babic had burnt his leg in an accident and he was seen by a number of persons at that time with a bandaged leg. The most important Defence witness in this regard is Ramo Salihovic, who was also from Bjelovcina and was the neighbour of Mirko Babic. Mr. Salihovic testified that, around 1980 or 1981, a lime pit where Mirko Babic was working caught fire and burnt a number of persons, including Mr. Babic. After this accident the witness used to see Mr. Babic walking with a bandaged leg. This witness also stated that Mirko Babic was the President of the local branch of the SDS and thus not "inactive" as Mr. Babic himself testified.
It may also be noted that, at the request of the Defence for Mr. Landzo, Dr. Bellas, an expert witness for the Defence of Hazim Delic, examined in the courtroom a photograph of the leg of Mirko Babic at the time of his testimony before the International Tribunal. This photograph (Exhibit D2/4) does show a healed scar, the age of which, in the view of the doctor, could not be determined. It will be noticed that the presence of an old scar on Mr. Babic’s leg is not inconsistent with the position advocated by the Defence.
For these reasons, there remains a reasonable doubt as to whether Esad Landzo inflicted burns on the leg of Mirko Babic, as alleged in the Indictment. The testimony of Mirko Babic that Hazim Delic and Esad Landzo took him out of Hangar 6, put a mask on his head and, together with some others, beat him with blunt objects, has not been supported by any other witness. In light of this fact and that the Trial Chamber does not consider Mr. Babic’s own account of the mistreatment which he received wholly reliable, it is not possible, in the absence of such supporting evidence, to establish the verity of this account.
For these reasons, the Trial Chamber finds Hazim Delic and Esad Landzo not guilty under counts 27, 28 and 29 of the Indictment.

13. Torture or Cruel Treatment of Mirko Dordic. - Counts 30, 31 and 32

In paragraph 28 of the Indictment, Esad Landzo is alleged to be responsible for the torture of Mirko Dordic, another of the detainees in the Celebici prison-camp. The alleged acts of Esad Landzo in this respect are charged in counts 30, 31 and 32 as follows:

Sometime around the beginning of June 1992 and continuing to the end of August 1992, Esad LANDZO subjected Mirko DORDIC to numerous incidents of mistreatment, which included beating him with a baseball bat, forcing him to do push-ups while being beaten, and placing hot metal pincers on his tongue and in his ear. By his acts and omissions, Esad LANDZO is responsible for:

Count 30. A Grave Breach punishable under Article 2(b) (torture) of the Statute of the Tribunal; [and]

Count 31. 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 32. 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

To support the testimony of the victim himself, the Prosecution relies on the statements of ten witnesses, namely, Steven Gligorevic, Mladen Kuljanin, Vaso Dordic, Novica Dordic and Witnesses F, N, B, T, R and P.

(b) Defence Case

Esad Landzo denied the allegations contained in this part of the Indictment and said that he did not know Mirko Dordic, although he did not rule out the possibility that something may have happened to him in the Celebici prison-camp at the instigation of other prison-camp guards.

Mirko Dordic is a Bosnian Serb from the village of Bradina, who was 36 years of age at the time relevant to the Indictment. He was a waiter and worked in Konjic town. According to his own testimony, he participated in the resistance mounted by the Bosnian Serb residents of Bradina when the village was the target of operations by the Bosnian government forces towards the end of May 1992. He possessed an automatic rifle, but when the government forces overcame the Bosnian Serbs in the village, he fled with his family towards Serb-held territory, leaving his rifle behind. A patrol party of soldiers, apparently bearing the insignia of the HVO, TO and possibly also the HOS, subsequently captured him in the evening of 28 May 1992 and he was transferred to the Celebici prison-camp on the evening of 30 May 1992, where he was confined in Hangar 6. He remained in the Hangar in the prison-camp until 21 August 1992, when he was transferred to the Musala sports hall in Konjic town, which was also being used as a detention facility. After 10 days he was returned to the Celebici prison-camp, where he remained until December 1992. He was finally released from detention in the sports hall in Konjic in October 1994, as part of an exchange of prisoners.
Mirko Dordic testified before the Trial Chamber that, in the second part of June 1992, Esad Landzo, who was carrying a baseball bat at the time, took him out of Hangar 6 to another hangar. Mr. Landzo made him lean against a wall and asked him about the whereabouts of some hand grenades and pistols. When Mr. Dordic was unable to provide him with any information in respect of these items, Esad Landzo put a piece of metal in his mouth so that he could not make any noise and then started hitting him with the baseball bat on his legs and rib cage. This went on for a long time and Mr. Dordic fell down and fainted many times. When this occurred, Esad Landzo would make him stand once more and again start beating him. Ultimately, Mr. Landzo allowed Mr. Dordic to return to the Hangar. This beating was so severe that he could not get up unassisted and he remained immobile for quite some time. Subsequently, one of the other inmates of the Hangar told him that he had received about 200 to 250 blows.
Mirko Dordic further testified that Esad Landzo was extremely harsh to him throughout his entire stay inside Hangar 6, for, whenever he passed by him, he would give him a kick or two. Mr. Landzo would also force him to perform ten full push-ups and sometimes to do as many as fifty. In the process of attempting to do these, Mr. Landzo would often kick him. Mr. Dordic also testified about another particular occasion, towards the middle of July 1992, when Esad Landzo took him to a corner of Hangar 6, forced him to open his mouth, and placed a pair of heated pincers on his tongue. As a result, his mouth, lips and tongue were burnt. Mr. Landzo then put these heated pincers into Mr. Dordic’s ear.
All of the abovementioned witnesses who testified for the Prosecution in relation to these counts of the Indictment claimed that they had seen burns on the face of Mirko Dordic and some testified that they had seen Esad Landzo inflict them upon him. In this regard, the testimony of Witness P is the most important, for it was he who treated Mr. Dordic for his burns. Witness P deposed that he saw that Mr. Dordic’s lips and tongue had been burnt and that pincers had been placed in his ear, from which pus was being excreted. The Trial Chamber finds no reason not to believe the testimony of Mirko Dordic that Esad Landzo had caused these injuries.
The allegation of Mirko Dordic that Esad Landzo would force him to do push-ups finds support from the testimony of Stevan Gligorevic and Witness B, although the latter of these witnesses made an allegation of a general nature in this regard, without naming any particular victim. There is no reason why this part of the case of the Prosecution should not be accepted as true, supported as it is by the evidence of the victim and two other witnesses who were confined in the same place.
For the above reasons, the Trial Chamber is satisfied that Esad Landzo did cause serious injury to Mirko Dordic by burning his lips, tongue and ear with heated pincers, as well as subjecting him to more general mistreatment. This particular injury and mistreatment was inflicted with the intent to cause severe pain and suffering to the victim and with the purposes of punishing and intimidating him, as well as contributing to the atmosphere of terror reigning in the prison-camp, which was 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. The Trial Chamber therefore finds Esad Landzo guilty of torture under counts 30 and 31 of the Indictment. Count 32 is hereby dismissed, being charged in the alternative to count 31.

14. Responsibility of Superiors for Acts of Torture - Counts 33, 34 and 35

Paragraph 29 of the Indictment contains the following factual allegations:

With respect to the acts of torture committed in Celebici camp, including placing Milovan KULJANIN in a manhole for several days without food or water, and including those acts of torture described in paragraphs twenty-three to twenty-eight, Zejnil DELALIC, Zdravko MUCIC, and Hazim DELIC knew or had reason to know that subordinates were about to commit those acts or had done so, and failed either to take the necessary and reasonable steps to prevent those acts or to punish the perpetrators.

In connection with the foregoing allegations, Zejnil Delalic, Zdravko Mucic and Hazim Delic are charged as superiors as follows:

Count 33. A Grave Breach punishable under Article 2(b) (torture) of the Statute of the Tribunal;

Count 34. 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 35. 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.

The Trial Chamber’s findings as to the offences alleged in paragraphs 23-28 of the Indictment, as charged here, are contained above. Further, as discussed above, the Trial Chamber restricts itself to addressing the specific allegations in the Indictment and therefore will not consider the numerous other acts of torture for which evidence was led during trial, but which are not specifically alleged in the Indictment. Accordingly, the Trial Chamber will here limit itself to considering the factual allegations as they relate to one victim - Milovan Kuljanin.

(a) Prosecution Case

The Indictment alleges that in the Celebici prison-camp, Milovan Kuljanin was placed in a manhole for several days without food or water. The Prosecution further alleges that Mr. Kuljanin, upon leaving the manhole, was taken to Building 22 where he was beaten and subsequently questioned. To establish the facts in relation to this charge, the Prosecution relies principally on the victim’s own testimony. The Prosecution submits that Mr. Kuljanin’s account in relation to this charge is substantially supported by the testimony of Miro Golubovic, who stated that he and Mr. Kuljanin were ordered into the manhole together. In further support of these allegations, the Prosecution cites the interview with Hazim Delic conducted by Prosecution investigators on 19 July 1996 (Exhibit 103), as well as the testimony of Esad Landzo and witnesses, P, R, and T.

(b) Defence Case

The Defence contends that the two eyewitness accounts provided by Mr. Kuljanin and Miro Golubovic as to the events preceding their imprisonment in the manhole, contain irreconcilable discrepancies. The Defence further seeks to impeach Mr. Kuljanin’s testimony by pointing out prior inconsistent statements made by Mr. Kuljanin, including the date on which he was first taken prisoner and the sequence of events upon his arrival at the Celebici prison-camp.

The Trial Chamber finds the testimony of Milovan Kuljanin to be trustworthy. The Trial Chamber is unpersuaded by the efforts on behalf of the Defence to impeach Mr. Kuljanin’s testimony by reference to any prior inconsistent statements he may have made regarding his experiences in the Celebici prison-camp. As the Prosecution pointed out, most of the prior statements cited by the Defence were taken in the Celebici prison-camp under circumstances that necessarily call their voluntary nature into question. Further, the significance of any opportunity Mr. Kuljanin may have had to revise his statements must be assessed in light of his own admission in that context that he did not believe he could add the entire and complete truth to the statements he gave to the Bosnian authorities. ⁹¹⁶
The Trial Chamber further finds that, although some discrepancies exist between the statements of the two eyewitnesses in respect of the events preceding their alleged imprisonment in the manhole, the testimony is consistent with respect to the material facts. In this respect, the Trial Chamber further notes that the events to which these witnesses are testifying occurred over five years ago. Therefore, in reliance on the testimony of Mr. Kuljanin and the supporting evidence of Miro Golubovic, the Trial Chamber makes the following findings with respect to the acts alleged in paragraph 29 of the Indictment.
Soon after Mr. Kuljanin’s arrival at the Celebici prison-camp, he was taken, by Hazim Delic and others, to a manhole. There, Hazim Delic ordered that he and another detainee, Miro Golubovic, descend into the manhole using a ladder, whereupon the iron lid of the manhole was closed and locked. As described by Mr. Kuljanin in his testimony, the manhole was set vertically into the ground with dimensions of approximately 2.5 metres depth and 2.5 metres width. The manhole was dark and had insufficient air. The Trial Chamber finds that Mr. Kuljanin was kept in this manhole for at least a night and a day, during which time he was not provided with either food or water. Hazim Delic and Mr. Zdravko Mucic were present when Mr. Kuljanin was allowed to leave the manhole. Mr. Kuljanin testified that, on emerging from the manhole, he suffered a period of blurred and distorted vision. Mr. Golubovic’s account of the conditions in the manhole fully supports Mr. Kuljanin’s testimony.⁹¹⁷
Based upon the testimony of Mr. Kuljanin, the Trial Chamber further finds that, subsequent to his release from the manhole, he was taken to Building 22, where he was beaten with a number of objects, including shovels and electric wires, by some of the camp guards. Following the beatings, Mr. Kuljanin was taken for formal questioning by two individuals. Hazim Delic entered the room once during the inteview, carrying a wooden object which he used to strike Mr. Kuljanin.
The Trial Chamber finds that the act of imprisoning Mr. Kuljanin in a manhole for at least a night and a day without food or water constitutes torture. A person commits torture when he, as an official, or as an individual acting in an official capacity, intentionally inflicts severe pain or suffering for a prohibited purpose. Here, Hazim Delic, an individual acting in an official capacity imprisoned Milovan Kuljanin in an unlit manhole with insufficient air and without food or water for at least a night and a day. In his testimony, Mr. Kuljanin recalled his condition on emerging from the manhole as "helpless."⁹¹⁸ It is evident that the victim suffered severely during the course of his confinement. The fact that he was beaten and then questioned soon after being released from the manhole demonstrates that the reason for incarcerating Mr. Kuljanin in this manner was to intimidate him prior to interrogation.
For the reasons stated above, this Trial Chamber finds the offence of torture under Articles 2 and 3 of the Statute in respect of Milovan Kuljanin to be proven beyond reasonable doubt.

(d) 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. The Indictment does not charge Hazim Delic as a direct participant in the torture of Milovan Kuljanin. 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 torture or cruel treatment, as charged in counts 33 to 35 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 finding made above, the Trial Chamber finds that Zdravko Mucic is responsible pursuant to Article 7(3) of the Statute for the torture of Milovan Kuljanin. In his position as superior, Zdravko Mucic is further responsible for the torture of Momir Kuljanin, Grozdana Cecez, Milojka Antic, Spasoje Miljevic and Mirko Dordic, as alleged in paragraphs 23, 24, 25, 26 and 28 of the Indictment, and found proven by the Trial Chamber above. On the basis of the findings made above, the Trial Chamber further finds that Zdravko Mucic is not responsible for torture of Mirko Babic, as alleged in paragraph 27 of the Indictment.
For the foregoing reasons, the Trial Chamber finds Zdravko Mucic guilty of torture under Article 2 and 3 of the Statute, as charged in counts 33 and 34 of the Indictment. Count 35 of the Indictment, which is charged in the alternative to count 34, is accordingly dismissed.

15. Wilfully Causing Great Suffering or Serious Injury to, and Cruel Treatment of, Nedeljko Draganic. - Counts 36 and 37

In paragraph 30 of the Indictment, Esad Landzo is alleged to be responsible for causing great suffering or serious injury to body or health and the cruel treatment of Nedeljko Draganic, a detainee at the Celebici prison-camp. The alleged acts of the accused Esad Landzo in this respect are charged in counts 36 and 37 as follows:

Sometime beginning around the end of June 1992 and continuing until August 1992, Esad LANDZO and others repeatedly mistreated Nedeljko DRAGANIC by tying him to a roof beam and beating him, by striking him with a baseball bat, and by pouring gasoline on his trousers, setting them on fire and burning his legs. By his acts and omissions, Esad LANDZO is responsible for:

Count 36. A Grave Breach punishable under Article 2(c) (wilfully causing great suffering or serious injury) of the Statute of the Tribunal; and

Count 37. 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 allegations the Prosecution relies primarily on the testimony of Nedeljko Draganic himself. In addition, the Prosecution finds further support from the testimony of 11 other witnessses, namely, Branko Gotovac, Mladen Kuljanin, Mirko Dordic, Branko Sudar, Petko Grubac, Milovan Kuljanin and Witnesses F, N, B, P and R. With the exception of Witness P and Petko Grubac, these witnesses were all confined in Hangar 6 at the relevant time and were thus in a position to observe the treatment meted out to Nedeljko Draganic.

