Ahmici 5 sentenced to a total of 64 years

illustrations of man's inhumanity to man".

On Friday (January 14) five Bosnian Croats were sentenced to a total of 64

years imprisonment for their participation in the attack on the village of

Ahmici in the Lasva river valley, central Bosnia.

Trial Chamber II (presiding Judge Antonio Cassese, Judge Richard May and

Judge Florence Mumba) found five of the six accused guilty of persecution on

political, racial or religious grounds--legally qualified as crimes against

humanity--and sentenced them to prison terms ranging from six to twenty five

years.

Concluding that the prosecution had failed to prove beyond reasonable doubt

his participation in the attack, the Trial Chamber found the sixth

co-accused, Dragan Papic, not guilty and ordered his immediate release.

Papic was released from the United Nations (UN) detention unit the same

afternoon.

The longest sentence--25 years imprisonment--was handed down to Vladimir

Santic, who took part in the attack on Ahmici as a commader of the military

police and its special unit "The Jokers".

Next in line came Drago Josipovic with 15 years imprisonment, Zoran

Kupreskic (10 years), Mirjan Kupreskic (8 years) and Vlatko Kupreskic (6

years).

In addition to Count 1 charging them with persecution, the five convicted

were accused of participation in the killingS of entire families and certain

inhabitants of Ahmici. The Trial Chamber ruled the prosecution had failed to

prove beyond reasonable doubt the majority of charges relating to the

killings.

This applies to the gravest accusation filed against the brothers Zoran and

Mirjan Kupreskic. Both men were charged with breaking into the house of

witness KL, killing his son, daughter-in-law and two children, including a

three-month-old baby, before setting fire to the house and thereby causing

serious burns to witness KL.

Highlighting numerous omissions and discrepancies in witness KL's testimony,

the judges did not accept his accusations against the Kupreskic brothers,

concluding: "He [KL] did not appear to the Trial Chamber to be an untruthful

witness or one who had set out to lie deliberately; however, he may have

been mistaken."

The only exception concerned charges related to the murder of Musaver Puscul

and inhuman acts against members of his family. The Trial Chamber found that

both Santic and Josipovic were present at the scene of the crime, as part of

a group that went to the Puscul's house "with the common intent to kill

and/or expel its inhabitants and to set it [the house] on fire." Even though

Santic and Josipovic may not themselves have killed Musaver Puscul, the

accused, the judges concluded, have "fulfilled actus reus of murder as

co-perpetrators."

The Trial Chamber established that Josipovic took place in the attack on at

least one more Moslem house, where Nazef Ahmic and his 14 year-old-son were

killed. But, as this murder was not charged as a separate count, the judges

did not pronounce a separate sentence, even though they accepted it as

"relevant evidence for the charge of persecution."

The events in the village of Ahmici on April 16, 1993 were described by the

Court in the following way:

"In a matter of a few hours, some 116 inhabitants, including women and

children, of Ahmici, a small village in central Bosnia, were killed and

about 24 were wounded; 169 houses and two mosques were destroyed. The

victims were Moslem civilians. The Trial Chamber is satisfied, on the

evidence before it in this case, that this was not a combat operation.

"Rather, it was a well-planned and well-organised killing of civilian

members of an ethnic group, the Moslems, by the military of another ethnic

group, the Croats. The primary purpose of the massacre was to expel the

Moslems from the village, by killing many of them, by burning their houses,

slaughtering their livestock and by illegally detaining and deporting the

survivors to another area.

"The ultimate goal of these acts was to spread terror among the population

so as to deter the members of that particular ethnic group from ever

returning to their homes."

"Indisputably, what happened on 16 April in Ahmici has gone down in history

as comprising one of the most vicious illustrations of man's inhumanity to

man. Today, the name of that small village must be added to the long list of

previously unknown hamlets and towns that recall abhorrent misdeeds and make

all of us shudder with horror and shame: Dachau, Oradour sur Glane, Katijn,

Marzabotto, Soweto, My Lai, Sabra and Shatila, and so many others."

In his summary of the Judgement, Presiding Judge Cassese said: "We have come

to the conclusion that, with the possible exception of one of the accused,

this Trial Chamber has not tried the major culprits: those who are most

responsible for the massacre of 16 April 1993; those who ordered and planned

[the massacre]; or those who carried out the very worst of the atrocities

against innocent civilians."

