7. The destruction or seizure was not required by military necessity.

7.1. The destruction was not required by military necessity.

7.1.1. Evidence that military operations did not make the destruction absolutely necessary.

P.40. Evidence that the destruction occurred even though there were no armed groups present.

P.40.1. Evidence that the destruction occurred when there were no military groups in the village

P.41. Evidence of the destruction of houses in a village that showed no resistance.

P.42. Evidence that the destruction did not aim at military targets.

P.42.1. Evidence of shelling a part of town with no military objective.

P.43. Evidence that the destruction had not been caused by the fighting.

P.44. Evidence that the destruction occurred after combat had ceased.

7.1.2. Evidence that property belonging to civilians was deliberately targeted and destroyed.

P.45. Evidence that the intent was to destroy civilian property.

P.46. Evidence that property of civilians who belonged to a specific ethnic group were specifically targeted for destruction.

P.46.1. Evidence that houses belonging to a certain ethnic group were specifically and systematically burned.

P.46.2. Evidence of houses and businesses being systematically destroyed.

P.46.3. Evidence of the destruction of a part of a village by means of shelling.

P.47. Evidence that the destruction was part of a policy of reprisals.

P.47.1. Evidence of instructions to burn houses in reprisal against a resistance movement.

7.2. Evidence that the seizing was not required by military necessity.

P.48. Evidence that the property that was seized was not to fulfil to the military needs of the hostile power.

P.49. Evidence of an organized seizure of property undertaken within the framework of a systematic economic exploitation of occupied territory.

7. The destruction or seizure was not required by military necessity.

A. Legal source/authority and evidence:

Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, para. 295:

“295. The second requirement is that the act is “not justified by military necessity”. The Chamber is of the view that military necessity may be usefully defined for present purposes with reference to the widely acknowledged definition of military objectives in Article 52 of Additional Protocol I as “those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage”.⁹³⁹ Whether a military advantage can be achieved must be decided, as the Trial Chamber in the Galic case held, from the perspective of the “person contemplating the attack, including the information available to the latter, that the object is being used to make an effective contribution to military action.”⁹⁴⁰ In other words, each case must be determined on its facts. Recalling its earlier finding that there were no military objectives in the Old Town on 6 December 1991,⁹⁴¹ the Chamber is of the view that the question of proportionality in determining military necessity does not arise on the facts of this case.”

“⁹³⁹. The same approach was used in the Galic Trial Judgment, para 51. This corresponds with the definition of a military objective as referred to in the Final report of the United Nations Commission of Experts established pursuant to Security Council Resolution 780 (1992), Annex XI.A, The battle of Dubrovnik and the law of armed conflict, X. C., according to which “military objectives are those objects which by their nature, location, purpose or use: (a) make an effective contribution to military action, and (b) whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage”. For additional definitions of military necessity, see also Article 14 of the 1863 Lieber Code as follows: “Military necessity, as understood in modern civilized nations, consists in the necessity of those measures which are indispensable for securing the ends of war, and which are lawful according to the modern law and usages of war.” See also the ICRC Dictionary of the international law of armed conflict, according to which “military necessity, in its wider sense, means doing what is necessary to achieve war aims ” (Pietro Vierri, Dictionary of the international law of armed conflict, ICRC, 1992, p 75).

⁹⁴⁰. Galic Trial Judgment, para 51.

⁹⁴¹. See supra, paras 193- 194; 214.”

Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, para. 157:

“157. An occupying Power is prohibited from destroying movable and non-movable property except where such destruction is made absolutely necessary by military operations.”

B. Evidentiary comment:

The question of military necessity refers to rules of international humanitarian and the principle that a belligerent may apply only that amount and kind of force necessary to defeat the enemy. The unnecessary or wanton application of force is therefore prohibited. There is no authoritative definition of military necessity, even as an exception. However, the relevant literature agrees with its basic components: military necessity is a measure which is (1) urgent; (2) required for the attainment of (3) a known military purpose; and (4) in conformity with international humanitarian law. (Christopher Greenwood, “Historical Development and Legal Basis: in Dieter Fleck (ed.), The Handbook of Humanitarian Law in Armed Conflicts, paras 130-132). A failure to fulfil any one of these requirements renders the course of action unjustified by military necessity under international humanitarian law.

D?rmann comments that “[…]military necessity covers only measures that are lawful in accordance with the laws and customs of war. Consequently, a rule of the law of armed conflict cannot be derogated from by invoking military necessity unless this possibility is explicitely provided for by the rule in question and to the extent it is provided for.” (K. D?rmann, Elements of War Crimes under the Rome Statute of the International Criminal Court, p. 81).

