Table of contents:
Element:
A. Legal source/authority:
Prosecutor v. Tihomir Blakić, Case No. IT-95-14-A, Judgement (AC), 29 July 2004, para. 639:
"639. The Appeals Chamber agrees that the essential element in the crime of hostage-taking is the use of a threat concerning detainees so as to obtain a concession or gain an advantage; a situation of hostage-taking exists when a person seizes or detains and threatens to kill, injure or continue to detain another person in order to compel a third party to do or to abstain from doing something as a condition for the release of that person1332."
"1332. See also Article 1 of the International Convention against the Taking of Hostages, adopted by the General Assembly of the United Nations on 17 December 1979."
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, paras. 309, 313-314, 319-320:
"309. As regards the mens rea element, the Defence submits that the accused must not only have deliberately detained the victims, he must have intended to detain them for the purpose of extracting a concession. Moreover, it is argued, "even if a concession is eventually sought the accused is not liable absent proof that he performed his original actions of detention for the purpose of extracting a concession.31"
"31. Kordic Pre-trial Brief, Vol. II, para. 61."
"313. In the Chambers view, such a threat [in respect of the physical and mental well-being of civilians who are unlawfully detained] must be intended as a coercive measure to achieve the fulfilment of a condition. The Trial Chamber in the Blaskic case phrased it in these terms: "The Prosecution must establish that, at the time of the supposed detention, the allegedly censurable act was perpetrated in order to obtain a concession or gain an advantage.34"
314. [A]n individual commits the offence of taking civilians as hostages when he threatens to subject civilians, who are unlawfully detained, to inhuman treatment or death as a means of achieving the fulfilment of a condition."
"34. Blaskic Trial Judgement, para. 158 (emphasis added)."
"319. The Blaskic Trial Chamber also held that hostages are taken to "obtain some advantage or to ensure that a belligerent, other person or other group of persons enter into some undertaking".42
320. This Trial Chamber concurs with these finding".
"42. Blaskic Trial Judgement, para. 187."
Prosecutor v. Tihomir Blakić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, paras. 158, 187, 704:
"158. The Prosecution must establish that, at the time of the supposed detention, the allegedly censurable act was perpetrated in order to obtain a concession or gain an advantage."
"187. The parties did not contest that to be characterised as hostages the detainees must have been used to obtain some advantage or to ensure that a belligerent, other person or other group of persons enter into some undertaking."
"704. [T]he Defence asserted that it had not been established that the persons who participated in the alleged hostage-taking had had the specific intention to profit therefrom12."
"12. Defence Brief, IX, C."
Guena?l Mettraux International Crimes and the ad hoc Tribunals (2005), 89:
"The mens rea required for this offence [hostage-taking] has not been further elaborated in any of the Tribunals judgements and decisions.201"
"201. It is the position of the Prosecution that the civilians must have been willfully used for the purpose of obtaining some advantage or securing some commitment (Prosecutor v. Kordic and Cerkez, IT-95-14/2-T, Prosecutors Closing Brief, 13 December 2000). The Blaskic Trial Chamber stated, without supporting its conclusion, that the mens rea constituting all the violations of Article 2 of the Statute, includes both guilty intent and recklessness which may be likened to serious criminal negligence (Blaskic Trial Judgement, par 152)."
B. Evidentiary comment:
It is important to note that the specific intent requirement for the offence of hostage-taking has not been expressly addressed by international tribunals as yet; thus it how it will be treated by Chambers remains to be seen.
P.8. Evidence that the perpetrator intended to obtain a concession or gain an advantage.
A. Legal source/authority and evidence:
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, paras. 784, 788:
"784. (b) Dr Muhammad Mujezinovic was asked by Mario Cerkez to set up a Commission from 300 detainees held in the basement of the Vitez cinema to call upon the ABiH to stop attacking or all prisoners held in Vitez would be killed.44"
"44. Dr. Muhamed Mujezinovic, T. 2199-2200; Witness G, T. 3902-03."
"788. (viii) On 19 April 1993, according to Dr. Mujezinovic, Mario Cerkez told him that the ABiH had broken through the front line at Dubravica: the witness had to ring the 3rd Corps Commander and say that there were 2,223 prisoners and that if the Muslim advance continued on Vitez he would order the killing of the prisoners. The witness did so and the Commander agreed to halt the advance.74 He was cross-examined about his witness statement of 1995, in which he said that Ivica Santic and Pero Skopljak threatened that, if the ABiH attacked, they would kill the people in the basement plus 2,323 prisoners."