(b) Defence Case

When testifying in his own defence, Esad Landzo stated that he knew Nedeljko Draganic from his school days and that he had seen Mr. Draganic after he had been beaten by the other guards in a "workshop" in the Celebici prison-camp⁹¹⁹. He had denied that he knew anything about burns to Mr. Draganic, but he did notice that Mr. Draganic walked slowly when going to the toilet in the prison-camp. In his interview with the Prosecution investigators, given on 18 July 1996 (Exhibit 102), Mr. Landzo also stated that he knew that Mr. Draganic had been beaten, but did not identify the perpetrators.

Nedeljko Draganic is from the village Cerici, which is at a short distance from Konjic town, and was arrested on 23 May 1992, when he was 19 years of age, after his village had been shelled by the forces of the Bosnian government. Upon his arrest, he was taken to the Celebici prison-camp, where he was kept for the first three days in Tunnel 9. Thereafter, he was first moved to Building 22 and then to Hangar 6. He was released from the prison-camp at the end of August 1992.
Nedeljko Draganic himself testified that on one occasion towards the end of June or beginning of July 1992, while he was confined in the Celebici prison-camp, Esad Landzo and three other guards took him to another hangar, where they tied his hands to a beam in the ceiling and started hitting him with wooden planks and rifle butts, while asking him disclose where a rifle, which they believed him to own, was hidden, and during which he fainted two or three times. Thereafter, he was beaten almost every day by Esad Landzo, usually with a baseball bat and he was also forced, along with other detainees, to drink urine from the area where they were taken to urinate. On another occasion, Mr. Draganic testified that Esad Landzo took him to the same building and made him sit on the floor, against the wall, with his legs close together. Mr. Landzo then poured some gasoline on the lower part of his trousers and set them alight. As a consequence, his legs were badly burnt and, for lack of subsequent medical attention, the blisters caused by the burning became septic, requiring him to be taken to the so-called infirmary in Building 22 for treatment about a week later.
While Esad Landzo claimed not to remember these incidents of mistreatment during his oral testimony, the Trial Chamber finds no reason to disregard the sworn testimony of Nedeljko Draganic. His allegations in relation to the burning of his trousers and legs are supported by the evidence of Branko Gotovac, Witnesses F, N and R, Mirko Dordic, Branko Sudar and Milovan Kuljanin. These witnesses all saw Mr. Draganic’s burnt legs and Witnesses F, R, Mirko Dordic, and Branko Sudar also saw Esad Landzo taking Mr. Draganic out of Hangar 6 some time before he returned with the burn injuries. In Building 22, Witness P treated Mr. Draganic and he testified that he founds burns on the lower and upper parts of his legs.
The Trial Chamber finds no reason not to believe Mr. Draganic’s further testimony about being beaten by Mr. Landzo on several occasions and being forced to drink urine. These forms of mistreatment, it will be noted, were favoured by Mr. Landzo in relation to several of the detainees in the prison-camp. All of these abovementioned forms of mistreatment clearly caused serious mental and physical suffering to the victim and there is, therefore, enough reliable evidence available on the record to substantiate the charges of wilfully causing great suffering or serious injury to body or health, and the cruel treatment of, Nedeljko Draganic, contained in counts 36 and 37 of the Indictment. The Trial Chamber accordingly finds Esad Landzo guilty under both of these counts.

16. Responsibility of Superiors for Causing Great Suffering or Serious Injury - Counts 38 and 39

Paragraph 31 of the Indictment contains the following factual allegations:

With respect to the acts causing great suffering committed in Celebici camp, including the severe beatings of Mirko KULJANIN and Dragan KULJANIN, the placing of a burning fuse cord around the genital areas of Vukasin MRKAJIC and Dusko BENDO, and including those acts causing great suffering or serious injury described above in paragraph thirty...

Zejnil Delalic, Zdravko Mucic, 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. Accordingly, they are charged as follows:

Count 38. A Grave Breach punishable under Article 2(c) (wilfully causing great suffering or serious injury) of the Statute of the Tribunal; and

Count 39. 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.
The Trial Chamber’s findings as to the events alleged in paragraph 30 of the Indictment, as charged here, are set out above. Further, as discussed above, the Trial Chamber restricts itself to addressing the specific allegations in the Indictment and therefore will not consider the other acts of wilfully causing great suffering or serious injury to body or health, and cruel treatment, for which evidence was led during trial, but which are not specifically alleged in the Indictment. Accordingly, the Trial Chamber here limits itself to considering the factual allegations as they relate to Mirko Kuljanin, Dragan Kuljanin, Vukasin Mrkajic, and Dusko Bendo.
The Trial Chamber notes that, while the present paragraph of the Indictment further provides that "[w]ith respect to those counts above where Hazim Delic is charged as a direct participant, he is also charged here as a superior", no charge of criminal responsibility pursuant to Article 7(1) of the Statute has been made against Hazim Delic with respect to the acts for which superior responsibility is charged under the present counts.

(a) Mirko Kuljanin

The Indictment alleges that Mirko Kuljanin was severely beaten in the Celebici prison-camp. In order to establish the facts in relation to this charge, the Prosecution relies on the testimony of Mirko Kuljanin and Witness F.
The Defence⁹²⁰contends that the worst beatings to which Mr. Kuljanin was subjected occurred outside of the Celebici prison-camp and that he was not really beaten severely inside the camp. The Defence further submits that it is not clear from the Prosecution’s evidence that the individuals who participated in the alleged beatings were under the command of the Celebici prison-camp commander.
In his testimony, Mirko Kuljanin declared that the most severe beatings he received were administered prior to his arrival at the Celebici prison-camp. He further testified that, upon his arrival in the Celebici prison-camp, he was taken to a wall inside the camp, where he and the other newly arrived detainees were beaten. However, Mr. Kuljanin stated that he was not really beaten on this occasion, as he was already unable to stand. He testified: "Maybe they hit me three times. Somebody hit me three times and then some people pulled me inside. I was not really severely beaten there."⁹²¹ Witness F testified to seeing Mr. Kuljanin in Hangar 6 sometime thereafter, in a seriously injured condition. The Trial Chamber finds the testimony of these two witnesses to be credible in relation to this charge.
Accordingly, the Trial Chamber finds that, upon his arrival in the Celebici prison-camp, Mr Kuljanin was seriously injured, having previously been subjected to severe beatings. He and the other newly arrived detainees were taken in a van to a wall inside the camp compound. There, they found many other detainees with their hands up against the wall, being beaten. Mr. Kuljanin testified that he could hear moans and cries from outside the van. The van was then opened and he and the other detainees were told to get out. At this point, Mr. Kuljanin’s distress was so acute that he tried to commit suicide by attempting to drive a nail through his head. At the wall, Mr Kuljanin, who was unable to stand on account of his previously inflicted injuries, was hit several times before being pulled away from the scene of the beatings into Tunnel 9.
The Trial Chamber finds that it has not been presented with sufficient evidence to enable it to assess whether the nature of the beatings to which Mr. Kuljanin was subjected inside the Celebici prison-camp caused him suffering or injury of the character required to constitute the offence of wilfully causing great suffering or serious injury to body or health. However, in the Trial Chamber’s view, the act of hitting an individual who is so seriously injured that he is unable to stand, necessarily entails, at a minimum, a serious affront to human dignity. Accordingly, on the basis of the foregoing facts, the Trial Chamber finds that the physical mistreatment of Mirko Kuljanin constitutes the offence of inhuman treatment under Article 2, and cruel treatment under Article 3 of the Statute.

(b) Dragan Kuljanin

The Indictment alleges that Dragan Kuljanin was subjected to severe beatings in the Celebici prison-camp. In seeking to prove this factual allegation the Prosecution relies upon the testimony of Dragan Kuljanin and Witness R.
The Defence submits that, as regards the incident wherein Dragan Kuljanin alleges he was forced to pass between two rows of people while they inflicted blows upon him, the Prosecution evidence does not establish that the individuals who participated in the beatings were under the command of the Celebici prison-camp commander. The Defence further seeks to undermine Dragan Kuljanin’s testimony by reference to prior inconsistent statements made by him to the Prosecution.
In his testimony, Mr. Kuljanin provided detailed descriptions of the beatings he received inside the Celebici prison-camp. In reliance upon Mr. Kuljanin’s testimony, the Trial Chamber makes the following findings.
When Dragan Kuljanin first arrived at the prison-camp between ten and fifteen people were lined up in two rows between the vehicle, from which he and other newly arrived detainees were emerging, and the entrance to Hangar 6. Each of the detainees in turn was then forced to pass between the lines of people, while repeated blows were inflicted upon them. Mr. Kuljanin testified that, when his turn came, he was kicked and beaten for about fifteen minutes. The perpetrators used sticks and chains to inflict the blows. Hazim Delic was present for at least some period during the beatings.
On a separate occasion, a guard called Salko took Mr. Kuljanin out behind Hangar 6 and kicked him several times in the ribs. The guard then proceeded to hit Mr. Kuljanin with his rifle butt. The beating lasted for about ten or fifteen minutes. On his way back to the Hangar, Mr. Kuljanin encountered Esad Landzo, who hit him five or six times in the chest with his rifle butt.
On two further occasions, Esad Landzo came into the Hangar and forced Mr. Kuljanin to do push-ups, while inflicting blows to his body, once with kicks and a second time with a baseball bat.
The severity of the physical injuries sustained by the victim is illustrated by the fact that Mr. Kuljanin testified that even now, five years after the events, he still suffers certain physical consequences of the ill-treatment he received in the Celebici prison-camp. Specifically, Mr. Kuljanin testified to experiencing the following clinical problems: "Sometimes I urinate blood. I don’t hear well on my left ear. . . . I have pains and it impedes my speech. Sometimes I have kidney pains."⁹²²
The foregoing facts demonstrate that Dragan Kuljanin was subjected to deliberate ill-treatment on numerous occasions during his detention in the Celebici prison-camp. The Trial Chamber finds that the beatings described above caused Mr. Kuljanin serious suffering and physical injury. Accordingly, with respect to each separate act of ill-treatment found above, the Trial Chamber finds that the offences of wilfully causing great suffering or serious injury to body or health under Article 2, and cruel treatment under Article 3 of the Statute, have been proven beyond a reasonable doubt.

The Indictment alleges that, on one occasion, Vukasin Mrkajic had a burning fuse placed around his genital area. In addition to this specific allegation, the Prosecution asserts that Vukasin Mrkajic, on numerous occasions, was beaten by guards and others in the Celebici prison-camp. In support of this allegation, the Prosecution relies on the testimony of the following ten witnesses: Stevan Gligorevic, Mirko Dordic, Risto Vukalo, Witness F, Mirko Kuljanin, Dragan Kuljanin, Branko Sudar, Mladen Kuljanin, Witness N and Rajko Draganic. The Prosecution also called and examined Witness R who gave evidence relating to the present charge.
In relation to the present charge, the Defence for Zejnil Delacic concedes that the Prosecution has presented consistent evidence that Vukasin Mrkajic was assaulted by having a fuse tied round him and set alight by Esad Landzo. However, the Defence further appears to argue that one of the elements of the offences with which the accused are charged under the present counts, is the showing of a prohibited purpose, and, further, that the Prosecution has failed to prove that the acts alleged were carried out with such a purpose. ⁹²³
The evidence presented to the Trial Chamber demonstrates that Vukasin Mrkajic, during his period of detention in the Celebici prison-camp, was repeatedly subjected to physical mistreatment by several of the guards. In their evidence, Mirko Dordic, Witness R and Stevan Gligorevic gave consistent and reliable accounts of how Vukasin Mrkajic was one of the prisoners targeted for beatings by Hazim Delic, who would hit him "almost every time he would come to the hangar". ⁹²⁴
With respect to the act specifically alleged in the Indictment, Branko Sudar, Risto Vukalo, Rajko Draganic, Witness R, Mirko Dordic, Witness N, Witness F and Mladen Kuljanin all testified to having witnessed an incident when Esad Landzo placed a burning fuse around Vukasin Mrkajic’s body. In his detailed account of this event, Mirko Dordic described how Esad Landzo removed Vukasin Mrkajic’s trousers and placed a slow-burning fuse against his bare skin around his waist and genitals. He ordered the victim to put the trousers back on, whereupon he set light to the fuse. Rajko Draganic and Mladen Kuljanin both testified that Vukasin Mrkajic was forced to run around between the rows of prisoners inside Hangar 6, while screaming from the pain of the burning fuse. While there is some variation in the accounts given of this incident, the foregoing version of events is, in all material respects, supported by the other witnesses who testified to this incident. In his testimony, Witness R described how he could observe that Vukasin Mrkajic, as a result of this ill-treatment, developed blisters filled with liquid, which later developed into open wounds. This witness further stated that Vukasin Mrkajic was never given any medical treatment for his injuries.
Based upon this evidence, the Trial Chamber finds that on one occasion during the victim’s detention in the Celebici prison-camp, Esad Landzo placed a burning fuse-cord directly against Vukasin Mrkajic’s bare skin in the genital area, thereby inflicting serious pain and injury upon him.
Although the Defence contends otherwise, the Trial Chamber has found that it is not a necessary element of the offence of wilfully causing great suffering or serious injury to the body or health that the harmful act be perpetrated for any particular purpose. Accordingly, in relation to the present charge, the Trial Chamber finds that the intentional act of placing of a burning fuse cord against Vukasin Mrkajic’s bare body caused the victim such serious suffering and injury that it constitutes the offence of wilfully causing great suffering or serious injury to body or health under Article 2, and cruel treatment under Article 3 of the Statute.

(d) Dusko Bendo

The Indictment alleges that, on one occasion in the Celebici prison-camp, a burning fuse cord was placed around the genital area of Dusko Bendo. In support of its allegations of serious mistreatment of this victim, the Prosecution relies on the testimony of the following twelve witnesses: Witness R, Witness F, Mirko Dordic, Dragan Kuljanin, Mladen Kuljanin, Witness N, Vaso Dordic, Dr. Petko Grubac, Branko Gotovac, Witness B, Branko Sudar and Rajko Draganic. The Prosecution also called and examined Stevan Gligorevic, Nedeljko Draganic and Witness B, who gave evidence relating to this incident.
Relying, inter alia, on the testimony of Witness R, the Prosecution alleges that Dusko Bendo on one occasion received burns to his legs. With reference to the evidence given by Vaso Dordic, it further contends that on another occasion, Esad Landzo burned Dusko Bendo with a heated knife. The Prosecution concedes that there is some ambiguity concerning whether Dusko Bendo, in addition to this mistreatment, also had a burning fuse put around him, as alleged in the Indictment. The Prosecution asserts, however, that, given that there can be no doubt that Dusko Bendo was burned, the exact manner in which this mistreatment was perpetrated should not be considered to be legally dispositive. Submitting that the evidence demonstrates that prison-camp personnel subjected the victim to severe pain and caused him great suffering or serious injury, it accordingly contends that all the elements necessary for the crime of causing great suffering and cruel treatment have been met.
The Defence, noting the existence of evidence that Dusko Bendo was beaten regularly and that he was set on fire, contends that the testimony relied upon by the Prosecution differs as to where the latter act occurred. It submits that this discrepancy casts doubt upon the reliability of the witnesses and upon the truth of the incident itself.
The Trial Chamber heard evidence from 15 witnesses in relation to the present charge. All but two of these witnesses testified that Dusko Bendo, during his detention in the Celebici prison-camp, suffered severe burns. While Vaso Dordic, in his testimony, described how Esad Landzo used a heated knife to burn Dusko Bendo’s body, Witness R, Mirko Dordic, Rajko Draganic, Mladen Kuljanin, Witness N and Stevan Gligorevic all variously described how Esad Landzo set the victim’s trousers on fire, causing serious burns to his legs.
The Trial Chamber notes, however, that there is no allegation in the Indictment with respect to the incidents recounted by these witnesses. Conversely, the Prosecution has presented no evidence in relation to the alleged placing of a burning fuse cord around the genital area of Dusko Bendo. As discussed above, where evidence has been led at trial in relation to alleged criminal acts not specified in the Indictment, the Trial Chamber, in fairness to the accused, does not consider the unspecified acts to form part of the charges against the accused. In the instant case, the Prosecution has failed to present any evidence in support of the acts specifically alleged in the Indictment. Accordingly, the Trial Chamber must conclude that the present charge of wilfully causing great suffering or serious injury to body or health, and cruel treatment, as alleged in the Indictment, has not been proven.