7.1. The destruction was not required by military necessity.

List (Hostages Trial) case, US, Military Tribunal at Nuremberg, UNWCC, LRTWC, Volume VIII, p. 66-67, 69:

“Military necessity has been invoked by the defendants as justifying the killing of innocent members of the population and the destruction of villages and towns in the occupied territory. Military necessity permits a belligerent, subject to the laws of war, to apply any amount and kind of force to compel the complete submission of the enemy with the least possible expenditure of time, life and money. In general, it sanctions measures by an occupant necessary to protect the safety of his forces and to facilitate the success of his operations. It permits the destruction of life of armed enemies and other persons whose destruction is incidentally unavoidable by the armed conflicts of the war ; it allows the capturing of armed enemies and others of peculiar danger, but it does not permit the killing of innocent inhabitants for purposes of revenge or the satisfaction of a lust to kill. The destruction of property to be lawful must be imperatively demanded by the necessities of war. Destruction as an end in itself is a violation of International Law. There must be some reasonable connection between the destruction of property and the overcoming of the enemy forces. It is lawful to destroy railways, lines of communication or any other property that might be utilised by the enemy. Private homes and churches even may be destroyed if necessary for military operations. It does not admit of wanton devastation of a district or the wilful infliction of suffering upon its inhabitants for the sake of suffering alone. . . .”

“ It is apparent from the evidence of these defendants that they considered military necessity, a matter to be determined by them, a complete justification of their acts. We do not concur in the view that the rules of warfare are anything less than they purport to be. Military necessity or expediency do not justify a violation of positive rules. International Law is prohibitive law. Articles 46, 47 and 50 of the Hague Regulations of 1907 make no such exceptions to its enforcement. The rights of the innocent population therein set forth must be respected even if military necessity or expediency decree otherwise.” […]

“ The Hague Regulations prohibited ‘ The destruction or seizure of enemy property except in cases where this destruction or seizure is urgently required by the necessities of war.’ Article 23 (g). The Hague Regulations are mandatory provisions of International Law. The prohibitions therein contained control and are superior to military necessities of the most urgent nature except where the Regulations themselves specifically provide the contrary. The destructions of public and private property by retreating military forces which would give aid and comfort to the enemy, may constitute a situation coming within the exceptions contained in Article 23 (g). We are not called upon to determine whether urgent military necessity for the devastation and destruction in the province of Finnmark actually existed. We are concerned with the question whether the defendant at the time of its occurrence acted within the limits of honest judgment on the basis of the conditions prevailing at the time. The course of a military operation by the enemy is loaded with uncertainties, such as the numerical strength of the enemy, the quality of his equipment, his fighting spirit, the efficiency and daring of his commanders, and the uncertainty of his intentions. These things when considered with his own military situation provided the facts or want thereof which furnished the basis for the defendant’s decision to carry out the ‘ scorched earth ’ policy in Finnmark as a precautionary measure against an attack by superior forces. It is our considered opinion that the conditions as they appeared to the defendant at the time were sufficient, upon which he could honestly conclude that urgent military necessity warranted the decision made. This being true, the defendant may have erred in the exercise of his judgment but he was guilty of no criminal act. We find the defendant not guilty on this portion of the charge.”

B. Evidentiary comment:

Some rules of international humanitarian law establish an absolute prohibition of destruction. Werle mentions, for example, that: “medical units are always protected under Article 19(1)of the Geneva Convention I. Their destruction cannot be justified with reference to military necessity”. (Werle, Principles of International Criminal Law, para. 1003). However, some other provisions allow for the possibility of justifying the destruction by military necessity. It is the case, for example, of Article 53 of Geneva Convention IV, which permits destruction of enemy (state and private) property if this is absolutely necessary. The principle of military necessity obliges the belligerent to opt for other, less disproportionate means, to achieve the same military goal.

7.1.1. Evidence that military operations did not make the destruction absolutely necessary.

P.40. Evidence that the destruction occurred even though there were no armed groups present.

P.40.1. Evidence that the destruction occurred when there were no military groups in the village

A. Legal source/authority and evidence:

Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, para. 409:

“409. Lieutenant-Colonel Thomas, UNPROFOR commander at the material time, went to Ahmici on 17 April 1993 and stated that he saw no evidence suggesting that there had been a conflict between two separate military entities, nor any evidence of resistance such as trenches, sandbags or barbed wire indicating the presence in the village of an armed force ready for combat ⁸²³. Furthermore, the bodies he saw were not in uniform ⁸²⁴ and not a single weapon was found in the destroyed buildings ⁸²⁵ . On the contrary, there were women and children amongst the bodies strewn on the ground ⁸²⁶. […] .”

“⁸²³ Same evidence as that of witness Baggesen, PT of 22 August 1997, pp. 1931-1932.

⁸²⁴ Evidence confirmed, inter alia, by witness Kujawinski, PT pp. 4112-4113.

⁸²⁵ Witness Thomas, PT of 24 September 1997 pp. 2583-2588 and 2645-2650.