"74. T. 2199-2000."
Prosecutor v. Tihomir Blakić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, paras. 706-707:
"706. On 19 April 1993, Dr. Mujezinovic was taken off by two HVO soldiers to Vitez cultural centre. In an office were Mario Cerkez and five other persons all wearing HVO uniforms. Mario Cerkez said that the ABiH troops were advancing into town and that the witness had to obey his orders. He told the witness:
707. On the following morning, two local HDZ officials, Ivan Santic and Pero Skopljak, arrived to repeat the threat made by Mario Cerkez. Lastly, Dr. Mujezinovic was forced to sign a document put in front of him by Ivan Santic according to which the Muslims and Croats agreed inter alia to implement the Vance-Owen Plan even before it had been signed by the Serbs.16"
""14. Witness Muhamed Mujezinovic, PT of 20 August 1997, p. 1707."
16. P86."
[B. Evidentiary comment:]
A. Legal source/authority and evidence:
Prosecutor v. Tihomir Blakić, Case No. IT-95-14-A, Judgement (AC), 29 July 2004, paras. 41-42, 643-646:
"41. Having examined the approaches of national systems as well as International Tribunal precedents, the Appeals Chamber considers that none of the Trial Chambers above articulations [including Blaskic Trial Judgement, para 741] of the mens rea for ordering under Article 7(1) of the Statute, in relation to a culpable mental state that is lower than direct intent, is correct. The knowledge of any kind of risk, however low, does not suffice for the imposition of criminal responsibility for serious violations of international humanitarian law. The Trial Chamber does not specify what degree of risk must be proven. Indeed, it appears that under the Trial Chambers standard, any military commander who issues an order would be criminally responsible, because there is always a possibility that violations could occur. The Appeals Chamber considers that an awareness of a higher likelihood of risk and a volitional element must be incorporated in the legal standard.
42. The Appeals Chamber therefore holds that a person who orders an act or omission with the awareness of the substantial likelihood that a crime will be committed in the execution of that order, has the requisite mens rea for establishing liability under Article 7(1) pursuant to ordering."
"643. The Appellant contests this finding [of the Trial Chamber in para 741] both because it is based on the testimony of a single witness, and because the Trial Chamber was wrong to infer from the alleged order to defend Vitez that the Appellant in turn ordered another individual to make this threat.1343 In addition, the Appellant submits that there is no evidence that the Appellant knew, or had any reason to know, of the threat issued by that other individual.1344 As a result of his ignorance of the threat, the Appellant submits that he was not in a position to punish that individual for what is manifestly unlawful conduct on his part, and so cannot be held accountable.1345
644. The Trial Chamber itself found that the Appellant did not order that hostages be used to repel the attack on Vitez,1346 only that he ordered the defence of Vitez.1347 However, the Trial Chambers further finding that the Appellant can accordingly be held accountable for the crime of hostage-taking is problematic for two reasons. First, the Appeals Chamber disagrees that the Appellants order to defend Vitez necessarily resulted in his subordinates illegal threat.1348 It does not follow, by virtue of his legitimate order to defend an installation of military value, that the Appellant incurred criminal responsibility for his subordinates unlawful choice of how to execute the order. There is no necessary causal nexus between an order to defend a position and the taking of hostages.
645. Second, the Trial Chamber based its conclusion that the Appellant was responsible for the hostage-taking on its finding that he "deliberately ran the risk that many detainees might be taken hostage for this purpose."1349 As stated above, the Appeals Chamber has articulated the mens rea applicable to ordering a crime under Article 7(1) of the Statute. Ordering with such awareness has to be regarded as accepting that crime. The Trial Chamber did not apply this standard in relation to its findings concerning the taking of hostages.
646. The Appeals Chamber finds that there was insufficient evidence for the Trial Chamber to conclude that the Appellant ordered the defence of Vitez with the awareness of the substantial likelihood that hostages would be taken. The Trial Chambers finding that the Appellant was on notice that HVO troops were likely to take hostages in order to defend Vitez, or that the Appellant was aware of the threats made by others in that regard, is not supported by the trial evidence. The Appeals Chamber finds that this evidence does not prove beyond reasonably doubt that he was aware of a substantial likelihood that crimes would be committed in the execution of his orders."
"1343. Brief in Reply, para. 87; Appellants Brief, p. 113.
