Prosecutor v. Rašević and Todović
Systemic Practice | Refusal to Disclose Fate | Crimes Against Humanity
The Court held that enforced disappearance is a relatively “new” crime, both in itself and as a crime against humanity, and that although its status is not specifically defined, the systematic practice of enforced disappearance constituted a crime against humanity under customary international law at the time of the conflict. The Court found the detainment facility's personnel responsible for transferring detainees to the control of the Bosnian Serb military and military police, holding that the act of taking detainees out of the detention facility to an unknown location met the elements of the offense of enforced disappearance, and that these acts were authorized by a military organ of the State. It further held that the detainees were deprived of the protection of law for a long period of time, since neither the detention facility staff nor the State provided any information regarding their whereabouts. The Court further noted that the removals of detainees to unknown locations were conducted repeatedly and systematically over a number of months and involved large numbers of detainees. It also added that such acts were coupled with clear attempts to hide and disguise the fate of the detainees, with a view to removing any possibility that their whereabouts could be registered or traced. Some detainees were repeatedly told that the victims were about to be exchanged, and the military described them in official documents as "about to be released". In this respect, the Court found that giving false information about the victims' whereabouts or fate constituted refusal or failure to give information, thus constituting the crime of enforced disappearance. Finally, the Court noted that the crime of enforced disappearance is legally distinct from other crimes that may have been committed in its aftermath. It found that - particularly when the crime is committed during an armed conflict - it is possible to conclude that persons who were forcibly disappeared were also killed, and that such killings constitute separate acts and crimes.
February 28, 2008
Article 172(1)(i) [BCC]
Facts of the Case
Between 1992 and 1993, around 200 detainees of non-Serb origin who were held at a detention facility in Foča disappeared. Some of their bodies were discovered in mass graves, while others remain unaccounted for to this day. In August 1992 a process of "exchanges" of detainees took place at the detention facility: detainees were taken out of their rooms for exchanges, escorted to the gate, and never seen again. Many detainees who were told that they were to be exchanged were in fact forcibly disappeared. Detainees who subsequently disappeared were also taken away from the detention facility for other purposes. In September 1992, guards roll-called a group of detainees from a list of names, some of whom were injured or sick, to go pick plums. These detainees were told that they would be away for just a few days. However, they never returned to the detention facility and were never seen again. In August 1992, approximately 55 detainees were roll-called from lists of those who were over 65, younger than 18 or ill, and placed in a separate room. The next morning they boarded a bus along with two military escorts and left the detention facility to be released in Montenegro. The bus crossed into Montenegro where it was taken over by a police vehicle, which ordered the bus to return to the detention facility. The detainees were placed in rooms separate from the others. Shortly afterwards, a guard roll-called the names of 20 young detainees from a list, saying that they would be exchanged. These detainees were never seen again: some remain missing, while the bodies of some of the others were later found.