Vladimir Santic is the one "possible exception". And "those who are most

responsible" could be political and military leaders of Bosnian Croats--men

like Tihomir Blaskic, Dario Kordic and Vladimir Cerkez. These three were

tried or are still being tried before other Trial Chambers and

responsibility for the massacre in Ahmici makes up a very significant part

of their indictments.

Blaskic is awaiting the pronouncement of sentence, which is expected in the

latter half of February. The trials of Kordic and Cerkez will, based on

previous experience, continue until the end of this year. Even though all

three will be sentenced based on evidence proven in their own trials, some

of the legal findings in the "Kupreskic & Others" Judgement may be of

significance for their cases as well. A large number of the same prosecution

witnesses appeared in all three trials - at least in those areas concerning

the general situation in the Lasva River valley and the attack on Ahmici.

It seems logical, therefore, that the judges may draw the same conclusions

from the same testimonies concerning the nature of the attack ("not a combat

operation"); the status of the victims ("mostly civilians, off-duty soldiers

and some people spontaneously taking up arms to defend themselves"); and the

military significance of Ahmici ("an undefended village").

The judges concluded in the "Kupreskic & Others" case that the attack on

Ahmici "was not a single or unauthorised event brought about by rogue

factions of the Croatian Defence Council (HVO) or the military police. It

was part of an overall campaign in the Lasva River valley, intended to bring

about 'ethnic cleansing' through a systematic and widespread attackas a

pre-condition to unrestricted Croat dominance over the area, promoted or at

least condoned by the HVO and military police and, more generally, by the

leadership of Croatia. The reason for this forced expulsion was the

achievement of territorial homogeneity by the Croats. The Moslems were

identified as the group that was to be expelled".

"The entirety of the evidence," according to the Judgement, "shows that the

attack by the Croats was a planned and highly organised operation. The use

of different classes of heavy weaponry, such as rocket launchers and

anti-aircraft guns, proves that it was not only an operation by a special

purpose unit like the Jokers, which did not have such an arsenal at their

disposal. But that the HVO as a professional army was itself actively

involved in the attack.

"The Trial Chamber is satisfied that there were no significant military

units or installations of the Bosnia-Herzegovina (B-H) Army present in the

area of the village at the time of the attack. But that the HVO and military

police actually exploited the absence of the B-H Army for a surprise attack

on the village."

Further, "The Trial Chamber also finds beyond reasonable doubt that the

attack was not a military combat operation such as a pre-emptive defensive

strike against a threat of Moslem armed aggression. On the contrary, the aim

of the attack was the forced expulsion of the Moslem population from the

area, as from the entire Lasva River valley. The attack was carried out in

an indescribably cruel manner, sparing not even the lives of women and small

children. The many bodies of civilians found in the village after the

attack, especially those of very young children, the wholesale destruction

of Moslem and only of Moslem houses and even the destruction of the

livestock of the Moslem families, do not match the picture the defence tried

to paint, which was that of a military battle between two armies...

"Nor does the concept of a military combat engagement accord with the fact

that the houses of Moslem civilians were broken into and the male members of

military age pulled out and executed. Above all the intentional killing of

children, at least one of which (sic) was only three months old, cannot be

reconciled with the view that this was an action demanded and guided by

strategic or tactical necessities. In sum, the damage and harm inflicted by

the Croats on the Moslem civilian population was not collateral; it was the

primary purpose of the attack."

The judges' conclusion on one other argument presented by the defence in the

"Kupreskic & Others" case is interesting given its similarity to arguments

presented by the defence counsel in the trails of Blaskic, Kordic and

Cerkez. Namely, the attack on Ahmici was carried out in retaliation for

similar attacks by Moslem forces on Croat villages.

The judges concluded that such a defence is irrelevant.

Even if proven, similar attacks by the Moslem forces on Croats would not

justify the attack carried out on Ahmici. Reprisals against civilians are

absolutely forbidden in any situation, including civilians located in combat

zones.

The Judgement underscores: "In international law there is no justification

for attacks on civilians carried out either by virtue of the tu quoque

principle (i.e. the fact that the adversary is committing similar crimes

offers a valid defence to a belligerent's crimes) or on the strength of the

principle of reprisals. Hence the accused cannot rely on the fact that

allegedly there were also atrocities committed by Moslems against Croatian

civilians."

Undoubtedly, the most important part of the judgement in "Kupreskic &

Others" case is the one that further elaborates the notion of "ethnic

cleansing" as persecution on political, racial or religious ground.