1344. Appellants Brief, p. 113.
1345. Appellants Brief, p. 113.
1346. Trial Judgement, para. 741.
1347. No evidence was cited in support of this finding; it was merely reasoned at para. 741 of the Trial Judgement that "it is inconceivable that as commander he did not order the defence of the town where his headquarters were located."
1348. Regarding the Appellant ordering the defence of Vitez, see D267 (a preparatory combat command dated 15 April 1993) and D269 (a combat command dated 16 April 1993). See also Ex. 14, Second Rule 115 Motion, p. 71. The Appellant does not dispute that he ordered the defence of Vitez, Appellants Brief, p. 113.
1349. In particular, civilians detained during and after the HVO attack on the village of Gacice were detained in front of the hotel for about three hours before being returned to Gacice; Trial judgement, paras. 549 and 714. See also Ex. D331, an Operations Report of 20 April 1993 (at 1800 hours) detailing that 47 men from Gacice were taken prisoner, but that the "women and children were sent home." Trial Judgement, para. 741."
Prosecutor v. Tihomir Blakić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, paras. 739-741:
"739. Blaskic admitted knowing that civilian detainees were at various locations in Vitez around 17 April 1993 but denied having ordered their detention18. He then contradicted himself by stating that he had ordered that the detainees be treated humanely and he also stated that he had had the power to release them19.
740. The Trial Chamber notes that Mario Cerkez (commander of the Viteska Brigade and a direct subordinate of Blaskic)20, other HVO military representatives and Ivan Santic and Pero Skopljak (local HVO civilian officials) were all directly involved in the taking of hostages on 19 and 20 April 1993. In addition, they clearly referred to the threat posed by the ABiHs military advance towards the town of Vitez.21
741. The Trial Chamber concludes that although General Blaskic did not order that hostages be taken, it is inconceivable that as commander he did not order the defence of the town where his headquarters were located. In doing so, Blaskic deliberately ran the risk that many detainees might be taken hostage for this purpose."
"18. Witness Blaskic, PT pp. 22469-22470, pp. 22475-22476
19. Witness Blaskic, PT pp. 22475-22477.
20. D242.
21. The Trial Chamber notes that on 19 and 20 April 1993, the ABiH was successfully attacking the HVO which was in a difficult military situation; P242; witness Walters, PT p. 3406."
[B. Evidentiary comment:]
A. Legal source/authority and evidence:
Prosecutor v. Tihomir Blakić, Case No. IT-95-14-A, Judgement (AC), 29 July 2004, paras. 41-42, 643-646:
"41. Having examined the approaches of national systems as well as International Tribunal precedents, the Appeals Chamber considers that none of the Trial Chambers above articulations [including Blaskic Trial Judgement, para 741] of the mens rea for ordering under Article 7(1) of the Statute, in relation to a culpable mental state that is lower than direct intent, is correct. The knowledge of any kind of risk, however low, does not suffice for the imposition of criminal responsibility for serious violations of international humanitarian law. The Trial Chamber does not specify what degree of risk must be proven. Indeed, it appears that under the Trial Chambers standard, any military commander who issues an order would be criminally responsible, because there is always a possibility that violations could occur. The Appeals Chamber considers that an awareness of a higher likelihood of risk and a volitional element must be incorporated in the legal standard.
42. The Appeals Chamber therefore holds that a person who orders an act or omission with the awareness of the substantial likelihood that a crime will be committed in the execution of that order, has the requisite mens rea for establishing liability under Article 7(1) pursuant to ordering."
"643. The Appellant contests this finding [of the Trial Chamber in para 741] both because it is based on the testimony of a single witness, and because the Trial Chamber was wrong to infer from the alleged order to defend Vitez that the Appellant in turn ordered another individual to make this threat.1343 In addition, the Appellant submits that there is no evidence that the Appellant knew, or had any reason to know, of the threat issued by that other individual.1344 As a result of his ignorance of the threat, the Appellant submits that he was not in a position to punish that individual for what is manifestly unlawful conduct on his part, and so cannot be held accountable.1345
644. The Trial Chamber itself found that the Appellant did not order that hostages be used to repel the attack on Vitez,1346 only that he ordered the defence of Vitez.1347 However, the Trial Chambers further finding that the Appellant can accordingly be held accountable for the crime of hostage-taking is problematic for two reasons. First, the Appeals Chamber disagrees that the Appellants order to defend Vitez necessarily resulted in his subordinates illegal threat.1348 It does not follow, by virtue of his legitimate order to defend an installation of military value, that the Appellant incurred criminal responsibility for his subordinates unlawful choice of how to execute the order. There is no necessary causal nexus between an order to defend a position and the taking of hostages.