(e) 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 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 wilfully causing great suffering or serious injury to body or health and cruel treatment, as charged in counts 38 and 39 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 finding made above, the Trial Chamber finds that Zdravko Mucic is responsible pursuant to Article 7(3) of the Statute for wilfully causing great suffering or serious injury to body or health to, and cruel treatment of, Dragan Kuljanin and Vukasin Mrkajic, and the inhuman treatment and cruel treatment of Mirko Kuljanin. On the basis of the finding made above, the Trial Chamber finds that Zdravko Mucic is not responsible for the acts alleged in the Indictment in respect of Dusko Bendo.
In his position as a superior, Zdravko Mucic is further responsible for wilfully causing great suffering or serious injury to body or health to, and cruel treatment of, Nedeljko Draganic, as alleged in Paragraph 30 of the Indictment, and found proven by the Trial Chamber above.

17. Inhumane Acts Involving the Use of Electrical Device - Counts 42 and 43

Paragraph 33 of the Indictment states that:

Sometime beginning around 30 May 1992 and continuing until the latter part of September 1992, Hazim DELIC used a device emitting electrical current to inflict pain on many detainees, including Milenko KULJANIN and Novica DORDIC.

In relation to this factual allegation, Hazim Delic is charged as direct participant as follows:

Count 42. A Grave Breach punishable under Article 2(b)(inhuman treatment) of the Statute of the Tribunal; and

Count 43. 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 seeking to prove these counts of the Indictment, the Prosecution relies upon the evidence of the following witnesses: Stevan Gligorevic, Novica Dordic, Witness P, Witness B, Milenko Kuljanin and Witness R. The Prosecution alleges that, during the months of July and August 1992, Hazim Delic frequently used a painful device which emitted an electrical current, upon a great number of detainees in the Celebici prison-camp including Milenko Kuljanin and Novica Dordic. It contends that the shocks that this device emitted were so severe that victims suffered convulsions and burns. In addition, it submits that Hazim Delic derived pleasure from the use of this device. On the basis of the foregoing, the Prosecution submits that Mr. Delic inflicted severe pain, suffering and indignity, out of proportion to the treatment expected of one human being of another.

(b) Defence Case

Hazim Delic is the only accused charged as a direct participant in the acts alleged in this section of the Indictment. In the Motion to Dismiss, his Defence submits that the Prosecution has failed to satisfy the general requirements of Articles 2 and 3 of the Statute⁹²⁵. In his interview with Prosecution investigators, on 19 July 1996, Mr. Delic claimed that there never was an electrical device such as that described in the Celebici prison-camp⁹²⁶. However, apart from general attempts to impeach the credibility of Prosecution witnesses, no other direct factual allegations have been specifically made by the Defence in respect of these counts.

The Trial Chamber is persuaded by the volume and consistency of the Prosecution evidence in relation to these counts. It finds that, during the months of July and August 1992, Hazim Delic used a device which emitted an electrical current and inflicted pain and injury upon detainees in the Celebici prison-camp.
The device used by Mr. Delic, which emitted electric shocks, was variously described as "an electric prod for cattle",⁹²⁷ "a device used …when cattle were slaughtered"⁹²⁸, "a device for horses … it produces strong electrical shocks"⁹²⁹ "a gadget which produced electric shocks"⁹³⁰, and "a device that causes electrical shocks"⁹³¹. Witness P described the device as an electric stick about the size of two cigarette packets, with a button. Milenko Kuljanin, upon whom this device was used, described it in the most detail and stated that it was an electrical device in the form of a packet of cigarettes but much larger, with two wires on the top that were connected to a button.
The Trial Chamber finds that this device was used on both Milenko Kuljanin and Novica Dordic. On one occasion Mr. Delic walked into Tunnel 9 and gave Milenko Kuljanin two electric shocks on his chest just below his neck. On another occasion, Mr. Delic took prisoners from Tunnel 9 outside and selected Novica Dordic, who was made to sit on a stone block, naked from the waist up, while Delic applied the device to his chest, despite his pleas for mercy. After the shock, the victim fell off the block whereupon Mr. Delic caught him by the leg and kept the device on his chest for a prolonged period of time.
In addition, Witness B stated that Hazim Delic had used the device upon him. Stevan Gligorevic and Witness R testified that he had used it upon Davor Kuljanin and Novica Dordic stated that the device was inflicted upon Vukasin Mrkajic. Witness P, testified of its use by Mr. Delic upon Risto Zuza. Milenko Kuljanin also stated that Delic used this device on five named detainees from Tunnel 9. This was supported by the evidence of Witness B, who said that Mr. Delic used the device on many prisoners; Novica Dordic, who testified that Mr. Delic used the device on most of the prisoners in Tunnel 9; and Witness R, who stated that Mr. Delic had developed a habit or custom of placing it against the shoulder or neck of prisoners and turning it on. Thus, the evidence before the Trial Chamber consistently shows that Hazim Delic inflicted this electrical device on numerous prisoners, primarily from Tunnel 9, and on numerous occasions in the Celebici prison-camp.
The electric shocks emitted by the device caused pain, burns, convulsions and scarring, and frightened the victims and other prisoners. Novica Dordic testified that the device inflicted a small burn, like the burn from a cigarette, but that the electrical charge was very high and would frighten the victim to the point where he felt he would not be able to survive. In relation to the occasion when the device was used on Novica Dordic, the victim testified that Hazim Delic kept the device on his skin for a long time. This caused a large burn, which subsequently became infected and as a result of which he bears a scar. Milenko Kuljanin also stated that the device caused horrible and terribly unpleasant pain, convulsions and twitching, and that he suffered a burn and scarring as a result of its use on him. In addition, Witness B testified that when Mr. Delic used the device on prisoners, they would go into spasms. This is supported by Witness P, who testified that when Mr. Delic used the device on Risto Zuza he had a spasm and was thrown into the corner of Tunnel 9.
The evidence further establishes that Hazim Delic derived sadistic pleasure from the use of this device. Novica Dordic, stated that it was like a "toy" for Mr. Delic ⁹³²and Witness B testified that Delic found the use of this device "very amusing"⁹³³. Milenko Kuljanin testified that when Mr. Delic was using the device on him, he laughed and found it funny. In addition, he stated that when Delic was using the device on some of the other prisoners he,

talked during this and laughed at them as he was applying the device. Some of them begged him as they were in pain and unpleasant pain not to torture them, not to maltreat them, but he even hit some of them when they begged him to cease torturing them. He merely laughed.⁹³⁴
The Trial Chamber finds that Hazim Delic deliberately used an electric shock device on numerous prisoners in the Celebici prison-camp during the months of July and August 1992. The use of this device by Mr. Delic caused pain, burns, convulsions, twitching and scaring. Moreover, it frightened the victims and reduced them to begging for mercy from Mr. Delic, a man who derived sadistic pleasure from the suffering and humiliation that he caused. Accordingly, the Trial Chamber finds that Mr. Delic, by his acts, intentionally caused serious physical and mental suffering, which also constituted a clear attack upon the human dignity of his victims.
For these reasons, the Trial Chamber finds Hazim Delic guilty of inhuman treatment, under count 42 of the Indictment and of cruel treatment, under count 43 of the Indictment, with respect to the use of a device emitting an electrical current on Milenko Kuljanin and Novica Dordic.

18. Responsibility of Superiors for Inhumane Acts - Counts 44 and 45

Paragraph 34 of the Indictment contains the following factual allegations:

With respect to the incidents of inhuman acts committed in Celebici camp, including forcing persons to commit fellatio with each other, forcing a father and son to slap each other repeatedly, and including those acts described above in paragraph thirty-three, Zejnil DELALIC, Zdravko MUCIC and Hazim DELIC knew or had reason to know that subordinates were about to commit those acts or had done so, and failed either to take the necessary or reasonable steps to prevent those acts or to punish the perpetrators.

In connection with the foregoing allegations, Zejnil Delalic, Zdravko Mucic and Hazim Delic are charged as superiors as follows:

Count 44. A Grave Breach punishable under Article 2(b)(inhuman treatment) of the Statute of the Tribunal; and

Count 45. 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.
The Trial Chamber’s findings as to the offences described in paragraph 33 of the Indictment, as charged here, are set out above. Further, as discussed above, the Trial Chamber restricts itself to addressing the specific allegations in the Indictment and therefore will not consider the other numerous acts of ill-treatment alleged to have occurred at the Celebici prison-camp, but not specifically alleged in the Indictment. Accordingly, the Trial Chamber here limits itself to considering the factual allegations as they relate to the incidents wherein persons were forced to commit fellatio with each other and where a father and son were forced to slap each other repeatedly.

(a) Forcing Persons to Commit Fellatio with Each Other

The Indictment alleges that, on one occasion, certain of the detainees were forced to perform fellatio on each other. In order to establish the facts in relation to this count, the Prosecution relies on the testimony of eleven witnesses, in addition to the testimony of the accused, Esad Landzo. Vaso Dordic gave an account of the incident, whereby Esad Landzo allegedly forced him and his brother to commit fellatio with each other in Hangar 6 in full view of the other detainees. The Prosecution submits that this account is supported by the testimony of various other witnesses, including Witness N, Mladen Kuljanin, Witness R, Rajko Draganic, Dragan Kuljanin, Mirko Dordic, Witness M, Witness B, Witness F and Risto Vukalo. In addition, the Prosecution relies on the admission of the accused, Esad Landzo, that he forced the Dordic brothers to commit fellatio with one another and that he put a burning fuse around their genitals. The Prosecution also relies on the testimony of Esad Landzo and the supporting testimony of Rajko Draganic to prove that Hazim Delic was present during the incident, giving instructions to Esad Landzo.
The Defence notes that the accounts of the Prosecution witnesses are inconsistent as to the date on which this incident is alleged to have occcurred.
The Trial Chamber finds the testimony of the victim and the supporting evidence of Witness F, Witness N, Dragan Kuljanin, Witness B, Risto Vukalo, Rajko Draganic, Witness R and Mirko Dordic to be trustworthy as regards the act of forcing two brothers to commit fellatio as alleged in these counts. This incident is alleged to have taken place insider Hangar 6, and as such, many of the former detainees who testified were able to observe the incident from their vantage point inside the Hangar. Further, Esad Landzo, provided a full confession as to his participation in this incident in his testimony before this Trial Chamber. The Trial Chamber has previously stated that it finds the testimony of Esad Landzo to be generally unreliable. However, in relation to the present count, where his testimony is consistent with that of so many additional witnesses, the Trial Chamber accepts Mr. Landzo’s admission.
Accordingly, on the basis of the foregoing evidence, the Trial Chamber finds that, on one occasion, Esad Landzo ordered Vaso Dordic and his brother, Veseljko Dordic, to remove their trousers in front of the other detainees in Hangar 6. He then forced first one brother and then the other to kneel down and take the other one’s penis into his mouth for a period of about two to three minutes. This act of fellatio was performed in full view of the other detainees in the Hangar.
The Trial Chamber finds that the act of forcing Vaso Dordic and Veseljko Dordic to perform fellatio on one another constituted, at least, a fundamental attack on their human dignity. Accordingly, the Trial Chamber finds that this act constitutes the offence of inhuman treatment under Article 2 of the Statute, and cruel treatment under Article 3 of the Statute. The Trial Chamber notes that the aforementioned act could constitute rape for which liability could have been found if pleaded in the appropriate manner.

(b) Forcing a Father and Son to Slap Each Other Repeatedly

The Prosecution alleges that, on one occasion, a father and son, Danilo and Miso Kuljanin, were forced to slap each other repeatedly. In order to establish the facts in relation to this count, the Prosecution relies on the testimony of Mirko Dordic.
The Defence has made no submissions in relation to this factual allegation in the Indictment.
The Trial Chamber finds the testimony of Mirko Dordic in relation to this count to be trustworthy. Accordingly, it finds that, on one occasion, Esad Landzo came into Hangar 6 and ordered a father and son, Danilo and Miso Kuljanin, to get up and start hitting each other. Esad Landzo then ordered them to hit each other harder and so, for a period of at least ten minutes, Mr. Kuljanin and his son were forced to beat each other.
The Trial Chamber finds that, through being forced to administer a mutual beating to one another, Danilo and Miso Kuljanin were subjected to serious pain and indignity. Accordingly, the Trial Chamber finds that the deliberate act of forcing Danilo Kuljanin and Miso Kuljanin, father and son, to beat one another repeatedly over a period of at least ten minutes constitutes inhuman treatment under Article 2 of the Statute and cruel treatment under Article 3 of the Statute.

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 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 inhuman and cruel treatment, as charged in counts 44 and 45 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 that Zdravko Mucic is responsible pursuant to Article 7(3) of the Statute for inhuman treatment and cruel treatment of Vaso Dordic, Veseljko Dordic, Danilo Kuljanin and Miso Kuljanin. In his position as a superior, Zdravko Mucic is further responsible for inhuman treatment and cruel treatment of Milenko Kuljanin and Novica Dordic, alleged in paragraph 33 of the Indictment and found proven by the Trial Chamber above.