⁸²⁶ Witness Kujawinski, PT pp. 4112-4113.”

P.41. Evidence of the destruction of houses in a village that showed no resistance.

A. Legal source/authority and evidence:

Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-A, Judgement (AC), 17 December 2004, para. 534:

“534. Paragraph 659 describing the events at Ocehnici reads as follows:

In the Appeals Chamber’s view, a reasonable trier of fact could have concluded that the wilful destruction of all Muslim houses in Ocehnici was of a large scale and was not justified by military necessity since the villagers were unarmed and did not put up any resistance. Therefore, Kordic’s argument that the Trial Chamber erred in finding that wanton destruction was committed in Ocehnici in April 1993 fails. The Appeals Chamber upholds the Trial Chamber’s finding that the crime was established.”

“⁷¹⁵. Indictment, paras 24 and 36.

⁷⁵¹. (Footnotes omitted).”

Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, para. 639:

“639. The protection to civilian property in Article 3(b) of the Statute is only limited by the military necessity exception. In most instances there is abundant evidence that there was no resistance at all and in the few cases where there is evidence of some resistance, the Trial Chamber comes to the conclusion that the evidence shows beyond reasonable doubt that it was minimal and certainly not such as to justify the destruction that occurred. The evidence therefore shows that the destruction of civilian property in villages, towns and cities predominantly inhabited by Bosnian Muslims and Bosnian Croats was not justified by military necessity and that the Bosnian Serb forces deliberately destroyed property belonging to Bosnian Muslims and Bosnian Croats.”

Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, para. 409:

“409. Lieutenant-Colonel Thomas, UNPROFOR commander at the material time, went to Ahmici on 17 April 1993 and stated that he saw no evidence suggesting that there had been a conflict between two separate military entities, nor any evidence of resistance such as trenches, sandbags or barbed wire indicating the presence in the village of an armed force ready for combat ⁸²³ . Furthermore, the bodies he saw were not in uniform ⁸²⁴ and not a single weapon was found in the destroyed buildings ⁸²⁵ . On the contrary, there were women and children amongst the bodies strewn on the ground ⁸²⁶ . The witnesses Watters ⁸²⁷ , Bower ⁸²⁸ , Stewart ⁸²⁹ , Landry ⁸³⁰ , Parrott ⁸³¹ , Kujawinski ⁸³² and Ellis ⁸³³ stated that they had seen the same thing. In its second periodical report on the human rights situation on the territory of the former Yugoslavia, the Commission on Human Rights even found that "by all accounts, including those of the local Croat HVO commander and international observers, this village contained no legitimate military targets and there was no organised resistance to the attack" ⁸³⁴ . The accused himself admitted before the Trial Chamber that the "villagers of Ahmici, that is Bosniak Muslims," had been the victims of the attack without there having been any attempt to distinguish between the civilian population and combatants ⁸³⁵ .”

“⁸²³ Same evidence as that of witness Baggesen, PT of 22 August 1997, pp. 1931-1932.

⁸²⁴ Evidence confirmed, inter alia, by witness Kujawinski, PT pp. 4112-4113.

⁸²⁵ Witness Thomas, PT of 24 September 1997 pp. 2583-2588 and 2645-2650.

⁸²⁶ Witness Kujawinski, PT pp. 4112-4113.

⁸²⁷ PT pp. 3639-3640.

⁸²⁸ PT pp. 9361 and 9405. The witness stated, inter alia, that he had not seen any actual trench systems or any military installations.

⁸²⁹ PT p. 23864.

P.42. Evidence that the destruction did not aim at military targets.

A. Legal source/authority and evidence:

Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, para. 409:

“409. Lieutenant-Colonel Thomas, UNPROFOR commander at the material time, went to Ahmici on 17 April 1993 and stated that he saw no evidence suggesting that there had been a conflict between two separate military entities, nor any evidence of resistance such as trenches, sandbags or barbed wire indicating the presence in the village of an armed force ready for combat ⁸²³ . Furthermore, the bodies he saw were not in uniform ⁸²⁴ and not a single weapon was found in the destroyed buildings ⁸²⁵ . On the contrary, there were women and children amongst the bodies strewn on the ground ⁸²⁶ . The witnesses Watters ⁸²⁷ , Bower ⁸²⁸ , Stewart ⁸²⁹ , Landry ⁸³⁰ , Parrott ⁸³¹ , Kujawinski ⁸³² and Ellis ⁸³³ stated that they had seen the same thing. In its second periodical report on the human rights situation on the territory of the former Yugoslavia, the Commission on Human Rights even found that "by all accounts, including those of the local Croat HVO commander and international observers, this village contained no legitimate military targets and there was no organised resistance to the attack" ⁸³⁴ . The accused himself admitted before the Trial Chamber that the "villagers of Ahmi ci, that is Bosniak Muslims," had been the victims of the attack without there having been any attempt to distinguish between the civilian population and combatants ⁸³⁵ .”