645. Second, the Trial Chamber based its conclusion that the Appellant was responsible for the hostage-taking on its finding that he "deliberately ran the risk that many detainees might be taken hostage for this purpose."1349 As stated above, the Appeals Chamber has articulated the mens rea applicable to ordering a crime under Article 7(1) of the Statute. Ordering with such awareness has to be regarded as accepting that crime. The Trial Chamber did not apply this standard in relation to its findings concerning the taking of hostages.
646. The Appeals Chamber finds that there was insufficient evidence for the Trial Chamber to conclude that the Appellant ordered the defence of Vitez with the awareness of the substantial likelihood that hostages would be taken. The Trial Chambers finding that the Appellant was on notice that HVO troops were likely to take hostages in order to defend Vitez, or that the Appellant was aware of the threats made by others in that regard, is not supported by the trial evidence. The Appeals Chamber finds that this evidence does not prove beyond reasonably doubt that he was aware of a substantial likelihood that crimes would be committed in the execution of his orders."
"1343. Brief in Reply, para. 87; Appellants Brief, p. 113.
1344. Appellants Brief, p. 113.
1345. Appellants Brief, p. 113.
1346. Trial Judgement, para. 741.
1347. No evidence was cited in support of this finding; it was merely reasoned at para. 741 of the Trial Judgement that "it is inconceivable that as commander he did not order the defence of the town where his headquarters were located."
1348. Regarding the Appellant ordering the defence of Vitez, see D267 (a preparatory combat command dated 15 April 1993) and D269 (a combat command dated 16 April 1993). See also Ex. 14, Second Rule 115 Motion, p. 71. The Appellant does not dispute that he ordered the defence of Vitez, Appellants Brief, p. 113.
1349. In particular, civilians detained during and after the HVO attack on the village of Gacice were detained in front of the hotel for about three hours before being returned to Gacice; Trial judgement, paras. 549 and 714. See also Ex. D331, an Operations Report of 20 April 1993 (at 1800 hours) detailing that 47 men from Gacice were taken prisoner, but that the "women and children were sent home." Trial Judgement, para. 741."
Prosecutor v. Tihomir Blakić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, paras. 739-741:
"739. Blaskic admitted knowing that civilian detainees were at various locations in Vitez around 17 April 1993 but denied having ordered their detention18. He then contradicted himself by stating that he had ordered that the detainees be treated humanely and he also stated that he had had the power to release them19.
740. The Trial Chamber notes that Mario Cerkez (commander of the Viteska Brigade and a direct subordinate of Blaskic)20, other HVO military representatives and Ivan Santic and Pero Skopljak (local HVO civilian officials) were all directly involved in the taking of hostages on 19 and 20 April 1993. In addition, they clearly referred to the threat posed by the ABiHs military advance towards the town of Vitez.21
741. The Trial Chamber concludes that although General Blaskic did not order that hostages be taken, it is inconceivable that as commander he did not order the defence of the town where his headquarters were located. In doing so, Blaskic deliberately ran the risk that many detainees might be taken hostage for this purpose."
"18. Witness Blaskic, PT pp. 22469-22470, pp. 22475-22476
19. Witness Blaskic, PT pp. 22475-22477.
20. D242.
21. The Trial Chamber notes that on 19 and 20 April 1993, the ABiH was successfully attacking the HVO which was in a difficult military situation; P242; witness Walters, PT p. 3406."
[B. Evidentiary comment:]
A. Legal source/authority and evidence:
Prosecutor v. Tihomir Blakić, Case No. IT-95-14-A, Judgement (AC), 29 July 2004, para. 639:
"639. The Appeals Chamber agrees that the essential element in the crime of hostage-taking is the use of a threat concerning detainees so as to obtain a concession or gain an advantage; a situation of hostage-taking exists when a person seizes or detains and threatens to kill, injure or continue to detain another person in order to compel a third party to do or to abstain from doing something as a condition for the release of that person1332."
"1332. See also Article 1 of the International Convention against the Taking of Hostages, adopted by the General Assembly of the United Nations on 17 December 1979."
Prosecutor v. Tihomir Blakić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, para. 187:
"187. The parties did not contest that to be characterised as hostages the detainees must have been used to obtain some advantage or to ensure that a belligerent, other person or other group of persons enter into some undertaking."
P.9.1. Evidence of hostages used in prison exchanges.