19. Inhumane Conditions - Counts 46 and 47

Paragraph 35 of the Indictment sets forth the following factual allegation:

Between May and October 1992, the detainees at Celebici camp were subjected to an atmosphere of terror created by the killing and abuse of other detainees and to inhumane living conditions by being deprived of adequate food, water, medical care, as well as sleeping and toilet facilities. These conditions caused the detainees to suffer severe psychological and physical trauma…

In connection with this factual allegation, Zdravko Mucic, Hazim Delic and Esad Landzo are charged with responsibility pursuant to Article 7(1) of the Statute for having directly participated in creating the alleged conditions. In addition, Zejnil Delalic, Zdravko Mucic and Hazim Delic are charged with responsibility as superiors, pursuant to Article 7(3) of the Statute. The accused are charged in these capacities as follows:

Count 46. A Grave Breach punishable under Article 2(c)(wilfully causing great suffering) of the Statute of the Tribunal; and

Count 47. 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 allegation contained in the Indictment, the Prosecution relies on a large body of evidence given by former detainees who, in their testimony before the Trial Chamber, described the conditions under which they were detained in the Celebici prison-camp. Based upon this evidence, the Prosecution, in its submissions, more specifically identified the following factors, which it alleges contributed to the inhumane conditions that have prevailed in the Celebici prison-camp.
According to the Prosecution, a fundamental aspect of the inhumane conditions in the prison-camp was the all-pervasive atmosphere of terror to which the detainees were constantly subjected. In this respect, it is submitted that, even when not themselves subjected to such treatment, detainees frequently witnessed the mistreatment or killing of other prisoners. The Prosecution contends that ample evidence demonstrates that this atmosphere of terror was purposely maintained, and that this element by itself, even without the other inadequacies in the conditions prison-camp, would be sufficient to constitute inhumane conditions.
With respect to the alleged deprivation of food and water, the Prosecution notes that many witnesses testified about the inadequacy of the food provided to the detainees, and that there were some protracted periods in which no food was provided at all. Similarly, it is submitted that the evidence demonstrates that, while there was no shortage of water, prisoners were denied access to drinking water in sufficient quantities. It further notes that, according to some witnesses, the detainees were forced to drink non-potable water. It is contended that, as a result of these conditions, many detainees suffered serious weight loss and a weakened physical state during their detention.
According to the Prosecution, the testimony from the detainees further demonstrates that there was little medical care provided in the prison-camp. It submits that, although the prison-camp had a makeshift infirmary, it was very poorly equipped and was clearly inadequate to meet the substantial medical needs of the detainees. Further, the Prosecution contends that the evidence demonstrates that the detainees were often denied access to the limited medical facilities that were in fact available.
The Prosecution further alleges that the sleeping conditions provided for the detainees were seriously inadequate. More specifically, it submits that the evidence demonstrates that the detainees imprisoned in Hangar 6 sat and slept in their assigned positions, on a concrete floor. They were not provided with beds or mattresses, and blankets were scarce. It is contended that the situation in Tunnel 9 was even more difficult and that conditions there were so cramped that it was almost impossible for the detainees to lie down. As in Hangar 6, no bedding was provided.
The Prosecution also asserts that the detainees’ access to toilet facilities was limited and, more generally, that the standard of hygiene in the prison-camp fell seriously below acceptable standards. In this respect, it submits that the evidence shows that the toilet facilities available to the detainees in Hangar 6 consisted of an outside septic tank and a ditch, to which the detainees were allowed only restricted access during the day. It is further noted that, at some stage at least, one or two buckets were provided for the detainees to use as toilet facilities during the night, the capacities of which were clearly inadequate. As to the conditions in Tunnel 9, it is submitted that the evidence shows that the detainees were forced to relieve themselves at the bottom of the tunnel, with some of the prisoners being compelled to sit in the rising tide of excrement.
The Prosecution further maintains that the arguments raised by the Defence cannot provide any defence to the charges of inhumane conditions. It thus submits, as a matter of law, that a detaining power which is not in a position to comply with the minimum standards of detention as prescribed by international humanitarian law, is under an obligation to release some, or all, of the prisoners in order to allow humane conditions to be created for those detained. Furthermore, it submits that the evidence contradicts the Defence claim that the conditions in the Celebici prison-camp were in fact the best that could be provided at the time. In this respect it notes that no justification based on lack of resources could possibly be provided for the constant physical abuse, the refusal to allow the detainees to avail themselves of the existing water supply, or the failure to provide acceptable toilet and hygiene facilities.

(b) Defence Case

In response to the allegations made in the Indictment, the Defence contends that a State may lawfully detain individuals under conditions which fall below the minimum requirements of international humanitarian law, provided that a good faith effort is made to ensure that the conditions of detention are as humane as possible under the circumstances. It accordingly asserts that if, in view of the available resources, the conditions of confinement are the best that can be provided, no criminal liability can attach to the individuals who act on behalf of the detaining State. On this basis, the Defence contends that the standard by which the acts of the accused should be measured is whether they acted reasonably in providing food, shelter and other facilities to the detainees in the Celebici-prison-camp. Noting the very difficult conditions which prevailed in the Konjic municipality at the time, it submits that the Prosecution has failed to demonstrate that the quantities of food supplied to the detainees of the Celebici prison-camp, or the physical facilities available to them, could reasonably have been increased or improved at the time the prison-camp was in operation.
With respect to the actual conditions of confinement in the Celebici prison-camp, the Defence notes that several witnesses testified to the efforts made to ensure that the detainees were properly fed, despite the extremely difficult situation which existed in Konjic in 1992. The Defence relies in this respect on the evidence of Sefkija Kevric, the assistant commander of logistics in the Municipal TO staff in Konjic, Zlatko Ustalic, a driver who delivered food to the Celebici prison-camp, and Emir Dzajic, a driver for the MUP who was stationed in the prison-camp in May and June 1992. In particular, the Defence observes that, according to the latter of these two witnesses, food for the staff and detainees of the Celebici prison-camp was delivered three times a day. According to the Defence, the two groups ate the same food, which for breakfast consisted of tea, coffee with milk, some eggs and for a while some honey. For lunch there were such things as lentils and beans. Further, it submits that each detainee received one quarter loaf of bread per day, and that the food supplies delivered to the prison-camp also included rice, macaroni and tins of meat.
In response to the allegation that the health care provided for the detainees in the prison-camp was inadequate, the Defence observes, inter alia, that an infirmary was established in the Celebici prison-camp. This was situated in Building 22 and was staffed by two doctors, Dr. Petko Grubac and Witness P. The Defence further submits that the logistics body of the Municipal TO in Konjic provided the prison-camp with medicine. This was done through the Health Centre in Konjic, which Hazim Delic personally visited once a week to collect medication and bandages for the infirmary.
More generally, the Defence notes that the Celebici barracks were not designed to accommodate a large number of people. This complex of bindings was intended as a storage facility, manned by a relatively small number of troops and, consequently, had only a limited number of toilets, showers and other facilities. Relying on the testimony of Emir Dzajic and Nurko Tabak, the Defence submits that, despite these limitations, conditions in the camp were not of the character alleged by the Prosecution. Thus, the Defence contends that the detainees in the so-called infirmary in Building 22 and the women in Building A used the toilet facilities in Building 22, and that the toilet facilities outside Hangar 6 and Tunnel 9 were similar to field toilets used in the military. It submits that there was a sufficient supply of clean water in the prison-camp, and that the same water was supplied both to the personnel and the detainees. Similarly, it asserts that the sleeping facilities for the detainees were not crowded. With reference to the conditions in Tunnel 9, the Defence asserts that the detainees there had blankets, food and water, and were permitted to use the toilet upon request. In addition, it is contended that family members were allowed to visit the prison-camp three times a week to bring food and clothing to the detainees.

The Indictment characterises the conditions prevailing in the Celebici prison-camp as "inhumane" and alleges that the exposure of the detainees to these conditions constitutes the offences of wilfully causing great suffering or serious injury to body or health, and cruel treatment. The Trial Chamber here considers the different aspects of these alleged conditions in turn.

(i) Atmosphere of terror

During the course of these proceedings, the Trial Chamber was presented with extensive evidence regarding the physical and psychological abuse to which the detainees in the Celebici prison-camp were continually subjected. This evidence clearly demonstrates that those individual acts specifically alleged in the Indictment, and found proven by the Trial Chamber, in no way represent the totality of the cruel and oppressive acts committed against the detainees in the Celebici prison-camp. However, from the evidence reviewed above, it is already clear that the detainees in the Celebici prison-camp were continuously witnessing the most severe physical abuse being inflicted on defenceless victims. This evidence further demonstrates how the detainees in crowded conditions of detention were obliged to helplessly observe the horrific injuries and suffering caused by this mistreatment, as well as the bodies of detainees who had died from the abuse to which they were subjected. In his testimony, Mirko Dordic gave the following description of how he was in this way confronted with the lifeless body of Zeljko Cecez, who had died as a result of the ill-treatment to which he was subjected: "We were all shivering with fear. We didn’t dare even look, because few of us had contact with dead people. We are [sic] afraid of corpses. He lay there in our midst for three or four hours, maybe even longer".⁹³⁵
It is clear that, by their exposure to these conditions, the detainees were compelled to live with the ever-present fear of being killed or subjected to physical abuse. This psychological terror was compounded by the fact that many of the detainees were selected for mistreatment in an apparently arbitrary manner, thereby creating an atmosphere of constant uncertainty. For example, Witness M, when asked whether he was generally given a reason as to why he had been selected for mistreatment responded: "Sometimes yes, sometimes no."⁹³⁶ Similarly, Witness N, who in his testimony described how he repeatedly was subjected to severe physical abuse, declared that he had no knowledge as to why he, in particular, was subjected to this kind of mistreatment⁹³⁷. Further, Branko Sudar, in his evidence, explained that "[t]he guards beat us to tell you the truth. They beat us, it depended. Sometimes somebody would go out and get hit, someone else would not get hit. It all depended."⁹³⁸
Many of the former detainees testified directly as to the fear they had experienced during their detention in the Celebici prison-camp on account of the frequency with which ill-treatment was arbitrarily meted out. In his evidence, Witness F; stated: "I was afraid of everyone down there. Whoever walked in, I was afraid of them, and prayed to God not to be taken out, because I was not sure that I would come back alive if I were taken out"⁹³⁹. This witness further testified that whenever the detainees in Hangar 6 heard the voice of Esad Landzo they grew terrified: "When he [Esad Landzo] was speaking outside, we knew immediately that he was coming, and we were already in fear"⁹⁴⁰. Witness N provided supporting testimony as to the fear inspired amongst the detainees by Esad Landzo: "I just know that he [Esad Landzo] beat people, that he came, that he was there during that period non-stop. We were all afraid."⁹⁴¹ Similarly, Mirko Babic, speaking of Hazim Delic’s daily visits to Hangar 6, testified that when Hazim Delic entered the Hangar "everybody was in fear. Almost - your heart would almost burst".⁹⁴² Grozdana Cecez and Risto Vukalo also gave accounts of the fear experienced during their detention, the latter declaring that he was "terrified and thinking only how I could avoid beatings".⁹⁴³

The evidence further demonstrates that the guards in the Celebici prison-camp would often threaten to kill the detainees, thereby aggravating their sense of physical insecurity and fear. For example, Witness M stated: "I was mistreated and threatened with death, that I would be sentenced to death."⁹⁴⁴ Similarly, Risto Vukalo testified to one occasion on which he and Damir Gotovac were called out of the hangar. He described how he

saw Damir there, Zenga [Esad Landzo] was hitting him and he fainted and fell to the ground. Then Zenga told me to kill him, I mean to beat him to death. I said I could not do that. Let him kill me. Then they started hitting me, Zenga was there and Osman Dedic as well. They started hitting me and then they ordered Damir to kill me.⁹⁴⁵

Novica Dordic described one occasion on which he went to collect food for the detainees in Tunnel 9 and where he lost consciousness after being kicked by a guard. He further testified: "I couldn’t fully comprehend that this was happening and the guard threatened to kill me if I didn’t get up."⁹⁴⁶ A further example of such threatening behavior was provided by Witness R who, in his testimony, described how, when confronted with a request for medical care by a detainee, Hazim Delic would respond "sit down, you have to die anyway, whether you are given medical assistance or not".⁹⁴⁷
The atmosphere of terror which pervaded the Celebici prison-camp, is further demonstrated by evidence showing that the detainees were afraid to report or complain about the mistreatment they received. Thus, Witness J described how he and other detainees, during the visit to the prison-camp by a delegation of the International Committee of the Red Cross, denied having been subjected to beatings: "[A]s soon as we saw them [the ICRC delegation], we all went numb. We were terrified, because we thought it would have been better if they had not come, because we thought we would be beaten again"⁹⁴⁸. In his evidence, Witness N similarly described how detainees would be beaten if they complained about their treatment, and how as a result "nobody dared say that they were beaten up to anyone"⁹⁴⁹. This account is consistent with the testimony of Miro Golubovic and Milovan Kuljanin, who both described how they, when asked by Zdravko Mucic, were too afraid to identify those who had mistreated them.⁹⁵⁰ Further, Witness P, who worked as a doctor in the so-called infirmary, testified how his fear of mistreatment affected his ability to fulfill this role: "I was unable to do any X-rays. That was not allowed, because I too was a detainee, and if I asked for anything, I would get beaten more, so that I had to protect myself too".⁹⁵¹
Accordingly, the Trial Chamber finds that the detainees in the Celebici prison-camp were exposed to conditions in which they lived in constant anguish and fear of being subjected to physical abuse. Through the frequent cruel and violent deeds committed in the prison-camp, aggravated by the random nature of these acts and the threats made by guards, the detainees were thus subjected to an immense psychological pressure which may accurately be characterised as "an atmosphere of terror".

(ii) Inadequacy of Food

Many of the witnesses who appeared before the Trial Chamber provided testimony concerning the inadequacy of the food provided to the detainees in the Celebici prison-camp. Although it appears from this evidence that the size and quality of the rations varied somewhat during the relevant time-period, the Trial Chamber has been left in no doubt that the food supplied to the detainees fell far short of any acceptable standard. In their consistent testimonies, Witness F, Grozdana Cecez, Witness R, Milenko Kuljanin, Stevan Gligorevic, Mirko Dordic, Branko Gotovac, Mirko Kuljanin, Mladen Kuljanin, Witness J, Nedeljko Draganic and Risto Vukalo, all variously described how the food given to the detainees mostly consisted of small amounts of bread, with one loaf being divided between as many as 15 to 17 persons. This was complemented by small quantities of thin soup, vegetables or other cooked food of inferior quality. It is clear that the absence of adequate food was further aggravated by the lack of acceptable facilities for eating. As described by Witness R: "Occasionally we would get some cold soup, which would be several days old, but the problem was how to eat the soup in Hangar number 6 in which there were between 250 and 270 prisoners; there were only five spoons". Similarly, Mirko Babic testified that,

there were five spoons for the 250 of us [the detainees in Hangar 6]. Five would go and eat. Sometimes it was something cooked, and this meal took about two hours. Somebody would take a little more. Then the next person had nothing. There was very little bread. We were all hungry.⁹⁵²

These accounts are further supported by the evidence of Stevan Gligorevic and Nedeljko Draganic.
On the basis of the evidence on record, it is further clear that, on at least one occasion, no food at all was provided to the detainees for a period of several days. In their testimony, Mirko Babic, Milojka Antic, Stevan Gligorevic, Mirko Dordic, Witness J, Nedeljko Draganic and Dr. Petko Grubac all recalled having experienced an incident where there was no food for about three days. In this regard, Milojka Antic described how "[f]or three days we did not eat anything. So that I was completely weakened, and I was unable to stand up on my feet. Grozda [Grozdana Cecez] had to take me to the toilet"⁹⁵³. Similarly, Stevan Gligorevic stated that "[p]eople turned into skeletons. You could hardly recognise them. Many could not even stand up. They had to lean against something, and if they stood up against something, they would fall down". ⁹⁵⁴This evidence is further consistent with the evidence of Vaso Dordic, who recalled several occasions upon which the detainees were forced to go without food for two days in a row.
The effects of this insufficient diet were described by a number of witnesses who, in their testimony, gave consistent accounts of the weight loss and weakened physical states suffered by themselves and other detainees. According to the testimony of Witness J, "the conditions were poor, so that we almost starved. We could not even move in the end. I weighed 95 kilos when I was brought in and then, when I finally left the camp, I weighed 58 kilos, so it was terrible".⁹⁵⁵ Similarly, Witness B testified that his weight was 90 kilograms before the war, and some 50 kilograms when he was released from the prison-camp. This witness also described the detainees as "living corpses", and stated that many were so weakened by the lack of food that they would faint when they got up to go to the toilet.⁹⁵⁶ In their evidence, Grozdana Cecez and Branko Sudar provided similar accounts, and stated that they lost around 30 kilograms in weight during their detention.
In light of the consistent evidence of these witnesses, the Trial Chamber cannot accept the accounts given by Defence witnesses, Sefkija Kevric, Zlatko Ustalic and Emir Dzajic concerning the quantity and type of food provided to the detainees in the Celebici prison-camp. Further, to the extent that the Defence is arguing that the unsatisfactory diet provided by the prison-camp authorities was sufficiently compensated by the fact that family members were permitted to bring food to the detainees, the Trial Chamber finds that the evidence is to the contrary. In this respect, the evidence of Witness F, Witness P and Grozdana Cecez indicates that such food did not always reach the intended recipients. In any event, the evidence on record clearly demonstrates that any such extra supplies that in fact were made available in this way to the detainees, were insufficient to ensure that they received adequate nourishment during their detention in the prison-camp.
Based upon the evidence reviewed above, the Trial Chamber accordingly finds that the detainees in the Celebici prison-camp were deprived of adequate food.