“⁸²³ Same evidence as that of witness Baggesen, PT of 22 August 1997, pp. 1931-1932.

⁸²⁴ Evidence confirmed, inter alia, by witness Kujawinski, PT pp. 4112-4113.

⁸²⁵ Witness Thomas, PT of 24 September 1997 pp. 2583-2588 and 2645-2650.

⁸²⁶ Witness Kujawinski, PT pp. 4112-4113.

⁸²⁷ PT pp. 3639-3640.

⁸²⁸ PT pp. 9361 and 9405. The witness stated, inter alia, that he had not seen any actual trench systems or any military installations.

⁸²⁹ PT p. 23864.

P.42.1. Evidence of shelling a part of town with no military objective.

A. Legal source/authority and evidence:

Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, paras. 214, 288:

“214. In view of the foregoing, the Chamber finds that the shelling of the Old Town on 6 December 1991 was not a JNA response at Croatian firing or other military positions, actual or believed, in the Old Town, nor was it caused by firing errors by the Croatian artillery or by deliberate targeting of the Old Town by Croatian forces. In part the JNA forces did target Croatian firing and other military positions, actual or believed, in Dubrovnik, but none of them were in the Old Town. These Croatian positions were also too distant from the Old Town to put it in danger of unintended incidental fall of JNA shells targeted at those Croatian positions. It is the finding of the Chamber that the cause of the established extensive and large-scale damage to the Old Town was deliberate shelling of the Old Town on 6 December 1991, not only by JNA mortars but also by other JNA weapons such as ZIS and recoilless cannons and Maljutka rockets.”

“288. The Chamber has found that the Old Town was extensively targeted by JNA artillery and other weapons on 6 December 1991 ⁹²⁸ and that no military firing points or other objectives, real or believed, in the Old Town were targeted by the JNA.⁹²⁹ Hence, in the Chamber’s finding, the intent of the perpetrators was to target civilians and civilian objects in the Old Town. The Chamber has, in addition, found that a relatively few military objectives (actual or believed) in the wider city of Dubrovnik, but outside the Old Town, were targeted by JNA forces on 6 December 1991. These were, in most cases, widely separated and in positions distant from the Old Town. Shelling targeted at the Croatian military positions in the wider Dubrovnik, including those closer to the Old Town, and whether actual or believed positions, would not cause damage to the Old Town, for reasons given in this decision. That is so for all JNA weapons in use on 6 December 1991, including mortars. In addition to this, however, the Chamber has found there was also extensive targeting of non -military objectives outside the Old Town in the wider city of Dubrovnik.”

“⁹²⁸. See supra, para 214.

⁹²⁹. See supra, paras 193-194.”

P.43. Evidence that the destruction had not been caused by the fighting.

A. Legal source/authority and evidence:

Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-A, Judgement (AC), 17 December 2004, para 485:

“485. Based on the same evidence discussed in the section on unlawful attack on civilian objects, the Appeals Chamber is of the view that a reasonable trier of fact could have found that damage to only Muslim houses was of such nature that it could not have been caused by the fighting and was thus not justified by military necessity and that the fact that soldiers were carrying around petrol canisters shows that it was deliberate. The Appeals Chamber upholds the Trial Chamber’s finding that wanton destruction, Count 38 (Kordic) was established.”

P.44. Evidence that the destruction occurred after combat had ceased.

A. Legal source/authority and evidence:

Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-T, Judgement (TC), 31 March 2003, para. 589:

“589. […]The destruction was not justified by military necessity as it occurred both in Sovici and Doljani after the actual shelling had ceased.¹⁴⁶³ The Chamber is satisfied that the houses in Sovici and Doljani were destroyed in violation of the law or customs of war under Article 3(b) of the Statute.”

“¹⁴⁶³ Houses in Sovici and Doljani were destroyed on a large scale after the actual shelling of the villages had ceased. The shelling of Sovici ceased on 18 April, while that of Doljani on 20 April 1993. The torching of the houses in Sovici occurred after 18 April 1993. In Doljani it occurred on 21 and 22 April 1993.”

7.1.2. Evidence that property belonging to civilians was deliberately targeted and destroyed.

P.45. Evidence that the intent was to destroy civilian property.

A. Legal source/authority and evidence:

Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, para. 288:

“288. The Chamber has found that the Old Town was extensively targeted by JNA artillery and other weapons on 6 December 1991 ⁹²⁸ and that no military firing points or other objectives, real or believed, in the Old Town were targeted by the JNA.⁹²⁹ Hence, in the Chamber’s finding, the intent of the perpetrators was to target civilians and civilian objects in the Old Town.”

P.46. Evidence that property of civilians who belonged to a specific ethnic group were specifically targeted for destruction.

P.46.1. Evidence that houses belonging to a certain ethnic group were specifically and systematically burned.

