Historia de los Cementerios

231. The Defence has, in argument, submitted the Prosecution evidence under paragraph 6 to substantial criticism. It asserts that the evidence of Prosecution witnesses can be seen to be unreliable in their identification of the accused as being at all involved in those incidents and that his purported involvement is due both to their acceptance of a rumour that the accused was present in the camp on that day and to their subsequent reconstruction of events to fit that rumour. In particular it is said that the accused has been introduced into the evidence of these

witnesses as a result of the incident of sexual assault upon Fikret Haramba{i} having achieved

great notoriety. In consequence it came to be much talked about and, consciously or unconsciously, the truth has been distorted. This process of distortion may, it is said, have begun when G returned to his room from the hangar floor in a highly emotional state. By the time Witness H returned, there were those who already asked him whether the accused, naming him, was involved in the sexual mutilation, his denial of having seen the accused not being enough to stop a rumour that the accused had been involved; this, it is said, has tainted the witnesses’ evidence.

232. Two specific points are made in support of this submission of general unreliability of

the evidence, in addition to reliance on the several inconsistencies occurring in the various accounts given by the witnesses. The first of these points is the fact that it would seem, from

several accounts of the calling-out from his room of Jasmin Hrni}, that he was called for as

“Asko Hrni}”. It is said that this clearly disassociates the accused, who knew Jasmin Hrni}

well, from the calling-out since he would not conceivably have made such a mistake himself and would have promptly corrected it if he were present and it had been made by another.

However, the evidence is that the nickname of Jasmin Hrni} was Jasko. The second point is

the way in which a number of witnesses in their evidence assumed that the victims of the

sexual attack were Emir Karaba{i}, Jasmin Hrni} and Enver Ali} whereas in fact the evidence

of Witness H makes it plain that it was only Fikret Haramba{i} who was thus attacked,

Witness H and G being made the unwilling agents of that attack.

233. Apart from these two general points, the accounts of events by some Prosecution

witnesses contain notable inconsistencies. Some of them have already been noted: the

differing accounts of the calling-out of Jasmin Hrni} and whether the accused played any part

in that episode; where Emir Karaba{i} was housed in the hangar building before being called

out; inconsistency between the prior statements of some witnesses and their evidence as given before this Trial Chamber; perhaps most significant, and not strictly any inconsistency, is the

failure of Witness H to see the accused at all during his direct involvement with the three

victims and with Fikret Haramba{i}, a matter on which, however, a brief comment has already

been made. Some of these necessarily cast some doubt upon the accuracy of recollection of certain of the Prosecution witnesses, particularly regarding the precise sequence of events. This is, perhaps, not surprising having regard to the conditions to which prisoners were subjected in the Omarska camp: the fear in which prisoners constantly lived, the especially terrifying conditions existing on 18 June 1992 in the hangar building, the physical mistreatment and near-starvation to which they were subject and the lapse of time, involving gross disruption of their lives, since the events of which they speak.

234. Giving full weight to these Defence submissions there is nevertheless, opposed to the

accused’s denial of any part in these three incidents the subject of paragraph 6, much evidence from many witnesses of the accused having been seen by them in the Omarska camp on 18 June 1992 and on other occasions, evidence which the Trial Chamber accepts as truthful. Once it is accepted that the accused is untruthful in his denial of ever having visited Omarska, the Defence case is placed in jeopardy. However, it remains, as ever, for this Trial Chamber to determine whether, notwithstanding the criticism of the Prosecution evidence made by the Defence, it is satisfied beyond reasonable doubt of the guilt of the accused of each of the detailed acts alleged in paragraph 6.

235. This Trial Chamber is satisfied beyond reasonable doubt that the accused was one of a

group of men who severely beat Emir Beganovi} and also Senad Muslimovi}. It accepts their

evidence of having been brutally beaten and kicked on the hangar floor by that group and of their identification of the accused as taking an active part in that kicking and beating and, in

the case of Senad Muslimovi}, of the accused threatening him with a knife and then stabbing

him.

236. This Trial Chamber is further so satisfied from the evidence of Mehmed Ali}, Armin

Muj~i}, Armin Kenjar, Halid Mujkanovi} and Senad Muslimovi} that the accused was present

on the hangar floor when the three victims, Emir Karaba{i}, Jasmin Hrni} and Enver Ali},

were called out and attacked. It is further so satisfied from the evidence of Senad Muslimovi}

that the accused attacked Jasmin Hrni} with a knife on the hangar floor and severely cut him,

upon and the beating of Emir Karaba{i}, and from that of Armin Mujci} that the accused took part in the beating of Jasmin Hrnic.

237. This Trial Chamber is satisfied beyond reasonable doubt from the evidence of Halid

Mujkanovi} that the accused was present on the hangar floor on the occasion of the assault

upon and sexual mutilation of Fikret Haramba{i} but is not satisfied that he took any active

part in that assault and mutilation.