(iii) Lack of Access to Water

The Trial Chamber heard compelling evidence from numerous witnesses as to the restrictions placed on the detainees’ access to water inside the Celebici prison-camp. Witness R, a former detainee in the Celebici prison-camp, testified that, although at first people were allowed to keep water in plastic bottles inside Hangar 6, after a while this practice was abolished. He further testified that, thereafter, access to water was increasingly restricted until it reached a stage where "under threat of heavy beatings and even death, not a drop of water could be brought in without the knowledge and permission of the deputy commander Hazim Delic."⁹⁵⁷ Mirko Dordic testified that during this latter period, water was distributed to the detainees in Hangar 6 twice or three times a day. The amounts were such that seven or eight detainees would be forced to share one bottle, and many of the witnesses testified that their intake of water invariably failed to meet their hydration needs. For example, Branko Sudar testified that the daily portions of water for the detainees amounted to "a spoonful of water, a ladleful."⁹⁵⁸ Similarly, Milko Kuljanin stated that "[w]ater was the biggest problem. . . . [y]ou couldn’t always get as much as you wanted and as much as you needed."⁹⁵⁹ In Tunnel 9, Miro Golubovic testified that, although the water supplied to the detainees was clean, "[t]he quantity wasn’t sufficient."⁹⁶⁰
The detainees’ dehydration was exacerbated by the high temperatures that prevailed inside Hangar 6 on hot days. As Stevan Gligorevic stated: "Konjic is very hot in the summer. We perspired a lot. We needed quite a lot of liquid and we did not have that." ⁹⁶¹Dragan Kuljanin testified that inside Hangar 6 "[p]eople were almost fainting from thirst."⁹⁶² These accounts were supported by the testimony of Nedeljko Draganic⁹⁶³ and Witness N, the latter of whom testified to the extreme conditions inside Hangar 6: "It was hot. The walls were steel, so we lacked water. We didn’t have enough." ⁹⁶⁴
Although there is some evidence to suggest that the water given to the detainees to drink was non-potable, the Trial Chamber finds that the weight of the evidence does not demonstrate that the water was of poor quality. The Trial Chamber further notes the testimony of Mirko Kuljanin, suggesting that the absence of sufficient drinking water for the detainees did not stem from an inadequate supply, as there was plenty of water available in the camp⁹⁶⁵. Indeed, even the Defence acknowledges that the water supply in the prison-camp was sufficient.
Accordingly, based on the foregoing evidence, the Trial Chamber finds that the strict limits placed on the amount of water the detainees were permitted to drink rendered the detainees’ intake of water inadequate. This restriction placed on the detainees’ access to water appears to have been a deliberate policy on behalf of the prison-camp authorities rather than one borne of necessity, as there was no shortage of water in the prison-camp.

(iv) Lack of Proper Medical Care

The Trial Chamber heard evidence as to the availability and quality of the medical care in the Celebici prison-camp from several former detainees, including two doctors who worked in the makeshift camp infirmary during the period of their detention in the prison-camp. The doctors, Witness P and Dr. Petko Grubac, testified as to the inadequacy of the medical care they were able to provide for the detainees. Witness P testified about the limited supplies at the infirmary. "We had a drum with gauze. We had one pincers [sic]. We had one scissors [sic], and I think that was all as far as the equipment was concerned, and some medicine."⁹⁶⁶ He further testified that, although there was a procedure for requesting additional medicine, they usually received only a very small portion of what they had requested.⁹⁶⁷ This evidence was supported by the testimony of Dr. Petko Grubac, who confirmed that the infirmary was very poorly equipped. Further, Witness N and Miro Golubovic both testified as to the paucity of medical supplies in the prison-camp infirmary. Witness N stated: "They changed the bandage that I had on my arm. They did not have any other supplies to do anything further,"⁹⁶⁸ while Miro Golubovic testified: "They just tried to treat my ear, nothing else, because they didn’t have anything." ⁹⁶⁹
The Trial Chamber notes that Ahmed Jusufbegovic, director of the Health Centre in Konjic in 1992, testified that Hazim Delic, in June 1992, visited the Health Centre at least once a week to collect medicines and bandages. While this witness described the types of supplies requested by Mr. Delic on these occasions, he did not provide any specific information as to the types and amounts of medical supplies that actually were provided to the prison-camp. In light of the consistent testimony regarding the inadequacy of the medical supplies available in the prison-camp infirmary, therefore, this evidence cannot affect the Trial Chamber’s finding that the medical facilities available to the detainees suffered from a serious lack of basic medical supplies.
In his testimony, Dr. Grubac further emphasised that, in the prison-camp, he was not permitted to exercise his medical discretion freely. Rather, the limits of his role as a doctor were defined by the camp authorities. "We had no power to decide as to the way the injured would be treated, nor when they were brought in or taken away or taken to any other institution. . . . [we] were prisoners like everyone else."⁹⁷⁰ Witness P supported this, testifying that he was never permitted to send anyone to a real hospital for diagnosis.⁹⁷¹ Further, Dragan Kuljanin, in his testimony, commented on the limitations imposed on the doctors in the infirmary in providing medical care for the detainees. "About ten times I looked for help and the doctor would come and see me and he would just shrug his shoulders and say: ‘There’s nothing I can do.’ He would whisper this to me. ‘It’s not up to me,’ he would say."⁹⁷²
Further, the Trial Chamber was presented with substantial evidence demonstrating that the detainees were often denied access to the limited medical facilities that were available. Nedeljko Draganic, who was injured stated that "whenever I would ask to go there [the infirmary] so that they could clean the wound, very often Delic would not allow me to go. He often told me not to go and said ‘You don’t need that. You won’t last very long.’⁹⁷³" Similarly, Witness R testified that "Vukasin Mrkajic was never given any kind of medical care or treatment and when he addressed Mr. Delic, if he had occasion to do that, the answer he was given would be ‘you have to die anyway, so sit down.’"⁹⁷⁴ Mirko Dordic and Witness M both testified that, despite receiving serious injuries during their detention in the Celebici prison-camp, they were not provided with any medical treatment.⁹⁷⁵ Similarly, Risto Vukalo testified: "I was beaten many times [while in the camp] and never was any medical assistance extended to me."⁹⁷⁶
Accordingly, based on the foregoing evidence, the Trial Chamber finds that the medical care provided for the detainees in the Celebici prison-camp was clearly inadequate, especially in light of the serious injuries suffered by many of the detainees during their detention. Further, the Trial Chamber finds that the detainees were often denied access to the basic medical facilities that were available.

(v) Inadequacy of Sleeping Facilities

The Trial Chamber heard testimony from many of the former detainees in the Celebici prison-camp regarding the conditions under which they were compelled to sleep. This testimony was overwhelmingly consistent as to the inadequacy of the sleeping facilities for detainees in the prison-camp. For example, Witness R, who was incarcerated in Hangar 6, testified that, in order to sleep, the detainees would "just sort of stretch out on the concrete, in the same position at which we sat."⁹⁷⁷ Similarly, Mirko Kuljanin, Witness F, Nedeljko Draganic, Witness N, Mirko Dordic and Branko Sudar all testified that in Hangar 6 the detainees were required to sleep in their assigned positions on the bare concrete floor. Nedeljko Draganic further testified that one section of Hangar 6 always leaked when it rained and that the detainees in that area were consequently compelled to sleep in wet conditions.
In Tunnel 9, the inadequacy of the sleeping facilities was exacerbated by the overcrowding of the detainees. Novica Dordic, who was detained in Tunnel 9 for some time, testified that the conditions in the tunnel were so cramped that sleeping was virtually impossible. In order to get any rest, the detainees had to lie parallel to the slope of the tunnel, each turned on his side, packed closely together to enable all the bodies to fit. According to his testimony, "[w]hen somebody couldn’t bear it any longer, then we would all have to wake up and turn round to the other side."⁹⁷⁸ These sleeping conditions evidently compounded the suffering of those detainees who were injured.
The evidence presented to the Trial Chamber further shows that none of the detainees were provided with beds or mattresses on which to sleep and, at least initially, few of them had blankets. According to Branko Gotovac, people used whatever they had, like coats and pieces of blankets to cover themselves at night.⁹⁷⁹ Mirko Kuljanin stated that he just slept in his shirt and trousers until he managed to find a piece of blanket.⁹⁸⁰ As noted by the Defence, there is evidence that Hazim Delic at one point ordered that the available blankets be cut into half, so as to be divided more evenly among the detainees. However, the evidence shows that even after the blankets were shared in this way, all the detainees were not provided with adequate sleeping facilities. Further, in light of the considerable weight of evidence to the contrary, the Trial Chamber cannot place reliance on Emir Dzajic’s testimony that the sleeping facilities for the detainees were not crowded and that all the detainees held in Tunnel 9 had blankets. Accordingly, the Trial Chamber finds that the sleeping facilities afforded to the detainees in the Celebici prison-camp were inadequate.

(vi) Inadequacy of Toilet Facilities

Many witnesses testified as to the inadequacy of the toilet facilities in the Celebici prison-camp and, further, as to the restrictions placed on the detainees’ use of these basic facilities. This evidence suggests that the detainees initially were generally free to relieve themselves in an outside ditch and a septic tank behind Hangar 6. It is clear, however, that the detainees’ access even to these rudimentary toilet facilities subsequently was limited to twice a day, once in the morning and once in the evening. Moreover, the evidence shows that on these occasions, the detainees were afforded only a very brief time in which to relieve themselves. Mirko Dordic described the procedure in the following way:

"Hazim Delic would force us to go to urinate in a group of 30-40 people. We had to run there. Upon his command he would say: ‘Take it out. Stop.’ This was very short, the time we had. We just ran out and had to run back, so that there were people who just didn’t have enough time to finish."⁹⁸¹

Similar accounts of this practice were provided by Witness R, Branko Sudar, Risto Vukalo and Dragan Kuljanin. From the testimony of Witness N, Milovan Kuljanin⁹⁸² and Mirko Babic, it is further clear that at night the detainees in Hangar 6 were limited to the use of one or two toilet buckets.
The evidence further shows that those detainees kept in Tunnel 9 were not permitted to leave the tunnel at all in order to relieve themselves. Witness R, testifying to his experience in Tunnel 9 stated: "We were not allowed to go out and relieve ourselves."⁹⁸³ Similarly, Mirko Kuljanin testified that the detainees in Tunnel 9 "often asked to be taken out, but they would not allow that."⁹⁸⁴ Miro Golubovic stated that, at one point, a toilet bucket was placed at the end of Tunnel 9 in which detainees could relieve themselves.⁹⁸⁵ However, the weight of the evidence presented demonstrates that any such container was either subsequently removed or proved to be woefully inadequate, as the detainees were eventually forced to relieve themselves at the bottom of the tunnel. Over time, the detainees who were positioned at the end of the tunnel were compelled to sit in the rising tide of excrement and the resulting stench in the rest of the tunnel became unbearable. One of the former detainees in Tunnel 9, Witness J, described the situation: "It is true that people were sitting in their excrement, because it was not cleaned, and as people relieved themselves, there was more and more of it and it climbed up."⁹⁸⁶ Similarly, Witness R testified that "people relieved themselves at the bottom of this tunnel, and as time went on, this excrement accumulated, and also that liquid started rising."⁹⁸⁷ In light of this testimony, the Trial Chamber cannot accept Emir Dzajic’s statement that the detainees in Tunnel 9 were permitted to visit the toilet whenever they wanted.
The Defence, relying on the testimony given by Emir Dzajic, submits that the toilet facilities outside Hangar 6 and Tunnel 9 were similar to field toilets commonly used by the military. The Trial Chamber does not find it necessary to determine whether this is an accurate characterisation, as the evidence clearly demonstrates that unreasonable restrictions were placed upon the detainees’ use even of these rudimentary facilites. Accordingly, based on the foregoing evidence, the Trial Chamber finds that the detainees in the Celebici prison-camp were not provided with adequate toilet facilites.

(d) Legal Findings

As described above, the Trial Chamber has heard compelling testimony from many former detainees regarding the inhumane conditions under which they were compelled to live during their detention in the Celebici prison-camp. Taken as a whole, their testimonies paint a vivid portrait of a group of people stretched both psychologically and physically to the very limits of human endurance.
The evidence clearly demonstrates that, whilst incarcerated in the Celebici prison-camp, the detainees were deprived of even the most basic of human needs. Water, though apparently plentiful in the prison-camp, was only made available to the detainees in insufficient quantities. This was particularly true for the detainees in Hangar 6 who, on hot days, were forced to endure searing temperatures inside the Hangar, thereby aggravating their considerable thirst. Similarly, food rations for the detainees were grossly inadequate. Over time, the detainees, unable to sustain themselves on this impoverished diet, grew thin and weak.
The evidence shows that the detainees were forced to sleep on the bare concrete, with very little to cover themselves. The conditions in Tunnel 9 were so cramped that, in order to lie down, people had to turn on their sides and attempt to sleep pressed up against one another. Further, the detainees’ access to the camp’s rudimentary toilet facilities was severely restricted, often to less than a minute, twice a day. Those held in Tunnel 9 were forced to relieve themselves at the end of the tunnel giving rise to a mounting pool of excrement.
The evidence demonstrates that, although the prison-camp did have a makeshift infirmary, it was very poorly equipped and lacked even the most basic diagnostic facilities and medicine. The two detainees who worked as doctors in the so-called infirmary were severely limited in their roles, both by the chronic inadequacy of the medical supplies and, directly, by the camp authorities, who did not permit the doctors to exercise their medical judgement freely in respect of the detainees who sought treatment. Further, the detainees were often denied access to the medical treatment that was available.
In addition to these harsh physical deprivations, the detainees were forced to endure constant psychological torment. As discussed above, the frequency with which arbitrary acts of violence occurred in the Celebici prison-camp gave rise to an all-pervasive atmosphere of terror, in which the detainees lived in mortal fear of being either beaten or killed.
Before proceeding to determine whether these conditions constitute the offences alleged by the Prosecution, the Trial Chamber must here address the principle argument advanced by the Defence. It is the position of the Defence that, in light of the overall situation in the Konjic municipality at the time, no criminal liability can attach to the accused, as the conditions prevailing in the Celebici prison-camp were the best that could reasonably be provided. The Trial Chamber must, as a matter of law, reject this view. As set out above, the legal standards here at issue are absolute, not relative. They delineate a minimum standard of treatment, from which no derogation can be permitted. Accordingly, it is the Trial Chamber’s view that a detaining power, or those acting on its behalf, cannot plead a lack of resources as legal justification for exposing individuals to conditions of detention that are inhumane.
Furthermore, the Trial Chamber cannot, as a matter of fact, accept the assertion made by the Defence that the conditions in the Celebici prison-camp were the result of the lack of resources available at the time. Even if the Trial Chamber were to accept this view in respect of the lack of food, medical supplies and adequate sleeping facilities in the camp, no such justification could possibly be provided for the mistreatment to which the detainees were subjected. Similarly, the refusal to allow the detainees sufficient water, or access to the existing toilet and medical facilities, clearly indicates that the inhumane conditions inflicted upon the detainees were the product of design, not necessity.
The Trial Chamber finds that the chronic physical deprivation and the constant fear prevailing in the Celebici prison-camp caused serious mental and physical suffering to the detainees. Moreover, for the purposes of the offence of cruel treatment, exposure to these conditions clearly constituted an attack upon the human dignity of the detainees. Accordingly, on the basis of the foregoing evidence, the Trial Chamber finds that the creation and maintenance of an atmosphere of terror in the Celebici prison-camp, by itself and a fortiori, together with the deprivation of adequate food, water, sleeping and toilet facilites and medical care, constitutes the offence of cruel treatment under Article 3 of the Statute, and wilfully causing great suffering or serious injury to body or health under Article 2 of the Statute.