A. Legal source/authority and evidence:

Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, paras. 600, 608:

“600. The Trial Chamber is satisfied that in the period relevant to the Indictment, Bosnian Serb forces shelled towns and villages predominantly inhabited by Bosnian Muslims and Bosnian Croats, causing extensive damage to houses and business premises. After the shelling, the Bosnian Serb forces entered the towns and villages, looting and setting on fire apartments, houses and business premises belonging to Bosnian Muslims and Bosnian Croats. The Trial Chamber finds that the purpose of such attacks was to create terror, destroy these properties, cities, towns and villages and prompt non-Serbs to abandon their houses, viallges or towns and leave permanently.”

“608.The Trial Chamber finds that the town of Bosanka Krupa was shelled by Bosnian Serb forces on 22 April 1992. Houses predominantly inhabited by Bosnian Muslims were set on fire and destroyed.¹⁵³⁹”

“¹⁵³⁹. BT-56, T. 17496 (private session ); Jadranko Saran, T. 17289.”

Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-T, Judgement (TC), 31 March 2003, paras. 583– 585:

“583.The deliberate destruction of the houses in Sovici started on 18 April 1993 and continued until 23 April.¹⁴⁴⁸ In contrast to the shelling, the BH Muslim houses were now specifically targeted.¹⁴⁴⁹ Defence witness NN confirmed that BH Muslim houses were torched but denied that all houses were destroyed.¹⁴⁵⁰ A Report from the ECMM recounts that “during the fighting the HVO have systematically burn [sic] Muslim houses”.¹⁴⁵¹

584. On 20 April 1993, the HVO was firing at Doljani.¹⁴⁵² The village was on fire and houses were burning.¹⁴⁵³ International observers visiting Doljani after the conflict reported that half of Doljani were destroyed.¹⁴⁵⁴ The hamlet of Kraj was destroyed by shelling.¹⁴⁵⁵

585. The deliberate destruction of houses in Doljani occurred on 21 and 22 April 1993 and, as in Sovici, only BH Muslim houses were targeted.¹⁴⁵⁶”

“¹⁴⁴⁴ - Witness JJ, T 5008; exhibit PP 357 (confidential).
¹⁴⁴⁵ - Witness Y testified that on 17 April 1993 there was two tanks at Obuc, which fired at the upper part of Sovici from the mosque down taking all of the buildings, one after the other; witness Y, T 3369-3370.
¹⁴⁴⁶ - Witness A testified that the only houses destroyed during the attack were those of Ramo and Omer Kovac, witness A, T 500; witness W, T 3181.
¹⁴⁴⁷ - Witness C testified that she was in her house in Doljani on 17 April 1993, and that in Sovici the hamlets of Kovici, Rudina were shelled as well as in Doljani the hamlet called Kraj, and that further down in Donji Doljani shelling was not possible as it was a mixed BH Muslim and Croat population. The targeted hamlets were all BH Muslim, witness C, T 856-861. However, this testimony is not consistent with the testimonies of witness Y, who states that the upper part of Sovici was targeted, witness Y, T 3369-3370. Witness A testified that the only houses destroyed were those of Ramo and Omer Kovac, witness A, T 497, witness W, T 3181.
¹⁴⁴⁸ - Witness W, T 3180-3181; witness C testified that the houses were being set on fire on approximately 21 or 22 April 1993, witness C, T 862; witness X, T 3327; witness JJ, T 5004; exhibit PP 357 (confidential).
¹⁴⁴⁹ - Witness W testified “Can you tell the Chamber, please, what was the condition of the houses in Sovici when you passed through the village at that time? A. But I was passing by Croat houses all the time. Q. Well, what was the condition of those houses? A. Well, naturally like today. Nobody ever touched them, not a bullet nor anything else” witness W, T 3179-3181.
¹⁴⁵⁰ - Defence witness NN, T 12900, 12994.
¹⁴⁵¹ - Exhibit PP 344.
¹⁴⁵² - Exhibit PP 928, pp 74, 75,77.
¹⁴⁵³ - Witness RR, T 6441-6459, while being taken from Orlovac to Krcine, saw the village on fire.
¹⁴⁵⁴ - Witness JJ, T 5008; exhibit PP 357 (confidential).
¹⁴⁵⁵ - Witness C, T 857.
¹⁴⁵⁶ - Witness Falk Simang testified that KB set to fire all BH Muslim houses in Doljani after the death of Mario Hrkac (Cikota), witness Falk Simang, T 3809-3810. See also Rados Diary, exhibit PP 928, pp 78-79, where it is stated that after the death of Cikota on 20 April 1993, Tuta (Mladen Naletilic) ordered all Muslim houses in Doljani to be burnt down and that this continued at least until 22 April 1993.”

Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, paras. 418, 425-426, 428:

“418. According to the Centre for Human Rights in Zenica, 180 of the existing 200 Muslim houses in Ahmici were burned during the attack ⁸⁶⁰ . The Commission on Human Rights made the same finding in its report dated 19 May 1993 ⁸⁶¹ . Prosecution exhibit P117 also showed that nearly all the Muslim houses had been torched, whereas all the Croat houses had been spared ⁸⁶² . The witnesses Bower ⁸⁶³ and Casim Ahmic ⁸⁶⁴ confirmed the information . The witness Nura Pezer stated, on this point, that the day before the attack, she had seen a Croat from the village, named Ivica Vidovic, who, in the presence of another man, was pointing out the Croat houses and the Muslim houses ⁸⁶⁵ . The British UNPROFOR battalion reported having seen houses burning in ?antici on 17 April ⁸⁶⁶ . According to the ECMM observer Morsink, practically all the Muslim houses in the villages of Ahmici, Nadioci , Pirici, Sivrino Selo, Gacice, Gomionica, Gromiljak and Rotilj had been burned ⁸⁶⁷ . He stated that the houses had all been set alight with petrol and oil ⁸⁶⁸ . Likewise, according to the witness Watters, the Muslim houses had been systematically burned in Nadioci, Ahmici and ?antici ⁸⁶⁹ . The witness Baggesen, ECMM observer, reported that "it was a whole area that was burning" ⁸⁷⁰ . The report of the Joint Busovaca Commission, dated 21 April, showed that the ICRC had made enquiries that afternoon in Ahmici and noted that all the Muslims situated in Ahmici-west had left and that 90% of the houses together with the area's mosque, had been destroyed ⁸⁷¹ . The report stated moreover that about 200 Muslim women and children were crowded into 3 houses in Novaci, and that half of them wished to be evacuated ⁸⁷² .”

“⁸⁶⁰ P242, "Report on inter-ethnic violence in Vitez, Busovaca and Zenica in April 1993", Annex N to ECMM H/S 720, 15 May 1993. Meeting with the Centre for Human Rights in Zenica, p. N-2.

⁸⁶¹ P184, p. 5, para. 20.

⁸⁶² - Witnesses Abdullah Ahmic, PT p. 3768; M, PT p. 4410; Elvir Ahmic, PT p. 3255-3256.

⁸⁶³ This witness, a member of the Prince of Wales Regiment in Bosnia Herzegovina (2nd British Battalion which succeeded the Cheshire Regiment), who remained in the area from April to November 1993, stated that some houses, where Croats lived, remained intact. PT p. 9361.

⁸⁶⁴ PT of 1 October 1997 p. 3136.

⁸⁶⁵ Witness Nura Pezer, PT pp. 3883-3884.

⁸⁶⁶ P242, "Report on inter-ethnic violence in Vitez, Busovaca and Zenica in April 1993", Annex N to ECMM H/S 720, 15 May 1993. Events reported by ECMM and UN, 13-30 April 1993, Annex R to ECMM H/S 720, 15 May 1993, p. R-3.

⁸⁶⁷ Witness Morsink, PT pp. 9900-9901.

⁸⁶⁸ Witness Morsink, PT pp. 9901-9902.

⁸⁶⁹ Witness Watters, PT pp. 3602-3605.

⁸⁷⁰ Witness Baggesen, PT of 22 August 1997 p. 1928.

⁸⁷¹ This information appears also in the report of the ECMM whose team accompanied the ICRC team. P242, "Report on inter-ethnic violence in Vitez, Busovaca and Zenica in April 1993", Annex N to ECMM H/S 720, 15 May 1993. Events reported by ECMM and UN, 13-30 April 1993, Annex R to ECMM H/S 720, 15 May 1993, p. R-7.

⁸⁷² P696: report of the Joint Busovaca Commission dated 21 April (witness Morsink), para. D.”

“425. The methods of attack and the scale of the crimes committed against the Muslim population or the edifices symbolising their culture sufficed to establish beyond reasonable doubt that the attack was aimed at the Muslim civilian population. An ECMM observer noted that, further to his visit to Ahmici on 22 April 1993, "apart from the systematic destruction and the religious edifices that had been dynamited, what was most striking was the fact that certain houses remained intact, inhabited even, and one wondered how those islands had been able to survive such a show of violence" ⁸⁹⁰ . Several international observers who went to the village a few days after the attack on Ahmici reported finding "a phenomenon of a ferocity and a brutality almost impossible to describe" ⁸⁹¹ . The accused went to Ahmici on the morning of 27 April and noted the scale of the damage: houses burnt , livestock slaughtered and an entirely deserted village ⁸⁹² . He conceded, both to the Commission on Human Rights representatives on 5 May 1993 ⁸⁹³ and in his testimony ⁸⁹⁴ before the Trial Chamber that crimes had been committed in Ahmici.