238. As to the alleged deaths of Fikret Haramba{i}, Emir Karaba{i}, Jasmin Hrni} and

Enver Ali}, there is much evidence of screams and cries of pain after all these latter three

were called out onto the hangar floor. However, the Prosecution failed to elicit clear and definitive evidence from witnesses about the condition of the four prisoners after they had been assaulted, let alone that they died or that death resulted from the assault upon them. In

the case of Enver Ali} there is no eyewitness testimony as to his beating, only evidence that

later he was seen lying on the hangar floor and, when a witness tried to pick him up, he

slipped from his grasp, was fighting back and was clearly alive. Of Fikret Haramba{i} the

Tria l Chamber knows that in the attack on him he suffered a severe injury, his testicle having been bitten off, but the sole witness to testify to his subsequent condition states only that,

having dragged him to a table in the hangar and stood beside him, Fikret Haramba{i} then

asked him for water. Of Emir Karaba{i}, a witness testified that he was beaten, but no

evidence was offered about the details of that beating. Another witness saw him being cut and bloody, but only from a fleeting glance as a guard hurried him past, a knife at his throat. Another witness saw, as he entered the hangar, a pool of blood and then saw the body, as he

characterized it, of Emir Karaba{i} on the floor but it is not clear whether Emir Karaba{i} was

lying in that pool of blood or whether the witness first saw the blood and then moved on and

saw Emir Karaba{i} on the floor; that witness was not asked whether or not Emir Karaba{i}

was dead, and no further details regarding his condition were elicited. It was about the

condition of Jasmin Hrni} after he was beaten that the Trial Chamber received the most

evidence. He had been beaten with an iron bar, a black liquid had been poured over him, and he had been “sliced as if once one slices chops”. Then, when lying on the hangar floor,

Jasmin Hrni} “showed no signs of life”, according to one witness. Another witness was asked

directly by the Prosecution if Jasmin Hrni} was dead after the assault on him and answered

and forwards and then ordered fellow prisoners to drag his body to and fro across the floor, which they did. That is all that is known of the condition of Jasmin Hrni} after the assault.

239. A witness spoke of subsequently hearing the sound of the engine of the truck that was

used at the camp to bring in food and take away bodies and of then hearing a shot in the distance and stated that: “I believe one of them was alive, and therefore was finished up.” Even assuming the witness to be correct in his assumption, there is neither evidence of who fired the shot nor which one, if any, of the four was shot. It is clear that none of the four prisoners returned to their room in the hangar and it may be that these prisoners are in fact dead but there is no conclusive evidence of that, although there was poignant testimony from

Mehmed Ali}, the father of Enver Ali}, that: “Never again, from that day, never again”, has

he seen his son. Certainly it seemed to be the general practice at the camp to return to their rooms prisoners who had been beaten and survived and to remove from the camp the bodies of those who were dead or gave that appearance; none of the four prisoners have been seen again.

240. The Trial Chamber is cognisant of the fact that during the conflict there were

widespread beatings and killings and indifferent, careless and even callous treatment of the dead. Dead prisoners were buried in makeshift graves and heaps of bodies were not infrequently to be seen in the grounds of the camps. Since these were not times of normalcy, it is inappropriate to apply rules of some national systems that require the production of a body as proof to death. However, there must be evidence to link injuries received to a resulting death. This the Prosecution has failed to do. Although the Defence has not raised this particular inadequacy of proof, it is incumbent upon the Trial Chamber to do so. When there is more than one conclusion reasonably open on the evidence, it is not for this Trial Chamber to draw the conclusion least favourable to the accused, which is what the Trial Chamber would be required to do in finding that any of the four prisoners died as a result of their injuries or, indeed, that they are in fact dead.

241. For these reasons the Trial Chamber finds that the Prosecution has failed to establish

beyond reasonable doubt that any of these four prisoners died from injuries received in the assaults made on them in the hangar, as alleged in Counts 5, 6 and 7 contained in paragraph 6 of the Indictment.

242. The Trial Chamber finds beyond reasonable doubt, as charged in the Indictment, that

the accused was part of the group that beat Emir Beganovi}, Senad Muslimovi}, Emir

Karaba{ic and Jasmin Hrni}. The Trial Chamber finds beyond reasonable doubt that the

accused was present when Enver Ali} was beaten and Fikret Haramba{i} attacked. The Trial

Chamber is satisfied that these acts occurred within the context of the armed conflict; it will be necessary in the Legal Findings section of the Opinion and Judgment to consider the effect of Article 7, paragraph 1, of the Statute to determine whether the accused’s culpability has been established beyond reasonable doubt.

243. In the case of the acts found to have been committed by the accused involving Emir

Beganovi} and Senad Muslimovi}, they involved, because of their nature and consequences,

and on any meaning of the words, acts that caused serious injury and great suffering to the victims and which are described in Counts 8, 9, 10 and 11 respectively as “torture or inhuman treatment”, “wilfully causing great suffering or serious injury to body and health”, “cruel

treatment” and “inhumane acts”. Likewise, in the cases of Fikret Haramba{i}, Emir

Karaba{i}, Jasmin Hrni} and Enver Ali}, the acts which the accused committed or was otherwise associated with, because of their nature and consequences, involved inhuman treatment, wilfully causing great suffering or serious injury to body and health, cruel treatment and inhumane acts.

244. What remains for consideration, however, is whether the elements of “inhuman

treatment’, “wilfully causing great suffering or serious injury to body and health”, “cruel treatment” and “inhumane acts” as charged in Counts 8, 9, 10 and 11 respectively, have been met. This will be considered in later paragraphs of this Opinion and Judgment when legal findings are made.