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Ahmici 5 sentenced to a total of 64 years

Tribunal Update 159: Last Week in The Hague (10-14 January 2000)
By IWPR

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."


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