Leyes y Reglamentos sobre Cementerios y Servicios funerarios

1. The Events Alleged

262. This paragraph concerns an incident alleged to have taken place at the Omarska camp.

It reads as follows:

Around July 10, 1992, in the building known as the “white house” in

Omarska camp, a group of Serbs from outside the camp, including Du{ko

TADI], severely beat [efik SIVAC, threw him onto the floor of a room and

left him there, where he died.

It is then alleged that by his participation in these acts the accused committed offences charged in three counts.

263. Count 12 of the Indictment charges that by his participation in these acts the accused

committed a grave breach recognized by Article 2(c) (wilfully causing great suffering or serious injury to body or health) and Article 7, paragraph 1, of the Statute. In Count 13 of the Indictment it is charged that by his participation in these acts the accused committed a violation of the laws or customs of war recognized by Article 3 and Article 7, paragraph 1, of the Statute and Article 3(1)(a) (cruel treatment) of the Geneva Conventions. In Count 14 of the Indictment it is charged that by his participation in these acts the accused committed a crime against humanity recognized by Article 5(i) (inhumane acts) and Article 7, paragraph 1, of the Statute.

264. Hase Ici} and Husein Hodzi} testified for the Prosecution as to paragraph 7.

own beating on the day of his arrival at Omarska or on the evening following, which would have been 8 or 9 July, if Hase Ici} arrived on 7 July 1992, or 9 or 10 July if Hase Ici} arrived

on 8 July 1992. That night, Hase Ici} heard the sound of beatings coming from in front of the

white house. As he was lying on the floor of a room in the white house, on his back with his head and shoulders off the ground leaning against another prisoner, he heard people cursing as they approached his room. He recognized one of the voices. He then saw a person who was wearing a camouflage uniform, and another person, as they threw a badly beaten prisoner into the room. As the prisoner was thrown into the room, the person said: “You will remember,

Sivac, that you cannot touch a Serb or say anything to a Serb.” The next morning, Hase Ici}

recognized this prisoner as being [efik Sivac, a Muslim. When the commander of the guard

shift, Krkan, later came into the room and asked for the names of the people who were either dead or could not move, Hase Ici} identified [efik Sivac.

265. Husein Hodzi} testified at trial that he was in a room from which [efik Sivac was

called out for the last time. [efik Sivac had been beaten previously and when Husein Hodzi}

saw the dead body of [efik Sivac later the next day, he stated that “it looked like anything but

a body”, his clothes were torn and the body was bloodied.

2. The Role, if any, of the Accused

266. Hase Ici} testified that it was the accused’s voice that he recognized as people were

approaching his room after he heard the sound of beatings coming from in front of the white house. He recognized the accused as being one of the persons who threw the badly beaten prisoner into his room. As the prisoner was thrown into his room, the accused said: “You will remember, Sivac, that you cannot touch a Serb or say anything to a Serb.”

267. Hase Ici} testified that he knew that the accused and [efik Sivac had been friends at

one time but were not on good terms before the war began because [efik Sivac had thrown

the accused out of his café. He did not otherwise state the basis for this opinion. However,

direct testimony regarding the accused’s relationship with [efik Sivac was given by Witness

AA, who knew the accused well. Witness AA testified that [efik Sivac and the accused had a

good relationship until shortly before the war, when they had an argument about politics in

present. Witness AA testified that the accused had said that the area “would be a Greater Serbia, it would be theirs and that we, Muslims, will not be there, that there will be no place

for them”. [efik Sivac then told the accused to leave the restaurant. [efik Sivac and Mladen

Tadi}, the accused’s brother, were especially good friends and the accused’s elder daughter

had often visited [efik Sivac’s daughter. Witness AA testified to have last seen [efik Sivac

on the first day of the attack on Kozarac.

268. On cross-examination, the Defence challenged Hase Ici}’s credibility, pointing out

that the written account that he had prepared regarding his experiences in the Omarska camp stated only that he had heard the accused; it made no reference to him seeing the accused, as he testified at trial. However, that account was not a formal statement by him. It had been prepared by him in February 1993 on the medical advice of a physician who considered that he should write down his experiences during the conflict since he lived in an area where there were very few people from the former Yugoslavia with whom he could talk about what he had experienced. The account was used by the Defence in its cross-examination but it was not offered as an exhibit.

3. The Case for the Defence

269. The accused testified, under solemn declaration, that he had never been at the

Omarska camp. Further, the Defence offered as an alibi that at relevant times he was working as a traffic policeman at the Orlovci checkpoint and, during his time off, was in Prijedor, some 22 kilometres from the Omarska camp. Each of these two locations, the checkpoint and Prijedor, requires separate consideration so far as the accused’s alibi is concerned and they will be extensively dealt with later in this Opinion and Judgment in considering the accused’s alibi.