(e) Responsibility of the Accused

In the counts of the Indictment here under consideration, Zdravko Mucic, Hazim Delic and Esad Landzo are charged with responsibility as direct participants pursuant to Article 7(1) of the Statute. In addition, 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, Hazim Delic has been found not to have exercised superior authority over the Celebici prison-camp. For this reason, the Trial Chamber finds that Hazim Delic cannot be held responsible as a superior, pursuant to Article 7(3) of the Statute, for the inhumane conditions that prevailed in the Celebici prison-camp. However, the Trial Chamber finds that, by virtue of his direct participation in those specific acts of violence with which he is charged in the Indictment and which the Trial Chamber has found proven above, Hazim Delic was a direct participant in the creation and maintenance of an atmosphere of terror in the Celebici prison-camp. Accordingly, the Trial Chamber finds Hazim Delic guilty pursuant to Article 7(1) of the Statute of the offence of wilfully causing great suffering or serious injury to body or health, under Article 2 of the Statute, and cruel treatment, under Article 3 of the Statute, as charged in counts 46 and 47 of the Indictment.
The Trial Chamber further finds that, by virtue of his direct participation in those specific acts of violence with which he is charged in the Indictment and which the Trial Chamber has found proven above, Esad Landzo was a direct participant in the creation and maintenance of an atmosphere of terror in the Celebici prison-camp. Indeed, Esad Landzo in his testimony before this Trial Chamber admitted that he participated in the existence of an atmosphere of terror in the prison-camp.⁹⁸⁸ Accordingly, the Trial Chamber finds Esad Landzo guilty, pursuant to Article 7(1) of the Statute, of the offence of wilfully causing great suffering or serious injury to body or health, under Article 2 of the Statute, and cruel treatment, under Article 3 of the Statute, as charged in counts 46 and 47 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. The Trial Chamber finds that Zdravko Mucic by virtue of this position was the individual with primary responsibility for, and the ability to affect, the conditions in the prison-camp. By omitting to provide the detainees with adequate food, water, health care and toilet facilites, Zdravko Mucic participated in the maintenance of the inhumane conditions that prevailed in the Celebici prison-camp. Accordingly, he is directly liable for these conditions, pursuant to Article 7(1) of the Statute. Furthermore, in his position of superior authority Zdravko Mucic knew, or had reason to know, how the detainees, by the violent acts of his subordinates, were subjected to an atmosphere of terror, but failed to prevent these acts or to punish the perpetrators thereof. Accordingly, the Trial Chamber finds that Zdravko Mucic is responsible pursuant to Article 7(3) of the Statute for the atmosphere of terror prevailing in the Celebici prison-camp. For the foregoing reasons, the Trial Chamber finds Zdravko Mucic guilty of wilfully causing great suffering or serious injury to body or health, under Article 2 of the Statute, and cruel treatment, under Article 3 of the Statute, as charged in counts 46 and 47 of the Indictment.
As set out above, Zejnil Delalic has been found not to have exercised superior authority over the Celebici prison-camp. For this reason, the Trial Chamber finds Zejnil Delalic not guilty of wilfully causing great suffering or serious injury to body or health, under Article 2, and cruel treatment, under Article 3, as charged in counts 46 and 47 of the Indictment.

20. Unlawful Confinement of Civilians - Count 48

Paragraph 36 of the Indictment alleges that Zejnil Delalic, Zdravko Mucic and Hazim Delic are responsible for the unlawful confinement of numerous civilians in the Celebici prison-camp. The three accused are charged with direct participation in the unlawful confinement of civilians, pursuant to Article 7(1) of the Statute, as well as with responsibility as superiors pursuant to Article 7(3) of the Statute. This alleged unlawful confinement is charged in count 48 of the Indictment as follows:

Between May and October 1992, Zejnil DELALIC, Zdravko MUCIC, and Hazim DELIC participated in the unlawful confinement of numerous civilians at Celebici camp. Zejnil DELALIC, Zrdavko MUCIC, and Hazim DELIC also knew or had reason to know that persons in positions of subordinate authority to them were about to commit those acts resulting in the unlawful confinement of civilians, or had already committed those acts, and failed either to take the necessary and reasonable steps to prevent those acts or to punish the perpetrators after the acts had been committed. By their acts and omissions, Zejnil DELALIC, Zdravko MUCIC, and Hazim DELIC are responsible for:

Count 48. A Grave Breach punishable under Article 2(g) (unlawful confinement of civilians) of the Statute of the Tribunal.

(a) Prosecution Case

The Prosecution contends that the confinement of numerous civilians in the Celebici prison-camp was unlawful under international humanitarian law. According to the Prosecution, the population of detainees in the Celebici prison-camp was not limited to individuals who had been armed or participated in military activities. It thus submits that many of those detained could not reasonably have been suspected of participating in any activities that could have justified their confinement under the provisions of Geneva Convention IV. The Prosecution accordingly contends that the confinement of civilians in the Celebici prison-camp was a collective measure aimed at a specific group of persons, based only on their ethnic background, and not a legitimate security measure. The Prosecution further contends that the confinement of civilians in the Celebici prison-camp was unlawful on the basis that most of the detainees were never informed as to why they had been arrested, and that their confinement was never properly and regularly reviewed in accordance with the provisions of Geneva Convention IV.⁹⁸⁹
The Prosecution relies primarily on the testimony of thirteen witnesses to establish the facts in relation to these allegations, namely Grozdana Cecez, Branko Gotovac, Witness P, Nedeljko Draganic, Dragan Kuljanin, Novica Dordic, Vaso Dordic, Zoran Ninkovic, Witness D, Milenko Kuljanin, Branko Sudar, Petko Grubac and Gordana Grubac.

(b) Defence Case

The Defence denies that the persons detained in the Celebici prison-camp were protected persons under article 4 of Geneva Convention IV. However, the Defence asserts that, even if the persons confined in the Celebici prison-camp were protected persons pursuant to Geneva Convention IV, it still must be proven beyond a reasonable doubt that their confinement was illegal, that is, that the fact of incarceration itself, regardless of the conditions of the detention, was in violation of international law.⁹⁹⁰ In this respect, the Defence submits that the detainees were incarcerated after an armed confrontation on Bosnian soil with officials of the duly constituted Bosnian government. According to the Defence, there is no evidence that it is impermissible under international law to confine an individual awaiting trial, or while an investigation is being conducted, to determine if there is evidence to indicate that the person has committed a crime⁹⁹¹. Furthermore, the Defence submits that the incarceration of those confined in the Celebici prison-camp was lawful under Bosnian law. ⁹⁹²
The Defence for Hazim Delic submits that the persons confined in the Celebici prison-camp were given at least minimal due process rights, including a hearing conducted by a commission of the Bosnian government, to determine whether they had borne arms against Bosnia and Herzegovina, or otherwise had given aid and comfort to its enemies.⁹⁹³ The Defence for Zejnil Delalic argues that there is no evidence that Mr. Delalic had any command authority over the Celebici prison-camp, or that he participated in the unlawful confinement of civilians. Similarly, the Defence for Hazim Delic asserts that Mr. Delic did not have superior authority over the Celebici prison-camp.⁹⁹⁴

It is clear that a considerable number of prisoners were detained in the Celebici prison-camp between the period of April and December 1992. The Trial Chamber has already determined that these individuals were civilians, protected under Article 4 of Geneva Convention IV. It is irrelevant for the determination of the instant charge whether, as alleged by the Defence, this detention was in conformity with Bosnian domestic law. The question that the Trial Chamber must address is instead whether the confinement of these civilians was justified under the relevant rules of international humanitarian law.
The evidence before the Trial Chamber indicates that a number of the civilians detained in the Celebici prison-camp at the time of their capture were in possession of weapons which could have been used, or were in fact used, against the forces of Bosnia and Herzegovina in the Konjic area. It is difficult to ascertain precisely how many of those detained in the Celebici prison-camp in this way participated in acts of resistance against the TO, HVO and MUP forces and, therefore, arguably could have been lawfully detained. According to several witnesses, 100 to 105 detainees admitted in interviews conducted after their detention that they were in possession of weapons and that they participated actively in the defence of their villages.⁹⁹⁵ As previously noted by the Trial Chamber, the security measures which detaining forces are entitled to take are not specified in the relevant provisions of the Geneva Conventions, and the measure of activity deemed prejudicial to the internal or external security of the detaining power which justifies internment is therefore left largely to the discretion of the authorities of the detaining power itself. The Trial Chamber accordingly refrains from determining whether the confinement of this category of civilians actually was necessary for the security of the detaining forces, and therefore justifiable under international humanitarian law.
However, it is clear that the confinement of a number of the civilians detained in the Celebici prison-camp cannot be justified by any means. While it must be recognised that a detaining power is given a large degree of discretion to determine the behaviour which it deems detrimental to its security, it is clear to the Trial Chamber that several of the civilians detained in the Celebici prison-camp cannot reasonably have been considered to pose any sufficiently serious danger to the detaining forces as to warrant their detention.
This applies to, for example, Ms. Grozdana Cecez, a 42 year old mother of two children, who testified that she was neither armed nor a member of any armed group at the time of the military operation against her village.⁹⁹⁶ She testified that she was informed that she was detained in the Celebici prison-camp until her husband was found, that is, she was detained as a kind of a hostage⁹⁹⁷. Various other witnesses who had been detained in the prison-camp testified that they had not participated in any military activity, and posed no genuine threat to the forces that occupied the area. Thus Branko Gotovac denied that he had ever been politically active in his life, and said that the only reason he ever heard for his detention in the prison-camp was that he was a Serb.⁹⁹⁸ Witness P denied that he was involved in the defence of his village or that he had any weapon.⁹⁹⁹ Nedeljko Draganic testified that he took no part in the defence of his town and that he was not armed.¹⁰⁰⁰ Dragan Kuljanin said that he had no weapon when his village was attacked, and that neither he nor any of the other members of the group he was with at the time of his arrest had a weapon.¹⁰⁰¹ Vaso Dordic testified that he had no weapon at the time of his arrest, was not a member of any party, did not in any way take part in the defence of his village, and was not told why he was arrested.¹⁰⁰² Similarly, Petko Grubac denied that he was involved in the defence of his village or that he had any weapon, and stated further that he did not know how to use any armaments. ¹⁰⁰³
The Trial Chamber is of the opinion that there is no reason to question the testimonies of these witnesses. In light of this evidence, the Trial Chamber cannot accept the Defence’s contention that all persons detained in the Celebici prison-camp were members of an armed rebellion against the Bosnian authorities. The Trial Chamber does not deem it necessary to decide whether all of the persons detained in the Celebici prison-camp were to be considered as "peaceful" civilians, not constituting any threat to the security of the detaining forces. However, the Trial Chamber is convinced that a significant number of civilians were detained in the Celebici prison-camp although there existed no serious and legitimate reason to conclude that they seriously prejudiced the security of the detaining power. To the contrary, it appears that the confinement of civilians in the Celebici prison-camp was a collective measure aimed at a specific group of persons, based mainly on their ethnic background, and not a legitimate security measure. As stated above, the mere fact that a person is a national of, or aligned with, an enemy party cannot be considered as threatening the security of the opposing party where he is living, and is not, therefore, a valid reason for interning him.
Even were the Trial Chamber to accept that the initial confinement of the individuals detained in the Celebici prison-camp was lawful, the continuing confinement of these civilians was in violation of international humanitarian law, as the detainees were not granted the procedural rights required by article 43 of Geneva Convention IV. According to this provision, the decision to take measures of detention against civilians must be "reconsidered as soon as possible by an appropriate court or administrative board".
The evidence before the Trial Chamber shows that the War Presidency in Konjic municipality decided to form an investigatory commission for the crimes allegedly committed by the persons confined in the Celebici prison-camp. In May 1992, the Joint Command formed such an organ for Investigations - the Military Investigations Commission. Several witnesses testified to the establishment and organisation of this Commission, which consisted of five members, one of which was Witness D. These members were representatives of the MUP and the HVO, as well as of the TO, and were appointed by their respective commanders. The evidence before the Trial Chamber shows that the Commission ceased to function as early as the end of June 1992, when its members resigned from their positions.
It appears, particularly from the testimony of Witness D, that the members of the Commission took their task seriously. However, it is clear to the Trial Chamber that this Commission did not have the necessary power to finally decide on the release of prisoners whose detention could not be considered as being justified for any serious reason. To the contrary, the power of this Commission was limited to initiating investigations of the prisoners and conducting interviews with prisoners in order to obtain relevant information concerning other individuals suspected of armed rebellion outside the prison-camp. The members of the Commission did not have any possibility to supervise the actual release of prisoners who were suggested for release by its members.
The evidence before the Trial Chamber further shows that the members of the Commission, after becoming aware of the conditions in the prison-camp, including the mistreatment of detainees and the continued incarceration of persons who were peaceful civilians, in June 1992 prepared a report detailing the problems and their inability to correct them¹⁰⁰⁴. In this report, the Commission stated, inter alia:

Detainees were maltreated and physically abused by certain guards from the moment they were brought in until the time their statement was taken i.e. until their interview was conducted. Under such circumstances, Commission members were unable to learn from a large number of detainees all the facts relevant for each detainee and the area from which he had been brought in and where he had been captured. We do not know whether this was the reason why certain guards and other people who were allowed into the barracks compound conducted private investigations while Commission members were absent…. [I]n the last ten days almost every dawn brought another dead detainee.… Commission members also interviewed persons arrested outside the combat zone; the Commission did not ascertain the reason for these arrests, but these detainees were subjected to the same treatment…. Persons who were arrested under such circumstances stayed in detention even after it had been established that they had been detained for no reason and received the same treatment as persons captured in the combat zone.… Because self-appointed judges have appeared, any further investigation is pointless until these problems are solved.¹⁰⁰⁵
Similarly, Witness D, in his testimony before the Trial Chamber provided the following description of the role of the Commission:

We all realised that this was just a facade, this whole Commission, which was supposed to sort of provide some semblance of lawfulness to all this, but it was, in fact, nothing. ¹⁰⁰⁶

In addition, it is clear from the evidence on record that the way interviews and interrogations were conducted by no means respected the basic procedural rights of the concerned detainees. For example, Witness D testified that he saw how one detainee during interrogation was tied with a rope which interrupted the blood circulation in his hands.¹⁰⁰⁷
For these reasons, the Trial Chamber finds that this Commission did not meet the requirements of article 43 of Geneva Convention IV.
The Trial Chamber notes that, according to other witnesses, a second investigatory commission to examine the detainees in the Celebici prison-camp was established towards the end of 1992. However, the Trial Chamber does not deem it necessary to discuss the role and functioning of this commission in further detail, as it is clear from the above that during most of the period during which the Celebici prison-camp existed, from April until December 1992, there was no judicial body reviewing the detention of prisoners. Furthermore, the period after October 1992 falls outside the relevant period of the Indictment and is, therefore, not of relevance to the instant charge.
For the reasons set out above, the Trial Chamber finds that the detention of civilians in the Celebici prison-camp was not in conformity with the relevant provisions of Geneva Convention IV. Accordingly, on the basis of the foregoing evidence, the Trial Chamber finds that this detention constitutes the offence of unlawful confinement of civilians, under Article 2 of the Statute.