That "connection" was established for the first time in the sentence handed

down to Dusko Tadic, May 1996 (See Tribunal Update 27). In that judgement

the policy, euphemistically been described as "ethnic cleansing", was

legally defined as persecution on political, racial or religious grounds and

categorised as a crime against humanity.

This time, the Trial Chamber went further in elaborating that concept.

This judgement states that persecution, listed under Article 5(h) of the

Tribunal's Statute, "has never been comprehensively defined in international

treaties. Furthermore, neither national nor international case law provides

an authoritative single definition of what constitutes 'persecution'.

Accordingly, considerable emphasis will be given in this judgement to

elucidating this important category of offences."

Rejecting the defence's argument that persecution should be given a narrow

interpretation, thereby excluding crimes found in the remaining sub-headings

of Article 5, the judges stated that in that case "a lacuna would exist in

the Statute of the Tribunal. There would be no means of conceptualising

those crimes against humanity which are committed on discriminatory grounds,

but which, for example, fall short of genocide, which requires a specific

intent 'to destroy, in whole or in part, a national, ethnical, racial, or

religious group'. An example of such a crime against humanity would be

so-called 'ethnic cleansing', a notion which, although it is not a term of

art, is particularly germane to the work of this Tribunal."

Although the actus reus of persecution may be identical to other crimes

against humanity, what distinguishes the crime of persecution is that it is

committed on discriminatory grounds. The Trial Chamber therefore accepted

the submission of the prosecution that "persecution, which can be used to

charge the conduct of ethnic cleansing on discriminatory grounds is a

serious crime in and of itself and describes conduct worthy of censure above

and apart from non-discriminatory killings envisioned by Article 5"..

The Trial Chamber defined the actus reus of persecution under Article 5(h)

of the Statute as the "gross or blatant denial, on discriminatory grounds,

of a fundamental right, laid down in international customary or treaty law,

reaching the same level of gravity as the other acts prohibited in Article 5

of the Statute. As a crime against humanity the common prerequisites of a

link with an armed conflict, a widespread or systematic attack on a civilian

population in furtherance of a systematic policy, and the grave nature of

the offences also apply. The requisite mens rea is the intent to

discriminate, to attack persons on account of their racial or religious

characteristics or political affiliation as well as knowledge of the

widespread or systematic nature of the attack on civilians."

"In determining whether particular acts constitute persecution, the Trial

Chamber wishes to reiterate that acts of persecution must be evaluated not

in isolation but in context, by looking at their cumulative effect.

Although individual acts may not be inhumane, their overall consequences

must offend humanity in such a way that they may be termed 'inhumane'. This

delimitation also suffices to satisfy the principle of legality, as inhumane

acts are clearly proscribed by the Statute."

In the light of its broad definition of persecution, the Trial Chamber

observed that the prosecution "cannot merely rely on a general charge of

'persecution' in bringing its case. This would be inconsistent with the

concept of legality. To observe the principle of legality, the prosecution

must charge particular acts (and this seems to have been done in this case).

These acts should be charged in sufficient detail for the accused to be able

to fully prepare their defence."

In sum the judgement concluded a charge of persecution must contain the

following elements:

(a) those elements required for all crimes against humanity under the

Statute;

(b) a gross or blatant denial of a fundamental right reaching the same level

of gravity as the other acts prohibited under Article 5;

(c) discriminatory grounds.

In his summary of the judgement, presiding Judge Cassese particularly

stressed the gravity of the crimes for which the sentences, ranging from six

to twenty five years, were pronounced:

"Persecution is one of the most vicious of all crimes against humanity. It

nourishes its roots in the negation of the principle of the equality of

human beings. Persecution is grounded in discrimination. It is based upon

the notion that people who share ethnic, racial, or religious bonds

different to those of a dominant group are to be treated as inferior to the

latter.

"In the crime of persecution, this discriminatory intent is aggressively

achieved by grossly and systematically trampling upon the fundamental human

rights of the victim group.

Persecution is only one step away from genocide - the most abhorrent crime

against humanity - for in genocide the persecutory intent is pushed to its

uttermost limits through the pursuit of the physical annihilation of the

group or of members of the group. In the crime of genocide the criminal

intent is to destroy the group or its members; in the crime of persecution

the criminal intent is instead to forcibly discriminate against a group or

members thereof by grossly and systematically violating their fundamental

human rights.

In the present case, according to the prosecution - and this is a point on

which the Trial Chamber agrees - the killing of Moslem civilians was

primarily aimed at expelling the group from the village, not at destroying

the Moslem group as such. This is therefore a case of persecution, not of

genocide."