270. The Defence contends that the accused was mobilized on 16 June 1992, starting his

work that day as a reserve policeman for the traffic police at the Orlovci checkpoint.

271. The daily logbook and duty lists show with respect to the Orlovci checkpoint that the

accused was assigned to the Orlovci checkpoint on the following days relevant to these counts: on 7 July 1992, the accused was off duty from 7 a.m.; on 8 July the accused was

assigned duty from 7 a.m. to 7 p.m.; on 9 July the accused was assigned duty from 7 p.m. until 7 a.m. on the following day; and on 10 July the accused was off duty all day from 8 a.m.

272. Testimony from Defence witnesses who spoke of the accused’s presence at the

Orlovci checkpoint will be described in that portion of this Opinion and Judgment devoted to a consideration of the accused’s alibi.

273. The Defence further contends that, when off duty, he spent his time in Prijedor with

his family or visiting friends. He stated he continued to live in Prijedor until the end of 1992. The testimony of other witnesses testifying on behalf of the Defence who stated they saw the accused in Prijedor and knew he was living there will be described in the course of examination of the accused’s alibi.

4. Findings of Fact

274. The Indictment charges in paragraph 7 that the beating and death of [efik Sivac

occurred “around 10 July 1992”. In regard to these events, Hase Ici} testified that they

happened on the evening following his own beating or the next evening. Hase I~i} testified

that he arrived at the Omarska camp on 7 or 8 July 1992 and that the beating he received there in the white house and which is the subject of paragraph 10 occurred on the evening of his arrival there. Thus the events that the Trial Chamber is here considering occurred on the night of either 8, 9 or 10 July 1992. The exact time of the night when these events occurred has not

been given, however, Hase Ici} testified that he was able to recognize the accused because of

the lighting that was coming from the hallway; the same lighting that he described when he had been beaten a day or two earlier.

275. The Trial Chamber finds that Hase Ici}’s credibility is not affected by the minor

discrepancies in the earlier account referred to above which he wrote himself in 1993 on medical advice. Having observed the demeanour of the witness while testifying, the Trial Chamber finds that Hase Ici} is credible and trustworthy.

276. The records of service at the Orlovci checkpoint earlier referred to show that the accused has no specific alibi for the late evening and night of 8 or 10 July 1992. As will be observed later in the Opinion and Judgment, the Defence evidence as to off-duty days does no more than establish that the accused was generally resident in Prijedor. However, many witnesses have testified to seeing him outside of Prijedor at places other than the Orlovci checkpoint and to having seen him at the Omarska camp in July 1992. Thus, as will be discussed hereafter, the Trial Chamber rejects the Defence contention that the accused was somehow rendered largely immobile because of the fact that he did not own a car.

277. If it should be that it was on the night of 9 July 1992, rather than on 8 or 10 July, that

the relevant beating of [efik Sivac occurred, the records for the Orlovci checkpoint reflect

that the accused was assigned duty there on 9 July from 7 p.m. until 7 a.m. the following day. Even if these records are accepted as accurately reflecting the shifts to which the accused was assigned, they can only establish the hours when the accused was meant to be on duty at the checkpoint; they do not of themselves establish his presence there throughout those hours.

278. The Trial Chamber bears in mind all that has been said and referred to in the later

consideration of the accused’s alibi. The Trial Chamber also contrasts the entirely general evidence of the accused and of Miroslav Brdar, his fellow traffic policeman, regarding the accused’s constant presence at the checkpoint during duty hours with the very specific and

precise evidence of Hase Ici}, in particular, his evidence both generally as to the events of the

night when [efik Sivac was beaten and specifically as to the presence of the accused and what

it was the accused said to the dying [efik Sivac as he threw him into Hase Ici}’s room. The

Trial Chamber recalls, too, the evidence of Witness AA regarding the heated argument that the accused had with [efik Sivac when [efik Sivac had him leave his restaurant.

279. Having observed the demeanour of the witnesses while testifying and considering all

the relevant probative evidence offered by both parties, the Trial Chamber finds beyond

reasonable doubt that around 10 July 1992, as charged in the Indictment, [efik Sivac was

beaten and that the accused was part of the group that threw [efik Sivac onto the floor of a

room in the white house after he had been beaten and that [efik Sivac later died from these

injuries. The Trial Chamber finds beyond reasonable doubt that these acts were committed in the context of the armed conflict. All that remains for consideration in relation to the beating of [efik Sivac is whether the elements of each of the crimes as charged in Counts 12, 13 and

14 of the Indictment are satisfied and, as stated previously, this will be considered in a later section of the Opinion and Judgment when legal findings are made.

280. There is no direct testimony that the accused was present during the beating of [efik

Sivac. 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.