(d) Responsibility of the Accused

In the count of the Indictment here under consideration, Zejnil Delalic, Zdravko Mucic and Hazim Delic are charged with responsibility for the unlawful confinement of civilians, both as direct participants pursuant to Article 7(1) of the Statute, and as superiors pursuant to Article 7(3) of the Statute.
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 that these two accused cannot be held criminally liable as superiors, pursuant to Article 7(3) of the Statute, for the unlawful confinement of civilians in the Celebici prison-camp. Furthermore, on the basis of these findings, the Trial Chamber must conclude that the Prosecution has failed to demonstrate that Zejnil Delalic and Hazim Delic were in a position to affect the continued detention of civilians in the Celebici prison-camp. In these circumstances, Zejnil Delalic and Hazim Delic cannot be deemed to have participated in this offence. Accordingly, the Trial Chamber finds that Zejnil Delalic and Hazim Delic are not guilty of the unlawful confinement of civilians, as charged in count 48 of the Indictment.
The Trial Chamber has established that Zdravko Mucic was in a de facto position of superior authority over the Celebici prison-camp. The Trial Chamber finds that Zdravko Mucic, by virtue of this position, was the individual with primary responsibility for, and had the ability to affect, the continued detention of civilians in the prison-camp. Specifically, Zdravko Mucic, in this position, had the authority to release detainees. By omitting to ensure that a proper inquiry was undertaken into the status of the detainees, and that those civilians who could not lawfully be detained were immediately released, Zdravko Mucic participated in the unlawful confinement of civilians in the Celebici prison-camp. Accordingly, the Trial Chamber finds Zdravko Mucic guilty, pursuant to Article 7(1) of the Statute, of the unlawful confinement of civilians, as charged under count 48 of the Indictment.

21. Plunder of Private Property - Count 49

Paragraph 37 of the Indictment contains the following allegations:

Between May and September 1992, Zdravko MUCIC and Hazim DELIC participated in the plunder of money, watches and other valuable property belonging to persons detained at Celebici camp. Zdravko MUCIC and Hazim DELIC also knew or had reason to know that persons in positions of subordinate authority to them were about to commit those acts resulting in the plunder of public property, or had already committed those acts, and failed either to take the necessary and reasonable steps prevent those acts or to punish the perpetrators after the acts had been committed. By their acts and omissions, Zdravko MUCIC, and Hazim DELIC are responsible for:

Count 49. A Violation of the Laws or Customs of War punishable under Article 3(e) (plunder) of the Statute of the Tribunal.

(a) Prosecution Case

The Prosecution submits that the plunder of private property that took place in the Celebici prison-camp between May and September 1992, was carried out on a systematic basis, and that it concerned relatively large amounts of money or jewellery of significant monetary or sentimental value for most of the victims.¹⁰⁰⁸ Accordingly, the offences alleged amount to a serious violation of international humanitarian law and fall within the subject matter jurisdiction of the Tribunal.
In order to establish the facts in relation to the allegations set forth in paragraph 37 of the Indictment, the Prosecution relies on the evidence given by a considerable number of former detainees of the Celebici prison-camp who, in their testimony, described how, either immediately upon their arrival in the prison-camp or subsequently during their detention, any valuable property in their possession was taken from them. The Prosecution relies on the testimony provided by Witness J, Witness M, Witness B, Witness P, Mladen Kuljanin and Rajko Draganic, who all described how, upon their arrival in the prison-camp, they and other newly arrived detainees were forced to hand over items, such as money, watches and gold to the guards. In particular, Witness M stated that he was forced to relinquish a chain, a ring, his wallets and the keys to his apartment, Witness P testified that his wallet, money, bank card and a signed cheque were taken, and Witness B stated that his watch was taken from him upon arrival and a ring about a month later. The Prosecution also refers to the testimony of Petko Grubac, who stated that his personal possessions were confiscated prior to his arrival at the Celebici prison-camp, in the police building in Konjic.
The Prosecution also relies on the testimony of Mirko Babic, Mirko Kuljanin, Witness N, Milenko Kuljanin and Witness R, who gave accounts of how property was taken from them and others during the period of their detention in the Celebici prison-camp. In his evidence, Witness N described an incident where money and gold watches were taken from the prisoners detained in Building 22 by two persons in uniform. Mirko Kuljanin and Witness R described a similar incident in which the detainees in Tunnel 9 were ordered to put their valuables into a helmet that was passed around. Witness R observed that the property taken included watches, rings, bracelets, chains, crosses, and old Yugoslav money, a currency no longer used in Bosnia and Herzegovina. These witnesses testified to having had the following personal possessions confiscated; Mirko Kuljanin was forced to hand over a watch; Witness N handed over the money which he was carrying, Milenko Kuljanin had a ring and bracelet taken from him; and Witness R was made to surrender his wedding ring and a watch.
In addition, the Prosecution relies on the testimony of Risto Vukalo, who described how Esad Landzo forced him to remove a ring from the finger of a detainee who had recently been killed and hand it over to him. Further, the Prosecution relies on the statement of Witness T, a guard at the Celebici prison-camp, who testified as to his participation in the taking of valuables from the detainees in Tunnel 9. According to this witness, the property taken in this manner from the detainees was subsequently returned, with the exception of a few old watches and a perhaps few gold rings, which had been sold to buy cigarettes. However, the Prosecution further refers to the testimony of Witness N, Mladen Kuljanin, Witness P, Witness M, Witness B, Milenko Kuljanin, Rajko Draganic and Petko Grubac, who all declared that the property taken from them was never returned.

(b) Defence Case

According to the Defence¹⁰⁰⁹ there is no evidence that Mr. Mucic or Mr. Delic were principals in any plunder of property in the Celebici prison-camp. More generally, the Defence argues that, even if the acts alleged by the Prosecution occurred - which is not admitted - such acts do not amount to a serious violation of international humanitarian law. Accordingly, the Defence contends that the International Tribunal lacks subject matter jurisdiction over the alleged offences under Article 1 of the Statute.¹⁰¹⁰ The Defence relies in this respect on the Tadic Jurisdiction Decision, in which the Appeals Chamber specified as one of the conditions to be fulfilled for an offence to be subject to prosecution before the International Tribunal under Article 3 of its Statute that:

the violation must be "serious", that is to say, it must constitute a breach of a rule protecting important values, and the breach must involve grave consequences for the victim. Thus, for instance, the fact of a combatant simply appropriating a loaf of bread in an occupied village would not amount to a "serious" violation of international law" although it may be regarded as falling foul of the basic principle laid down in Article 46, paragraph 1, of the Hague Regulations (and the corresponding rule of customary international law) whereby "private property must be respected" by an army occupying an enemy territory;¹⁰¹¹
The Defence submits that, based on the Prosecution’s evidence, the facts of the instant case are legally identical to the hypothetical example provided by the Appeals Chamber. Submitting that it appears from the record that the property taken was of little or no value, it thus asserts that there is no evidence that the loss of any property taken from the detainees in the Celebici prison-camp constitutes a breach of a rule protecting important values or that it involved grave consequences for the victims.¹⁰¹² In this connection, the Defence refers inter alia to the evidence given by Witness M who, in his testimony stated that the Yugoslav money taken from him and other detainees at the time of his arrival at the prison-camp was of no value, but "simply a pile of paper circulating".¹⁰¹³

The Defence has challenged the Trial Chamber’s jurisdiction under Article 1 of the Statute on the ground that the allegations made by the Prosecution in relation to the charge of plunder do not display a serious violation of international humanitarian law. Accordingly, it is to this preliminary matter which the Trial Chamber first must address its attention.
The Trial Chamber notes that it is in full agreement with the Appeals Chamber that in order for a violation of international humanitarian law to be "serious" within the meaning of the Statute, two elements must be fulfilled. First, the alleged offence must be one which constitutes a breach of a rule protecting important values. Secondly, it must also be one which involves grave consequences for the victim. As set out in greater detail above, it is the Trial Chamber’s view that the prohibition against unjustified appropriation of private or public property constitutes a rule protecting important values. However, even when considered in the light most favourable to the Prosecution, the evidence before the Trial Chamber fails to demonstrate that any property taken from the detainees in the Celebici prison-camp was of sufficient monetary value for its unlawful appropriation to involve grave consequences for the victims. Accordingly, it is the Trial Chamber’s opinion that the offences, as alleged, cannot be considered to constitute such serious violations of international humanitarian law that they fall within the subject matter jurisdiction of the International Tribunal pursuant to Article 1 of the Statute. Count 49 of the Indictment is thus dismissed.

____________________________

Having thus considered each of these counts of the Indictment in detail, and having made its findings in relation to the criminal responsibility of each of the accused, as charged, the Trial Chamber must finally address the special defence of diminished responsibility, which has been raised by Esad Landzo. Upon completing its discussion of this special defence, the Trial Chamber proceeds, in Section V, to consider the matter of sentencing.

G. Diminished Responsibility

In his defence and pursuant to sub-Rule 67(A)(ii)(b) of the Rules, Esad Landzo has advanced the pleas of diminished responsibility and limited physical capacity. A plea of diminished responsibility is to be distinguished from a plea of insanity which, in this case, was expressly disavowed by the Defence for Mr. Landzo. It should be noted, however, that both pleas are founded on an abnormality of mind. In the case of the plea of insanity, the accused is, at the time of commission of the criminal act, unaware of what he is doing or incapable of forming a rational judgement as to whether such an act is right or wrong. By contrast, the plea of diminished responsibility is based on the premise that, despite recognising the wrongful nature of his actions, the accused, on account of his abnormality of mind, is unable to control his actions.
In every criminal act there is a presumption of sanity of the person alleged to have committed the offence. Thus, every person charged with an offence is presumed to be of sound mind and to have been of sound mind at any relevant time until the contrary is proven¹⁰¹⁴. Sub-Rule 67(A)(ii)(b) refers to special defences available to the accused, including that of diminished or lack of mental responsibility. It is important to observe that the phrase "special defence" is not defined in Rules 2 or 67, or in any other part of the Rules. The special defences referred to in sub-Rule 67(A)(ii)(b) may be construed ejusdem generis to be limited to special defences of the category relating to lack of mental capacity. If thus construed, mental incapacity resulting from insanity and partial delusion will be included. However, since the Rule is expressed as requiring a special defence without qualification or limitation, the expression cannot be so limited. It should be construed to include any special defence relied upon by the accused. The expression "includes" used in an enactment is one of enlargement and cannot be construed restrictively to deprive the accused of any special defence properly available. ¹⁰¹⁵
In this instance, the most favourable meaning for the accused that can be read into sub-Rule 67(A)(ii)(b) is that a special defence is one apart from the general defence open to accused persons and is peculiar to the accused in the circumstances of a given case. Accordingly, the facts relating to a special defence raised by the accused are those peculiarly within his knowledge and should be established by him. In other words, he is to rebut the presumption of sanity.
The Defence for Esad Landzo has criticised the Trial Chamber for its failure to lay down the legal test to be applied in a defence of diminished mental responsibility, to enable counsel to prepare the evidence of the accused to be presented to the Trial Chamber in respect of the defence. It is alleged that, in the absence of an explicit legal test, the accused has been prejudiced in the presentation of his case pursuant to Article 20(1) of the Statute. It has further been contended that the attitude of the Trial Chamber constitutes a violation of Articles 21(b) and 21(e) of the Statute. These Articles contain guarantees for an accused to have adequate time and facilities for the preparation of his defence and the right to examine, or have examined, the witnesses against him, and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him. The Defence submits that it was forced to present its evidence as to the special defence without an understanding of the burden of proof. ¹⁰¹⁶
In this respect, it is important to observe that the Defence for Mr. Landzo, in its submissions, concedes that the Trial Chamber has ruled that the burden of proof for a defence advanced pursuant to sub-Rule 67(A)(ii)(b) lies on the accused, and that the standard of proof is by a balance of probabilities.¹⁰¹⁷ What the Trial Chamber has omitted to do, and we believe should not do, is to outline the evidence which the Defence should adduce to satisfy this burden. The Trial Chamber is convinced that the evidence to support a special defence involves matters peculiarly within the knowledge of the accused and is thus a matter which the Trial Chamber cannot know until the evidence is adduced. The Trial Chamber has provided the accused with the necessary guidance for the defence it relies upon, namely, the nature of the burden and the required standard of proof.
It is well settled that an interpretation of the Articles of the Statute and provisions of the Rules should begin with resort to the general principles of interpretation as codified in Article 31 of the Vienna Convention on the Law of Treaties.¹⁰¹⁸ Further, and as discussed above, the rules of interpretation of national legal systems may be relied upon, where applicable, under general principles of law. However, where national rules of interpretation are inconsistent with the plain language of the Statute and Rules and their object and purpose, their application becomes irrelevant. In the instant case, where the concept at issue is not defined in the Statute but is clearly defined and articulated in the laws of several national legal systems, in various forms, it is permissible to resort to such national legal systems in elucidation of the concept as expressed in the Rules.
The plea of diminished responsibility is recognised in different forms, with varying legal consequences, in many national jurisdictions. It is usually hedged with a number of qualifications and does not offer the accused complete protection from the penal consequences of his criminal acts. In some States it merely reduces the gravity of the offence with which a defendant pleading such a defence may be charged. For example, in England and Wales a person who is found to have diminished responsibility may not be tried for murder, but must take a plea for manslaughter.¹⁰¹⁹ In a number of European countries a person suffering from such a disorder will only qualify for mitigation of sentence.¹⁰²⁰
The closest analogy in law to the special defence provided for in sub-Rule 67(A)(ii)(b) would appear to be Section 2 of the English Homicide Act 1957 (hereafter "Homicide Act")¹⁰²¹. However, there are several significant differences between the two provisions which render such interpretation by analogy misleading. Section 2 of the Homicide Act provides as follows:

(1) Where a person kills or is a party to a killing of another, he shall not be convicted of murder if he was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing.

(2) On a charge of murder, it shall be for the defence to prove that the person charged is, by virtue of this section, not liable to be convicted of murder.

(3) A person who, but for this section, would be liable, whether as principal or as accessory, to be convicted of murder, shall be liable instead to be convicted of manslaughter.