A. Legal source/authority and evidence:
Prosecutor v. Tihomir Blakić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, para. 701:
"701. The indictment states that from January 1993 to January 1994 Bosnian Muslim civilians were taken hostage by the HVO and used [ ] in prisoner exchanges 10."
"10. Second amended indictment, para. 15."
[B. Evidentiary comment:]
P.9.2. Evidence of hostages used in order to bring military operations to a halt.
A. Legal source/authority and evidence:
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, paras. 784, 788:
"784. Evidence was given that Muslim civilian prisoners were used as hostages:
(a) Prisoners from Gacice (247 civilians) were taken to the HVO headquarters in Hotel Vitez and hept there for some hours as hostages in case of ABiH shelling.43
(b) Dr Muhammad Mujezinovic was asked by Mario Cerkez to set up a Commission from 300 detainees held in the basement of the Vitez cinema to call upon the ABiH to stop attacking or all prisoners held in Vitez would be killed.44
(c) The detainees at the Dubravica school were told that the ground around the school had been mined and should the ABiH attack the detainees would be blown up along with the building.45"
"43. Ex. Z1760-3, Ex. Z1770 are photos of the burned Muslim homes and Mekteb in Gacice.
44. Dr. Muhamed Mujezinovic, T. 2199-2200; Witness G, T. 3902-03.
45. Fuad Zeco, T. 6530; Anto Breljas, T.. 11725-26."
"788. (viii) On 19 April 1993, according to Dr. Mujezinovic, Mario Cerkez told him that the ABiH had broken through the front line at Dubravica: the witness had to ring the 3rd Corps Commander and say that there were 2,223 prisoners and that if the Muslim advance continued on Vitez he would order the killing of the prisoners. The witness did so and the Commander agreed to halt the advance.74 He was cross-examined about his witness statement of 1995, in which he said that Ivica Santic and Pero Skopljak threatened that, if the ABiH attacked, they would kill the people in the basement plus 2,323 prisoners."
"74. T. 2199-2000."
Prosecutor v. Tihomir Blakić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, paras. 701, 703, 706-708:
"701. The indictment states that from January 1993 to January 1994 Bosnian Muslim civilians were taken hostage by the HVO and used [ ] in order to bring to a halt Bosnian military operations against the HVO10."
"703. The Prosecution contended that the large number of detainees (2,223) to whom death threats were allegedly made on 19 and 20 April led to the unavoidable conclusion that all the Bosnian Muslim detainees in the hands of the Croatian forces in the region at all the detention facilities must be considered as HVO hostages. [ ] The HVO next clearly sought to use all means available to it to compel the ABiH to end its counter-attack."
"706. On 19 April 1993, Dr. Mujezinovic was taken off by two HVO soldiers to Vitez cultural centre. In an office were Mario Cerkez and five other persons all wearing HVO uniforms. Mario Cerkez said that the ABiH troops were advancing into town and that the witness had to obey his orders. He told the witness:
Dr. Mujezinovic telephoned the ABiH 3rd Corps commander, General Hadzihasanovic, and made a speech on television calling the Muslims to hand over their arms. Other persons called together by Dr. Mujezinovic also sent Dario Kordics message to their respective acquaintances.15
707. On the following morning, two local HDZ officials, Ivan Santic and Pero Skopljak, arrived to repeat the threat made by Mario Cerkez. Lastly, Dr. Mujezinovic was forced to sign a document put in front of him by Ivan Santic according to which the Muslims and Croats agreed inter alia to implement the Vance-Owen Plan even before it had been signed by the Serbs.16
708. [T]he Trial Chamber is of the opinion that, in this instance, detention could in no way be deemed lawful because its main purpose was to compel the ABiH to halt its advance."
"10. Second amended indictment, para. 15.
14. Witness Muhamed Mujezinovic, PT of 20 August 1997, p. 1707.
15. This part of the testimony is corroborated by witness Y, PT p6656.
16. P86."
[B. Evidentiary comment:]
P.9.3. Evidence of hostages used as leverage in political negotiations.
A. Legal source/authority and evidence:
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, para. 784:
"784. (d) The people in the Stari Soliter building in Novi Travnik were prevented from leaving and were used as leverage by the HVO in negotiations;46 the same was true of the population of besieged Stari Vitez, according the Major Mark Bower.47"
"46. Witness C, T. 827-829; Witness Q, T. 7697-99.
47. Major Mark Bower, T. 9199."
[B. Evidentiary comment:]