426. Witness Baggesen said of the attack on Ahmici: "We think that this operation, military operation against the civilian population was to scare them and to show what would happen to other villages and the Muslim inhabitants in other villages if they did not move out. So I think this was an example to show" ⁸⁹⁵ , especially given what Ahmici symbolised for the Muslim community.”

“⁸⁹⁰ PT p. 23584.

⁸⁹¹ Witness Thomas, PT pp. 2672 and 2674.

⁸⁹² Witness Blaškic, PT pp. 19036-19037.

⁸⁹³ P 184; witness Marin, PT p. 13631.

⁸⁹⁴ Witness Blaškic, PT pp. 19025-19026: "I toured a part of the village. I saw burned houses in the village, and there was still some embers. They may have been burned during the night or set fire to. I saw the minaret and mosque and other signs of destruction".

⁸⁹⁵ Witness Baggesen, PT of 22 august 1997 p. 1935.”

“428. All that evidence enables the Trial Chamber to conclude without any doubt that the villages of Ahmici, Pirici, ?antici and Nadioci had been the object of a planned attack on the Muslim population on 16 April 1993.”

P.46.2. Evidence of houses and businesses being systematically destroyed.

P.46.3. Evidence of the destruction of a part of a village by means of shelling.

A. Legal source/authority and evidence:

Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, paras. 614, 626:

“614. The Trial Chamber is satisfied that houses and shops belonging to Bosnian Muslims in the town of Celinac were shelled and set on fire by Bosnian Serb forces.¹⁵⁵⁶ Bosnian Muslim homes were also broken into and appliances and other valuables were taken away.¹⁵⁵⁷”

“¹⁵⁵⁶. Mehmet Talic, T. 24164; BT-90, T. 17072 (closed session); Radosava Dzombic, T. 23446, 23449; See, e.g . ex. P1991, “Morning news from Radio Banja Luka on 11 June 1992”, concerning four bomb attacks being carried out against private shops in Celinac. The town of Celinac was visited by the Trial Chamber and the Parties during the site visit which took place in March 2004.

¹⁵⁵⁷. BT-90, T. 17101-17102 (closed session).”

“626. […] Following the expiration of the ultimatum, the Bosnian Muslim village of Hambarine was shelled by Bosnian Serb forces for the entire day.¹⁵⁹⁵ Houses were targeted indiscriminately. Tanks passed through the village and shelled the houses causing civilian casualties. Houses were looted and set on fire.¹⁵⁹⁶”

“¹⁵⁹⁵. Hambarine was visited by the Trial Chamber and the Parties during the site visit which took place in March 2004 .

¹⁵⁹⁶. Muharem Murselovic, T. 12589 -12590, 2700-2701; Ivo Atlija, T. 5556; BT-33, T. 12667 (closed session); Elvedin Nasic, T. 12720; BT-35, ex. P563, T. 6808-6810 (under seal); BT-33, T. 4032-4033 (closed session).”

P.47. Evidence that the destruction was part of a policy of reprisals.

P.47.1. Evidence of instructions to burn houses in reprisal against a resistance movement.

A. Legal source/authority and evidence:

Trial of Franz Holstein and Twenty-Three Others, Case No. 56, Permanent Military Tribunal at Dijon, 3rd February 1947, United Nations War Crimes Commission. Law Reports of Trials of War Criminals. Volume VIII, 1949, p. 22-23:

“According to the evidence presented by the prosecution, the accused took part in combined operations against members of the French resistance movement: The operations were decided upon and planned at a conference held at Dijon under the auspices of General Hederich, Feldkommandant and “ Befehlshaber Nord-Ost Frankreich ” (G.O.C., North-East, France), in June, 1944. Six of the accused attended in their respective commanding capacities : Irmisch, Hippe, Major, Hulf, Kruger and Verfurt. They were to provide the troops and issue instructions, and all had to take personal part in the operations at the head of their units. The conference decided that the French resistance movement in the area was to be suppressed and annihilated, and that severe measures were to be taken against them and the population “ in reprisals ” for their struggle against the occupying authorities or assistance given in this respect. In the light of some of the evidence, such measures were to consist in executing on the spot every member of the resistance, captured with arms, pursuant to Hitler’s orders to kill all “ terrorists ” or “ saboteurs ”; in the burning down of three farms for every German soldier killed, and of one farm for every German soldier wounded. The events described by the Prosecution showed that, in carrying out the above instructions, the accused killed a large number of inhabitants, destroyed by fire many buildings in various localities, and pillaged property of the population.”

“421. The Trial Chamber notes at the outset that according to the witness Stewart, it was barely plausible that soldiers would have taken refuge in the mosque since it was impossible to defend ⁸⁷⁶ . Furthermore , the mosque in Donji Ahmici was destroyed by explosives laid around the base of its minaret ⁸⁷⁷ . According to the witness Kaiser, this was "an expert job" which could only have been carried out by persons who knew exactly where to place the explosives ⁸⁷⁸ . The witness Zec stated that he had heard a Croatian soldier speaking on his radio asking for explosives "for the lower mosque in Ahmici" ⁸⁷⁹ . The destruction of the minaret was therefore premeditated and could not be justified by any military purpose whatsoever. The only reasons to explain such an act were reasons of discrimination.”