(4) The fact that one party to a killing is, by virtue of this section, not liable to be convicted of murder, shall not affect the question whether the killing amounted to murder in the case of any other party to it.
It is obvious from these provisions that only Section 2(2) is directly related to the special defence which is provided for in sub-Rule 67(A)(ii)(b) of the Rules. The requirement of sub-Rule 67(A)(ii)(b) is terse and merely refers to a defence of diminished or lack of mental responsibility. It does not refer to "abnormality of mind" and the conditions giving rise to it, as prescribed in Section 2(1) of the provision of the Homicide Act reproduced above. Sub-Rule 67(A)(ii)(b) is not referable, directly or by implication, to the concept used in the Homicide Act. Sub-Rule 67(A)(ii)(b) would indeed appear to suggest a complete defence since the words are without qualification or limitation.
The provisions of Section 2 of the Homicide Act are a direct descendant of the recommendations by witnesses to the English Royal Commission on Capital Punishment in 1950.¹⁰²² The extension of the new defence of diminished responsibility, which already existed in Scotland, to England, was intended to restrict the application of the capital penalty. The purpose of the law was to avoid the inevitability of a judge passing the death sentence in situations of insanity falling outside the McNaughten Rules. The principal aim was to give a measure of legal recognition to diminished responsibility resulting from mental abnormality short of insanity. Thus, on a verdict founded on diminished responsibility, a judge could award such terms of imprisonment or other punishment or treatment as he thinks fit. The essential requirements of the defence are clearly articulated in Section 2(1) of the Homicide Act which only permits the defence when:

[the accused] was suffering from such abnormality of mind (whether arising from a condition of arrested or related development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing.
Thus, the accused must be suffering from an abnormality of mind which has substantially impaired his mental responsibility for his acts or omissions. The abnormality of mind must have arisen from a condition of arrested or retarded development of the mind, or inherent causes induced by disease or injury. These categories clearly demonstrate that the evidence is restricted to those which can be supported by medical evidence. Consequently, killings motivated by emotions, such as those of jealousy, rage or hate, appear to be excluded.
The expressions, "abnormality of mind" ¹⁰²³and "substantially impaired mental responsibility" ¹⁰²⁴occupy a central place in the definition of the concept of diminished mental responsibility within Section 2 of the Homicide Act. The first attempt to define the phrase "abnormality of mind", within the meaning of Section 2, was in R. v. Byrne, where Lord Parker C.J., delivering the judgement of the court, stated as follows:

... it means a state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal.¹⁰²⁵
This simplistic definition is one of common sense. It avoids fastening the condition to any particular kind of mental abnormality. As Lord Parker stated: "It appears to us to be wide enough to cover the mind’s activities in all its aspects . . . [including] the ability to exercise will power to control physical acts".¹⁰²⁶ It has been held that, for this section to apply, an individual’s inability to exercise his will to control his physical acts need not be congenital, provided that it is due to an abnormality of the mind as defined in Section 2 of the Homicide Act. ¹⁰²⁷
It is, however, an essential requirement of the defence of diminished responsibility that the accused’s abnormality of mind should substantially impair his ability to control his actions. Thus, the Homicide Act requires the impairment of responsibility to be substantial, although it need not be total. The question of the substantiality of impairment is subjective and is one of fact. It is pertinent to observe that the ability to exercise self-control in relation to one’s physical acts, which is relevant to the defence of diminished responsibility, is distinct from the ability to form a rational judgement which must mean that it is distinct from the level of intelligence of the accused.
The defence of diminished responsibility is more likely to be accepted if there is evidence of mental abnormality. The evidence of the defence psychiatrist must be to say that the accused suffers from abnormality of mind, as defined in Section 2 of the Homicide Act. It will assist in the determination of the responsibility of the accused in a defence of diminished mental responsibility if the medical expert is able to testify as to whether the accused’s abnormality of mind has substantially impaired his mental responsibility.
The English law relating to diminished mental responsibility in Section 2 of the Homicide Act has been adopted in some common law countries. These include Australia (the Australian Capital Territory¹⁰²⁸, the Northern Territory¹⁰²⁹, New South Wales¹⁰³⁰ and Queensland¹⁰³¹), South Africa¹⁰³², Hong Kong¹⁰³³, Singapore¹⁰³⁴, Barbados¹⁰³⁵ and the Bahama Islands¹⁰³⁶. Similarly, in varying degrees of difference, France¹⁰³⁷, Germany¹⁰³⁸ and Italy¹⁰³⁹ have passed legislation providing for this defence. By contrast, the United States has no analogous provision. The provisions of Article 4 of the American Law Institute Model Penal Code are not in pari materia.¹⁰⁴⁰

1. Burden of Proof on the Defence in Relation to Diminished Mental Responsibility

The provisions of Section 2 of the Homicide Act specifically require the issue of diminished mental responsibility to be raised as a matter of defence. Accordingly, the defence must be established according to a standard of proof not as heavy as the prosecutor’s burden in establishing the guilt of the accused. The accused is required to establish the defence of diminished mental responsibility on the balance of probabilities¹⁰⁴¹. This is in accord and consistent with the general principle that the burden of proof of facts relating to a particular peculiar knowledge is on the person with such knowledge or one who raises the defence.

2. Factual Findings

To substantiate his plea of diminished responsibility, Esad Landzo called three forensic psychiatrists to testify on his behalf as expert witnesses. They were Dr. A.M.H. Van Leeuwen from the Netherlands, Dr. Marco Laggazi from Italy and Dr. Edward Gripon from the United States. The Trial Chamber also heard testimony from an Italian forensic psychiatrist, Dr. Alfredo Verde. These experts had the opportunity to meet with Esad Landzo a number of times at the Detention Unit in The Hague and hold long interviews with him before compiling their reports. In rebuttal, the Prosecution examined Dr. Landy Sparr, a psychiatrist from the United States who had similarly held fairly extensive sessions with Mr. Landzo.
All of the Defence expert witnesses were of the opinion that Esad Landzo suffered from a personality disorder. Dr. Van Leeuwen’s expert opinion was that Mr. Landzo suffered from a mixed personality disorder with dependent and schizoid traits.¹⁰⁴² Further, Dr. Van Leeuwen contended that Mr. Landzo’s mental disorder could be described as an abnormality of mind leading to diminished capacity to exercise his free will. The following extract from the transcript of the testimony of Dr. Lagazzi, however, gives a slightly different impression:

Question: Did his [Landzo] abnormality of mind influence his inability in the setting as a guard in Celebici in 1992 from the forensic point of view?

Answer: With the qualification which I have already given I think I can say that in general, with respect to that particular period of time that is a probability that it did influence his behaviour. But we would have to go into discussion with the individual facts with him in order to give a more considered opinion.¹⁰⁴³
Dr. Van Leeuwen also stated that, at the time the criminal acts with which he is charged are alleged to have been committed, Mr. Landzo was able to distinguish between right and wrong. Dr. Van Leeuwen thus did not rule out the possibility that some of the acts attributed to Mr. Landzo were the result of his own volition.¹⁰⁴⁴
Dr. Alfredo Verde performed several psychiatric tests, on the basis of which he concluded that Esad Landzo had a

…state of mind that can be called marginal, borderline state....That does not mean in the DMS 4 sense, but it shows that the personality is functioning in a very complex and not well suited way. And that means that we are in the presence of a disorder, of a mental disorder. And that--there are lot of problems in the patient, yes. It is called borderline--borderline personality organisation. ¹⁰⁴⁵
He went on to say that this disorder (which he also described as an abnormality of mind) had its origin in Mr. Landzo ’s childhood and was present in 1992, when he was serving as a guard in the Celebici prison-camp. Dr. Verde also opined that Mr. Landzo’s personality disorder influenced his ability to control his behaviour in his position as a guard. Consequently, during this period, Esad Landzo was in a state of diminished responsibility. ¹⁰⁴⁶
Dr. Gripon was of the view that Esad Landzo exhibited a personality disorder which he called schizoid. In the United States, this disorder is associated with antisocial personality disorder and, under the International Code compiled by the World Health Organisation, with dissocial personality disorder.¹⁰⁴⁷ Dr. Gripon further testified that persons with such a disorder are frequently aggressive and, if they are given authority over others, very unpleasant results will generally follow.¹⁰⁴⁸ He also stated that Mr. Landzo would not have been in a position to resist an order given to him by his superior if the schizoid disorder from which he was alleged to be suffering was compounded by post traumatic stress disorder.¹⁰⁴⁹
Dr. Laggazi was of the opinion that Esad Landzo suffered from a personality disorder which crossed well over the pathological threshold on the abnormality/behaviour curve.¹⁰⁵⁰ He further stated that this disorder meant that Mr. Landzo displayed the additional traits of dependency and narcissism,¹⁰⁵¹ with the result that his ability to exercise his free will in relation to the orders that he received was restricted. ¹⁰⁵²
Dr. Sparr took the view that the abnormality of personality which Esad Landzo exhibited had no pathological component, but merely reflected his personality traits.¹⁰⁵³
It need hardly be pointed out at this stage that, for the purpose of assessing Esad Landzo’s diminished responsibility defence, the Trial Chamber must be concerned with the period during which he served as a guard in the Celebici prison camp. It is only for this period that it is relevant to determine whether Mr. Landzo suffered from an abnormality of mind that rendered him incapable of controlling his actions. Although the experts appearing for the Defence testified that the features of Mr. Landzo’s personality developed long before his tenure at the prison-camp, they were obviously suffering from the natural handicap of having to render their assessment approximately six years after the relevant period. Furthermore, by their own admission, the experts based their findings upon what Mr. Landzo himself told them, without having an opportunity to verify his story from any other sources. Dr. Gripon did visit Konjic to make some local inquiries, but he too admitted that he had based his report on what he had been told by Mr. Landzo himself.
The Trial Chamber finds that the information provided by Esad Landzo relating to his own background cannot be relied upon. In this regard, the Trial Chamber notes that Mr. Landzo told the experts several stories about himself which he later changed or disowned. Indeed, there are so many such instances that it would be tedious to reproduce them all. For example, in his discussions with the various experts he took up the position that, while serving in the prison camp he would drink heavily and take pills to enhance the effect of the alcohol. However, in his testimony before the Trial Chamber he denied this.¹⁰⁵⁴ Similarly, before the experts, he recounted an incident where he allegedly threw a hand grenade into a room where some girls were present. Again, in his testimony, he changed this story, stating that he had merely fired a gun into the ceiling when he found some soldiers present in a room he had chosen for his use.¹⁰⁵⁵
Dr Van Leeuwen’s expert opinion was that Mr. Landzo’s personality disorder was compounded in the Celebici prison-camp by the experience he allegedly underwent in a Croatian training camp. This opinion was based upon Esad Landzo’s unsupported account of running away in the summer of 1991 with a friend, to avoid a call-up from the JNA for compulsory military service. According to Mr. Landzo’s account, he and his friend spent the night in a village near the Croatian border. In the morning, their host took them to a Croatian training camp, where they spent the following 20 to 25 days. As part of the training, live demonstrations were held to show how to kill human beings. ¹⁰⁵⁶
The Trial Chamber finds this account to be unreliable for the following reasons. Firstly, it appears somewhat unlikely that a person who had fled from his home in order to avoid being conscripted into mandatory military service would promptly join another military training facility. Further, Mr. Landzo was unable to recall either the name of the village where the training camp was located, or the true names of those who instructed him, even though, according to him, he spent 20 to 25 days there. The accused further contends that, after the training, he returned to his home town despite the fact that he had defied the JNA call-up notice. These considerations seriously compromise the reliability of this account and, in the absence of any independent support, the Trial Chamber is not convinced of its authenticity. Consequently, the opinion expressed by some of the experts that, while serving in the prison camp Mr. Landzo’s personality disorder was compounded by post traumatic stress disorder arising out of his experience in the Croatian training camp, loses much of its validity. Indeed, Dr. Van Leeuwen stated that, in his opinion, Mr. Landzo did not suffer from a post traumatic stress disorder during the relevant period.¹⁰⁵⁷
As noted above, in his testimony, Dr Laggazi referred to the aspect of Mr. Landzo’s personality disorder which meant that he displayed dependency traits. In this context, he explained that an individual possessing a dependency trait will often conjure up in his mind a false self upon which to model his behaviour. Thus, Esad Landzo considered that, to be regarded as a good soldier, he had to obey the orders of his superiors. This diminished his ability to exercise his free will in relation to orders he received from his superiors. ¹⁰⁵⁸As to the facts of the instant case, the Trial Chamber is not convinced that the criminal acts attributed to Esad Landzo were not the product of his own free will, or that they were influenced by his desire to seek the approbation of others. Further, in the absence of independent supporting evidence, the Trial Chamber cannot accept Esad Landzo’s statement that he committed some of the criminal acts with which he is charged on the direction of his co-accused, Hazim Delic. In fact, Mr. Landzo admitted to Dr. Gripon that he would inflict pain and suffering on the prisoners for two reasons, being, first, because he was ordered to do so, and, secondly, because he was bored and frustrated. He further stated that he never experienced any difficulty in doing such things, that he actually enjoyed it and that he cannot explain why he found it to be not at all unpleasant.¹⁰⁵⁹ In this context, the Trial Chamber finds it relevant to note that, according to the expert opinion of Dr. Sparr, individuals who possess the personality traits exhibited by Esad Landzo have a tendency to blame others for their own faults.¹⁰⁶⁰
For the reasons stated, the Trial Chamber is not persuaded by the defence of diminished responsibility as canvassed on behalf of Esad Landzo. The Defence does not contend that, at the relevant time, Esad Landzo was unable to distinguish between right and wrong. Although it does appear from the testimony of the experts that Mr. Landzo suffered from a personality disorder, the evidence relating to his inability to control his physical acts on account of abnormality of mind, is not at all satisfactory. Indeed, the Trial Chamber is of the view that, despite his personality disorder, Esad Landzo was quite capable of controlling his actions.
As regards the plea of limited physical capacity, it seems that the accused did experience breathing problems and suffered from some form of impairment to his hand. However, he himself admitted to killing detainees, causing injuries and kicking and beating them. In the circumstances, this plea has lost all relevancy.

____________________________

This concludes the Judgement of the Trial Chamber on the criminal responsibility of the accused, as charged in the Indictment.
On 1 September 1998, the Trial Chamber concluded the hearing in this case and adjourned for judgement. Subsequently, on 18 September 1998, the Trial Chamber issued a scheduling order requiring the Prosecution and the Defence to submit written submissions in respect of sentencing, to be filed on 1 and 5 October 1998 respectively.¹⁰⁶¹ A four day hearing was thereafter held, commencing on 12 October 1998. These proceedings became necessary as a result of the amendments to the Rules relating to sentencing, adopted by the Judges of the Tribunal in their 18^th Plenary session on 9-10 June 1998. As discussed above in section I, whereas the previous Rules provided for a separate hearing on the matter of sentencing to be held after the rendering of the judgement as to the innocence or guilt of the accused, the new procedure adopted at the plenary enables sentence to be pronounced at the time of the delivery of the judgement. The effect of these amendments is that all evidence relating to sentencing, including evidence in mitigation or aggravation, is to be part of the main proceedings, thus eliminating the erstwhile procedure of pre-sentencing proceedings after the delivery of the judgement.
By the provisions of Rule 6, an amendment of the Rules takes effect immediately. However, such an amendment is not to operate to prejudice the rights of the accused in a pending case.¹⁰⁶² The present proceedings were pending at the time of the relevant amendment. The Trial Chamber, cognisant of Article 20 and 21 of the Statute, considers it proper, and in the interests of justice, to apply the Rules, as amended.