D. Paragraph 8 of the Indictment

1. The Events Alleged

281. This paragraph concerns an incident alleged to have taken place at the Omarska camp.

It reads as follows:

Around late July, 1992, behind the building known as the “white house” in Omarska camp, a group of Serbs from outside the camp, including

Du{ko TADI], severely beat and kicked Hakija ELEZOVI],

Salih ELEZOVI], Sejad SIVAC and other prisoners. Hakija ELEZOVI]

survived the beating. Salih ELEZOVI], Sejad SIVAC, and other prisoners

were found dead in the same spot later that day.

It is then alleged that by his participation in these acts, the accused committed offences which are charged in three counts.

282. Counts 15, 16 and 17 of the Indictment charge the accused by reason of his

participation in the acts described in it, respectively, with a grave breach of the Geneva Conventions recognized by Article 2(c) (wilfully causing great suffering or serious injury to body or health) and Article 7, paragraph 1, of the Statute; with a violation of the laws or customs of war recognized by Article 3 and Article 7, paragraph 1, of the Statute and Article 3(1)(a) (cruel treatment) of the Geneva Conventions; and with a crime against humanity recognized by Article 5(i) (inhumane acts) and Article 7, paragraph 1, of the Statute.

283. The evidence supporting these counts consists of the testimony of two witnesses,

Samir Hod`i} and Hakija Elezovi}, both Muslims. Samir Hod`i} was at the time a young

man aged 21. While a prisoner in Omarska, to which he had been taken from his home in Trnopolje on 9 July 1992, he was placed in a small room in the white house crowded together

with 26 others, with little ventilation. One of those others was Hakija Elezovi}. Samir

Hod`i} was held in that small room for some days and was then moved to another room very shortly before being taken for interrogation. Before he was interrogated he had seen Hakija

Elezovi} being taken out for interrogation, being returned and then being taken out of the

white house a second time. The witness never saw Hakija Elezovi} again until they met in

The Hague as witnesses.

284. Samir Hod`i} testified that when he was returning to the white house after

interrogation in the administration building, he was spoken to by a guard, was then made to sit on the grass some 10 metres from a group of men in uniform and after a while, having been asked where he came from and having said that he came from Trnopolje, was taken around to a rear corner of the white house where he saw four bodies face down and stacked one on top of another. He was ordered to turn the four bodies over and did so, recognizing the men as

Muslims known to him and from the Trnopolje area. They included Salih Elezovi} and

Sejad Sivac, the former having a bullet or knife wound under his chin. He did not see the

witness Hakija Elezovi}, Salih Elezovi}’s father, among those four bodies. He said that he

saw nothing else at the rear of the white house and would have seen anything had there been anything there to see but later said that he did not look there, “not once did I look behind the white house”. While standing beside the four bodies, and having himself no shoes, he took off the shoes from Salih Elezovi}’s feet and went back to his room in the white house.

285. Samir Hod`i} was finally taken from the Omarska camp to another camp in

August 1992. Apart from an initial beating when he arrived in Omarska and the considerable suffering caused by the very cramped conditions in the small room in the white house, the witness was not otherwise mistreated in Omarska but suffered its very bad general conditions in common with other prisoners.

286. The evidence of the other witness, Hakija Elezovi}, a man in his early fifties, about

and his son Samir were taken from their home near Trnopolje in an atmosphere of terror and violence, with individuals, including his son Samir, being taken out of a moving column of prisoners and shot where they stood as the column moved on. In all, the witness estimates that some 30 out of a column of about 300 were killed in this fashion on the way to the Trnopolje camp. When they reached Trnopolje they were taken in buses to the Keraterm camp, where the witness was held for some 10 days and severely beaten and kicked during interrogation, his ribs being broken so that he had difficulty in breathing. He was then taken to the Omarska camp where on arrival he was beaten again and sent to the white house. In the white house he was held in the same conditions in the same unventila ted room as Samir Hod`i}.

287. While in Omarska he was assaulted; he was made to kneel and bark like a dog, a gun-

barrel was pushed into his mouth and the front teeth of his bottom jaw were broken in the process. Then he was taken for interrogation and on the way was beaten and had his front upper teeth kicked out. After his first interrogation he was called back again an hour later, on the way was hit and knocked down and then, instead of a second interrogation, was sent back in the direction of the white house. However, instead of entering the white house he was taken behind it where he says that some 10 soldiers were beating some 50 to 60 prisoners amongst tall grass. There was already a heap of bodies there and he saw his son, Salih, being beaten. He began to be kicked and his son cried out: “Let my old man go”, and the son was then struck with a pistol; then he himself was struck a very severe blow on the neck and fell unconscious. When he came to, there were very many dead lying there, inc luding his son and the veterinarian Sejad Sivac and others he recognized and named, including one Zuhdija

Turkanovi}, their bodies lying one on top of the other; he himself was lying near the bodies of

In document Cementerio Ecologico en la Ciudad de Ica (página 59-73)