“⁸⁷⁶ Witness Stewart, PT p. 23864.

⁸⁷⁷ Witness Thomas, PT pp. 2645-2650; PT p. 23660.

⁸⁷⁸ Witness Kaiser, PT p. 10663. See also witness Thomas, PT p. 2650.

⁸⁷⁹ Witness Zec, PT p. 4286-4287.”

7.2. Evidence that the seizing was not required by military necessity.

A. Evidentiary comment:

As stated in Prosecutor v. Blagoje Simić, Miroslav Tadić and Simo Zarić, Case No. IT-95-9-T, Judgement (TC), 17 October 2003, para. 100:

“100. The Trial Chamber notes that in certain circumstances, property may be requisitioned lawfully under international humanitarian law. These circumstances are defined by The Hague Regulations and are limited to the following: taxes and dues imposed within the purview of the existing laws,¹⁷⁹ or requisitions for the needs of the army of occupation, which shall be proportional to the resources of the country.¹⁸⁰ Private property also may be seized if it is needed for the conduct of military operations and should be returned and compensated upon termination of the conflict.¹⁸¹ Monetary contributions may be collected only under a written order issued by the commander-in-chief in accordance with the tax rules in force and for every contribution a receipt should be issued.¹⁸²”

“¹⁷⁹. Articles 48 and 49, The Hague Convention (IV).

¹⁸⁰. Article 52, The Hague Convention (IV).

¹⁸¹. Article 53, para. 2, The Hague Convention (IV).

¹⁸². Article 51 reads: (1) No contribution should be collected except under a written order, and on the responsibility of the commander-in-chief. (2) The collection of the said contributions shall only be effected as far as possible in accordance with the rules of assessment and incidence of taxes in force. (3) For every contribution a receipt shall be given to the contributors. For lawful appropriation of property see also Naletilic Trial Judgement, para. 616.”

Moreover, the seizure of foreign property in armed conflicts is not forbidden under all circumstances. The use of private property is also allowed by international law under certain circumstances, and therefore not punishable as a war crime. According to Werle, there is a two-step process in the evaluation of the lawfulness of the expropriation under international humanitarian law. “It must first be determined whether the conduct in question is permissible at all[…]. If the confiscation is not already prohibited by a specific provision, it must be examined, in a second step, whether the expropriation is justified by military necessity.” (Werle, Principles of International Criminal Law, paras. 998-999).

P.48. Evidence that the property that was seized was not to fulfil to the military needs of the hostile power.

A. Legal source/authority and evidence:

IG Farben Trial, UNWCC, LRTWC, Vol X, p. 50:

“If management had been taken over in a manner that indicated a mere temporary control or operation for the duration of the hostilities, there might be some merit to the defence. The evidence, however, shows that the interests which Farben proceeded to acquire, contrary to the wishes of the owners, were intended to be permanent. The evidence further establishes that the action of the owners was involuntary, and that the transfer was not necessary to the maintenance of the German army of occupation. […]”.

Krupp Trial, UNWCC, LRTWC, Vol X, p. 73:

“It was alleged by the Prosecution that these acts of plunder and spoliation were carried out in consequence of a deliberate design and policy on behalf of the German Government. The territories occupied by Germany had been exploited in a ruthless way far beyond the needs of the army of occupation and in disregard of the needs of the local economy, and were out of proportion to the resources of the occupied territories.”

Von Leep (The High Command Trial) LRTWC, UNWCC, Volume XII, p. 93:

“We content ourselves on this subject with stating that such a view would eliminate all humanity and decency and all law from the conduct of war and it is a contention which this Tribunal repudiates as contrary to the accepted usages of civilized nations. Nor does military necessity justify the compulsory recruitment of labour from an occupied territory either for use in military operations or for transfer to the Reich, nor does it justify the seizure of property or goods beyond that which is necessary for the use of the army of occupation.”

P.49. Evidence of an organized seizure of property undertaken within the framework of a systematic economic exploitation of occupied territory.

A. Legal source/authority and evidence:

Prosecutor v. Zejnil Delalić, Zdravko Mucić, Hazim Delic and Esad Landžo, Case No. IT-96-21-T, Judgement (TC), 16 November 1998, para. 590:

“590. In this connection, it is to be observed that the prohibition against the unjustified appropriation of public and private enemy property is general in scope, and extends both to acts of looting committed by individual soldiers for their private gain, and to the organized seizure of property undertaken within the framework of a systematic economic exploitation of occupied territory. […]”