30 May 2013 - ICTY

49246
Simatović’s meeting prior to the attack on Lovinac in June 1991. This meeting stands out as
one where there is evidence that the subject-matter of the meeting involved the commission of
crimes. As analyzed in the Judgement however, the quality of the evidence in this respect
(hearsay, unclear factual basis for certain assertions, missing details of the conversation at the
meeting) is not such that it would, for me, tip the scale towards finding that Simatović shared
the intent to forcibly and permanently remove the majority of non-Serbs from large parts of
Croatia and Bosnia-Herzegovina between 1991 and 1995 through deportation and forcible
transfer. I further note that it remained unclear what exactly happened during the Lovinac
attack in June 1991, as explained in the Judgement.
2417. I have asked myself to what extent the pattern of events would be sufficient to infer
that the Accused intended to permanently remove the non-Serb population from wide areas of
Croatia and Bosnia-Herzegovina. But the pattern is unclear in many respects. What are the
elements that blur the picture? The composition of the Unit was not consistent. Men of
various origin and background were for shorter or longer periods of time involved in the
Unit’s activities. In relation to the SDG, it could be established only that the Accused
financed, supported, and organized its involvement in various operations, limited to 1994 and
1995. 5112 Finally, the picture is blurred sometimes by the fact that the commission of crimes
stands somewhat apart from the actual military operations, which makes the connection to the
involvement of the Accused in the operations, or in their preparation, even more remote.
2418. In her dissent, Judge Picard focuses on various pieces of evidence suggesting a link
between those committing crimes and the Accused. As the Judgement makes clear, the
Accused had certain links and involvement with persons and groups who also committed
crimes. Whereas Judge Picard seems to consider the various pieces of evidence, irrespective
of their individual probative value, to be indicative on the whole of the control the Accused
exercised over the perpetrators and, thus, the Accused’s culpable mens rea, the Judgement has
analyzed all these pieces of evidence in order to determine their probative value. In doing so,
the majority, in my view, was not blind to the overall picture created by the evidence. Holding
positions of broad influence, and being omnipresent in a war situation, does not necessarily
mean that one shares the intent to commit crimes. Mathematically speaking, if on five
different occasions I was each time 70 per cent convinced that the Accused shared the
necessary intent, this would not necessarily result in me being 100 per cent convinced, let
5112 I note that most of the SDG’s crimes were committed in 1991 and 1992, where the Trial Chamber did not
find that the Accused directed, organized the involvement, supported, trained, or financed the SDG.
Case No. IT-03-69-T 872
30 May 2013